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In Massachusetts, when a couple files for divorce, they must decide how to divide their property. If a dispute arises over such division, the court will determine the split. Property typically falls into one of two categories: marital or separate. Marital property includes income, assets and property, earned and acquired by either spouse, during the marriage. Separate property is any property, real or personal, acquired by one spouse, before, during, or after the marriage, by gift, inheritance, or separate property funds.

Massachusetts divides marital property based on an equitable division basis. If the parties cannot agree to an equitable division of the marital assets, the court will divide the property not on a 50/50 split, but based on what is fair. This equitable division is governed under Massachusetts General Law Chapter 208. Under the statutes provisions, when deciding what is a fair division of marital property, the courts may consider several factors: length of the marriage, conduct of the parties during the marriage, age and health of the parties, station of life, occupation, sources and amount of income, vocational skills, employability, estate, liabilities and needs of both parties, and the opportunity of each for future acquisition of capital assets and income. Separate property is not subject to equitable division and remains with the spouse who acquired it.

With regards to the division of real property, most often this refers to the marital home, if both spouses acquired the house during the marriage, the house is subject to equitable division. If one spouse acquired the house outside of the marriage (owned prior, inherited, bought with individual funds), that spouse keeps the house. However, if the spouse who does not have ownership in the house, during the marriage made mortgage payments, repairs, or otherwise contributed in a way that increased the value, that increase in value would be subject to the equitable division doctrine.

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