Division of Assets

In Massachusetts, there is no presumption of a 50/50 distribution of marital assets and there is no precedent for requiring such a distribution, even in the event of a long-term marriage. When it comes to the division of inherited property, courts consider a variety of factors to determine what should be an “equitable division.” The factors are as follows: 1. The source of the inherited/gifted assets; 2. Each party’s role in managing the inherited/gifted assets; and, 3. Whether the inherited/gifted assets were kept separate from other marital assets and were not co-mingled into joint accounts.

Contribution is central to an inherited/ gifted asset which must be divided in a divorce. Evidence of contributions made by third parties permits a court to assess accurately the actual contributions of each of the parties to the marital estate. One party’s low contributions to the marital estate and to household expenses could be grounds for awarding the other spouse a significant portion of their inheritance.  In one case, where the wife’s father made all the investment decisions related to the inherited assets and the husband used his earned income for himself and even spent some of his wife’s inherited property on himself, the court awarded the wife a substantial portion of her inherited property. 

In another case, where the parties to a marriage have kept one of the spouses' inherited property outside of the marital partnership, the court found an implied agreement to keep it separate upon divorce, regardless of the longevity of the marriage. This court placed particular emphasis on the fact that the inherited asset had been an asset of one of the spouses’ family and was kept as a separate asset during the marriage.

Courts strongly consider the significance of how the parties treated the gifted/inherited assets during the marriage. In one case the court granted the wife all her inherited property, where the wife’s mother’s gift was held in a separate account held solely in the wife’s name; the account and remained in the wife’s name through the marriage; and, the wife’s account had significantly appreciated during the course of the marriage through the wife’s investment decisions in which the husband had no role. 

Legal vs. Physical Custody:

It is important to understand the difference between “legal’ and “physical” custody.  “Legal” custody has to do with the rights of a person, usually the parent, to make decisions for a child.  “Physical” custody deals with the living arraignments of the child.  They are two totally different concepts that often get confused.

If a parent is granted “legal custody” of a child, he or she makes the decisions about the child’s life, including such matters as where the child will go to school; how the child’s medical care will be handled; the child’s recreational activities; the child’s religious upbringing.  

There are two forms of legal custody: sole, and joint.  Sole custody means that one parent has the exclusive right to make all major decisions for the child.  Joint custody means that both parents share equally in the major decisions of the child.  It is possible for a judge to order that the parents share “joint legal custody”, but that one parent have exclusive decision making power over certain areas of the child’s life, or that one parent have “the last say” over certain areas.  They are effectively the same.  

“Physical custody” is a more limited but equally important concept.  It deals with the living arraignments of the child.  If a parent is granted some form of “physical custody”, it means that the parent has some kind of living or visitation rights with the child.  Once again, physical custody can be “sole” or “joint.” 

“Shared” or “joint” physical custody is where both parents share a significant if not equal amount of time with actually physical custody of the child.  The shared time does not have to be equal for physical custody to be regarded as “shared”, so long as it is a significant amount of time with the child.  

If a parent is granted “sole physical custody”, he or she becomes the primary physical care-taker of the the child, and the child usually lives primarily with that parent.  The other parent is then usually granted some kind of a “visitation schedule.”  The nature and extent of the visitation schedule granted to the non-custodial parent entirely depends on who is in “the best interests of the child.”  

The Best Interests of the Child Standard 

“The best interests of the child” standard is the touchstone of child custody cases and applies across the board to the decisions which impact the child.  The judge will always be guided by the standard of what is in the “child’s best interests.” Parents need to understand this fundamental concept when considering their strategy for advocating for custody of their children: it is never what is in the parent’s interests that determines custody.  It is always the child’s best interests that controls.

In determining who gets legal or physical custody, the court will apply the “best interests of the child” standard.  The court looks at many factors to determine what is best for the child, including, but not limited to the child's health, welfare, education and social-emotional well being. The court will consider a wide range of factors, both parental and environmental, to assess what is best for the child. In deciding what is in the child’s best interest the court will consider such factors as whether either parent abuses alcohol or other drugs; whether either parent has physically or emotionally abused the child; whether the parents are able to cooperate and make joint decisions for the child in an emotionally stable manner.  The entire analysis is fact driven.  For example. if one parent has a more stable emotional history while the other has been physically abusive with the child or has a history of substance or alcohol abuse, the court will grant greater deference to the parent who can provide the more stable environment in deciding who should be granted legal and physical custody. 

Temporary vs. Final Hearings 

Court orders on legal and physical custody can be either “temporary” of “final”. When a divorce case gets filed, the court issues “temporary orders” on legal and physical child custody,  temporary child support, and temporary alimony. These orders are decided at a “temporary hearing” and are in place temporarily until all issues in the case are finally decided at a “final hearing.”

It is important not to underestimate the importance of a “temporary hearing”.  Often times, decisions made by a judge early in the case at the temporary hearing are presumptively the basis for the decisions the judge makes at the final hearing.  Therefore, it is important to make every effort to establish strong evidence for all issues at the temporary hearing, particularly legal and physical custody.