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It's Not Over Till It's Over: Assets Earned After Service Of Divorce Complaint Are Included In The "Marital Estate"

From a legal perspective, getting hitched in Massachusetts is fairly quick and simple, requiring little more than a valid marriage license and a proper officiant.  It is not even necessary to be wed by a clergy member or Justice of the Peace, as anyone over the age of 18 in reasonably good character can receive a one-day designation to solemnize the marriage.  Divorce, on the other hand, is rarely if ever as easy or efficient, and contested proceedings take months and even years to finalize.

A contested divorce case is formally commenced when one party files and serves a complaint for divorce upon the other. The date of service is important for purposes of determining alimony, as under the Alimony Reform Act of 2011, the "length of the marriage" is defined as the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce.  The type of alimony that may be awarded and the amount of time that it will be paid will be governed, in part, by the length of the marriage.

While serving the complaint for divorce "stops the clock" with respect to the length of the marriage as it relates to alimony, it does not draw a line in the sand with respect to the division of assets, which are typically valued and divided as of the date of divorce. When going through a divorce, it is common for couples to begin to untangle their financial affairs prior to entry of the final judgment. For example, they may open separate bank accounts and segregate certain assets. They may physically separate and one spouse may pay child support or temporary alimony to the other.  Although either party may acquire assets in his or her own name, whether from earned income, support payments, gifts and/or inheritances, any and all assets acquired by either party after the service of the divorce complaint may be divided with the other party at the time of the divorce. Moreover, a probate and family court judge retains discretion to not only include in the "marital estate" assets acquired by either party during the divorce proceedings, but also assets that may be acquired in the future - even after the divorce is final.

In the recent Appeals Court case of Valaskatgis vs. Valaskatgis, Mass. App. Ct., No. 14-P-1175 (2015), the husband sought to exclude, from division with the wife, approximately $96,000 earned after the complaint for divorce was served but prior to the entry of the divorce judgment. The husband argued that because the Alimony Reform Act defines the length of the marriage as "the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support," and one factor to be considered by the judge in dividing property at the time of the divorce is "length of the marriage", the funds, which were earned after service of the divorce complaint, were not part of the marital estate.  

The trial court judge disagreed, and held that the marital assets were to be determined and divided as of the date of the parties' divorce, not the date of service of the complaint. The Appeals Court agreed, holding that nothing in the Alimony Reform Act constrains the broad discretion a judge is given to equitably divide marital property, which includes, in appropriate circumstances, "the ability to include in the marital estate assets acquired after service of the divorce complaint, and even after the divorce itself."  Valaskatgis vs. Valaskatgis, Mass. App. Ct., No. 14-P-1175 (2015).

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