Desertion as Grounds for Divorce

Dean and Doreen are married, but they have not lived together since Dean left the marital home in Massachusetts about two years ago and moved out of state. While Massachusetts recognizes no fault divorce, meaning a party need only claim that there’s been an irretrievable breakdown of the marriage, some parties understandably prefer to file for fault, such as abandonment or desertion. In this case, Doreen would like to file for divorce and wonders if this approach makes sense.

In Massachusetts, by statute, desertion of a spouse is a fault ground for divorce. If you’ve essentially been abandoned by your spouse, this may be grounds for your divorce. The applicable statute reads: “A divorce from the bond of matrimony may be adjudged for…utter desertion continued for one year next prior to the filing of the complaint[.]”

The applicable statute sets out the elements as follows: “In order to establish grounds for divorce for desertion, the plaintiff shall establish that the defendant left voluntarily and without justification and with intent not to return, that at the time such defendant left, the plaintiff did not consent thereto, and that the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of the filing of the action.”

Under this statute, it is important to note that the intent to abandon one’s spouse must be present in order for this type of claim to stand. Therefore, if a party leaves but intends to return to the marital home, the other spouse may not have a valid claim for desertion. Moreover, if a party deserts his or her spouse for a valid reason, such as to seek employment, to escape domestic abuse, or for purposes of a military deployment, that reason may serve as justification, and a claim for desertion may fail as a result. Further, the desertion must happen without the consent of the other spouse—mutual separation, or consent to the spouse leaving, means that no desertion has taken place.

The courts also recognize the concept of constructive desertion, where a spouse might not physically leave the marital home but withdraws from the marital relationship. In one older case, the husband was held to have constructively deserted his wife when he abandoned all matrimonial communication and relationship with her and denied her the ability to live in his home.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

The Conduct of the Parties During the Marriage: A Factor in Dividing Marital Property

Larry and Leah have been married for a decade, during which Leah was the main bread-winner through her job as a human resources director. Though Larry has held a string of low-paying jobs, he has not managed to hold down a job for very long, and he can’t seem to manage saving any money—on top of that, Larry has spent substantial amounts of money on his gambling habit for the past ten years.

Leah has recently filed for divorce. She is concerned about the division of the property she has accumulated while she was married to Larry, particularly the marital home which was purchased with a down payment that she saved up from her job. Is the Court possibly going to order that Larry take half of the things Leah has worked so hard to accumulate and maintain, or will the Court take into consideration Larry’s lack of contribution and detrimental decisions?

Larry’s conduct during the marriage will likely be considered by the court here. The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process, and one of those factors is the conduct of the parties during the marriage.

As of the passage of the Massachusetts Alimony Reform Act, the conduct of the parties is no longer a factor in awarding alimony. However, the conduct of the parties remains a factor in the division of marital property. In what ways might it affect the judge’s decision? Past cases have looked at a slew of issues with conduct, including the following:

  • Failure to take care of the marital assets and responsibilities: in one case, the Court conveyed to the wife the primary home where the husband “did very little in house maintenance and spent much time outside the home” and the wife “was responsible for raising the children and taking care of the marital domicile.” [1]
  • Using the marital assets for a spouse’s own purposes, while relying on the other spouse to pay the family bills: in one case, where the wife contributed her money to home repairs while the husband, supported by his wealthy mother, spent his on motorcycles and a motor home, the Court considered the husband’s conduct and assigned almost all of the marital assets to the wife; [2]
  • Conveying marital property to another person in anticipation of divorce: the court in one case, where the husband obtained by fraud and coercion his wife’s permission to establish a trust to benefit his siblings, and moved marital property into that trust, the judge was able to invalidate the trust; [3]
  • Using the marital funds to “entertain” an extramarital affair; and [4]
  • Causing waste of the marital assets, such as by gambling; among other things. [5]

Typically, the conduct of the parties will be considered a factor in marital division only when it impacts the financial or economic state of the marriage. In other words, conduct which does not affect the couple’s finances or economic status—such as one spouse who is perhaps mean and condescending to the other but pulls his or her weight in maintaining the couple’s financial status—likely won’t be a controlling factor. Should that conduct impact finances, however, it may be considered by the Court.

