Property Division in a Massachusetts Divorce: Section 34 and Equitable Division
Massachusetts family law · Last reviewed October 28, 2026
Massachusetts doesn't split property 50/50, and it doesn't have a fixed category of separate property that stays out of the divorce. Under G.L. c. 208, § 34, the court can divide all or any part of either spouse's estate, weighing a list of factors to reach a fair result.
What the court can divide
Section 34 is broad:
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.
So property one of you owned before the marriage, or received as a gift or inheritance, is not automatically yours to keep. It can still be divided. Where it came from is one of the things the court weighs, not a bar.
The factors
The court must consider:
- the length of the marriage;
- the conduct of the parties during the marriage;
- each spouse's age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs;
- each spouse's opportunity to acquire capital assets and income in the future;
- the amount and duration of any alimony; and
- the present and future needs of the dependent children.
The court may also consider each spouse's contribution to acquiring, preserving or increasing the value of the property, and each spouse's contribution as a homemaker to the family unit.
Conduct is on the list, so fault can matter here even in a no-fault divorce. In a 1A joint petition, though, the statute tells the judge to make "no inquiry into, nor consider any evidence of the individual marital fault of the parties" when reviewing your agreement (§ 1A).
Debts
Liabilities are a listed factor, and the court allocates debts along with assets. Your agreement or the judgment decides who pays what between the two of you. A creditor who lent to both of you isn't bound by the divorce, so a joint debt assigned to your spouse can still come back to you if it goes unpaid.
Retirement accounts and pensions
Retirement benefits, pensions, deferred compensation and military retirement (to the extent federal law allows) are expressly part of the estate the court can divide, whether vested or not. Dividing a plan usually takes a separate order written to the plan's own requirements, so ask the plan what it needs before the agreement is final.
The marital home
While the case is pending, a judge can order one spouse to leave the marital home for up to 90 days at a time, after a hearing, if the health, safety or welfare of the spouse asking, or of minor children living with you, would otherwise be endangered or substantially impaired (§ 34B). At the end of the case, the home is divided like any other asset: one spouse keeps it and buys the other out, or it is sold.
Protecting property during the case
From the moment a complaint for divorce is filed (and, for the defendant, from service), the automatic restraining order under Supplemental Rule 411 says that neither spouse shall "sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property" except for reasonable living expenses, the ordinary course of business or investing, reasonable legal fees, a written agreement, or a court order. It also bars new debt that burdens the other spouse's credit, beneficiary changes, and dropping the other spouse or the children from insurance.
Disclosure
You can't divide what you can't see. Each spouse files a sworn financial statement within 45 days of service, and exchanges three years of tax returns and account statements under Supplemental Rule 410. See forms.
Frequently asked questions
Is Massachusetts a community property state?
No. Massachusetts divides property equitably under § 34, which means fairly in light of the factors, not necessarily equally.
Is property I owned before the marriage protected?
Not automatically. Section 34 lets the court assign all or any part of either spouse's estate. When the property was acquired, and who contributed to it, are things the court weighs.
Does an inheritance get divided in a Massachusetts divorce?
It can. An inheritance is part of the receiving spouse's estate, and the court decides whether any of it goes to the other spouse after weighing the factors.
Does adultery affect property division in Massachusetts?
It can. The conduct of the parties during the marriage is a § 34 factor. In a 1A joint petition, the judge doesn't consider fault when reviewing the agreement.
Can I sell the house while the divorce is pending?
Not without your spouse's written agreement or a court order, once the automatic restraining order applies, unless the sale fits an exception such as the ordinary course of business.