Tenancy in Common
When real property is transferred to one or more individuals, Massachusetts law defaults to an ownership type known as a tenancy in common. Owning property as tenants in common means that you and your spouse each have a proportional share in the property, which may or may not be equal. With this type of ownership, you may freely transfer your share of the property during your life, or after your death through a will, without the consent of your spouse.
Tenancy by the Entirety
As an alternative to tenants in common, the property may be deeded to you and your spouse during the marriage as tenants by the entirety. This ownership type is only available to married couples, but is the functional equivalent to a joint tenancy, which is available to non-married individuals. In contrast to a tenancy in common, as tenants by the entirety you and your spouse have an equal interest in the property, which neither of you can freely transfer without your spouse's consent. After one of you dies, the property automatically transfers in full to the other.
Effect of Divorce
Because only a married couple can utilize tenancy by the entirety, this type of ownership must change following a divorce. In Massachusetts, a divorce automatically converts a tenancy by the entirety into a tenancy in common without a separate order from the court. The practical effect of this law is that unless the judge makes a different property allocation during the divorce proceedings, following the divorce, you or your spouse can then transfer your fractional one-half ownership interest to anyone. This is true regardless of whether one spouse is occupying the property.
Massachusetts law provides judges with wide discretion in dividing property between a divorcing couple. The process involves placing a monetary value on most assets acquired during the marriage and then distributing a portion to each spouse on the basis of fairness. Because of the uncertainty and potential conflict that could result if a divorced couple owns property together as tenants in common, a judge may decide to award the entire interest in the property to the spouse who will occupy the premises, perhaps in exchange for a greater award of different property to the other spouse, such as automobiles or cash.