If you have any questions about division of marital property, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.


[1] Tanner v. Tanner, 14 Mass. App. Ct. 922 (1982).

[2] Johnson v. Johnson, 53 Mass. App. Ct. 416 (2001).

[3] Yousif v. Yousif, 61 Mass. App. Ct. 686 (2004).

[4] See, for example, the cases of Ross v. Ross, 385 Mass. 30 (1982) and McMahon v. McMahon, 31 Mass. App. Ct. 504 (1991).

[5] See, for example, Yee v. Yee, 23 Mass. App. Ct. 483 (1987).

Are Personal Injury Judgments Up for Grabs in Divorce Proceedings?

Joe and James are undergoing a divorce. Joe previously suffered an accident in which he lost his leg. James took care of Joe after the accident, supporting him financially, emotionally and physically after Joe became disabled and could no longer work. When Joe brought suit for damages, James was named a plaintiff in the personal injury suit, claiming loss of consortium. Both Joe and James received a significant award for damages, which they converted to an annuity.

With the divorce now looming, James wants to know whether – and to what extent – he is entitled to any of the annuity payments that Joe is receiving. Are they considered marital property for purposes of division and alimony?

The controlling Massachusetts case of Dalessio v. Dalessio was decided by the Supreme Judicial Court in 1991. [1]In that case, the husband had suffered a workplace accident in which he lost his arm. He brought suit and recovered a personal injury judgment of $3,000,000, and his wife recovered a $1,000,000 judgment; with interest, the two totaled about $7,000,000. The amounts were awarded by a general jury verdict, meaning that the exact amounts awarded as compensation for various parts of the husband’s damages were unquantifiable. In other words, the jury did not specify which parts of the husband’s awards were attributed to pain and suffering, which parts were attributed to medical expenses, and which parts were attributed to loss of income and earning capacity.

Two years later, the parties divorced. The judge in the Probate and Family Court held that the annuity payments were part of the marital estate, and he admitted actuarial evidence regarding the present value of the annuity. The judge also designated one-third of the proceeds as compensation for pain and suffering and two-thirds as medical expenses and lost earning capacity. In regards to the one-third designated for pain and suffering, the judge acknowledged that parts of the lawsuit proceeds were meant to compensate only the husband for losses and pain which would be experienced only by him. Accordingly, the judge effectively reduced the wife’s award. The husband appealed, claiming that the judge abused his discretion in dividing the tort proceeds.

The Supreme Judicial Court held that no such abuse of discretion occurred. First, the Court noted that proceeds from a personal injury judgment are subject to marital property division, despite the husband having exchanged them for an annuity. “The character of the proceeds as property within his Section 34 assignable estate does not change simply because he used them to purchase an annuity,” the Court noted. “A contrary conclusion could encourage spouses anticipating divorce to purchase annuities with their capital assets in order to insulate them from equitable division.”  [2]

Moreover, the Court noted that there was no abuse of discretion when the judge decided to designate one-third of the lawsuit proceeds as pain and suffering damages. There is no specific formula attached to this issue, the Court noted, and the judge clearly considered the matter of whether the spouse would share in the future losses experienced solely by the husband.

If you have any questions about family law or domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Dalessio v. Dalessio, 409 Mass. 821 (1991).

[2] Id., at 827.

I Wanted Kids. I Had No Idea That My Partner Couldn’t Have Any. Do I Have Any Recourse?

Suppose that a partner in a (committed but unmarried) relationship wants to have children. Suppose that the other partner has undergone a surgical procedure  which renders him or her unable to have children in the future. Suppose, however, that the party neglects to inform his or her partner that he or she is unable to have children, leaving the partner with the impression that a pregnancy is possible—perhaps even waiting hopelessly for the pregnancy to occur.

When the partner discovers the truth, what legal recourse does he or she have? If the partner legitimately would not have entered the relationship knowing of the impossibility of pregnancy, is there a case for fraud or misrepresentation, infliction of emotional distress, or even battery?

