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.
- The court did refer to the importance of maintaining the
husband's lifestyle.
- 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.")
- 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.")
- "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).
- 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.