What Assets Are Untouchable During Divorce?


For spouses contemplating a divorce, the issue of which assets will be divided is a significant consideration. In the United States, some states are “community property” states, meaning that most property acquired during the marriage, excluding gifts, inheritances, and assets owned prior to the marriage, is considered “marital” and accordingly divisible in the event of divorce. Other states, including Massachusetts, are “equitable distribution” states, meaning that assets held by either party acquired either before or during the marriage, including assets received via gift or inheritance or assets held at the time of the marriage, are “equitably” divided at the time of divorce.

In Massachusetts, absent a prenuptial or postnuptial agreement, the vast majority of assets are “touchable” (i.e., divisible) in divorce. Massachusetts law has a very broad definition of “marital estate” or “marital property” in the context of divorce. The marital estate includes all property to which either party holds title, whenever and however acquired, and wherever situated. The marital “pot” includes everything a divorcing party owns. This does not mean that a judge will necessarily give one spouse’s beloved autographed baseball collection to the other, but that the value of that collection will be taken into account … Keep reading

We all know that music has the power to influence mood. An upbeat song can keep you on the treadmill that extra mile and a sad ballad commercial can have you reaching for a tissue box. 

Music can also help you find moments of strength and happiness when facing a challenging time in life. In a more light-hearted start to 2023, in this post, I will share some top empowerment songs to help elevate your mood and have you singing at the top of your lungs as you heal and move forward after divorce.  

In her newest release Flowers (which dropped on her ex-husband’s birthday), Miley Cyrus sings about how she started to cry but then remembered she can buy herself flowers, write her name in the sand, talk to herself for hours and hold her own hand. This song is likely to join the long list of others that uplift and encourage, including:

  • I Will Survive, Gloria Gaynor
  • Wide Awake, Katie Perry
  • We are Never Ever Getting Back Together, Taylor Swift
  • Stronger, Kelly Clarkson
  • I’m Still Standing, Elton John
  • I’m Movin’ On, Rascal Flatts
  • Survivor, Destiny’s Child
  • Brave, Sara Bareilles
  • Roar, Katy Perry
  • Good
Keep reading

After going through a divorce, particularly a difficult one, some people plan never to remarry. For others, remarriage may feel like the fresh start they need and the chance to try again after it didn’t work out the first time. There are several considerations any remarrying divorced person should be aware of, including possible impacts on your finances and children, and even the timing of your wedding (and then, of course, the possible need for a prenup before you say “I do” again!).

Reach out to your attorney to confirm that you can legally remarry.

Massachusetts imposes a 90- or 120-day waiting period between the date of your divorce judgment and the date that your divorce becomes final or “absolute.” If you remarry during this period (referred to as the “nisi” period), your marriage will be void. Confirm with your attorney when the nisi period ends to ensure that your remarriage is valid.

Consider the impact of your remarriage on your children and how to discuss the topic with them.

Blended families are common and often extremely happy and healthy. A solid foundation for a successful blended family is honesty and openness with your children, who will be significantly … Keep reading

If you have been paying attention to the entertainment news lately, you may have seen the articles released last month about Tom Brady and Giselle Bundchen divorcing in just a day. While their divorce certainly did not take only one day (there were likely months and months of negotiations and exchange of financial information prior to them filing for divorce – which were strategically kept out of the public eye to respect their privacy and that of their children), Tom and Giselle can be credited for handling their divorce matter quickly and amicably, particularly given their complicated financial holdings. What could have been a long, drawn-out court battle (think of Kanye West and Kim Kardashian or Brad Pitt and Angelina Jolie, as examples) was resolved by Tom and Giselle negotiating and signing a divorce agreement before either of them filed for divorce. Their divorce agreement was then presented jointly to the court.

As a divorce lawyer, I am frequently asked how quickly clients can obtain a divorce. Clients often expect that they, like Tom and Giselle, can quickly finalize their divorce, particularly if their finances are not complicated or they don’t have children. When I tell them that the … Keep reading

DLM Blog Post – What Not to Do During a Divorce (2022 Edition) Part II - Financial

In the second part of this two-part series, you will learn about financial pitfalls to avoid in the divorce process. Experienced divorce counsel can guide you to ensure that financial decisions don’t cost you credibility, time, and money. Always consult your attorney before taking any action that would have a significant financial impact, and consider these top 10 “what not to do” tips regarding finances.

1. Do not forget to disclose all of your assets, income, and liabilities, and do not attempt to hide them. 

You must disclose all assets, income, and liabilities to your divorce attorney and the Court. Failing to disclose them, and especially purposefully trying to hide them, can harm your credibility in court and result in increased legal fees, time, and annoyance.

