USA – MASSACHUSETTS Law and Practice Contributed by: Steven E Gurdin, Barbara L Drury, Carlos A Maycotte, Stephen A MacKenzie and Kelly A Schwartz, Fitch Law Partners LLP
To determine an equitable division of marital prop ‑ erty, the Massachusetts Probate and Family Court will weigh a variety of factors. Pursuant to statute, Massachusetts General Law, Chapter 208, Section 34, the court is required to consider certain factors when making a determination as to equitable division, including: • length of the parties’ marriage; • each party’s conduct; • each party’s age; • each party’s health; • each party’s station; • each party’s occupation; • each party’s income; • each party’s employability and vocational skills; • each party’s estate; • each party’s liabilities; • each party’s needs; • each party’s opportunity to acquire capital assets Pursuant to the same statute, courts may, but are not required to, consider each party’s contributions to homemaking and their estates. At the outset of a divorce, each party must make cer ‑ tain financial disclosures. Supplemental Probate and Family Court Rule 410 sets forth numerous docu ‑ ments that must be exchanged between the parties, including income tax returns, pay stubs, bank and brokerage account statements, and loan applications. Supplemental Probate and Family Court Rule 401 also requires the parties to exchange financial statements using a court-prescribed form that sets forth each party’s income, assets, debts, and expenses. and income in the future; • any alimony award; and • the needs of the parties’ children. The parties to a divorce action are also entitled to engage in discovery to collect relevant documents and information from each other, as well as from third parties or entities. For example, a party may elect to take the other’s deposition, request that the other party provide additional documents (eg, credit card statements, life insurance documents, budgets and financial planning data), or subpoena the other party’s employer for income records and employment infor ‑
mation. The scope and method of discovery must comport with the Massachusetts Domestic Relations Procedure Rules and, if not, the other party – or, in some cases, a third party or entity – can seek protec ‑ tion from the court. There can be unique considerations when dividing certain types of assets or interests associated with a party in a divorce. For example, whether a party’s ben ‑ eficial trust interest is considered marital property and subject to equitable division will require an extensive analysis of the trust and an assessment of whether the party’s interest is “fixed and enforceable” or is instead “too remote or speculative” (see Levitan v Rosen , 95 Mass App Ct 248, 253 (2019)). If a court determines a party’s trust interest is more akin to an “expectancy” and not marital property, the party’s interest may not be divided but could still be relevant to the court’s consideration of a party’s opportunity to acquire income and capital assets in the future (see id.) 2.4 Spousal Maintenance Massachusetts considers requests for spousal main ‑ tenance (“alimony”) on a case-by-case basis after review of the relevant facts. The overall standard for considering alimony awards is the recipient’s need and the parties’ financial circumstances (eg, payor’s ability to pay). Key factors considered by the court in determining alimony include, without limitation, the length of the marriage, the age of the parties, the health of the parties, both parties’ incomes, both par ‑ ties’ contributions to the marriage (both economic and non-economic), and the parties’ lifestyle during the marriage. During the pendency of a divorce action, a party may apply for interim alimony by way of a motion for tem ‑ porary orders, which will be scheduled for a hearing. Each party is required to submit to the court current, accurate, and complete financial statement forms that identify each party’s income, expenses, assets and liabilities, prior to a motion hearing. In the absence of an agreement by the parties, the court has discretion to enter an alimony obligation through a temporary order, which will remain in place through the pendency of the action or until further order of the court.
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