Demystifying Myths About Dividing Assets in Divorce: Part 1 – The Affair

First of all, to our past, present, and future readers, we want to thank you for reading and wish you all a very Happy New Year!  We hope that our articles provide you with some new insight and perspective, as well as the occasional levity to the often challenging (but always interesting) divorce process.  In this “fake news” era, I thought it would be helpful to start the year by dispelling some “myths” and “misconceptions” of the divorce process, specifically, as they apply to the ubiquitous issue of dividing assets in a divorce.  I hope you enjoy.

Divorce practitioners are very familiar with our clients’ “friend” who was awarded all of the assets in the divorce because [insert divorce myth here].  The topic of these unscathed friends comes up frequently in the context of the initial intake meeting in which we discuss goals and expectations in the divorce process with our prospective clients.  Truth is, everyone going through the divorce process (for the first time) will inevitably have certain expectations about how the marital assets will be divided at the end of the divorce.  Often times, the expectations are rooted in someone else’s prior experience with the process.  As is human nature, we often turn to family and friends to seek guidance and gather information about the unknown, which, when asking about divorce, may result in stories of legends and myths passed down through generations along the lines of: “I knew a guy who told me his cousin made out like a bandit in her divorce; got the house and everything and left her husband homeless as a result.”

Dividing assets in divorce is far from a straightforward or even predictable process.  In Massachusetts, the Court is required to consider a number of factors to determine an equitable, not necessarily equal (myth #1), division of assets.  The mandatory factors, found in Massachusetts General Laws Chapter 208, section 34, include the parties’ respective ages, health, occupations, amount and sources of income, employability, and conduct of the parties, as well as the length of the marriage, estate, liabilities, and needs of each of the parties.  A technically discretionary, but critically important factor is each party’s economic (i.e. acquisition, preservation, and appreciation of the value of the marital assets) and non-economic (i.e. homemaking, raising children, etc.) contribution to the marriage.  None of the aforementioned factors is dispositive, meaning that an equitable division of marital assets is based on consideration of the totality of the factors and not just one, and judges have wide discretion in which to weigh these factors in any given case.

So what are some of the common misconceptions about asset division in divorce, and what is the non-fiction version?  We will explore a few of the most common misconceptions over a couple of articles, but first things first:

Conduct of the parties is important in asset division, just maybe not for the reasons you’d think:

Of all the “myths” about the divorce process, the weight assigned to certain conduct during the marriage in dividing marital assets is the one my colleagues and I tend to hear most frequently.  Word association exercise: if I say “conduct” during the marriage, what is the first thing that comes to mind?  While there are a variety of items relevant to conduct during the marriage, if you tell me something other than the title of a popular television show (ahem, The Affair), you either already read this article or a judge may question the credibility of your testimony.

Conduct in the marriage is most often associated with adulterous affairs, and for good reason – we see it a lot in the divorce context.  One thing clients in those situations are often surprised to hear, is that an adulterous affair, by itself, does not result in an automatic shift of a certain percentage of assets to the aggrieved spouse.  That said, certain details do matter more than others.  For example, if the adulterous spouse used marital assets to pay for dates, travel, hotels, jewelry, etc., that will get the judge’s attention more than the existence of adultery during the marriage.  Judges can be persuaded to consider any dissipation or spending down of the marital estate on such activities, which may result in a disproportionate division of the remaining assets in favor of the aggrieved spouse.

In reality, the existence of an affair is still a significant factor in a divorce proceeding, and, technically, is still against the law in Massachusetts even though no one has been criminally prosecuted for adultery in almost 40 years.  The shift to a “no-fault” divorce system in Massachusetts in the mid-1970s took the focus away from the cause(s) of the breakdown of the marriage.  Nevertheless, the details of conduct in the marriage are still relevant to the divorce proceeding as one of the many factors under G. L. c. 208, § 34, and can be useful as leverage in the context of negotiations, it just might not result in the financial “justice” in the divorce that one might expect, despite what the guy whose cousin made out like a bandit in her divorce told you.