Infidelity and Divorce

Infidelity and Divorce

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According to Massachusetts law, "a married individual who has sexual intercourse with someone other than his spouse" has committed a crime and faces up to three years in prison and a $500 fine. Although the last adultery prosecution occurred in 1983, the commonwealth still lists adultery as a felony as well as a cause for divorce.

While numbers are difficult to fully quantify, one National Institutes of Health (NIH) study found that 88 percent of couples said infidelity was a "significant contributing factor" in their divorce. According to the American Psychological Association (APA), adultery is the cause of up to 40% of all divorces.

How Infidelity Can Affect the Divorce Case

Adultery committed by a married person, known as infidelity, may or may not affect the divorce case. It may become an issue in the distribution of marital assets, if a party is given alimony, and whether the adultery had an impact on the children.

Distribution of Assets

In Massachusetts, marital assets are divided in accordance with what the court deems equitable. This does not imply equality, but rather the marital fair foundation. Marital property encompasses all assets obtained by the couple before and during the marriage, including property and income.

If one party spent marital assets on gifts for a lover, or on hotel rooms or trips with the lover, the family court may award the injured spouse a larger share of the marital assets. However, the court will not punish the cheating spouse solely because they cheated.


Alimony is a payment made by one spouse who has the financial means to the other spouse who does not. The Massachusetts Supreme Court has ruled that alimony cannot be denied to an otherwise worthy spouse solely because he or she was unfaithful. On the other hand, the court may consider the squandering of marital assets by the unfaithful husband, who spent money on his paramour, as one criterion for granting alimony to a spouse.

Child Custody and Visitation

If it can be demonstrated that the infidelity harmed the children or that visiting with the parent and the new girlfriend/boyfriend put the children in risk, the court may consider this when making custody and visitation decisions.

How to Prove Infidelity

Even if the spouse denies having committed adultery, it is possible, albeit difficult, to establish. If you are the wounded spouse, you must be very careful not to transgress the law in your haste to show infidelity.

The criteria for determining whether the material you discover can be used in your divorce action is whether your spouse had a reasonable expectation that the conversation would be private. For example, if you overhear a conversation in a public area, you can use it against the other party. However, whether or not other information you discover can be used is dependent on how it was discovered.

It is best for you to talk with your attorney about what you may and cannot do. The following are some examples of what you can and cannot do:

  • Telephone conversations are being recorded. It is illegal to record a telephone call without the consent of the other party, no matter how tempting it may be.

  • Interception of emails, messages, and other electronic data. Each person has a right to privacy under Massachusetts and federal law. It is also illegal in Massachusetts to gain unauthorized access to another person's computer. A cell phone can be thought of as a form of computer. It is not worth the danger of going to prison because you accessed your spouse's private information, which will not be admitted in your divorce hearing if obtained illegally. There may be exceptions to the privacy norm, but if you have come upon information that was freely left for you to see, you should seek legal counsel.

  • Posts on social media. When people publish on social media, they no longer expect the material to be private. You can use photographs or other statements to support your claim.

  • Witnesses' testimony. Witnesses who saw your spouse with another man or woman in a romantic situation or in a public display of affection will testify in court. A witness could testify that a cheating spouse was seen entering the paramour's home late at night and not departing until the next morning.
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