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Thursday, February 3, 2011

Does a Divorce affect my Homestead protection?

A new Massachusetts Homestead law was signed in December, 2010 (taking effect in March, 2011) and there are some provisions that relate to how a homestead is or is not affected by divorce:

Effect of Homestead on Child Support or Alimony: M.G.L. c. 188 Section 3(b)(4) - The Homestead Exemption does NOT protect you from collection of child support or spousal support (a/k/a alimony).

Effect of Marriage on Homestead for Spouse: M.G.L. c. 188 Section 5(d) - "The estate of homestead of an individual who records a declaration of homestead under section 3 and who subsequently marries shall automatically be deemed to benefit that individual’s spouse."

Effect of Divorce Orders on Homestead for Spouse and Children: M.G.L. c. 188 Section 6 - "In a case where a complaint for divorce, separate support, guardianship or conservatorship has been filed in the probate court by or against a person entitled to the benefit of an estate of homestead, the spouse and minor children of that person may use, occupy and enjoy the homestead estate until ordered otherwise by the probate court. The recording of an order of the probate court, together with the description of the homestead estate, shall prevent a beneficiary of the homestead estate from disposing of the estate until such time as the probate court revokes the judgment."

M.G.L. c. 188 Section 7 - "The estate of homestead existing at the death or divorce of a person holding a homestead under section 3 or 4 shall continue for the benefit of the surviving spouse or the former spouse and minor children who occupy or intend to occupy the home as their principal residence. The estate of homestead of the surviving spouse or former spouse and minor children shall continue notwithstanding the remarriage of the surviving or former spouse."

Thank you to Danielle Van Ess, Esq. for providing all of this information (and practically writing this blog for us). We recommend you check out her blog post regarding how the new Homestead Law affects Estate Planning: Why You Should Care About the New MA Homestead Law.

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