NISSENBAUM’S STANDARD SET OF
SUMMARIES OF LAW - DIVORCE
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II. Equitable Distribution.
2.1 In dividing assets and awarding an equitable distribution pursuant to G.L. chapter 208, Section 34, the Court has broad discretion, deCastro v. deCastro, 415 Mass. 787, 791 (1993); Lauricella v. Lauricella, 409 Mass. 211, 214 (1991); Harris v. Harris, 26 Mass. App. Ct. 1004 (1988); Drapek v. Drapek, 399 Mass. 240, 243 (1987); Bianco v. Bianco, 371 Mass. 420 (1976); Rice v. Rice, 372 Mass. 398, 401 (1977), after consideration of all the factors. Caldwell v. Caldwell, 17 Mass. App. Ct. 398, 425 N.E.2d 834 (1984); Ross v. Ross, 385 Mass. 30 (1982); Rolde v. Rolde, 12 Mass.App.Ct. 398, 425 N.E.2d 388 (1981).
2.2 A distribution of marital assets is based upon an implied partnership between the parties during the marriage where the contributions to the marital enterprise are reflected in the ultimate division of assets. Savides v. Savides, 400 Mass. 250, 252-53 (1987); Davidson v. Davidson, 19 Mass. App. Ct. 364 (1985); Heacock v. Heacock, 402 Mass. 21, 24 (1988); Bacon v. Bacon, 26 Mass. App. Ct. 117, 119 (1988).
2.3 "The purpose of...the division of marital property is to recognize and equitably recompense the parties' respective contributions to the marital partnership." Heacock v. Heacock, 402 Mass. 21, 24 (1988) .
2.4 A significant disparity in the estates of the parties should be considered. Grubert v. Grubert, 20 Mass. App. Ct. 811, 483 N.E.2d 100 (1985).
2.5 a. "The underpinning of any order for division of property under � 34 is . . . the judge's consideration of the contributions, in the statutory terms, of each spouse, as well as other factors in existence at the dissolution of the partnership which have been traditionally applied in determining alimony." Davidson v. Davidson, 19 Mass. App. Ct. 364, 376 (1985).
b. The judge’s findings must indicate that he or she has weighed all of the required statutory factors. Bianco v. Bianco, 371 Mass. 420, 423 (1976). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
2.6 It is entirely proper for the Trial Court to consider the opportunity of each spouse for "future acquisition of capital assets and income." Cabot v. Cabot, 18 Mass. App. Ct. 903 at 904 (1984).
2.7 a. A probate judge has broad discretion in awarding alimony and making equitable property divisions, but must 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 and the opportunity of each for future acquisition of capital assets and income." G. L. c. 208, � 34. Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
b. In addition to these mandatory factors, "the judge may, in his or her discretion 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.' " Drapek v. Drapek, 399 Mass. 240, 243 (1987), quoting from G. L. c. 208, �� 34. Cabot v. Cabot, 18 Mass. App. Ct. 903, 905 (1984).
2.8 In fashioning an award the Court may properly take into account the fact that the husband wasted assets that could have been used for marital purposes. Ross v. Ross, 385 Mass. 30, 37-38 (1982).
2.9 A party may not "alienate assets while continuing to enjoy their fruits and expect the court to hunt for an unencumbered source of income to satisfy obligations." Barron v. Barron, 28 Mass. App. Ct. 755 (1990).
2.10 The equitable factors stated in Section 34 reflect a view of marriage as an implied partnership for the purposes of distribution of property. Savides v. Savides, 400 Mass. 250, 508 N.E. 2d 617 (1987).
2.11 Property in which a party acquires an interest before divorce may be considered or assigned in property division even when it does not come into his possession until after the divorce. Davidson v. Davidson, 19 Mass. App. Ct. 364, 474 N.E.2d 1137 (1985).
2.12 a. The uncertainty in value or the inalienability of a trust interest, in and of themselves are not sufficient to preclude considering the interest as subject to division. Lauricella v. Lauricella, 409 Mass. 211 (1991). Davidson v. Davidson, 19 Mass. App. Ct. 364, 372 (1985).
b. Court may include and divide a parties’ "present, enforceable, equitable right to use the trust property for his [own] benefit," Lauricella v. Lauricella, 409 Mass. 211, 216 (1991). See Comins v. Comins, 33 Mass. App. Ct. 28, 30-31 (1992).
c. "In making the determination of what to include in the estate, the judge is not bound by traditional concepts of title or property. 'Instead, we have held a number of intangible interests (even those not within the complete possession or control of their holders) to be part of a spouse's estate for purposes of �� 34.'" S.L. v. R.L., 55 Mass. App. Ct. 880, 882 (2002), quoting from Baccanti v. Morton, 434 Mass. 787, 794 (2001). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
d. Some interests in assets interests may be "too remote or speculative" to be included in the marital estate, S.L. v. R.L., 55 Mass. App. Ct. 880, 882 (2002), and do not present any opportunity for future acquisition. See Williams v. Massa, 431 Mass. 619, 628-629 (2000).
2.13 The purpose of Section 34 is to provide a mechanism whereby, no matter how the property has been acquired or how it is held, the court can distribute it between the parties in such a way as to provide for balanced disposition and economic justice. Pare v. Pare, 409 Mass. 292 (1991).
