LEGAL GUIDE
Written by attorney Katherine Thomas | Oct 6, 2011

Massachusetts Divorce and the Cheating Spouse

The realization that your spouse was unfaithful during your marriage is upsetting, even life-altering to some. Reactions upon learning of a spouse’s affair are understandably emotional, including feelings of sadness, betrayal, shock, and anger.

In many instances, couples are unable to overcome the damage caused by an affair, with divorce oftentimes the end result. Although infidelity is certainly problematic, it is usually a sign of other troubles in a relationship. A non-cheating spouse may feel victimized, and sometimes that person may even feel like they need to tell their story to the Judge, hoping that the Judge will sympathize with them.

If you are facing a Massachusetts divorce and marital infidelity is an issue, you are likely wondering what effect an affair will have on your divorce. The answer is not as much as you might think – usually. Like many things in family law, cases are fact-specific and this guide should not be considered specific legal advice.

Alimony and Property Division

Massachusetts courts are required to consider certain factors when determining the division of marital property, and the decision to award alimony, including length of the marriage, age and health of the parties, occupation, income, employability, liabilities and needs, the estate of the parties, and the opportunity for future acquisition of assets and income. This list of mandatory factors also includes the conduct of the parties during the marriage. The list of mandatory factors is set forth in Mass. Gen. Laws c. 208 s. 34.

When considering the conduct of a spouse during the marriage, the court generally gives little, if any, weight to the infidelity issue. Even if the affair was the underlying reason for the divorce, the court should not punish the cheating spouse. There is no moral judgment by the court about the actions of a party who had an affair, nor will the court use that alone as a reason to give the other party a larger share of the assets or alimony. Of course, Judges are real live humans and if your conduct was bad during the marriage, it certainly doesn’t help your case!

So, you will not automatically get to keep the house and the summer cottage while you spouse lives in his or her car, although that may seem like a fair and equitable award to you.

Sometimes an affair can impact property division and that is if the affair had an impact on the division of marital property.. If it can be shown that during the course of the affair(s) a spouse spent substantial amount of marital assets, then the court will likely take the affair into consideration because of the economic ramifications. For example, if your spouse spent a few thousand dollars buying expensive gifts or renting hotel rooms, the court could consider the economic impact of the affair and award one spouse a larger share of the property division to adjust for the wasting of marital assets.

Massachusetts Child Support and Child Custody

An affair will not impact the amount of child support awarded by the court. In Massachusetts, child support is generally based upon the Massachusetts Child Support Guidelines, and a person’s straying will not change what they will be paying in child support.

In determining child custody, the court considers what is in the “best interests of the child". The fact that one parent had an affair during the marriage will not be considered by the court in determining child custody unless there is a reason why the “best interest of the child" would be impacted. For example, if the infidelity also coincides with other actions affecting the parent’s ability to care for the child, such as drinking or irresponsible behavior, then this will impact the court’s decision regarding child custody, but the affair itself will not usually have an impact.

Conclusion

Despite what the law says, it is a simplistic view to assume that infidelity does not play a large role in divorce cases. Much of the “uncoupling" that goes on in a divorce is emotional as opposed to legal. Feelings do not evaporate, and certainly an affair can effect the final settlement in a divorce in a number of ways, some of them not completely obvious.

Remember that only a small percentage of cases reach the trial stage. The vast majority of court-based cases settle, while many couples select divorce mediation or the collaborative divorce process. A Wife or Husband reeling from the aftermath of their spouse’s affair may feel they deserve restitution of some sort and that can play a part in negotiations. A skilled Massachusetts divorce mediator, divorce lawyer, or Massachusetts divorce coach can help couples work through this dynamic towards a lasting solution.

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