Adultery and Divorce in Massachusetts
To say that going through a divorce is an emotionally charged experience is an under-statement. When adultery is involved emotions run even higher. Often clients come to me with heart-breaking tales of how their spouse has cheated on them. Inevitably, these clients want to know if their spouse’s adulterous behavior can be used against them during the divorce proceeding. The answer to that is complicated.
Fault vs. No-Fault Grounds for DivorceIn Massachusetts, you can either file a divorce under "fault" grounds or "no fault" grounds. The "fault" grounds, as the name suggests, means that one person is to blame for the marriage ending. There are seven "fault" grounds that a person can claim, one of which is adultery. Alternatively, a "no-fault" ground for divorce is commonly referred to as "irretrievable breakdown of marriage." By filing a divorce under "irretrievable breakdown of marriage" neither party is placing blame on the other for causing the divorce. In Massachusetts, most people file a divorce under "irretrievable breakdown of marriage" even if they could bring a divorce under "adultery."
The reason why most people choose to file their divorce under "irretrievable breakdown of marriage" instead of "adultery" is because there is little advantage to bringing a case under "adultery." Many clients think that if they can prove their spouse cheated then the court will punish their spouse by giving the spouse a smaller distribution of marital assets, raising the spouse's alimony obligation, raising the spouse's child support obligation, or disregarding the spouse's child custody requests. However, that is not the case.
Cons to Filing Under "Adultery"The Massachusetts Probate and Family Courts rarely give much credence to a party's behavior during the marriage when deciding an equitable distribution of property, alimony obligation, child support obligation or child custody arrangement. Massachusetts General Law Chapter 208, Section 34 outlines a list of factors that the court must take into consideration when dividing marital property. Only one of those factors is "conduct of the parties during the marriage." Similarly, Massachusetts General Law Chapter 208, Section 53 outlines a list of factors that the court must take into consideration when determining the duration and amount of alimony awarded. Once again, only one of those factors is "conduct of the parties during the marriage." Child support is governed exclusively by the Child Support Guidelines, which only factors a parent's financial information when determining how much a non-custodial parent must pay a custodial parent for child support. A party's bad behavior during the marriage has absolutely no influence in assigning a child support order. Lastly, child custody is based on what the court feels is in the best interest of the minor child. The only time a parent's marital behavior is relevant to the custody arrangement is if the minor child witnessed domestic violence between the parents. Therefore, since introducing evidence of adultery will have little to no effect on the most important elements of divorce it is usually better to bring a divorce under "irretrievable breakdown of marriage."
Pro to Filing Under "Adultery"There is, however, one procedural advantage to bringing a divorce action under adultery. Unlike divorce actions brought under "irretrievable breakdown of marriage," where there is a six-month waiting period for a hearing, there is no waiting period before a case can be presented to a judge if adultery is cited as the ground for divorce. The sooner a client can have a hearing, the less time the entire divorce proceeding will take and the less money he or she will spend overall. If time and money is a serious concern, then this procedural advantage may be worth thinking about.
Personal Recommendation to ClientsPersonally, I advise most of my clients to stay away from bringing a case under adultery as a fault ground. Not only does it have little to no effect in the distribution of marital property, alimony, child support or child custody, but it also can bring an unnecessary element of hostility to the divorce proceeding. An opposing spouse may be less likely to come to the negotiating table if he or she feels threatened or blamed for the end of the marriage. Similarly, it might lead to the opposing spouse bringing frivolous counterclaims as a defensive mechanism for his or her anger at being called out in front of the judge. Special attention must also be given if there is any history of domestic violence between the couple, because bringing a fault ground under adultery may upset the opposing spouse and place a client in danger of retaliation. However, if a client feels strongly about wanting to bring an "adultery" divorce claim, I would suggest adding a statement to the Complaint for Divorce that says: "In the alternative, I request a divorce on the grounds of irretrievable breakdown of marriage." By doing so, the client is fully protected in the event that the "adultery" claim is challenged or dismissed.