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Law Pro
Law Pro, Attorney
Category: Legal
Satisfied Customers: 23451
Experience:  20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
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I sent you another question. Did you receive it? Thank you. he wants to propose a resolution to what qualifies as a unilateral mistake. How should he put this in a letter? As I see it, she mistakenly assumed that she had a legal right to 1/2 the marital home in Massachusetts as well as 1/2 a right to his inherited property. She told him at the time that under Mass law, anything gotten during a marriage is a marital asset (is this true?). She then assigned herself the 500K value of the marita
Submitted: 2 years ago.
Category: Legal
Expert:  Law Pro replied 2 years ago.
It's presumed that any property acquired during the marriage is marital property.

The person saying it isn't marital property has the burden of proof that it isn't marital property OR not all of the asset is marital property.

Inherited money is NOT marital property. But the "growth" or increase of value of the inherited money or asset can be marital property.

Equitable distribution is more common than community property laws and instead of requiring a 50/50 split of marital property; it takes into account the financial situation of each spouse. While equitable distribution is more flexible, it is also harder to forecast the outcome, since there are so many factors taken into consideration during settlement negotiations.

The first thing to determine is whether the property is marital property or separate property.

Separate Property - the property that each spouse brings into the marriage, that is, the property that s/he owned before the marriage, is considered to be "separate" or "non-marital" property. For the property to remain separate, the spouse must keep it apart from marital or community property; that is, s/he would keep it entirely in his/her name. Once the separate property has been commingled (mixed) with marital or community property, it becomes part of the marital property.

For example, consider a bank account with $10,000 in it owned by woman before her marriage. This woman then marries and both she and her husband regularly deposit their respective paychecks into the account and periodically withdraw money to pay for their living expenses. At the time of separation twenty years later, the bank account has $5,000 in it. Since marital property has gone into it (deposits of the paychecks and marital or community debts have been paid from it is impossible to trace the original separate property money from that of marital or community property. The result is that this bank account has changed from separate property to marital property.

Some states, such as California, have a separate property rule that says that all property brought into the marriage, (including gifts and inheritance), that is kept separate and apart from community property remains the separate property of the spouse that owns it.

Marital Property - property that is acquired by either spouse individually or the couple together during a marriage is considered marital property. The time frame "during the marriage" starts as of the day the couple marries, and generally is regarded as ending on the date that the spouses begin to live apart (or the date that the spouses intend to live apart if they are unable to physically separate).


Court will then look at a number of factors to determine whether an unequal distribution of the assets is warranted. Some of these factors are the respective contributions to the marriage by the parties, the financial circumstances of the parties, and the duration of the marriage, to name a few.

Factors considered in equitable distribution include:


The length of the marriage.
The age and physical and emotional health of the spouses.
The income or property brought to the marriage by each spouse.
The standard of living established during the marriage.
Any written agreement made by the spouses before or during the marriage concerning property distribution.
The economic situation of each spouse at the time the division of property becomes effective.
The income and earning potential of each spouse.
The contribution by each spouse to the education, training or earning power of the other spouse.
The contribution of each spouse as to the acquisition of any marital property as well as the contribution of a spouse as a homemaker.
The tax consequences to each spouse.
The present value of any marital property.
The need for the custodial parent to remain in the marital home and keep possession of household effects.
The marital debts and liabilities and the ability of each spouse to pay those debts.
Any other factors the court may feel are relevant.

In a divorce, marital property, subject to property division is:

(1) All property and earnings acquired by either spouse during a marriage, including every valuable right and interest, corporeal or incorporeal, tangible or intangible, real or personal, regardless of the form of ownership, whether legal or beneficial, whether individually held, held in trust by a third party, or whether held by the parties to the marriage in some form of co-ownership such as joint tenancy or tenancy in common, joint tenancy with the right of survivorship, or any other form of shared ownership, and

(2) The amount of any increase in value in the separate property of either of the parties to a marriage, which increase results from

(A) an expenditure of funds which are marital property, including an expenditure of such funds which reduces indebtedness against separate property, extinguishes liens, or otherwise in-creases the net value of separate property, or

(B) work performed by either or both of the parties during the marriage.

In contrast, separate property, which is not subject to equitable distribution in divorce has been generally held to consist of :

(1) Property acquired by a person before marriage; or

(2) Property acquired by a person during marriage in exchange for separate property which was acquired before the marriage; or

(3) Property acquired by a person during marriage, but excluded from treatment as marital property by a valid agreement of the parties entered into before or during the marriage; or

(4) Property acquired by a party during marriage by gift, bequest, devise, descent or distribution; or

(5) Property acquired by a party during a marriage but after the separation of the parties and before the granting of a divorce, annulment or decree of separate maintenance; and

(6) Any increase in the value of separate property as defined in subdivision (1), (2), (3), (4) or (5) of this subsection which is due to inflation or to a change in market value resulting from conditions outside the control of the parties.





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