Adultery in Massachusetts: Does Cheating Affect Alimony?

Find out if an extramarital affair can affect alimony and other issues in a Massachusetts divorce.

By , Retired Judge

If you're facing the end of your marriage because you or your spouse had an extramarital affair, you may be wondering whether the infidelity could affect what happens in your divorce case. When you live in Massachusetts, you have the option of filing for divorce based on your spouse's adultery. But even if you can prove that claim, the adultery isn't likely to affect the judge's decisions about alimony.

What Role Does Adultery Play in a Massachusetts Divorce?

In Massachusetts, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Massachusetts include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (Mass. Gen. Laws ch. 208, § 1 (2022).)

Proving or Defending Adultery Claims in a Massachusetts Divorce

If you file for divorce in Massachusetts based on your spouse's adultery, you'll need to prove that claim. Circumstantial evidence, such as hotel receipts, phone records, emails, texts, and photos may be sufficient. In other words, you don't need to provide direct evidence of the actual sexual encounters.

It helps to prove your case if you can show that your spouse both was disposed toward adultery and had the opportunity to commit it. An example of disposition would be where a spouse was seen kissing someone else in public. Opportunity is rather clear-cut when there's evidence (for instance, from a witness or a webcam) that the unfaithful spouse entered an alleged paramour's home in the evening and didn't leave until the next morning.

If you're defending yourself against an allegation of adultery, you could present a "condonation" defense, meaning that your spouse tacitly accepted the adultery by staying in the relationship with you after learning of the affair. However, it's no longer a valid defense in Massachusetts to claim that your spouse was also guilty of adultery. (Mass. Gen. Laws ch. 208, § 1 (2022).)

Can Adultery Affect Alimony Awards in Massachusetts?

An award of alimony in a Massachusetts divorce isn't automatic. A judge has to determine that it's warranted under the circumstances of each case.

Massachusetts law lists a number of factors that judges must consider when they're deciding whether to award alimony and, if so, how much and for how long. The list doesn't include adultery or fault in general. In fact, as part of alimony reform legislation in 2011, Massachusetts specifically dropped the mention of the spouses' conduct as a factor in alimony decisions. (Mass. Gen. Laws ch. 208, § 53 (2022).)

The current law does allow consideration of other relevant factors that aren't on the list. But judges focus primarily on the economic aspects of alimony—especially the dependent spouse's need for support and the other spouse's ability to pay.

So as a practical matter, fault won't usually play a role in the judge's alimony decisions in a Massachusetts divorce.

Could Adultery Affect Property Division in a Massachusetts Divorce?

Massachusetts is an "equitable distribution" state. This means judges will divide the couple's property in a way they believe is fair under the particular facts of each case. It's important to note that "equitable" doesn't necessarily mean a 50-50 split.

Massachusetts law also spells out the factors judges must consider when they're deciding how to divide marital property fairly. Unlike with alimony, the factors for property division include the spouses' conduct during the marriage. (Mass. Gen. Laws ch. 208, § 34 (2022).)

However, Massachusetts courts have held that property division in divorce is intended to lead to fairness between the spouses in light of all of the circumstances, "not to punish 'bad' behavior." (Kittredge v. Kittredge, 803 N.E.2d 306 (Mass. 2004).)

That said, adultery might play a role in the property division under some circumstances if the unfaithful spouse squandered ("dissipated") the couple's assets to support the affair, such as with lavish gifts, expensive hotels and travel, or even providing support to the lover. That behavior reduces the asset pool available for distribution in divorce, adding injury to insult. So the judge may consider the misconduct and award the "innocent spouse" a greater share of the remaining assets in the interest of fairness.

Does Adultery Ever Affect Custody or Child Support in Massachusetts?

Under Massachusetts law, parents have an equal right to custody of their children, in the absence of misconduct. (Mass. Gen. Laws ch. 208, § 31 (2022).) Adultery could certainly be considered misconduct. But the real question is whether that behavior affects the children's children's best interests. That's the main concern in decisions about child custody and parenting time (visitation) in Massachusetts, as in all states. (Mass. Gen. Laws ch. 208, § 31 (2022).)

A parent's extramarital affair won't harm the children's well-being in most cases. However,, there might be some limited situations when the circumstances surrounding a parent's adultery could endanger the child's welfare, such as if the extramarital relationship involved exposing the child to abusive behavior, if a parent left a young child unattended while out meeting a lover, or if a parent became completely uninvolved in the child's life because of the adulterous relationship.

Child support in Massachusetts is calculated under a formula spelled out in the state's child support guidelines. (Mass. Gen. Laws ch. 208, § 28 (2022).) The formula is based primarily on the income of the parents, the number of children being supported, the amount of time the children spend with each parent, and items like the cost of health insurance and work-related childcare.

The support payments are meant for the children's needs—not as a reward or punishment for parental behavior. So either parent's adultery wouldn't play a direct role in determining which of them will pay child support or the amount of the payments. It might only have an indirect role in the rare situations when the circumstances lead the judge to limit the cheating parent's time with the children, out of concern for the kids' safety. The less time a parent has with the kids, the more that parent usually must pay in support.

Is Adultery a Crime in Massachusetts?

No. The old law that made adultery a crime in Massachusetts was repealed in 2018.

Approaching Divorce After Adultery

Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to try to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in Massachusetts, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.

Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims. (Here are some tips on questions to ask before you hire a divorce lawyer.)

Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.