Massachusetts has taken the position that ALL assets of the parties (individual and marital) are put on the table for distribution at time of divorce. Many states honor “separate property” doctrine at time of divorce–that is property the parties’ owned before marriage or in their name only — but Massachusetts does not. So, any pension in place during the time of marriage is subject to division.
Its very hard to get away from the strict letter of the law when it comes to pensions; however, you and your spouse are free to negotiate and make any arrangement you want, that is acceptable to the Court, if you settle your divorce by agreement. You can negotiate the distribution of assets (including pension funds), custody, child support, alimony–ALL OF IT. You can have a lawyer draft an divorce agreement which addresses all the issues that must be addressed, present it to the Court and once approved, the Agreement will be incorporated into the final judgment of divorce and those will be the orders you will live by thereafter.
Your spouse my waive the right to her share of the pension funds in exchange for something or for nothing in return. It’s the spouse’s right to waive. If she is truly willing to make the transition as painless as possible she might consider waiving her interest in the pension, or exchanging it for some benefit she wants, such as paying for college for the kids or keeping the marital home–this, of course, should be based on the value of the pension assets she is waiving. Typically, the spouse is entitled to half of the pension funds.
Health insurance: You can voluntarily agree to continue the children’s health insurance after the divorce. In fact, if the spouse doesn’t have a comparable policy or if the children are dependent on your coverage for their insurance you may be ordered by the court to continue their coverage as part of the child support order.
Another thing you might want to consider is a separation agreement, if you and your spouse are not ready for a divorce but want to live apart. MA doesn’t recognize legal separation but does have provisions for separate support. This addresses living apart, the support for the children and possibly support for the spouse; it will NOT address distribution of marital assets or the divorce itself. Separate Support judgments in Massachusetts do not convert into divorce (as in some other states); if you decide you want a divorce, you would have to start an action distinct from the separation papers.
Hope this was helpful 🙂
Estela Matta, Esquire