How Property and Assets Are Divided in a Massachusetts Divorce: What Makes the Bay State Different

When a couple in Massachusetts decides to end their marriage, the state’s unique equitable distribution law kicks in. Unlike community property states where assets are split 50/50, Massachusetts uses a distinctive “fair share” approach that sets it apart from much of the nation. As legal scholar Kathleen O’Connor observes, Massachusetts property laws “demand a thorough revisal, so that all rights may be equal between them”—reflecting the state’s ongoing evolution toward true marital equality.¹

Massachusetts vs. Other States: The Fundamental Difference

What Makes Massachusetts Unique

Massachusetts operates under an equitable distribution system, which differs significantly from both community property states and traditional separate property approaches. Legal scholar J. Thomas Oldham notes that in Massachusetts, “property at divorce, regardless of how or when the property was acquired” can be subject to division by the court, giving judges extraordinary discretion compared to other jurisdictions.² This means that unlike the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), Massachusetts judges don’t automatically divide marital assets 50/50.³ Massachusetts divorce mediator Attorney Julia Rueschemeyer notes that this can create considerable uncertainty for couples who are unsure how their property might be divided.

How Other States Handle Divorce

• Community Property States: Assets acquired during marriage are automatically owned 50/50 by both spouses and divided equally upon divorce
• Traditional Separate Property States: Generally distinguish more rigidly between marital and separate property
• Massachusetts: Uses broad judicial discretion to divide all property—including some separate property—based on fairness rather than strict formulas

Research by economist Betsey Stevenson demonstrates that these different property regimes significantly impact couples’ behavior during marriage, with “unilateral divorce laws hav[ing] significant effects on human capital investment” that vary depending on whether states follow community property or equitable distribution systems.⁴

1. Marital Property vs. Separate Property in Massachusetts

Marital Property

• Assets and debts acquired during the marriage, regardless of whose name they carry
• Includes the family home, cars, jewelry, and income earned while married

Separate Property

• Items owned by one spouse before the marriage or received as a gift/estate during it
• In Massachusetts, separate property stays with its original owner unless it has been commingled or used for marital benefit

Massachusetts’s Distinctive Approach: Unlike many states, Massachusetts courts can award separate property to the other spouse in certain circumstances. This reflects the state’s philosophy that “the laws of property, as affecting married parties, demand a thorough revisal, so that all rights may be equal between them.”⁹

2. How Massachusetts Courts Evaluate Fairness

Massachusetts judges adopt a holistic view that’s more comprehensive than most states, looking at:

What Makes This Different: Massachusetts law explicitly recognizes that many spouses, particularly women, make “economic sacrifices that can make them vulnerable when marriage ends.” The state’s approach acknowledges that “women still bear the overwhelming majority of responsibility for childcare and housework, in addition to employment obligations.”¹⁰

3. Treatment of Major Assets and Debts

Massachusetts’s Philosophy: The state rejects the notion that property division should be based on “someone else’s property.” As O’Connor notes, the traditional approach assumes “that the property being distributed is, insofar as the surviving spouse—generally assumed to be the wife—is concerned, a share of someone else’s property.”¹¹

4. Why Massachusetts’s Approach Developed Differently

Historical Context: Massachusetts’s distinctive approach stems from its early recognition that traditional property laws were deeply flawed. As O’Connor explains, the old system meant that “women were legally precluded from owning even the ‘fruits of her [own] labor'” and “legally denied equal educational and employment opportunities.”¹²

Contemporary Reform Movement: Massachusetts has been at the forefront of recognizing marriage as an economic partnership. The state’s approach reflects “contemporary views of marriage” where both spouses contribute to building wealth, even when one focuses on career and the other on family.¹³

Economic Research Support: Studies show that Massachusetts’s flexible approach better accounts for how “marriage-specific capital”—investments that benefit the marriage but may not show up in traditional asset calculations—should be valued in divorce proceedings.¹⁴

5. Practical Tips for Massachusetts Couples

Document Everything Differently: In Massachusetts, you should document:

• Non-financial contributions to asset building (home renovation, business support, childcare enabling spouse’s career)
• Career sacrifices made for the family’s benefit
• Separate property appreciation that may have resulted from marital efforts
• Educational investments made during marriage and who supported them

Understand the Broader Standard: Unlike community property states with predictable 50/50 splits, Massachusetts couples must prepare for a more nuanced analysis of fairness that considers the entire marriage partnership.

Conclusion

Massachusetts stands apart from other states in its sophisticated approach to property division during divorce. While community property states offer predictability through automatic equal division, and traditional separate property states maintain stricter boundaries, Massachusetts has chosen a third path that prioritizes fairness over formulas. This reflects the state’s recognition that “marriage is not itself a contract, but a status” that creates economic partnerships deserving of individualized attention.¹¹

The Bay State’s approach may be more complex than other jurisdictions, but it offers the potential for more equitable outcomes that reflect the real economic dynamics of modern marriage. As ongoing research demonstrates, this flexibility can better account for the diverse ways couples structure their financial lives and make sacrifices for their shared future.

Endnotes

1. O’Connor, Kathleen M. “Marital Property Reform in Massachusetts: A Choice for the New Millennium.” New England Law Review 34 (1999): 261.
2. Oldham, J. Thomas. Divorce, Separation and the Distribution of Property. Law Journal Press, 2021.
3. O’Connor, Kathleen M. “Marital Property Reform in Massachusetts: A Choice for the New Millennium.” New England Law Review 34 (1999): 261.
4. Stevenson, Betsey. “The impact of divorce laws on marriage-specific capital.” Journal of Labor Economics 25.1 (2007): 75-94.
5. O’Connor, Kathleen M. “Marital Property Reform in Massachusetts: A Choice for the New Millennium.” New England Law Review 34 (1999): 261.
6. O’Connor, Kathleen M. “Marital Property Reform in Massachusetts: A Choice for the New Millennium.” New England Law Review 34 (1999): 261.
7. O’Connor, Kathleen M. “Marital Property Reform in Massachusetts: A Choice for the New Millennium.” New England Law Review 34 (1999): 261.
8. O’Connor, Kathleen M. “Marital Property Reform in Massachusetts: A Choice for the New Millennium.” New England Law Review 34 (1999): 261.
9. O’Connor, Kathleen M. “Marital Property Reform in Massachusetts: A Choice for the New Millennium.” New England Law Review 34 (1999): 261.
10. Stevenson, Betsey. “The impact of divorce laws on marriage-specific capital.” Journal of Labor Economics 25.1 (2007): 75-94.
11. O’Connor, Kathleen M. “Marital Property Reform in Massachusetts: A Choice for the New Millennium.” New England Law Review 34 (1999): 261.