Property Division

During divorce proceedings, spouses will need to discuss how they are planning to divide their marital property.  

In New Hampshire and Massachusetts, any debts or assets that are owned by you and/or your spouse, regardless of whose name the title to the property is held, is considered property subject to distribution in a divorce.  This property includes all property acquired during the marriage as well as property owned by your spouse prior to your marriage, absent a prenuptial agreement. 

New Hampshire

Specifically, NH RSA 458:16-a(I) provides:Property shall include all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties.  Intangible property includes, but is not limited to, employment benefits, vested and non-vested pension or other retirement benefits, or savings plans.  To the extent permitted by federal law, property shall include military retirement and veterans’ disability benefits.

It is important to understand that the Court will order an equitable division of property between divorcing spouses.  So what is equitable?

An equitable division of property is generally considered to be an equal, or 50/50, division of all assets and liabilities.  Notwithstanding, just because property is subject to distribution in a divorce, it does not mean it is equitable to divide a particular asset or liability.  There are a variety of factors taken into consideration which establish that an equal division of all assets and liabilities would not be equitable.  These include, but are not limited to, the following:

• The duration of the marriage.
• The age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party.
• The opportunity of each party for future acquisition of capital assets and income.
• The actions of either party during the marriage which contributed to the growth or diminution in value of property owned by either or both of the parties.
• Significant disparity between the parties in relation to contributions to the marriage, including contributions to the care and education of the children and the care and management of the home.
• Any direct or indirect contribution made by one party to help educate or develop the career or employability of the other party and any interruption of either party’s educational or personal career opportunities for the benefit of the other’s career or for the benefit of the parties’ marriage or children.
• The expectation of pension or retirement rights acquired prior to or during the marriage.
• The tax consequences for each party.
• The fault of either party if said fault caused the breakdown of the marriage.
• The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage.
• The value of any property acquired by gift, devise, or descent.

Massachusetts

Similar to New Hampshire, Massachusetts law (Mass. Gen. Laws ch. 208, § 34) takes into consideration various factors in the division of assets and liabilities when determining what is an “equitable” property division.  These include, but are not limited to, the following:

• Length of the marriage.
• Conduct of the parties during the marriage.
• Age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
• The opportunity of each party for future acquisition of capital assets and income.
• The amount and duration of alimony, if any, awarded to a party.

Mass. Gen. Laws ch. 208, § 34 empowers the courts to deal broadly with property and its equitable division incident to a divorce proceeding.  This means that marital and nonmarital property are considered by the court when deciding a fair financial settlement.  Massachusetts defines nonmarital property as “property not derived from the marital partnership” whereas marital property refers to any property acquired by a couple in the course of their marriage.  Rice v. Rice, 372 Mass. 398, 361 N.E.2d 1305 (1977).  In spite of this, just because nonmarital property is considered by the court when evaluating property distribution, it does not necessarily mean dividing nonmarital property is equitable. 

The experienced legal team at Smith-Weiss Shepard Kanakis & Spony, P.C. can help you evaluate the various options you have, which may also involve tax considerations, valuations, impending or existing bankruptcies, and different needs and interests of the parties which may determine how divisions occur.  Understanding your assets and liabilities and the options you have, and thinking about creative solutions, can help you determine the best approach to fit your needs and result in an equitable division.