NO.

That was easy, next blog post... No, you want more than that? Okay:

Divorce is by definition about the failure of a plan. You got married, you took vows, and it didn't work out. Whether or not you are about assigning blame (and there is usually enough to go around), divorce is about picking up the pieces of a failure. Accepting that disappointment is as important a step in moving on as accepting that the marriage was over in the first place.

If you take that failure personally, you should discuss those feelings with friends, family or a professional therapist. You shouldn't ignore them because you need to find a way to move past them in order to deal with the practical realities of dividing up a marital life.

With respect to finances, divorce means dividing up a business partnership, and there is no perfect or ideal way to do this. In Massachusetts, the court can consider numerous factors in how to do this (M.G.L. c. 208 s34), but in practice most cases settle, and they settle based on what both parties can live with. You won't get everything you want, but neither will the other side.

With respect to children, even if you do the best you can parenting apart is never ideal. In many situations and for many relationships it may be better than parenting together, but even the best parents can't undue the loss a child feels when their parents break up. I was reminded of this when reading a simple quote from an interview with Jack Black in the Guardian, in which he matter-of-factly indicates that his parents divorced and as a kid the simple fact "that they can't live with each other makes you feel there's something wrong with you." In many ways parenting is about doing your best with what you have anyway, and no where is this more true than in parenting apart. You can educate yourself and make the best of it, and minimize the trauma on your children. But to do that you have to first accept that this situation is not perfect, and find ways to compensate.

At the end of the day, realizing that there is no perfect divorce is an important step in figuring out how to look at the future rather than dwell on the failures of the past. Sometimes the cliché is true: whatever doesn't kill you makes you stronger.

M.G.L. 208 s 34 provides a list of factors for the court to consider in dividing marital property and/or assigning alimony awards. One of these factors is "the conduct of the parties during the marriage." Quite often this is the factor that clients want to talk about the most, but is the least important factor to the court. Although adultery and other offensive behavior may have led to the divorce, the Judges are used to seeing this behavior in so many cases that they become jaded to it and prefer to focus on the financial factors most of the time.

This means that bad conduct which affects the finances (such as spending money on an extra-marital affair or gambling) will be taken into account, but often bad conduct which does not affect the finances will not. However, this does not mean that non-financial bad conduct has no effect at all, and sometimes if it is egregious enough the court may consider its effect on the marriage itself.

Especially if the conduct is significant as in the case of Wolcott v. Wolcott. In that case, the court awarded the Husband approximately 90% of the martial estate, primarily due to the Wife's extremely bad conduct. Because of attempts that the Wife made to find someone in the "mafia" to make her husband "disappear", a jury convicted the wife of solicitation to commit murder, and she served three months in the house of correction before being released on parole.

Although this is obviously an extreme example, the Court indicated that consideration of much less egregious conduct under § 34 has been approved. The Court further indicated that conduct could be considered which harmed the martial estate OR the marriage itself.

The short answer is YES! Whether or not they are divided will depend on a number of factors.

For divorce purposes, Massachusetts gives very broad definition to "marital assets". Absent a pre-nuptial agreement every asset and liability owed by either party is considered by the Court in a division. The Court can consider the source of the asset but that is just one of the factors in whether or not to divide it. Under M.G.L. ch. 208 § 34, the Court can assign alimony or division of property based on the following section:

"In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit." (emphasis added)

Generally, any asset earned during the marriage will be divided 50/50. A stay at home parent's contribution as homemaker and in child-rearing is considered equal in value to the earning capacity of a working parent. A good example of this is the equal division of retirement accounts earned during the marriage.

Regarding assets earned prior to the marriage, those are more difficult to predict. The other factors, such as the length of the marriage, health of the parties, etc. can have a significant impact on whether or not these assets are divided. Generally we tell clients that in short term marriages (less than 5 years) the Court tries to put people back in the position they were in prior to the marriage (returning previously owned assets).

As marriages get longer, though, it is very typical for assets to "merge" into the fabric of the marriage. A major factor in this consideration is whether or not the asset was shared during the marriage. For instance the marital home (if purchased by one party prior to the marriage) is pretty likely to "merge" as more time goes by because both parties contribute to its "preservation and appreciation"(even if the title is not changed).

If you are concerned about keeping pre-marital assets separate you should consult with an attorney regarding the preparation of a pre-nuptial agreement prior to the marriage. If you are already married and considering a divorce, you should consult with an attorney to explain your specific circumstances before assuming property will be kept separate or merged by the Court.

The short answer is that Judges in Massachusetts can consider inheritance or potential inheritances when dividing property in Massachusetts. This does not mean that inheritances are split equally but they will play a part in how property is divided and may affect support orders as well. Whether an inheritance has been received or not can make a big difference in how it affects the division and support.

Inheritances Received During or Before the Marriage

In Massachusetts the division of marital property in a divorce case is controlled by M.G.L. Chapter 208 Section 34, which states in pertinent part:

"In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance."

This means that the Judge in a divorce case can consider how to divide all property that is in the name of either person, and this includes property that was inherited during or before the marriage. However, as part of the division, the Judges can consider the "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates..."

As an example, if a Husband received inherited property prior to the marriage, then the Wife likely didn't have anything to do with the acquisition. But if the inheritance was then placed in a joint account or used to purchase a marital home, then it is arguable that the Wife had a part in the preservation or appreciation of the asset. This is called "merging" an asset into the marital estate. If the Husband inherited property during the marriage, then it is also possible the Wife contributed to the acquisition if she, for example, had a good relationship with the deceased. These are the types of factors that will be taken into consideration in deciding what an "equitable" division of the inherited property would be.

Inheritances Likely to Received After the Marriage

One of the factors that the Judges in Massachusetts must consider in dividing assets and determining alimony is the "the opportunity of each for future acquisition of capital assets and income." This could include the possibility or likelihood of a future inheritance. Although inheritances aren't guaranteed because living relatives can change their wills before they die, the Court can consider how likely that is to happen, especially if the potential inheritance is significant.

In one case a party's parents objected to providing information about their estate plan arguing that because an expectancy of inheritance cannot be presently divided it should also not be discoverable. Vaughan v. Vaughan, SJC Single Justice, No. 91-485, p. 3 (1991) (unpublished).

The Single Justice in Vaughan held: "Although it is true that Allan's expectancy interests are not subject to division, a [probate court] judge, nevertheless, might properly take them into account in determining what disposition to make of the property which is subject to division."

Since the Vaughan case it has become common practice in a case where there is a potential inheritance for the relative to provide what is referred to as a Vaughan Affidavit describing in some detail the extent of their estate and their current estate plan. A properly completed Vaughan Affidavit should provide you with enough information to know whether a potential inheritance is significant enough to be considered by the Judge when determining the current division or support orders.