One of the most contentious issues arising in divorce proceedings will often be the division of the parties' assets. In Massachusetts, the courts follow an equitable system of division, meaning they seek to divide property "fairly," not necessarily "equally." There are cases in which the marital estate seems to have been reduced by the irresponsible or intentional conduct of one party (party A), which ostensibly has the result of diminishing the eventual share of the marital estate that each party will retain.
Many clients describe the Rule 401 financial statement as "a giant pain," "putting square pegs into round holes," or "the most annoying thing I've ever done in my life." While filling out a financial statement can often be fairly simple, sometimes it can take days or even weeks of work. Filing a financial statement may actually happen many times over the course of a proceeding, and the parties may even choose informally to exchange financial statements on a voluntary basis. Why is it then, that almost every party to a domestic relations matter has to fill out a financial statement?
In any divorce, the division of assets and support calculation (if any) will be one of the main, if not the main, focal points of the divorce process. In order to accomplish this task, both parties and their counsel should have a thorough understanding of the parties' financial circumstances - income, expenses, assets, and liabilities, among other things. Such concerns are often the target of discovery - parties are entitled to receive relevant information from the other side in order to make an informed decision. Such processes can sometimes be time-consuming and expensive, particularly in cases involving more complex financial arrangements.
Abraham Lincoln has famously stated that "a house divided against itself cannot stand"; and the disposition of the marital home is often one of the most contentious issues in a divorce case. In many cases, the marital home represents the couple's most significant asset (other than retirement assets) and deciding how to distribute the property can be thorny, particularly as the mortgage lender will continue to consider both parties jointly obligated until the property is either sold or refinanced.
Many married couples give little thought to the issue of which party "legally owns" property acquired during the marriage or the impact that legal ownership may have upon the distribution of assets in the event the marriage ends by death or divorce. Some couples assume, albeit incorrectly, that all property is "marital" in the sense that everything owned by either party will pass to the surviving spouse in the event of death. Other couples assume, also incorrectly, that owning property in one's individual name (rather than jointly) will protect the asset from the other in the event of divorce. While neither assumption is correct, the irony of the current state of Massachusetts law is that parties are afforded far greater rights in the property and estate of the other if their marriage ends in divorce than they are if their marriage ends in death.