judge can divide nonmarital assets


            Posted on March 13, 2016  

              Judge can divide nonmarital assets


Q         I’m a citizen of England. Before I got married, I acquired a substantial amount of property through both my hard work and inheritance. I married an American woman. We jointly own a home on Nantucket in which we now live about half the year. We have other assets in the United States. The other half the year, we live in the United Kingdom

            Our 30-year marriage is at an end. Should I file for divorce in Massachusetts or in England? Should I stop working and let the executive vice president take over the company?



A         Your question raises lots of issues. This column only addresses the division of marital assets. Next Sunday I’ll write about your alimony issues and take up the tax issues the Sunday after that.

The English law on division of marital assets may be changing. Until a few years ago, all assets were included in the marital estate.  Division of those assets was determined by the judge’s discretion. In 2014, some English judges started a three-step analysis. First, they separate the marital from nonmarital assets. Second, they divide the marital assets based on the facts of each case. Third, to ensure a fair final decision, the judge may divide the nonmarital assets.

Experienced English family lawyers should know if the judge assigned to a case is an old-time divider of all assets or three-stepper. Some lawyers claim that, either way, the bottom line is about the same. While only time will tell, that doesn’t help your pocketbook.

Massachusetts judges start with a presumption that the marital pot includes all property, no matter where in the world it is located and no matter if it is held in trusts established by grandparents, etc. Then the party who wants to claw back assets has the burden of proving why that should happen.

For example, assume your inherited assets were managed by a professional. You’d argue that, because no marital sweat-equity was involved in increasing the value of those assets, they ought not to be part of the marital estate. Or, if you proved that when you got married your business was worth $5 million and its now worth $10 million, you’d argue that first $5 million ought not to be in the marital estate.

Assume all family assets were divided into nonmarital and marital and that the value of the nonmarital assets is much higher than the marital assets. The Massachusetts judge has discretion to award your wife a larger share of the marital estate. And, if that’s not enough to get to an equitable division, as in England, the Massachusetts judge can also order a partial division of the nonmarital estate.

Trying to predict how an English or Massachusetts judge might divide property is more of an art than a science. The only sure thing is that, whichever jurisdiction you chose, it’ll hurt your pocketbook.