While it cannot be questioned that the probate court does possess the power to make an assignment of a spouse’s property regardless of the source, this issue is one of discretion, i.e., should the court exercise its admitted power. In Putnam v. Putnam, 5 Mass.App.Ct. 10 (1977), the Appeals Court noted the distinction regarding the court’s exercise of its power to assign property. At issue was the assignment of the net proceeds from the sale of the divorced parties’ Marital Home, held by them as tenants by the entirety. The wife contended that the judge’s apportionment of the proceeds, which effectively awarded one-third (1/3) of what otherwise would have been her share to the husband, was unjustified in that § 34 did not confer a power for equitable division on the Probate Courts. Id. at 13. The court found this contention patently false based on the most recent case law, but nevertheless found the appointment unjustified in that the probate judge’s report of material facts did not furnish an adequate basis for the assignment to the husband of a portion of the net proceeds. Id., 5 Mass.App.Ct. at 16.

The Court in Putnam noted that the power given the Probate Courts to assign property of the other spouse is not an unlimited and that “[a] decision awarding property of one spouse to the other will be sustained on appeal (only) if it is supported by traditional alimony considerations or by findings relative to the respective contributions of the parties in accordance with the fourth sentence in of § 34.” (emphasis added). The court also noted that an “order for equitable division should normally encompass all substantial assets jointly owned and any separate property representing accretion during the marriage and should be based on a comprehensive analysis of all major elements of contribution by the spouses during the marriage.” (emphasis added). Id., 5 Mass.App.Ct. at 17. This opinion clearly suggests that the court should not exercise its discretion to assign such property unless there exists an affirmative showing of “contribution”, either economic or non-economic, on the part of the respective parties in relation to the particular asset in question.

The Court’s analysis in Williams v. Massa, 431 Mass. 619, 728 N.E.2d 932 (2000) is highly relevant here. In Williams, the Appeals Court found that there is no question that the husband’s stocks and bonds that were gifts from his parents, and his interests in family trusts, inherited from his parents, comprised part of the marital estate for purposes of possible division under G.L. c. 208, § 34, and that the trial judge clearly knew the law on the point because she listed these assets in her findings as part of the marital estate. However, the trial judge’s statement, that she found “no special circumstances” which would justify an assignment to the wife of the husband’s inherited or gifted property, shows neither that she excluded those assets from the marital estate, nor that she imposed an improper test for the equitable division of those assets. The judge’s words merely indicate that, after her consideration of all the factors enumerated in § 34, including her assessment of the source of the inherited and gifted assets and the parties’ respective contributions to them, those assets should remain the property of the husband, especially in light of the judge’s finding that there were other jointly produced assets to assign to the wife.

Attorney John E. Studley, Jr. has over 30 years of legal experience and has represented clients in drafting and negotiating Antenuptial Agreements. If you would like to speak with him, please call Sandy at 508-946-0070.

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