Written by attorney Teresa M. Harkins La Vita

In Divorce, Conduct CAN Matter

A myriad of factors can affect the outcome of a divorce in Massachusetts. In determining division of the marital estate, or whether to award alimony, the court will look to mandatory and discretionary factors as outlined in Mass. General Laws 208, section 34. The mandatory factors include length of the marriage, the age and health of the parties, the income and vocational skills of the parties, the assets in the marital estate, and the liabilities and needs of the parties. Another mandatory factor that is not often given great weight in today's world is the conduct of the parties during the marriage. However, divorcing parties should be aware that in divorce, conduct CAN matter.

A common example of when the conduct of a spouse matters in divorce is as follows: One party, say the husband, engages in an extramarital affair. For five years, without the knowledge or consent of the wife, the husband spends lavish amounts of money on his paramour. He buys her jewelry, expensive dinners, maybe takes her on a trip or two. By the time the wife learns of the husband's affair, he has spent $100,000.00 of marital funds on his girlfriend. The wife is able to show the court through documentary evidence or testimony that the husband spent this money, therefore diminishing the marital estate by $100,000.00. Even though the husband's conduct may have caused the marriage to end, the court will not make a moral judgment about the husband's behavior. However, the court will consider the husband's dissipation of marital funds in determining division of the marital estate or whether to award alimony to either party. In this egregious instance, when considering all of the mandatory and discretionary factors in Mass. General Laws 208, section 34, the court has the discretion to afford the "conduct" factor greater importance. While the outcome can never be predicted with 100% accuracy, the wife may potentially be awarded a greater portion of the marital estate due to the economic impact of the husband's conduct.

Recently, more examples of conduct that may affect division of the marital estate came to light. In the Massachusetts Appeals Court slip opinion Wolcott v. Wolcott, No. 09-P-1446 (Mass. App. January 6, 2011), the wife engaged in an extramarital affair, wasted $14,000.00 of the parties' funds on regulation-violating landscaping, spent $24,000.00 of the parties' funds on plastic surgery, and was convicted of solicitation to commit murder of the husband. At the trial level, the court weighed all of these instances of the wife's misconduct with the other Mass. General Laws 208, section 34 factors, and awarded the husband a disproportionately higher amount of the marital estate. The wife appealed the unequal division of assets. The Appeals Court thoroughly examined the trial court judge's reasoning for the unequal division, finding that while the judge gave considerable weight to the wife's misconduct, all other relevant statutory factors were examined as well. The trial level judge did not give undue weight to the wife's criminal conviction. The Appeals Court ultimately decided that the judge did not abuse his discretion, and the judgment was affirmed. See generally Wolcott v. Wolcott, No. 09-P-1446 (Mass. App. January 6, 2011). .

The court has broad discretion to apply and interpret the effect of any of the mandatory and discretionary factors in Mass. General Laws 208, section 34. While the wife's conduct in Wolcott seems more likely to occur in a blockbuster than reality, the totality of her misconduct was what mattered. Perhaps if her only misconduct had been waste of marital assets, and not conviction of solicitation to commit murder, the outcome may have been different. The outcome if even one fact is changed is impossible to predict. However, what we learn from Wolcott is that non-economic conduct can play a part in the court's decision regarding division of marital property. Divorcing parties should be aware that conduct can - and does - still play a role in divorce.

The information you obtain from this Legal Guide is not, nor is it intended to be, legal advice. This Legal Guide is for informational purposes only. If you need legal advice regarding your own situation, please consult an attorney.

Additional resources provided by the author

For more information, and to read the text of Mass. General Laws 208, § 34, visit the link below.

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