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Conduct as a Controlling Factor in Property Assignment Upon a Divorce

The court must consider the conduct of the parties during the marriage when resolving issue of property division.

While under the Alimony Reform Act eliminated "conduct" as a factor in awarding spousal support, it remains a factor in awarding an assignment of property under G.L. chapter 208, § 34.

Although the word "conduct" has a broad meaning, the courts have tended to limit its meaning in this context. In relation to property division, conduct is primarily relevant when it has an economic impact on the marital enterprise.

Examples of such conduct include -----

  • A spouse skimming cash from a business and engaging in a lifestyle not supportable by his reported income.
  • A spouse failing to take care of marital assets.
  • A spouse conveying property to a third party in anticipation of a divorce action with the intent of preventing the court from dividing or considering that property. Where property is transferred by a spouse without fair consideration and with the intent of defeating the possible property division claims of the grantor's marital partner in an anticipated divorce, the defrauded spouse can be treated as a creditor and seek to set the conveyance aside.
  • A history of personal hostility between the spouses which is so intense that it would be best to terminate all future economic and personal dealings between the parties.
  • The failure of a spouse to make any contribution to the marital partnership over a long period of time.
  • The gambling habits of a spouse which cause a waste of marital assets.
  • A spouse's use of family assets or funds to entertain a lover.
  • A spouse's fault in increasing the liability of the family.
  • A spouse's conduct in using their own income for personal purposes while allowing the other spouse to pay family expenses.

The courts have stressed that marital fault or the moral failings of a spouse unrelated to significant economic consequences should not be determinative in regard to property assignment or division.

Merely because conduct is illegal, immoral or even criminal does not make it conduct which has to be weighted negatively in property assignment.

If you have any questions regarding property division contact the Law Offices of Renee Lazar for a free consultation.

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Law Offices of Renee Lazar
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