Just like married opposite-sex couples, married same-sex partners and other LGBTQIA2S+ spouses must wrestle with asset division during their divorce. The process is never as simple as “splitting things 50/50,” but DangerLaw, LLC has the experience to explain the process in terms that are easy for our clients to understand.
What counts as “marital property”? I bought the Cape house before we were married and it only has my name on it—my spouse won’t get that, right?
Massachusetts is an “equitable distribution” forum and its definition of “marital property” is broad and expansive. In fact, our courts have held for decades that “marital property” subject to division in Massachusetts includes all property, “whenever and however acquired.” Baccanti v. Morton, 434 Mass. 787 (Mass. 2001).
Courts are required to consider a laundry list of factors when deciding what property is included in the “estate” of each spouse and how to divide those individual estates in an equitable, not equal, fashion within the marriage. Some important factors to be considered include: the conduct of the parties during the marriage, the needs of each of the parties, and the opportunity of each party for future acquisition of capital assets and income. The parties (the divorcing spouses) may avoid a forced judicial outcome by negotiating and executing a Separation Agreement before petitioning for court involvement and having the Court approve their agreed upon terms. Therefore, if you haven’t previously executed a pre- or post-nuptial agreement and want to keep that Cape house in the divorce, you might consider either offering something else of value to your spouse or buying them out of their share.
Okay, so I have a list of our assets, but I’m getting lost in the numbers. How does this work?
Using the free Asset Division Calculator on DangerLaw, LLC’s website, you can run various scenarios to see what an equitable division of assets might look like. Let’s run through an example scenario together.
Two spouses, Aspen and Birch, are divorcing. Aspen and Birch co-own the marital home (worth $400,000). In addition to Aspen’s retirement account worth $500,000, Aspen is expected to inherit $100,000 when their grandparent dies. Aspen also owns a car worth $25,000, a time share worth $15,000, and clothes and jewelry worth $5,000. Birch owns the Cape house worth $600,000, a car worth $30,000, and has a successful consulting business worth $700,000 according to Aspen’s business valuation expert.
After inputting the values of these assets into the two left columns (asset and total value), it’s time to divide them.
If we simply add all of the assets together and divide by 50%, each spouse gets $1,187,500 worth of property in the divorce. But Birch wants to keep the Cape house and Aspen wants to keep their inheritance. How can we divide the rest of the property equitably?
Allocating percentages of value using the dropdown menus in the A% and B% columns, we can specify a division for each individual asset.
Let’s say that each party keeps their car and Aspen keeps their clothes and jewelry.
Let’s also say that the marital home, Aspen’s retirement account and time share, and the value of Birch’s consulting business are all split 50/50.
The result is a 61%/39% split of asset value in Birch’s favor.
This could be equitable and justifiable in many circumstances, such as if Birch has less earning capacity than Aspen.
At DangerLaw, LLC, we love divorce cases with complex assets to divide. We approach these cases collaboratively with our clients and creatively use our resources, such as outside valuation experts, to facilitate zealous negotiations for our clients. We understand the nuances of non-traditional families, such as LGBTQIA2S+ couples, as they navigate the process of separation and divorce. If you are queer and divorcing, we want to work with you!