Adultery in Massachusetts: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in Massachusetts.

If you live in Massachusetts and believe your marriage is coming to an end because your spouse was unfaithful, then you’ll need to learn what the law says about the relationship between divorce and adultery. 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 you read 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.

Massachusetts divorce laws underwent a major change in 2011 with the passage of the Alimony Reform Act. Now there are several different kinds of alimony that Massachusetts courts can award:

  • 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 is expected to become economically self-sufficient by a certain time. This helps the supported spouse survive financially until he or she has 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 this kind of alimony is to help the supported spouse make the financial changes necessary to transition from married life to single life.

What Role Does Adultery Play in an 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 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 prior to the divorce proceedings)
  • chemical dependency
  • cruel and abusive treatment
  • one spouse’s criminal conviction and sentence 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.

Adultery is a fault-based ground for divorce permitted in Massachusetts. A court will grant a divorce on the basis of adultery if adequate proof is presented.

There are pros and cons to trying to prove adultery. The circumstances of the adultery may have an impact on other parts of your divorce, like child custody. This is an issue that’s best discussed with a lawyer before you make any decisions about how you will proceed.

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).

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

But what about adultery? Judge's 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 alimony can’t be denied solely on the basis that there was infidelity in a marriage. Talbot v. Talbot, 434 N.E.2d 215 (1982). This is because 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).

But, on the other hand, when an adulterous spouse dissipates (wastes) marital money during the course of an affair, judges are likely to consider that fact when making alimony decisions. For example, in Ross v. Ross, a husband spent marital funds on therapy for his mistress, and the appellate court ruled that his adultery should be factored into the alimony award because he was squandering marital funds on someone other than his spouse. 430 N.E.2d 815 (1982).

More recently, the appellate court explicitly ruled that when a husband spends money on a woman who isn’t his wife as part of an adulterous affair, then the affair dissipated marital assets and must be taken into account when making an alimony award. McMahon v. McMahon, 579 N.E.2d 1379 (1991).

Resources

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

Massachusetts Legal Services’ directory and Basic Legal Information page

The Massachusetts Law Library’s reference sheet for alimony

Mass. Gen. Laws. ch. 208, § 48

Mass. Gen. Laws ch. 208, § 1

Mass. Gen. Laws ch. 208, § 2

Mass Gen. Laws ch. 208, § 53

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