Divorce & Adultery Laws in Massachusetts
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Adultery causes many marriages to end. While Massachusetts does require residency for a spouse to file for divorce, because adultery can be a sudden and traumatic cause of a divorce, the residency requirement is waived. If the adultery took place in Massachusetts, the victim spouse can immediately file for divorce even if neither spouse has been a state resident for a year. - Massachusetts’ law states that adultery is sexual intercourse between one spouse and a third party. There must be penetration by the male. Oral sex is not considered adultery.
- The victim spouse must establish her spouse’s adultery by circumstantial evidence. detailing the opportunity to commit adultery and was its likely occurence. The victim spouse must produce a witness, other than herself, to testify to her spouse’s adultery, or have some other photographic or video evidence. Evidence of hugging or kissing is insufficient. However, if there is evidence that the allegedly adulterous spouse entered a hotel room with a third party late at night and did not leave until the next morning, the court can infer the spouse committed adultery.
- If the adulterous spouse raises and proves the defense of condonation, a court cannot issue a divorce decree. Condonation means the victim spouse knew of the other spouse’s adultery, but forgave her and continued to reside in the marital residence. However, if the victim spouse later discovers that the other spouse continued an adulterous relationship or started a new one, he can re-file for divorce on the grounds of adultery.
- One spouse’s adultery can affect other areas of a divorce proceeding. For example, a court will consider adultery when dividing property and awarding alimony. Although several factors are examined, marital misconduct is looked at and a court may increase or decrease a property or alimony award as punishment for committing adultery. Additionally, adultery may affect a spouse’s right to custody. A custodian is appointed under the “best interests of the child” standard and if the adultery harmed the child, the spouse may lose his right to serve as the primary custodian.
