Legal Question in Family Law in Massachusetts

Whats an Asset, What is Misconduct

In Massachusetts, everything received by either spouse during the marriage is a marital asset and is subject to division by the Family Court. Mass General Law 208 section 34 defines the factors that a judge will consider in deterimining an "equitable" (note this is not equal shares to each party) division of the marital assets. One of the factors is the conduct of the parties during the marriage. Most courts pay a lot of attention to the financial conduct of both individuals, and not that much to the sexual exploits of the parties. If the non-inheritying spouse spent all the inheritence, without the knowlege of the inheriting spouse, and the expenditures were for things that were clearly luxury items, then you would have a strong case to recover the share of the inheritence that you would have received in the divorce. On the other hand, if the inheritence was spent to feed the children and avoid a foreclosure on the house, because you stopped paying the mortgage, then you will not get much sympathy from the judge. It also depends on how significant the inheritence is in the overall scheme of things -- for example, a $100 inheritence in a million dollar estate is not worth mentioning, a million dollar inheritence in a $100 dollar estate is very significant. The "conduct of the parties during the marriage" is just one of many factors that are considered. They are all weighed by the judge in coming to an equitable division.

Auto insurance settlements will probably be looked at to see what they were for. A pain and suffering settlement is more likely going to stay with the injured party, a settlement amount to fix the car is likely to be a marital asset subject to division. There are no hard and fast rules here. The judge has great latitude to do what he or she feels is equitable.

This message is provided to assist you in structuring your thoughts when you speak with an attorney about your situation. I am not your attorney, and you are not my client, so this is not legal advice. Legal advice can only be given after a careful interview of the client by the attorney, and I have not had the opportunity to understand the significant issues that I must understand to render legal advice. You should contact an attorney in your state to discuss your situation. That attorney can give you the advice that your situation deserves, after carefully considering the issues that are legally significant in your situation.

Tort damages are not available in a divorce court

The judge will look primarily what is in the marital estate at the time of the divorce. If your spouse inherited say, $50,000, and then spent it without your knowledge, a judge may or may not be impressed. The judge may decide that your spouse simply just beat you to spending it first. If the spending was an outrageous dissipation or wasting of marital assets, the judge will, as Atty Workman said, look more closely at your spouse's conduct.If your spouse's conduct was really bad, the judge might give you 70% of the house, for instance, rather than just 50%.The goal of the judge will be to be fair, to be equitable. What you have to realize is that if your spouse took $100,000and there is only $30,000 left in the marriage, the judge cannot click his fingers and make the "missing" $70,000 re-appear.All the judge can do is divide the $30,000 equitably. Now if there is a business or stocks, a house, or child support, the judge can and probably would "make up" what he or she can by giving you favorable judgments on those items.But the judge cannot say that your spouse "OWES" you the $70,000. To recover the $70,000, you would have to sue your spouse in what we lawyers call "tort" -- which is the same as saying that you would have to sue your spouse in Massachusetts district or superior court for money that he got from you in some wrongful manner.Tell your lawyer more of the facts -- that is, fill him or her in. Then he/she will be able to respnsibly advise you both what to expect and what to do.

Division of Property

Massachusetts is an equitable division state. This means that there is no concept of"joint marital assets". The court can take all property from the husband and give it tothe wife, all of the wife's property and give it to the husband, or anything inbetween.The court has power over inheritences, insurance settlements and all other property.Disposal of assets is a factor to be considered by the judge. However, it is only oneof many factors.