Perhaps one of the most pressing issues when going through the process of a divorce is the asset division. Assets refer to the belongings, holdings, and accounts that the divorcing individuals have. One of the most obvious assets that will need to be managed in a divorce is a house. Other assets under consideration for division include vehicles, rental properties, savings accounts, jewelry, and other items of value.
In the state of Massachusetts, the law denotes that the division of assets during a divorce must be “equitable.” Equitability is determined by its fairness, and the matter is somewhat subjective. It also means that there is no guarantee that assets will be divided entirely equally — if one party in a divorce can make a convincing argument that receiving a larger share of the assets is fair, the other party may end up with fewer assets during the division.
While some couples are able to come to an agreement about how to divide up assets on their own, many will see disputes arise during the process. Asset division is often rife with both emotional and financial concerns, and it can be difficult to come to an agreement over how to divide up the items and property that defined a marriage as it comes to an end.
One of the most important things to understand during the asset division of a divorce is the difference between marital and separate property. Technically, in the state of Massachusetts, all property is up for consideration in the division of assets, and a judge could award separate property as well, but typically, separate property remains with the original owner. What’s the difference between these two types of property?
Marital property refers to all property that was acquired over the course of the marriage. Regardless of whose name is on the deed to a house, for instance, it is marital property if it was purchased during the marriage. The same is true for cars purchased during this time or bank accounts opened during the marriage.
Separate property refers to the assets that an individual brought into the marriage. This might include a family heirloom that was owned before the wedding day, a savings account solely owned prior to getting married, or an inheritance given to only one party.
Making matters even more complicated is the fact that the divisions between marital and separate property are not always obvious. If one party owned a savings account prior to the marriage but then added their spouse to the account and both individuals put money into the account going forward, it has become commingled property. Likewise, one individual may own a house, but if both members of the marriage end up making mortgage payments or funding improvements to the property, the line is no longer quite so clear about whose house it truly is.
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One of the most pressing questions during a divorce will likely be who gets to keep the house. There is no straightforward answer to this question, and the possession of the marital home will be determined on a case-by-case basis. Again, the court is going to look to make the division of assets “equitable,” and the house is usually the largest asset of value.
One major factor that may determine who gets to keep the house is the presence of children. If there are still children living in the home, it is very likely that the court will award possession of the house to the custodial spouse or to whoever will be with the children during the bulk of their weekday schooling. The courts tend to focus on stability and routine as benefits for children’s development.
It is also possible that no one is awarded the house. The court may rule that the house should be sold and that the resulting profit will be split between the parties — potentially unevenly to account for mortgage payments made prior to the marriage.
The most accurate answer to who gets to keep the house during asset division in a divorce is the person who the court deems most equitably owed possession of the house.
There are many factors that a court may consider while determining the equitable division of assets during a divorce. These factors include the following:
As you can see, asset division during a divorce is not a simple matter. The courts are looking at many factors, and some of them are quite subjective. A qualified and experienced divorce lawyer can help provide context and present evidence to ensure that an equitable division of the assets considers the full scope of an individual’s circumstances.
It’s important to find a lawyer who will work with you as an individual and really understand your case. The asset division portion of a divorce can be complicated and challenging, but having an experienced lawyer on your side provides you with the assurance that you’re putting forward the best case.
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