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.
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:
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 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.
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:
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).)
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.)