How The Misuse Of Marital Property Affects Divorce

September 14, 2022 O'Connor Family Law Newsletter

Soon after their 25th anniversary, Jennifer Flavin filed for divorce from Sylvester Stallone. In the pleadings, Flavin claimed that Stallone was intentionally dissipating assets.[1]

An interview with the two of them, as reported through an article on (, flew up some red flags on an imbalance between them, but definitely creates a question of why Flavin is so concerned about Stallone intentionally dissipating assets.

Flavin, who was a model and married Stallone when she was 29, stated during this interview, “I think that one of the biggest things that helped our marriage was because I made my own money. I paid my own bills and I did very well. So I didn’t need Sly’s money. I didn’t need to be in a movie of his, I’m not an actress. I didn’t need any of his friends.”

This comes up a lot in divorce; where one person will say they “make their own money” or that they don’t “need” the other person. But, unless there is a prenup agreement in place prior to getting married (or a postnup agreement after getting married), if either spouse earned money during the marriage, had property or accounts that comingled within marital assets, or purchased property in their own name, that all still needs to be divided within a divorce. Until there is a written agreement or a Judge issues a Judgment, what is hers is his and what is his is hers is considered marital property that needs to be assigned between the parties. That means, everything is up for grabs.

Although Flavin and Stallone’s divorce is taking place in California, it raises an important issue. So let’s talk about the intentional dissipation of assets and how it can affect a divorce in Massachusetts.

The marital asset dissipation issue in a Massachusetts divorce is when one spouse has either recklessly spent, hidden, transferred, given away, or mismanaged marital property. There are a few “common” scenarios where we see this issue come up.

One such scenario that we get calls about often is where one of the spouses cheated during the marriage. I hate to be the bearer of bad news, but as much as cheating is definitely not helping out a marriage (and likely creating even more trust issues that will be at play during a divorce), cheating does not mean that the cheater will have to pay more or that the spouse that was cheated on is going to be able to take the cheating spouse to the cleaners.

That being said, if the cheating spouse is spending significant assets on their new “love” interest, the other spouse can ask for half of the amount that was spent on that person from marital assets to be paid to them. Now, if the total amount they’ve spent is fairly nominal made up of some dinners, hotel rooms, and smaller gifts, the Judge is not likely going to even entertain the argument.

However, if the cheating spouse pays the new interest’s rent or mortgage, has bought them expensive jewelry or clothing, has brought them on lavish vacations, or other much more significant expenditures, then the other spouse definitely has an argument for dissipation and to seek a higher disparate amount in the property division.

One thing to think about in that type of scenario is what the non-cheating spouse might be spending his or her money on that could eliminate the dissipation argument. Let’s say the cheating spouse spent $20,000 over the course of the year on the new interest, but the other spouse is a shop-a-holic who has easily spent around $20,000 on purchases that are more individual in nature than that benefit the marriage – that makes the dissipation argument go away because a Judge would likely say you each spent money on individual needs.

Other situations where dissipation might be raised as an issue are when there are significant gambling losses, when one spouse purposefully destroys expensive property, if property is sold to friends or family for a lot less than the actual fair market value, excessive spending on alcohol or drugs, and where one spouse has somehow caused money or assets to somehow “disappear.”

Because Massachusetts is governed by the equitable distribution of marital property, that means that, although the “normal” split in a typical divorce case is 50/50, in a marital dissipation of asset case, those percentages could be any other two numbers that add up to 100.

There are a couple of cases that have dealt with this exact issue that the Probate and Family Court Judges need to follow when they are deciding how to divide property when considering dissipation. If you are dealing with the issue of dissipation in your case, you will want to read Kittredge v. Kittredge, 441 Mass. 28, 803 N.E.2d 306 (2004) and Johnston v. Johnston, 38 Mass. App. Ct. 531 (1994).

If you’re in a situation where your spouse is blowing through money or you have a feeling they are, don’t hesitate to contact us so we can help you come up with a strategy to get you in the best position before a divorce is even filed.