According to a Massachusetts appellate case, no such claims exist.

In Conley v. Romeri, a former girlfriend brought suit against her ex-boyfriend, alleging that she was misled into having an intimate relationship with him. [1]The boyfriend had undergone a vasectomy previously, but did not inform the plaintiff. In fact, the boyfriend made comments to the plaintiff that suggested otherwise: he remarked about “getting her into trouble;” noted that he had been “tricked” by his ex-wife into getting pregnant and told the plaintiff not to betray him in that way; and even told the plaintiff that a fortune teller once told the defendant he would have two additional children.

After finding out about the defendant’s vasectomy, the plaintiff sued for fraud, infliction of emotional distress, and assault and battery. She claimed that she would not have entered an intimate relationship had she known about the vasectomy, and that the defendant knew not only of her desire to have children but also of the little time she had in which she could become a biological mother.

The Appeals Court noted: “[T]here is no recognized standard of conduct by which we reasonably can assess the materiality of the alleged misrepresentation in a context such as the present case.” [2] Furthermore, the Court found that the defendant’s conduct did not rise to the level of “extreme and outrageous conduct” usually required in emotional distress cases, and that there was no battery, as the plaintiff consented to the sexual activity.

If you have any questions about family law or domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Conley v. Romeri, 60 Mass. App. Ct. 799 (2004).

[2] Id., at 803.

Pets and Divorce: Property or Something More?

There is a long line of case law that has established pets as personal property. From personal injury cases that dealt with the loss of a pet in an accident to cases considering whether the pet could “inherit” its owner’s estate, the courts have largely held that pets are indeed considered personal property.

Family law is no different. In a Florida divorce case, the Court ordered that the husband keep the couple’s dog, but also granted “visitation” to the wife. On appeal, the appellate court reversed that decision and firmly noted that the dog was merely personal property, giving the court no authority to make decisions regarding custody or visitation. [1]

Of course, Fido is not just “property” in the strictest sense—to most people, a pet is much more significant than, say, a toaster. In recent years, the number of cases dealing with “pet custody” has increased manifold; in fact, the Los Angeles Times reported on this phenomenon in a 2005 article. [2] In a Virginia divorce case, the Court took into consideration that the family dog had “bonded” with the husband and the husband “adopted” it; the Court also noted that the dog was “like a child” to both husband and wife. [3] In a New York case, similarly, the Court looked at the fact that a divorcing couple’s cat had a limited life expectancy and had prospered at living in the marital home when it ordered assignment of the marital property, including the cat. [4] Those types of analyses suggest that the Courts looked at the best interests of the pet to decide with whom the pet should stay.

However, in none of these cases did the courts hold that “custody” of pets is to be considered using the same standard and factors as would be used to determine the custody of minor children. In other words, none of these cases went so far as to suggest that dividing time with the family pet is an issue of “custody” or “visitation;” rather, each case still considered the pets to be personal property for purposes of division.

So, are pets truly personal property, to be divided using the typical standard for equitable distribution during a divorce? Currently, in the Commonwealth of Massachusetts, the answer is yes. Time will tell whether the Courts shift towards considering pets to be anything more in the course of a divorce.

If you have questions about pets in the context of a divorce, schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Bennett v. Bennett, 655 So.2d 109, 110 (Fla. Dist. Ct. App. 1995).

[2] Sanjiv Bhattacharya, To Love, Honor and Belly Scratch: Marriages Come and Go But Judging by the Number of Rising Pet-Custody Disputes, Some Passions Endure, L.A. Times Mag., Jan. 9, 2005, at 20.

[3] Conahan-Baltzelle v. Baltzelle, 2004 WL 1959486 (Va. Ct. App. 2004).

[4] Raymond v. Lachmann, 264 A.D.2d 340, 695 N.Y.S.2d 308 (1st Dep’t 1999).

How can I make My Divorce file Private?

