section 34 division of property in Massachusetts

2023Accord Heins, supra at 483 , citing Pare, supra at 297 (any 8 postdivorce "increased value of real estate resulting from market conditions should be divided between both parties"); Davidson v. Davidson, 19 Mass. App. Ct. 364, 376 (1985) ("Where the division of property under § 34 takes place . . . after the divorce, the property subject to division is to be valued as of the date of the order for division. . . .

2018Cf. Davidson v. Davidson , 19 Mass. App. Ct. 364 , 374-375, 474 N.E.2d 1137 (1985) (error to divide husband's after-acquired property in § 34 action, but potential inheritance may be considered in dividing marital property).

2020"According [this] broad discretion to the judge's division of property pursuant to the § 34 factors 'is necessary in order that the courts can handle the myriad of different fact situations which surround divorces and arrive at a fair financial settlement in each case.'" Adams v. Adams, 459 Mass. 361, 371 (2011), quoting Rice v. Rice, 372 Mass. 398, 401 (1977).

2012“According broad discretion to the judge’s division of property under the § 34 factors ‘is necessary in order that the courts can handle the myriad of different fact situations which surround divorces and arrive at a fair financial settlement in each case.’ ” Kittredge v. Kittredge, 441 Mass. at 43-44 , quoting from Rice v. Rice, 372 Mass. 398, 401 (1977).

2004“A final and equitable property division under § 34 [which is not modifiable] should not be based on speculative assets.” Williams v. Massa , 431 Mass, at 628, quoting from Hanijy v. Hanijy, 403 Mass. 184, 193 (1988) (Liacos, J., concurring in part and dissenting in part). 19 Compare Davidson v. Davidson, 19 Mass. App. Ct. at 372 (noting that the remainder interest there involved may have been at the “outer limits” of a property interest that properly may be included within the marital estate subject to division).

2000See Hanify v. Hanify, 403 Mass. 184, 193 (1988) (Liacos, J., concurring in part and dissenting in part) (“A final and equitable property division under § 34 should not be based on speculative assets”).

1992Drapek v. Drapek, supra at 246 .

1992While Drapek v. Drapek, 399 Mass. 240, 244 (1987), and Lyons v. Lyons, 403 Mass 1003 (1988), foreclosed consideration of an individual’s advanced degree or professional license from consideration as property divisible under § 34, the court acknowledged that the increased earning potential of a spouse developed as a result of the degree may be a factor in calculating alimony and assigning shares in the estates of the parties.

1985See Rice v. Rice, supra at 402 ; Belsky v. Belsky, 9 Mass. App. Ct. 852, 853 (1980).

1981See Maze v. Mihalovich, 7 Mass. App. Ct. 323, 324, 326 (1979); Belsky v. Belsky, 9 Mass. App. Ct. 852, 852-853 (1980).

2020"According [this] broad discretion to the judge's division of property pursuant to the § 34 factors 'is necessary in order that the courts can handle the myriad of different fact situations which surround divorces and arrive at a fair financial settlement in each case.'" Adams v. Adams, 459 Mass. 361, 371 (2011), quoting Rice v. Rice, 372 Mass. 398, 401 (1977).

2012Adams v. Adams, 459 Mass. 361, 371 (2011).

1988See Redding v. Redding, 398 Mass. 102, 108-109 (1986).

1987In this case, remand is required so that the judge may articulate the rationale for the § 34 alimony and property awards as required by Redding v. Redding, supra at 108 .

1985The underpinning of any order for division of property under § 34 is, however, the judge’s consideration of the contributions, in the statutory terms, of each spouse, as well as other factors in existence at the dissolution of the partnership which have been traditionally applied in determining alimony. 16 See Bianco v. Bianco, 371 Mass. at 422-423 ; Putnam v. Putnam, 5 Mass. App. Ct. at 14-15 ; Inker & Clower, 16 Suffolk U.L.

1982Putnam v. Putnam, 5 Mass. App. Ct. 10, 17 (1977).

1985See Hay v. Cloutier, 389 Mass. at 250 & n. 3.

