Skip to main content

Does Adultery still Matter? 5 Reasons Why it Does.

Besides the obvious issues that adultery presents for a marriage, does it still matter in a divorce?

As a divorce attorney and mediator, I often see divorce cases where one party or the other has moved on and begun an affair. As suggested by fellow attorney, Gabriel Cheong, on his blog on this issue, I don't think this is as often the cause of divorce as it is a sign that the marriage was already over. So does adultery matter in a divorce case?

Regardless of whether adultery is a cause of the divorce or just the nail in the coffin, it can still have a major effect on how the divorce case proceeds in 5 different ways:

1. THE FIRST IMPRESSION: Adultery is still at base an emotionally charged issue. Most people's first reaction to hearing of one party cheating on the other, is to side with the "victim." This feeling is based on our own immediate reaction to the thought of being cheated on ourselves. This impression is not based on all the facts, and is an emotional, not rational, reaction. But because first impressions matter, adultery can have an impact on how a case begins which can often set the tone. It can sometimes be difficult to overcome this first impression and focus on how to move a case forward.

2. THE MORAL IMPACT - APPORTIONING FAULT: Adultery is still considered morally abhorrent conduct, even if it somewhat common. Therefore, discovery of adultery is often the moment when a party accepts that their marriage is irreparable. In addition, conduct is one of the factors in M.G.L. c. 208 s 34, the statute which directs the court in how to divide property and/or award spousal support. However, it is important to note that "conduct" is not necessarily weighed as heavily as the other factors and may not result in any major impact on the division of assets or award of support. Adultery is also still available as a cause for filing a Fault-based divorce. However, filing a case under the adultery statute is usually more trouble than its worth given the availability (and lower cost/ease of use) of the No-Fault grounds.

3. THE FINANCIAL IMPACT: While the conduct factor itself may not be weighed heavily in today's courts, any finances misdirected for use in an affair could directly affect the division of property. In fact, any funds spent directly on an affair (such as funds used for gifts, vacations, hotels, etc.) should arguably be replaced, or credited against the offender's share of the assets.

4. THE CRIME: That's right. Adultery in Massachusetts is still a crime. M.G.L. c. 272 s. 14 prohibits adultery and provides for both jail time and/or a $500 fine. Although a case hasn't been prosecuted since 1983 (Commonwealth v. Stowell) the statute is still in effect. This has certain unintended consequences, such as being able to use the 5th Amendment in a deposition if asked about the affair (i.e. invoking your right not to incriminate yourself in a crime). In most cases, the criminal aspect has a minimal impact on how the divorce proceeds.

5. THE DELAY: The biggest impact adultery has on a divorce case is usually the delay it causes in resolving the case because of the impact the affair has on the "victimized" spouse. The specific facts of the affair can have a major impact on how upset the other spouse is, as described in this recent NY Times Article about Adultery in the Martial Bed. The only way to avoid a trial in a divorce case is when both parties are ready to settle, and the hurt and anger that an affair causes can prevent the affected spouse from being ready to settle.


Popular posts from this blog

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, an