Whether you think you have very little in the way of assets or that you have a good amount of assets in your name or jointly held with another, there are important steps to take in order to make sure that the division of assets in your divorce goes smoothly. Here are five ways that your asset division can go wrong in a Massachusetts divorce:
1. You Forget That Massachusetts Counts Any Asset as Part of the Marital Estate
In Massachusetts, property division in a divorce includes all of the property that either person holds at the time of divorce. A judge may determine that property acquired prior to marriage will not be divided as part of the marital estate and be awarded to the person who owned it prior to marriage; this is especially true in short-term marriages.
Accounts with premarital assets that are co-mingled with marital assets have a greater chance of being part of the division of assets in your divorce and not considered only the property of one party. This is especially true if premarital assets were used to meet the needs of a family, pay joint taxes or other family-related expenditures. In Massachusetts, the court must make an equitable division of the marital estate and if premarital assets were used as part of the marital partnership, then the assets are more likely to be considered owned by both parties when making an equitable division.
2. You Don’t Take Steps to Discover Assets
Divorce is a time when people often take the steps to learn more about their financial situation, as well as their spouse’s. When you go through a divorce, you may be surprised to find that there are assets you didn’t know about.
In Massachusetts, there are rules that automatically provide for the production of documents to each party that allow you to have records regarding your spouse’s assets. If you think a spouse is not providing you with the information you need to discover all marital assets (or debts) you can make formal requests in the discovery portion of the case to obtain further information.
3. You Assume That You Know an Item’s Value
Massachusetts law provides that each spouse gets an equitable division of the marital assets. You can’t determine what an equitable division of your assets is unless you have a clear picture of the values of your real estate, personal property, accounts and other miscellaneous property. Everything can be valued and it is not advisable to simply take someone’s word on a value.
Once you are divorced, a party is not able to go back to court and ask that the estate be divided differently. Property division in Massachusetts is not modifiable.
4. You Are Not Truthful About Your Assets
The courts expect both parties to be truthful since you sign your financial statement under the pains and penalties of perjury. If you neglect to disclose an asset at the time of a divorce, the Court will divide it post-divorce if a party brings a subsequent complaint to the court. The key is that the party who wishes to have the asset divided did not know of its existence at the time of the divorce. Depending on the length to which a party attempted to hide an asset or keep it from being divided, there could be the possibility of attorney’s fees if it is determined that a party wilfully neglected to include it on his/her financial statement.
Honesty is expected by the Court and your attorney. In this day and age, there is a paper trail for everything, so it is important to provide a full disclosure of the marital estate to your attorney.
5. You Don’t Do the Post-Divorce Paperwork or You Do It Wrong
The judgment of divorce may not be the last piece of paperwork that you do for your division of the marital estate in a Massachusetts divorce. If you are transferring part of a 401k or another retirement account, certain paperwork is needed to effectuate the transfer. Sometimes a court must order a retirement plan to carve out a portion for the spouse who is not a participant in the plan. This type of order is most typically called a Qualified Domestic Relations Order.
Making Your Division of Assets Go Smoothly
In order to obtain an equitable division of your marital estate, you must work carefully to identify the assets in your marriage. You should not assume that you know about all of the marital assets you and your spouse have or what they are worth. Once you have identified the assets comprising of the marital estate, take the time to value them accurately. Following a divorce, make sure that you complete the necessary paperwork to finalize the transfer of assets so you have completed the equitable division of your marital estate.