The 7 Biggest Myths About Divorce in Massachusetts

How much do you know about family law in Massachusetts? You may have some familiarity with divorce, spousal support and child custody issues from watching family or friends go through divorces or from tidbits you’ve gleaned from the Internet. If you’re like most people, however, what you think you know may be wrong.

“Just shy of 100 percent of people have misconceptions about family law in Massachusetts,” said Norman I. Jacobs, a matrimonial law attorney with Esdaile, Barrett & Esdaile who was named by Best Lawyers as the 2009 Family Lawyer of the Year in Boston. “Even presidents of multi-billion dollar companies have misinformation they received from the Internet, the media or personal experience. It’s almost universal.”

Jacobs said that Massachusetts does not have a “scientific, quantifiable approach” to divorce. Instead, he says, the statues require assets of a marriage to be divided equitably. “What does the word equitable mean?” he asks. “Is it a four-year marriage with no children? A nine-year marriage with one child? A 25-year marriage with three children? Every one of those fact patterns can lead to vastly disparate outcomes.”

Jacobs said the following are seven commonly held myths about Massachusetts family law. Learning just
a little more about each can help you better anticipate what to expect if you are planning a divorce.

1. “This is what I’ve heard is done in other cases, so that’s going to happen to me too.”  Don’t compare your case to others. Judges are encouraged to tailor the outcome to the unique facts presented by each case.

2. “Gifts and inheritances are not subject to equitable distribution.” “Most people think that gifted and inherited property is sacrosanct—that it’s not part of the marital pie available for division,” Jacobs said. “But in Massachusetts, they are not protected and not immune from a judge potentially giving weight or consideration to the gifted or inherited property in dividing the marital estate.”

3. “I signed a prenuptial agreement, but we’ve been married for years and our circumstances have changed, so the judge won’t honor it.” Not true. Massachusetts is a state that looks favorably on prenuptial agreements. “We often treat them with the same sanctity or integrity that any business contract would require,” Jacobs said. “If there is no fraud or coercion and everybody had full and complete financial disclosure, that prenup is going to haunt you for the rest of your life.”

4. “There is some kind of formula that will determine how much alimony I will get.” In Massachusetts, there is no fixed or guaranteed percentage that either spouse will receive. “There is no
formula, no science,” said Jacobs. “Now you can always negotiate with the other side—give up more assets to buy out the alimony, for example. But that’s a negotiation, not what happens if you go to court.”

5. “Everything will be decided by the judge.” In most instances, if people negotiate their own outcome, they generally are allowed to be masters of their own fate. In other words, if you reach an agreement with your spouse about alimony, division of assets, etc., bring it to court and show the judge your financial statements, the judge will usually approve the agreement and allow an uncontested divorce to be entered. “People can do a lot of things in settlement that they can never achieve in trial,” said Jacobs.

6. “If I move out and separate from my spouse, our assets will be valued the day we stop living together, so anything I earn after that date will be mine.”  Not true. “In Massachusetts, the assets in almost every case are to be valued at the time of the divorce,” Jacobs said. “So all assets that they own before the marriage, all assets they acquire during the marriage and all assets they acquired after they separated are on the table.” That is, unless the parties had a prenuptial agreement.

7. “My wife had an affair, so she will be punished by the judge when we get divorced.” Massachusetts is a no-fault divorce state, and conduct has little significance in shaping the amount of alimony, child support or equitable distribution of assets. “Absent the most egregious circumstances—the husband tortured and beat his wife, abused the children or was a drug addict, for example—bad conduct does not influence a judge,” Jacobs said.

If you’re contemplating divorce, learning as much as you can about the law can save you time, money and frustration. “Be an informed consumer,” Jacobs advises. “Find a lawyer that matches what you can afford who is a specialist in the field. You need to know, day to day, what’s going on in the courts because family law is constantly evolving.”