What is dissipation of the marital estate and why does it matter?

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By Amber Turner

One of the most contentious issues arising in divorce proceedings will often be the division of the parties' assets. In Massachusetts, the courts follow an equitable system of division, meaning they seek to divide property "fairly," not necessarily "equally." There are cases in which the marital estate seems to have been reduced by the irresponsible or intentional conduct of one party (party A), which ostensibly has the result of diminishing the eventual share of the marital estate that each party will retain.

The court is alert to this possibility. The concept of dissipation helps to address these cases, and in distributing the marital estate equitably, the court can consider whether party A was at fault in inappropriately reducing the available assets. The ultimate division may account for this by awarding the other party (party B) a larger share of the estate, in effect "reimbursing" that party for their share of the inappropriate expenditure in which the other party engaged. The archetypal cases of dissipation are cases where party A has gambled the assets away or spent money on buying gifts in furtherance of an extramarital affair. Yet, situations are sometimes more complex. So, what is required to show that there has been dissipation of the marital estate in Massachusetts?

M.G.L. c 208 s 34 provides several factors which the court must consider when dividing the marital estate. These factors include the parties' conduct and their contribution to the marital estate estate. The Supreme Judicial Court of Massachusetts was clear in Kittredge v. Kittredge that the concept of dissipation should be viewed in the context of these statutory factors and the overall goal of equitable distribution. Therefore, rather than having an exact definition of dissipation, we instead have a number of features that will commonly appear in dissipation cases. A finding of dissipation will be fact-specific. Firstly, the strongest indicator of dissipation will be an intent of party A to deprive party B of an equitable share, which may be inferred from the timing of the expenditure. The court expressly found that the timing of an expenditure was a feature of dissipation: the expenditure must take place at a time when the marriage is ending. Secondly, the court will pay close attention to the effect of the expenditures in relation to the party's overall contribution to the marriage. If the expenditure leaves party B unable to support the family financially or unable to maintain the family's previous standard of living, this will weigh in favor of a finding of dissipation. Thirdly, the expenditures must have been for party A's sole benefit. And, fourthly, party B must not have participated in or consented to the expenditure. Again with the caveat that every case is different and that the analysis is fact-specific, the confluence of these factors may provide sufficient grounds for a court to find that dissipation occurred and account for that as part of the equitable division of the marital estate.

Amber Turner was a Fitch Law Partners summer intern in 2019 through the International Academy of Family Law Attorneys (IAFL). She studies law at Cambridge University/Pembroke College in the United Kingdom and was the 2019 winner of the AIFL Travel Studentship.

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