2. Do not gift assets to friends or family members. 

Once you file a complaint for divorce or are served with a complaint for divorce, Supplemental Probate and Family Court Rule 411 (“Rule 411”) goes into effect and prohibits you from gifting assets to third parties. If you gift assets, the Court could find you in contempt, or you could receive fewer marital assets in the divorce to account for those gifts. Even … Keep reading

Stock options granted to a party during a marriage are considered marital assets subject to property division upon divorce, even if the options vest after the parties are divorced. However, whether stock options that are issued after a divorce are treated as income once exercised when calculating support is less certain. The recent Appellate Court decision of Jones v. Jones, No. 20-P-1217 (September 14, 2022) suggests that they may – but it all depends upon the drafting of the divorce agreement and the – parties’ intent when entering into the divorce agreement. Divorce agreements, often called “Separation Agreements,” must have clear language regarding the definition of income, bonuses, stock options, and other forms of executive or deferred compensation.  Absent clear language that the vesting of stock options granted after a divorce is to be considered income when calculating support, that income may not be included when calculating support.

An employer’s granting of stock options as executive compensation has become increasingly popular. This provides the employee with additional compensation and an incentive to stay with the employer long term (as the employee needs to be employed by the company when the stock options vest, sometimes years after the grant) … Keep reading

Divorce Law Monitor Blog Robin Lynch Nardone

The Massachusetts alimony statute provides that when alimony is set, the court shall exclude from the calculation gross income which the court has already considered for setting a child support order.  Effectively, this has meant that for most divorcing parties with minor children, where the parties together make less than $400,000 per year, there is only a child support order but no alimony.  To the chagrin of many who spent years working on alimony reform, the Supreme Judicial Court has determined that the alimony statute does not mean what it says.

In August 2022, in the case of Cavanagh v. Cavanagh, the SJC determined that a judge abused her discretion when she calculated child support and then, without conducting a fact-specific analysis of the family’s circumstances, denied the wife any alimony based upon the following language in G.L. c. 208 § 53(c)(2):

When issuing an order for alimony, the court shall exclude from its income calculation: … gross income which the court has already considered for setting a child support order.

The SJC held that a plain language interpretation of § 53(c)(2) resulting in alimony being nearly prohibited where child support has already been awarded is untenable. Further, … Keep reading

Mental Health During Divorce

When you board an airplane, the flight attendant’s speech usually includes a welcome statement and requests that you securely fasten your seat belt. Then the attendant will alert you that if needed, oxygen masks will be released overhead and request that you secure your own mask before assisting others. Similar to an emergency plane landing, during a divorce, it is important to make sure to take care of yourself before helping others.

Many clients ask at the outset of their case how to best protect their children in divorce. My answer usually stresses the importance of self-care for the client. After my client has put on their own oxygen mask and taken care of themselves, they will ultimately be able to assist their child best.

As a family law attorney, it is my responsibility to shepherd clients through one of their most difficult situations – divorce. Divorce, for many, is the death of a dream. In this post, I’ve shared five tips that I recommend to clients going through a divorce.

Tip #1: Engage a therapist or mental health professional.

It is important to consider engaging a therapist to guide you through the roller-coaster of emotions associated with divorce. … Keep reading

Catherine Spanu, Burns & Levinson

A lot of emotions and impulses can arise during a divorce, and it’s critical to avoid any behavior that you may regret– including in the courtroom. What’s at stake? Credibility, time, money, custody, and peace of mind, to name a few. Below, read the top 10 behaviors to avoid during a divorce.

  1. Do not put anything in writing that you wouldn’t want to have read aloud in court.

    This means no harsh text messages or emails to your spouse, and no nasty messages to friends and family about your spouse either. If you are upset or overwhelmed and need to vent, speak to a therapist or other mental health professional, or, if this isn’t possible, a trusted friend or family member in a private location (and never vent to your children about their parent or stepparent).

  2. Do not put any tracking devices on your spouse’s car or electronics.

    Even if you suspect them of having an affair, installing tracking devices or spying on them or their friends will not produce any information that is valuable enough to risk your credibility in court. This type of behavior is frowned on by judges, and infidelity – without something else such as

Keep reading
Griffin v. Kay: A Cautionary Tale in How Your Separation Agreement Is Worded

When spouses reach agreement on terms for a divorce, a written settlement document – commonly known as a Separation Agreement – is prepared. Parties then decide whether the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract. I have written about how your election impacts your ability to modify provisions in the future.

The recent decision in Griffin v. Kay is an excellent cautionary tale about making sure that the merger or survival language is clear and that both you and your spouse agree on what that language means.

Geraldine Griffin and Harry Kay divorced in 2004 and entered into an agreement calling for Harry to pay alimony of $90,000 per year until the death of either party or Geraldine’s remarriage. Their agreement provided as follows relative to merger or survival of the alimony provisions:

Notwithstanding the incorporation of this [a]greement in the [divorce judgment], it shall not be merged in the [J]udgment, but shall survive the same . . . retaining its independent significance as a contract between the parties. Provided, however, in the event of a material negative and involuntary change in the circumstances of either party, that party may seek Keep reading