By Jonathan Fields, Esq.

One of the most frequent questions clients ask divorce attorneys is whether a spouse’s bad conduct will impact the financial settlement in a divorce.  This article explores the Massachusetts law in this area.

The Massachusetts property division statute, G.L. c.208 s.34, requires courts to examine multiple factors in determining the division of the marital estate upon divorce.  The statute articulates mandatory and non-mandatory considerations.  Practically speaking, the length of the marriage may be the most important consideration upon which all further analyses depends.[1]  The relative economic and non-economic contributions of the parties (paradoxically, a non-mandatory consideration under the statute) has been elevated by the case law to be the “touchstone of an equitable division of the marital estate.”  Moriarty v. Stone, 41 Mass. App. Ct. 151, 157 (1996).  The character of an asset (whether it was inherited and/or premarital) is another prominent consideration.  Rice v. Rice, 372 Mass. 398 (1977).

The statute also includes, as a mandatory consideration, “the conduct of the parties during the marriage.”  On the far end of the spectrum of conduct affecting a property division is a case in which the wife solicited the husband’s murder.  The trial court awarded the husband 90% of the marital estate and the Appeals Court upheld the division.  Wolcott v. Wolcott, 78 Mass. App. Ct. 539 (2011).

Obviously, conduct less egregious than that in Wolcott can also form the basis of a disparate division.  Johnson v. Johnson, 22 Mass. App. Ct. 955, 956 (1986) (judge properly considered “husband’s abusive conduct, both physical and mental”); Bacon v. Bacon, 26 Mass. App. Ct. 117, 120 (1988) (judgment affirmed where judge considered fact that “[a]t times, early in the marriage, the husband was abusive to the wife”).

[1] As a leading article describing the theory underlying the enactment of G.L. c.208 s.34 in 1974 puts it, the “length of the marriage is a critical consideration in assignment of property.  The equities of assigning to one party a portion of the other’s estate are clearly diminished where the marriage is only of brief duration …” Inker, Walsh and Perocchi, Alimony and the Assignment of Property, X Suffolk Univ.Law.Rev 1 (1975).

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