2.14 Section 34 does not require the judge to limit his order to consideration of which party made the greater financial contribution to the acquisition of the assets. DeCastro v. DeCastro, 415 Mass. 787 (1993).
2.15 The marriage as a partnership concept embodied in G.L.c. 208, Section 34 recognizes that one party often concentrates on the financial side of the family while the other concentrates on homemaking and child care. DeCastro v. DeCastro, 415 Mass. 787 (1993).
2.16 The concept of property assignment or equitable division under Section 34 must be read to apply in a broad sense to the value of all contributions of the respective spouses towards the marital enterprise. It contemplates something more than determining which spouse's money purchases a particular asset. Putnam v. Putnam, 5 Mass. App. Ct. 10, 17 (1977).
2.17 The weight to be given each factor in a particular case, in fashioning a judgment under Section 34, is left to the discretion of the trial justice. Handrahan v. Handrahan, 28 Mass. App. Ct. 186, 187 (1989). Ross v. Ross, 385 Mass. 30, 37 (1982).
2.18 In dividing the property, the issue of the parties' lifestyle is given great weight as what defines that standard are facts which disclose the way in which the parties led their lives during the marriage and how they will be able to maintain their separate lifestyles thereafter. Bacon v. Bacon, 26 Mass. App. Ct. 117, 121 (1988).
2.19 An equitable division of property does not result necessarily in an equal division. A division of property, based upon the factors enunciated in Section 34 need not be of precise parity. Belsky v. Belsky, 9 Mass. App. Ct. 852, 400 N.E. 2d 878 (1980); Cabot v. Cabot, 18 Mass App. Ct. 903, 462 N.E. 2d 1128 (1984); Johnson v. Johnson, 22 Mass. App. Ct. 955, 494 N.E. 2d 423 (1986).
2.20In addition to or in lieu of alimony, the court may assign to either spouse all or any part of the estate of the other. G.L. c. 208, �34. Rice v. Rice, 372 Mass. 398, 401 (1977).
2.21 The estate of a party includes all property to which he or she holds title, however acquired. Rice v. Rice, 372 Mass. 398, 401 (1977)
2.22 In order to be properly divided, assets must be properly valued.
2.23 Where there is a question of valuation concerning a marital asset, a trial judge, when faced with conflicting expert evidence, may accept or reject all or parts of the opinions offered. Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863 (1989), and cases cited. See Dewan v. Dewan, 30 Mass. App. Ct. 133, 135 (1991). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
2.24 "[T]he judge may reject expert opinion altogether and arrive at a valuation on other evidence. Unless clearly erroneous, the trial judge's determination of value will stand." Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863 (1989). (Citations omitted.) See Mass.R.Dom.Rel.P. 52(a) (1987). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
DATE OF VALUATION
2.25 Typically, asset valuation must relate to the parties' status within the marriage, or at the outside, at a time that relates to the court's division of the assets. See, e.g., Savides v. Savides, 400 Mass. 250, 252-253 (1987) (assets valued as of the date of the parties' separation prior to the divorce; wife excluded from participation in the increase in value of the marital property where she made no contribution to the marriage after the date of separation and the increase in value was due solely to the husband's efforts); Pare v. Pare, 409 Mass. 292, 296 n.4 (1991) (where property division takes place after divorce is final, and post-divorce appreciation is not fairly attributable to one spouse alone, correct procedure is to value the divisible property as of the date of the order of division and apportion post-divorce appreciation in the value of the property between the parties); Daugherty v. Daugherty, , 741-742 N.E.2d 92 96-P-1656.(Mass.App.Ct. 2001) (value of husband's pension to be taken as of date of parties' separation, some ten years prior to the property division trial, with wife entitled to appreciation on that share only). Child v. Child, ---- Mass. App. Ct. —, No. 01-P-71 (2003).
2.26 An attempt to consider potential future increases (or decreases) in rental value and expenses of an interest in a life estate violates the partnership principle upon which property division is predicated. Compare Davidson v. Davidson, 19 Mass. App. Ct. 364, 370 (1985). ("To hold that property interests acquired after the dissolution of the marriage are subject to division under � 34 would be contrary to the marital partnership concept on which � 34 is founded"). Child v. Child, ---- Mass. App. Ct. —, No. 01-P-71 (2003).
FUTURE NEEDS OF CHILDREN
2.27 The future needs of dependent children may be considered as a factor in the division of property under G. L. c. 208, � 34. See Passemato v. Passemato, 427 Mass. 52, 55-57 (1998).FINANCIAL STATEMENTS REQUIRED
2.28 Rule 401 of the Supplemental Rules of the Probate Court (1997) provides in relevant part: "(a) Except as otherwise ordered by the court, each party to a divorce or separate support action or any other action where financial relief is requested, shall file with the court and shall deliver to the other party within 45 days from the date of the service of the summons, 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."
CLAIMS AGAINST THIRD PARTIES
2.29 Any proceeds from a claim against a third party, when the claim arose during the marriage, is marital property, subject to distribution. Dalessio v. Dalessio, 409 Mass. 821, 829 (1991).o
ALLOWING POST-TRIAL EVIDENCE.
2.30 Decision to admit additional evidence after the case is closed lies in the sound discretion of the trial judge. See Jones v. Vappi & Co., 28 Mass. App. Ct. 77, 83 (1989), and cases cited.
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