Massachusetts is a no-fault state when it comes to divorce, meaning that a spouse or spouses filing for marriage dissolution merely need to allege “irretrievable breakdown of marriage” as grounds for it without having to prove anything. However, our state is one of 33 states that also allows a party to allege certain grounds such as adultery in order to obtain a divorce.

Adultery was a crime in Massachusetts and codified in Massachusetts Gen. Laws Chapter. 272, section 14, until 2018 when it was finally repealed. The law had stated that a person who engages in sexual contact with a person not his/her spouse or an unmarried person who has sexual relations with a married person is guilty of adultery. The penalty was up to 3-years in state prison or not more than 2-years in jail and/or a fine up to $500. The last time this crime was prosecuted in our state was nearly 40-years ago and the defendants were fined $50.

However, cohabitating after divorce is still a criminal offense under Massachusetts Gen. Laws Chapter 208, section 40, which states that parties who are divorced from one another but are cohabitating under the same roof are guilty of adultery. This archaic law is under consideration for repeal. Under the old law, parties being deposed in a case alleging adultery could invoke their 5th Amendment right against self-incrimination and refuse to answer any questions about their conduct. This protection no longer applies during the divorce process. 

Why Allege Adultery in a Divorce Case?

Since no-fault is available, why would a party choose to allege adultery? There is no distinct advantage in alleging adultery in a divorce complaint if a party feels it would persuade a court to grant sole physical custody of a child, to get increased alimony, or a greater share of the marital assets. Courts only consider the conduct of the parties as one of numerous factors in these determinations, and will not even give adultery a cursory look unless a party can show that it has impacted the welfare of, or has harmed, the child. Misconduct that is detrimental to the safety and well-being of the child might be excessive drug and alcohol use, uncontrolled gambling, domestic violence, or serious criminal conduct. Adultery by itself will not qualify.

Adultery might be a factor in awarding alimony or in how the marital property is distributed. If the party is spending lavishly on a paramour (person with whom the party is conducting the affair), a judge can give credit to the harmed spouse when the assets are divided.

One advantage to alleging adultery is that it can expedite the divorce process. If no-fault is alleged, the parties must wait at least 6-months for a hearing date. If you allege adultery, there is no waiting period and your case can be heard much sooner, saving you time and legal fees though likely greatly upsetting your spouse.

How to Prove Adultery

Adultery must be proved by either direct evidence such as corroboration by a neutral third party or convincing circumstantial evidence that the party had the disposition and opportunity to commit the act. Observing the spouse engaged in public displays of affection or witnessing the spouse entering a paramour’s residence in the evening and not leaving until morning may be sufficient. The evidence, though, must be strong enough since speculation is insufficient. For instance, the fact that the spouse spends an inordinate amount of time with the alleged paramour may indicate opportunity but not disposition.

However, if you have been aware of the affair and have proof of it but  have not taken any action to terminate the marriage, then you have condoned it and your allegation of adultery will be dismissed. But if the adulterous spouse repeats the conduct and you file for divorce with these allegations, then it will likely stand. 

Risk in Alleging Adultery

If your marriage is irretrievably broken, then alleging adultery and providing evidence of it will not gain you any advantage. In fact, your spouse may resent the intrusion into a private affair and become hostile to offers of compromise or even level accusations of misconduct at you, whether frivolous or not. This can result in prolonging the process and wasting funds on legal fees.

If you do allege adultery and fail to prove it, the court will not grant the divorce. An easy way to circumvent this possibility is to allege “irretrievable breakdown of the marriage” in your pleading as a fallback or as an alternative ground so that the court will grant the divorce in any event. 

Consult Divorce Lawyer Heather M. Ward

If you are thinking of filing for divorce and alleging adultery as a grounds, consult with divorce lawyer Heather M. Ward about whether this is advisable and offers you any advantages. Call her at (617) 903-8955 if you have questions about divorce and any other family law matter.