Skylark Law & Mediation, PC

In Massachusetts the division of marital property in a divorce case is controlled by M.G.L. Chapter 208 Section 34, which states in pertinent part:

“In fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each of the parties, shall consider the length of the marriage, the conduct of the parties during the marriage, the 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 for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.”

The court has broad discretion in how to apply these numerous factors. Click here to learn more about property division.

Alimony is paid by a higher income spouse to the other spouse to allow the recipient to continue to live in the lifestyle to which they were accustomed during the marriage, assuming there is enough income to do so, for a reasonable period of time. The Alimony Reform Act provides for multiple types of alimony, and for maximum amounts and duration of alimony.

Click here to learn more about alimony.

Child Support is the amount of money paid by one parent to the other parent for the support of the children’s expenses. Child Support is calculated using the Massachusetts Child Support Guidelines, which are updated every four years. The formula is usually presumptive, and can be calculated online using our Child Support Guidelines Worksheet here.

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In Massachusetts, the divorce court has the ability to divide retirement accounts and pensions. Whether or not all or part of a retirement account is considered marital property depends on the factors in M.G.L. Chapter 208 Section 34. If a retirement account is considered marital property it may be divided or transferred just like other marital property, regardless of original ownership.

Unlike withdrawing funds from a retirement account in other circumstances, as part of a divorce, ex-spouses are permitted to transfer retirement assets without a taxable event. This one-time IRS exception allows ex-spouses to divide retirement assets equitably without incurring negative tax consequences to the division. The document required to complete this transfer is called a Qualified Domestic Relations Order (“QDRO”).  Many companies, like Gray Jay Endeavors, LLC offer flat fee preparation of QDROs. Click here to learn more about QDROs. 

In a Massachusetts Divorce, Supplemental Probate Court Rule 401 provides that, within 45 days after the date of service of the Summons, each party must serve on the other party a complete and accurate financial statement showing, insofar as possible, the assets, liabilities and current income and expenses of both parties and children involved in the case.  In a mediation or collaborative divorce these are often prepared and exchanged voluntarily.

The form of the financial statement which each party must complete is dependent upon his or her income. A party whose income equal or exceeds $75,000.00 must complete the long form financial statement. A party whose income is less than $75,000.00 must complete the short form financial statement.

In the event a hearing on a motion for temporary orders or a pretrial conference is scheduled, financial statements by both parties shall be filed with the court and exchanged between the parties no later than two (2) business days prior to the hearing or the conference without the necessity of a request for such statements.

When there is an open court case, either party may request a Financial Statement from the other every ninety (90) days and if such a written request is made, then a Financial Statement shall be filed within ten (10) days.

You should immediately begin working on your Financial Statement and provide a draft copy to your attorney. It is very important that you complete this document accurately, and completely. The Financial Statements are signed under the pains and penalties of perjury. The consequences to lying or filing an incomplete Financial Statement are significant, and could include a Judge finding you to be an unreliable witness at trial (i.e. take all relevant testimony from your spouse only). In addition, if a settlement is reached in your case and it is later discovered that a particular asset was left off your Financial Statement, the settlement could be voided for fraud.

You should take particular care in completing your Financial Statement and err on the side of including everything. If you are not sure if something belongs on a Financial Statement you should consult with your attorney.