The realization that your spouse was unfaithful during your marriage is upsetting, even life-altering to some. Reactions upon learning of a spouse’s affair vary, but include feelings of sadness, betrayal, shock, anger and an intense desire to listen to country music.
Some couples are unable to overcome the damage caused by an affair, with divorce oftentimes the unfortunate result. Although infidelity is certainly problematic, it is usually a sign of other troubles in a relationship. If you are facing a Massachusetts divorce and marital infidelity is an issue, you are likely wondering…
What effect does an affair have on my divorce?
The answer is not as much as you might think – usually. Like many things in family law, cases are fact-specific and this post should not be considered specific legal advice for your situation.
Alimony & Property Division
Massachusetts courts are required to consider certain factors when determining the division of marital property, and the decision to award alimony, including length of the marriage, age and health of the parties, occupation, income, employability, liabilities and needs, the estate of the parties, and the opportunity for future acquisition of assets and income. This list of mandatory factors also includes the conduct of the parties during the marriage. The list of mandatory factors is set forth in Mass. Gen. Laws c. 208 s. 34.
When considering the conduct of a spouse during the marriage, the court generally gives little, if any, weight to the infidelity issue. Even if the affair was the underlying reason for the divorce, the court does not “punish” the cheating spouse. There is no moral judgment by the court about the actions of a party who had an affair, nor will the court use that alone as a reason to give the other party a larger share of the assets or alimony. Of course, Judges are real live humans and if your conduct was bad during the marriage, it certainly doesn’t help your case!
So, you will not automatically get to keep the house and the summer cottage while you spouse lives in his or her car, although that may seem like a fair and equitable award to you.
Sometimes an affair will impact the division of marital property in Massachusetts. If it can be shown that during the course of the affair(s) a spouse spent substantial marital assets, then the court will likely take the affair into consideration because of the economic ramifications. For example, if your spouse spent a few thousand dollars buying expensive gifts or renting hotel rooms, the court could consider the economic impact of that spending and award one spouse a larger share of the property division to adjust for the “wasting” of marital assets.
Massachusetts Child Support and Child Custody
An affair will not impact the amount of child support awarded by the court. In Massachusetts, child support is generally based upon the Massachusetts Child Support Guidelines, and a person’s straying will not change what they will be paying in child support.
In determining child custody, the court considers what is in the “best interests of the child”. The fact that one parent had an affair during the marriage will not be considered by the court in determining child custody unless there is a reason why the “best interest of the child” would be impacted. For example, if the infidelity also coincides with other actions affecting the parent’s ability to care for the child, such as drinking or irresponsible behavior, then this will impact the court’s decision regarding child custody, but the affair itself will not usually have an impact.
So there are no ramifications for my cheating spouse?
Despite what the law says, it is a simplistic view to assume that infidelity does not play a role in divorce cases. Much of the “uncoupling” that goes on in a divorce is emotional as opposed to legal. Feelings do not evaporate, and certainly an affair can effect the final settlement in a divorce in a number of ways, some of them not completely obvious or easily categorized.
Remember that only a small percentage of cases reach the trial stage. The vast majority of court-based cases eventually settle. Even couples facing difficult difficult emotional issues like infidelity opt for divorce mediation or the collaborative divorce process.
A Wife or Husband reeling from the aftermath of their spouse’s affair may feel they deserve restitution of some sort and that can play a part in negotiations. A skilled Massachusetts divorce mediator, divorce lawyer, or Massachusetts divorce coach can help couples work through this dynamic towards a lasting solution.
Katherine Thomas is a Massachusetts divorce lawyer with The Divorce Collaborative LLC of Bedford and Franklin, MA.