In Massachusetts, in nearly every type of case, we enjoy what is called an “open court system”. Our court rooms are open to the public, as are the corresponding court files, so it’s not always easy to make a divorce file private. There are, however, some types of cases which are automatically closed, such as adoption cases.  Beyond that, there are certain types of court documents in open cases, in which the documents are automatically made private, by the process of impoundment.

When a court file or document is made private, it is impounded, meaning it becomes inaccessible to the public. The public would not be allowed into a closed hearing and impounded court files are kept separately away from reach of the public.  The most common example of an automatically impounded document in a divorce case is each parties’ financial statement.  The financial statement is the document that sets forth each parties income, assets, expenses, and debts. The financial statements contain critical information for resolving the divorce, disclosure of which is necessary to make any divorce settlement binding. But, the right to privacy of this sensitive information outweighs any public need for the information. Further, making such information publicly available and easily accessible to the public could hurt the financial positions of each party.

Impoundment of court files goes beyond financial statements in a divorce. There may be other documents and other information the parties wish to keep private, although also necessarily filed with the court. For example, a party and/or his or her lawyer may have found it imperative to reference bad behavior of the other parent in a custody proceeding when completing the complaint or a motion for temporary custody.

Let’s say, for example, a parent suffers from alcohol abuse and the lawyer for the other parent felt it necessary to highlight this in the complaint. There may be egregious behavior of that parent perpetrated while intoxicated and there may have been a reasonable basis to include such information in the complaint or motion.  However, now that the issue has been resolved a party may wish it not be there to avoid other people, including the children, from seeing the information in the court file.

As a starting point, I would highly suggest the lawyer filing a document with scandalous content consider alternative options. There is likely no need to include scandalous content in a writing when the same information can be conveyed in a hearing by testimony or through other evidence.  The important step is getting the information before the judge.  The lawyer filing documents with scandalous content may feel it necessary to put the alleged facts before the judge before the hearing begins, but when the dust settles, it’s unlikely either party will want such facts open to the public.

However, let’s say, for whatever reason, the decision is to include content in the document and we later wish the court to impound.  The best way to go about doing this is to file a motion with the court to impound the document in question, along with the requisite affidavit. The documents in question should not be filed at that time because the judge may choose to deny the request for impoundment and there will be no way to get the documents out of the court file. So, if the document “must” be filed, get the court’s approval to impound the document first.  File a motion and include a proposed order with the requisite findings under the Uniform Impoundment Procedures Rules. Another important point here is that the motion to impound, nor the order, will be impounded unless you separately request and obtain approval.  This is important because, if in your motion and proposed order, you simple repeat all the information at issue, it will remain open to the public if not also impounded and the whole purpose of impounding the original document will be undermined.

Sometimes, probably more often than in the previous example, an opposing party or lawyer will file something that should have been impounded but wasn’t. Now that document is in the court file and accessible to the public.  There is a court procedure under the uniform rules to request that document be impounded as well, although this should avoided when possible because the judge could deny the request. Lawyers seeking to have the document their counterpart’s filed impounded should first bring the matter to the attention of opposing counsel. Opposing counsel, not the lawyer who found the error, should really be the one to correct the issue.  The procedure takes time and, correspondingly, money and so while you should be cooperative, the party who made the mistake should really be the one to fix it. Ideally the parties can enter into a joint motion to impound this content.

Sometimes parties will run into the situation where the other party seeks to impound a document or information in the court file and the other party disagrees with the impoundment.  In that situation, the disagreeing party can file an affidavit in opposition to the impoundment request in that scenario and the judge will consider the arguments of each.

There are many other examples, of course, of instances in which a file need be impounded.  These examples should give you a flavor of how it works and illustrate the importance of being careful about what is filed.  When a case has sensitive information in which the parties may not want the public to see, a confidentiality agreement between the parties related to the litigation may make sense and should be considered early in the case.

If you have a case in which sensitive information was or may be filed with the court and you feel such information should be kept from the public eye, I recommend you speak with a divorce lawyer who is knowledgeable about keeping court files private in divorce and family law cases. To schedule a free consultation with a knowledgeable divorce attorney in our office, call 978-225-9030 during regular business hours or complete a contact form here and we will contact you back at our earliest opportunity.