Posted by Attorney Bruce Watson
Adultery is still a criminal offense in Massachusetts, although prosecution of such a crime is exceedingly rare, and its use in divorce proceedings has fallen into disfavor. Nevertheless, an allegation of adultery may affect child custodial arrangements and is a development in a divorce proceeding to be taken seriously.
Massachusetts General Laws Chapter 272, Section 14 provides that:
“A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.” This crime is a Concurrent Felony: that is, a judge may sentence the defendant to the county jail for up to two years, or to the state prison for up to three years. It is the state prison portion of the potential sentence that makes the crime a Felony.
The last prosecution for adultery occurred almost thirty years ago:
In Commonwealth v. Stowell, 389 Mass. 171, 176 (1983), our state supreme court (the Supreme Judicial Court) reviewed the case of a married woman who was discovered having sex in a parked van with a man not her husband. Both she and the man were convicted of adultery following a bench trial and paid fines of $50. The SJC upheld the conviction, ruling that the Supreme Court case of Lawrence v. Texas, 123 S. Ct. 2472 (2003) did not invalidate the Massachusetts statute.
The Massachusetts Bar Association has published an excellent short review of the constitutionality of the law in Lieber, Is Adultery still a crime after Lawrence? , which can be viewed at http://www.massbar.org/publications/section-review/2004/v6-n2/is-adultery-still-a-crime
Adulterers are not equal to non-adulterer spouses under the law. In Massachusetts, adultery may affect custody if the adultery is proven to have harmed or impaired the children. However, adultery does not automatically affect alimony awards in Massachusetts. It will, however, be a factor for consideration in awarding alimony.
There is also the issue of forgiveness. If you know your spouse committed adultery but continued to live and cohabit with him or her, then adultery cannot be used as grounds for divorce. If you continue marital relations after you discovered the adultery, the courts feel that you have forgiven, or “condoned,” the behavior. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs.
In Massachusetts, however, condonation does not necessarily bar the action for divorce; it now only a “factor for consideration.”
Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person. Should the allegations prove incorrect, the co-respondent could sue for defamation, libel or slander. Therefore, I advise my clients to be careful and absolutely sure of the facts before relying on adultery as one of the grounds for a divorce.
Adultery cases add to the bitterness and hostility in a divorce proceeding. Names, dates, places, paramours, and the like will be written in pleadings filed with the court, and these allegations will be argued in court. Absent a court order, pleadings are public documents, and courtrooms are open to members of the public.
If your spouse no longer cares about what you know and is open about the affair, you’re lucky. However, you may still need a detective to prove your case in court. There is still a need for an independent corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he or she witnessed.
Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.
Public displays of affection are generally sufficient evidence to indicate an adulterous disposition. You may prove opportunity by introducing evidence that your spouse was seen entering the paramour’s apartment at night and not coming out until the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition.
Most divorce complaints list adultery as one of several bases for the divorce; as Massachusetts is a no-fault divorce state, the ground of irretrievable breakdown is most often used as the principle allegation justifying the divorce.