Adultery in Massachusetts: Does Cheating Affect Alimony?

If you live in Massachusetts and believe your marriage is ending because your spouse was unfaithful, then you'll need to learn what the law says about the relationship between divorce and adultery. Until 2018, spouses guilty of adultery faced a felony criminal charge and time in prison. Although no longer a crime, adultery can have a major impact on different aspects of a divorce, including alimony.

This article will provide an overview of alimony in Massachusetts and explain the potential impact of adultery on alimony. If you have any questions after reading this article, you should speak with an experienced family law attorney for advice.

What Is Alimony in Massachusetts?

Alimony (also known as spousal support or maintenance) is the payment of financial support from a spouse who has the ability to pay to a spouse in need of support for a reasonable length of time. The spouse who pays money is the "obligor" or the "paying spouse," while the spouse who receives the money is the "obligee" or supported spouse.

There are several different kinds of alimony that Massachusetts courts can award:

• Temporary alimony is available while the divorce is pending if a needy spouse demonstrates a need for financial help. If a judge orders temporary alimony, it does not guarantee an award after the divorce is final. (Mass. Gen. Laws ch. 208, § 17.)
• General term alimony is a periodic payment (meaning, regularly scheduled payment) of financial support to a supported spouse that is economically dependent on the paying spouse. The duration of this kind of alimony varies with the length of the marriage. Longer marriages generally mean longer alimony awards.
• Rehabilitative alimony is a periodic payment to a supported spouse who expects to become economically self-sufficient by a certain time. This helps the supported spouse survive financially until receiving enough education, job skills, and training to be independent.
• Reimbursement alimony is the periodic or one-time payment of support to the obligee after a marriage that has lasted no more than five years. The purpose of this kind of alimony is to compensate the obligee for making contributions (including non-economic contributions, like being a stay-at-home parent) to the marital assets or to complete education and job training.
• Transitional alimony is the periodic or one-time payment of support after a marriage that has lasted no more than five years. The purpose of transitional alimony is to help the supported spouse make the financial changes necessary to transition from married life to single life. (Mass. Gen. Laws ch. 208, § 48.)

What Role Does Adultery Play in a Massachusetts Divorce?

Different states take different approaches to divorce. Some states are "no fault" states, meaning that people can get divorced without having any particular reason other than their marriage has broken down and can't be saved (also known as "irretrievable breakdown of the marriage.")

"Fault-based" states, on the other hand, allow people to get divorced only if they can show that their spouse has committed some kind of wrongdoing, like physical or mental abuse.

Massachusetts (and many other states) takes a compromise position and allows divorce for both fault and no-fault grounds. There are eight basic "grounds" (legal justifications) for a divorce:

• adultery
• impotency
• utter desertion (meaning, one spouse abandons the other for one year before the divorce proceedings)
• chemical dependency
• cruel and abusive treatment
• one spouse's criminal conviction and sentenced to serve five years or more in a correctional facility
• refusal to provide suitable support and maintenance for the other spouse, and
• irretrievable breakdown of the marriage. (Mass. Gen. Laws ch. 208, § 1.)

Adultery is a fault-based ground for divorce permitted in Massachusetts. A court will grant a divorce based on adultery if the accusing spouse produces evidence of the affair. Like other "fault" grounds, it's up to the innocent spouse to prove to the court the guilty spouse's marital misconduct. If the spouse fails to prove the allegations, the judge could dismiss the case and ask you to refile using the state's no-fault grounds.

If you're considering filing a fault divorce, it's best to speak with an experienced attorney before you file.

How Does Adultery Affect Alimony Awards in Massachusetts?

The question then becomes, if you've proven to a divorce court that your spouse cheated, what effect will that have on the judge's decisions about alimony?

Massachusetts courts are required to consider all of the following factors to determine the amount and duration of alimony:

• the length of the marriage
• the age of the spouses
• the health of the spouses
• the income, employment, and employability of the spouses, including employability that a spouse could attain through additional training and reasonable diligence
• both parties' economic and non-economic contributions to the marriage
• the marital lifestyle
• the ability of each party to maintain the marital lifestyle
• lost economic opportunity as a result of the marriage (like one spouse foregoing a lucrative career to stay home and raise children), and
• any other factors the court considers relevant and material (important). (Mass. Gen. Laws ch. 208, § 34.)

Except for reimbursement alimony or other exceptions, the judge can't order alimony that exceeds either the supported spouse's need or 30-35% of the difference between the spouses' gross incomes at the time the alimony order is issued.

But what about adultery? Judges may consider any other relevant and important factors. Sometimes, but not always, adultery is one of those "other factors." It all depends on the facts of the case.

Generally speaking, the mere fact that adultery occurred will not prevent the "guilty spouse" from receiving alimony if that spouse is otherwise entitled to it. The Massachusetts appellate courts have already decided that judges can't deny alimony solely because there was infidelity in a marriage. (Talbot v. Talbot, 434 N.E.2d 215 (1982).) The purpose of alimony and the divorce property division is to be fair and equitable to both spouses and not to punish bad behavior. (Kittredge v. Kittredge, 803 N.E.2d 306 (2004).)

On the other hand, when an adulterous spouse dissipates (wastes) marital funds during an affair, judges are likely to consider that fact when making alimony decisions. For example, in Massachusetts, a husband spent the couple's money on therapy for his mistress. The appellate court ruled that the court should factor in his adultery into an alimony award because he squandered marital funds on someone other than his spouse. (Ross v. Ross, 430 N.E.2d 815 (1982).)

The appellate court has explicitly ruled that when spouses spend money on someone other than their spouse as part of an adulterous affair, the court must consider the affair and the wasted marital assets when making an alimony award. (McMahon v. McMahon, 579 N.E.2d 1379 (1991).)

Does Adultery Impact Child Custody or Child Support?

Generally, no. Massachusetts law requires judges to consider a child's best interest above all other factors when creating a parenting plan for custody. (Mass. Gen. Laws ch. 208, § 28.) In most cases, if a parent chooses to be unfaithful during the marriage, it won't impact the court's custody decision unless the parent creates an unsafe or unhealthy environment for the child. For example, if a father has an affair with an abusive partner and wishes to have that person around the children during parenting time, the court may deny or limit the father's time with the children in the future.

The court will not consider either parent's marital misconduct when determining child support. Instead, courts will consider each parent's income and earning abilities and the child's needs (medical and daycare.) The judge will use specific guidelines when determining child support, which the law presumes to be accurate unless there are extraordinary circumstances. (Mass. Gen. Laws ch. 208, § 28.)

Resources

Massachusetts Court System's Self-Help Center and official court forms

Massachusetts Legal Services' directory and Basic Legal Information page.