Broken promises

Issue May 2015 By Katherine Triantafillou

Tolstoy was famous for many things, but most remembered because of the way he began his novel Anna Karenina: "All happy families are alike; each unhappy family is unhappy in its own way." It is an adage that has stayed with me throughout my career as a divorce lawyer, especially when dealing with cases involving domestic violence. Indeed, in a recent trial I used the phrase in my proposed rationale submitted to the court. I thought it was a great way to highlight the unusual facts of my case and hoped it would lead to what I considered a just result. Unfortunately, it didn't.

Despite my 265-page, carefully prepared proposed findings of fact, a third of which detailed incident upon incident of physical and emotional abuse, all of which were supported by testimony allowed into evidence, the court mentioned not a one of them in its judgment, dividing the assets nearly equally. My client, the higher-paid wage earner of the family, who was also ordered to pay statutory general term alimony, was horrified at the result. I was equally surprised that no mention was made of the violence anywhere in the court's opinion.1 Ultimately, my client felt "re-victimized" by the process, and I was left with the impression that short of death or dismemberment, courts in Massachusetts, even in 2015, are not likely to give much weight to violent conduct when dividing up marital assets or awarding alimony.

In Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 821 N.E. 2d 7 (2005), the court opined most eloquently that "preservation of the fundamental human right to be protected from the devastating impact of family violence is the public policy of this commonwealth reflected in various statutes addressing the problem of domestic violence." One of these statutes is the Abuse Prevention Act, M.G.L. c. 209A, which I co-authored and helped lobby through the Legislature in 1978 as a member of the Battered Women's Action Committee.2

Given this policy, I think it is incumbent upon the courts to consider not just the entitlements of M.G.L. c. 208, §34, but also the obligation of individuals in a marital relationship to observe a modicum of civility as they discharge their duties as parents and partners.

We have gone well past the days when husbands were entitled to beat their wives with a stick "no larger than a thumb." Indeed, psychological literature is replete with documentation of the serious effects of family violence. "It has been associated with emotional, behavior and learning problems in children … [and] the effect is long term - essentially modeling behavior for male children to become abusers themselves or for female children to become enmeshed in abusive relationships as they become adults." Gayla Margolin, Effects of Domestic Violence on Children, in "Violence against Children in the Family and Community," 57-101 (Cynthia J. Schellenback & Penelope K. Trickett eds., American Psychological Association 1998); Domestic Violence and the Child Welfare System, CHILD WELFARE INFORMATION GATEWAY (Oct. 2009). See also, Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 Family Law Q. 229 (No. 2, Summer 1995); Shepard, Child Visiting and Domestic Abuse, 71 Child Welfare 357 (1992).

Under M.G.L. c. 208, §34 "conduct"3 is one of the factors to be considered when dividing up marital assets, and one would think that this simple word would encompass a battery committed upon a spouse. However, the courts have traditionally focused on financial misconduct in dividing marital assets rather than physical and mental conduct. See, e.g., Johnson v. Johnson, 53 Mass. App. Ct. 416, 419,769 N.E. 2d 741 (2001) (husband's expenditures on motorcycles, motor home and another home as compared to wife's use of funds to maintain and improve marital home); Yee v. Yee, 23 Mass. App. Ct. 483, 484, 503 N.E.2d 674, 675 (1987) (husband's gambling away joint assets constituted dissipation of marital assets); Bak v. Bak, 24 Mass. App. Ct. 608, 623-625, 511 N.E.2d 625, 634-635 (1987) (husband conveyed real estate to his mother prior to divorce in an attempt to circumvent equitable division); Kane v. Kane, 13 Mass. App. Ct. 557, 558-559, 434 N.E.2d 1311, 1312-131 (1982) (husband's "practice of skimming cash from the gross daily receipts of the service station…" as well as his living beyond his means noted in division of assets); Ross v. Ross, 385 Mass. 30, 37, 430 N.E. 2d 815, 820 (1982) (use of marital assets to support another woman considered in division). These cases are consistent with the view of marriage as a financial "enterprise" and thus the inquiry of the courts is relegated to how the conduct impacted finances.4

Perhaps the most telling language in this line of economic impact cases is found in Kittredge v. Kittredge, 441 Mass. 28, 38, 803 N.E.2d 306, 314-315 (2004) where the court placed great weight on whether the husband's behavior (illegal gambling) impacted the parties' financial security, stating:

"Conduct that has harmed the marriage or the marital estate may be viewed negatively, and considered as a factor that would diminish a spouse's equitable share of marital property. However, it is conduct having an adverse impact on the marriage or the estate, not simply conduct that is in some other sense considered 'good' or 'bad' that is to be weighted. [Emphasis added]. An equitable division of marital property is intended to effect fairness between the parties in the light of all the circumstances, not to punish 'bad' behavior or enforce criminal laws."

This reluctance by the court to parse out "good or bad" conduct seems dubious at best. Isn't that what the court considers when it calls out a party for having squandered marital funds or entertained a lover outside of marriage? Just because we don't have to prove a fault ground to obtain a divorce, why would "conduct" as one of the mandatory factors take on a wholly different meaning after the shift to a no-fault paradigm?

