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.
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:
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 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.
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 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).
The Massachusetts Law Library’s reference sheet for alimony