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Infidelity and Divorce

According to Massachusetts law, “a married person who has sexual intercourse with a person not his spouse” has committed a crime and is subject to imprisonment for up to three years and a $500 fine. Although the last prosecution for adultery was in 1983, the commonwealth still lists adultery as a crime and also as a reason for a divorce.

While statistics are difficult to completely assess, one study conducted by the National Institutes of Health  (NIH) reported that 88 percent of couples stated that infidelity was a “major contributing factor” to their divorce. The American Psychological Association (APA) found that infidelity is the reason for up to 40 percent of all divorces.

How Infidelity Can Affect the Divorce Case

Infidelity, which is adultery committed by a married person, may or may not affect the divorce case. Where it may become an issue is in the distribution of marital assets, whether or not a party is awarded alimony, and whether or not the adultery had an effect on the children.

Asset Distribution

In Massachusetts, marital assets are distributed according to what the court determines is equitable. This does not mean equal, but on a basis that is fair. Marital property includes all assets, including property and income, acquired by the couple before and during the course of the marriage.

If one party has used marital assets on gifts for a lover, or on motel rooms or trips with the lover, then the family court might award a greater share of the marital assets to the injured spouse. The court however, will not punish the cheating spouse simply because they cheated.


Alimony is a payment from one spouse, who has the ability to pay, to the other spouse, who is in financial need. The Massachusetts Supreme Court has held that alimony cannot be withheld from an otherwise deserving spouse simply because he or she was the one who was unfaithful. On the other hand, the court may also take into account the squandering of marital assets by the unfaithful spouse, who spent money on his paramour, and use this as one factor when awarding a spouse alimony.

Child Custody and Visitation

If it can be proven that the infidelity had an adverse effect on the children, or that the children may be in danger by visiting with the parent and the new girlfriend/boyfriend, the court may take that in account when making custody and visitation decisions.

How to Prove Infidelity

Even if the spouse denies he or she committed adultery, it is possible, although difficult, to prove. If you are the injured spouse, you must be very careful that in your zeal to prove infidelity, you do not break the law.

The standard of whether or not information you discover can be used in your divorce proceeding is whether your spouse had a reasonable expectation that the communication was private. For example, if you overheard a conversation that is taking place in a public place, that can be used against the other party. But, whether other information you discover can be used depends on how the information was discovered.

The safest thing for you is to consult with your attorney as to what you can or cannot do. Some examples of what you can or cannot do include the following:

  • Recording telephone conversations. As tempting as it is, it is illegal to record a telephone conversation without the consent of the other party.
  • Intercepting emails, texts, and other electronic information. Massachusetts and federal law establish that each person has a right to privacy. It is also a crime in Massachusetts to access another person’s computer without permission. A cell phone may be considered a type of computer. It is not worth the risk of going to prison because you accessed your spouse’s private information, which, if illegally obtained, will not be admissible in your divorce hearing. There may be exceptions to the privacy rule, but you need the advice of an attorney if you have stumbled on information that was voluntarily left for you to see.
  • Social media posts. When people post on social media, they no longer have an expectation that the information is private. You can use photos or other statements to help prove your case.
  • Testimony of witnesses. The court will hear the testimony of witnesses who observed your spouse with another man or woman in a romantic setting, or in a public display of affection. A witness may testify that a cheating spouse was seen entering the home of the paramour late at night and not leaving until the following morning.

If you suspect your spouse has been unfaithful and want to use adultery as a ground for divorce, contact our experienced and compassionate attorneys at Infinity Law Group for assistance.