1983L. c. 208, § 34, the judge did not have the benefit of Hay v. Cloutier, 389 Mass. 248 (1983), in which it was decided that the division of assets provisions of § 34 were not to be applied retroactively, i.e., not to divorce judgments which became absolute prior to October 17, 1974, the date upon which St. 1974, c. 565, became effective.

2026See Cabot, 18 Mass. App. Ct. at 905 .

2023Accord Heins, supra at 483 , citing Pare, supra at 297 (any 8 postdivorce "increased value of real estate resulting from market conditions should be divided between both parties"); Davidson v. Davidson, 19 Mass. App. Ct. 364, 376 (1985) ("Where the division of property under § 34 takes place . . . after the divorce, the property subject to division is to be valued as of the date of the order for division. . . .

2023Accord Heins, supra at 483 , citing Pare, supra at 297 (any 8 postdivorce "increased value of real estate resulting from market conditions should be divided between both parties"); Davidson v. Davidson, 19 Mass. App. Ct. 364, 376 (1985) ("Where the division of property under § 34 takes place . . . after the divorce, the property subject to division is to be valued as of the date of the order for division. . . .

2018See Brash v. Brash , 407 Mass. 101 , 104-105, 551 N.E.2d 523 (1990) (laches not a defense to an action for the division of property under § 34 ).

2018See also Bullock v. Zeiders , 12 Mass. App. Ct. 634 , 636-637, 428 N.E.2d 311 (1981).

2018See also Bullock v. Zeiders , 12 Mass. App. Ct. 634 , 636-637, 428 N.E.2d 311 (1981).

2004“We will not reverse a judgment with respect to property division unless it is ‘plainly wrong and excessive.’ ” Baccanti v. Morton, 434 Mass. 787, 793 (2001), quoting Ma-honey v. Mahoney, 425 Mass. 441, 447 (1997).

2004See Fascione v. CNA Insurance Cos., 435 Mass. 88 (2001).

2004“We will not reverse a judgment with respect to property division unless it is ‘plainly wrong and excessive.’ ” Baccanti v. Morton, 434 Mass. 787, 793 (2001), quoting Ma-honey v. Mahoney, 425 Mass. 441, 447 (1997).

2004Baccanti v. Morton, 434 Mass. 787, 790 (2001), and cases cited.

2004Need is a major element, but obviously not the only one, in an equitable distribution of property under § 34.” Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903, 904 (1992).

2004However, “where the trial court has previously passed on the issue of alimony in the divorce judgment, the correct course of action ... is the post-divorce complaint for modification, implicating the traditional test of a material change in circumstances.” Buckley v. Buckley, 42 Mass. App. Ct. 716, 719 (1997).

2004Thus, the fact that a spouse’s “conduct” during the marriage included unlawful conduct, and that the marital estate is less valuable as a result of that unlawful conduct, is but one circumstance, not necessarily determinative in itself, for a judge to consider in equitably distributing property pursuant to § 34. 12 See Jones v. Jones, 942 P.2d 1133, 1140 (Alaska 1997) (illegal nature of husband’s gambling “is not of central importance” to determination whether his gambling was “an unreasonable depletion of marital assets”).

2003See Passemato v. Passemato, 427 Mass. 52, 55-57 (1998).

2002See Cherrington v. Cherrington, 404 Mass. 267, 269-271 (1989).

1996See Liebson v. Liebson, 412 Mass. 431, 432-433 (1992).

1991See Lyons v. Lyons, 403 Mass. 1003 (1988) (assuming that question whether attorney’s interest under a contingent fee agreement is divisible property under § 34 is a question of law); Hanify v. Hanify, 403 Mass. 184, 186-190 (1988) (assuming that question whether party’s interest in a pending lawsuit is divisible property under § 34 is a question of law). 2 Our starting point in analyzing the question is the statute itself.

1988See, e.g., Dewan v. Dewan, 399 Mass. 754, 757 (1987) (assignment of percentage interest in current value of vested future pension benefits).

1981See Maze v. Mihalovich, 7 Mass. App. Ct. 323, 324, 326 (1979); Belsky v. Belsky, 9 Mass. App. Ct. 852, 852-853 (1980).