The cases in which the courts have considered violent conduct, as the public policy of the commonwealth requires, are few and far between. See, e.g. Knapik v. Knapik, 56 Mass. App. Ct. 1104, 776 N.E. 2d 1040 (2002) ("wife was the victim of emotional abuse and threats of physical abuse."); Bacon v. Bacon, 26 Mass. App. Ct. 117, 120, 524 N.E. 2d 401, 403 (1988) ("At times early in the marriage, the husband was abusive to the wife" and therefore some weight given to it in the division); Handrahan v. Handrahan, 28 Mass App. Ct. 167, 547 N.E. 2d 1141 (1989) (husband's abuse of wife and of alcohol considered because it affected economic and non-economic contributions); Johnson v. Johnson, 22 Mass.App.Ct. 955,956, 494 N.E. 2d 423 (1986) ("abusive conduct, both mental and physical" noted by court in dividing marital assets). Another case, Wolcott v. Wolcott, 78 Mass. App. Ct. 539, 939 N.E. 2d 1180 (2011), review denied, 459 Mass. 1108, 944 N.E.2d 1044 (2011) stands out for its examination of conduct whereby the court awarded 90 percent of the assets to the husband; there however, the wife had apparently solicited someone to murder the husband and dissipated assets.

My client's situation involved uncontroverted evidence of a pattern of abusive conduct over a decade as well as an ongoing threat to the minor children.5 She had obtained a 209A order in the District Court, which had been extended beyond one year at the time of trial. The husband had been arrested by the police for one of the incidents, and therefore a criminal prosecution was pursued by the District Attorney's Office to which the husband had pleaded "sufficient facts" and was placed on probation. The GAL agreed on the stand that the wife was battered by the husband and further that the husband was "relentlessly argumentative." Visitation with the children were supervised and frequently suspended because of the husband's erratic, emotionally abusive behavior during visits.

In many respects, most all of the wheels of our justice system - the police, the district attorney and the District Court - worked in tandem to protect both the wife and the children, and I was pleased to see that the years of reform and training ushered in by the adoption of the Abuse Prevention Act bore fruit. And yet, the promise of those reforms are broken when a Probate and Family Court is apparently constrained in its consideration and definition of the word "conduct." Had my client been assaulted by a stranger on her way home from work, she most surely would have been compensated under the commonwealth's tort laws for that person's conduct. Had my client not been able to work or quit her job because of the abuse instead of soldiering on for the benefit of the family, she might have gotten some solace that her abuser would suffer financial repercussions for his behavior. But shouldn't a battered woman's physical and mental torment merit consideration in and of itself in the application of the division of marital assets factors? Do we now have a sliding scale of domestic violence: an abuser gets a free pass in the divorce courts for punching and shoving, perhaps attempted suffocation, but not a contract for murder? How is it that we have come to this juncture where "bad behavior" cannot be compensated for within the framework of the divorce laws? Isn't the common law dynamic enough to stretch the bounds of what constitutes cognizable "conduct" within M.G.L. c. 208, § 34?

These are troubling questions and ones that should be addressed by the legal system with a forceful recognition that spousal abuse is not only "bad," but it will have myriad consequences in the life of the victim moving forward, including those of a financial nature. Anything less than that is a travesty and certainly not what policy makers intended when enunciating a "fundamental human right to be protected from … family violence."


The views expressed within this article are the author's own.

  1. The court did refer to the importance of maintaining the husband's lifestyle.
  2. Katherine Triantafillou, Massachusetts: New Legislation to Help Battered Women, 27 The Judges' Journal, No. 3 Summer (1988). See, also, M.G.L. c. 208, §31A, which contains a "rebuttable presumption that it is not in the best interests of the child to be placed in the sole custody, shared legal custody or shared physical custody with the abusive parent" defining "an abusive parent" as one "who has committed a pattern of abuse or a serious incident of abuse. Custody of Vaughn, 422 Mass. 590, 596, 664 N.E. 2d 434, 439 (1996)(custody case remanded to trial court because "Probate Court failed to give sufficient weight to the effects of domestic violence on women and their children.")
  3. M.G.L. c. 208, §53, the "new" alimony statute, deletes conduct as a factor but includes a catch-all phrase: "and such other factors as the court considers relevant and material," thereby leaving open the door to judicial flexibility. See, also, Green v. Green, 84 Mass. App. Ct. 1109, 993 N.E. 2d 373 (2013)("the [new alimony] Act permits judges to deviate from the presumptive limits on duration, and to deviate where necessary from the presumptive limits on amount.")
  4. "the advent of reforms in marital law, the nature, character and circumstances of the entire marital enterprise have superseded the cause of the marriage's termination as the focus … Fault which might constitute grounds for divorce does not necessarily correlate with the amount of contribution during the marriage, nor the needs of the parties after the marriage has ended." Inker and Clower, Towards a New Justice in Marital Dissolution: The Massachusetts Statutory Scheme and Due Process Analysis, XVI Suffolk Univer. L. Rev. 907, 931-932 (1982).
  5. Fortunately, my client was awarded full physical and legal custody of the minor children, but according to the court's opinion it was because of the inability of the parties to get along or successfully negotiate.