We are often asked what impact infidelity will have on a divorce in Massachusetts. In reality, infidelity can impact a divorce in Massachusetts, but not as significantly as many spouses think. Massachusetts is a state that recognizes no-fault divorce, which is the most common ground for filing divorce. Since Massachusetts recognizes no-fault divorce, there are limited grounds in which a spouse can bring up the issue of infidelity.
The reality is that if spouses are at the point of divorce, it is not unlikely that one or both spouses have already moved on and entered the dating world again. The main areas where infidelity can impact a divorce is with property division and parenting time.
When it comes to property division in Massachusetts, there are a number of factors the Probate and Family Court must consider in dividing the marital estate. Those factors are outlined by Massachusetts General Laws chapter 208, section 34. These factors are:
- the length of the marriage,
- the conduct of the parties during the marriage,
- the age of each of the parties
- health of each of the parties
- station of each of the parties
- occupation of each of the parties,
- amount and sources of income of each of the parties
- vocational skills of each of the parties
- employability of each of the parties
- estate of each of the parties
- liabilities of each of the parties
- needs of each of the parties,
- the opportunity of each for future acquisition of capital assets and income,
- the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive
- the present and future needs of the dependent children of the marriage.
- the acquisition, preservation or appreciation in value of their respective estates
- and the contribution of each of the parties as a homemaker to the family unit.
As you can see, infidelity is not one of these factors. However, infidelity falls under the “conduct” factor. Thus, when determining property division in a divorce, the Probate and Family Court must consider 17 different factors, and only one part of these 17 factors will include infidelity.
However, realistically, if each Probate and Family Court judge heard about every instance of infidelity, they would never be able to leave the bench. Each judge would be on the bench 24 hours a day, 7 days a week, 365 days a year. Since that isn’t practical, the court limits arguments regarding infidelity are strictly limited to any dissipation of marital assets on the extramarital relationship. That means if a spouse spends marital funds and marital assets on their extramarital relationship, a judge can consider that a factor in property division. However, realistically, judges will typically only consider this argument if a substantial amount of marital funds were spent on the relationship. If money was spent on an occasional date here and there, a judge isn’t going to consider that. However, if a spouse went on vacation with their new significant other, that is something a judge may consider in property division.
Therefore, infidelity can technically be considered in property division, but it is very narrowly construed by Probate and Family Court judges, so they are not on the bench all day, every day.
Another topic where infidelity can be an issue in a divorce is with custody and parenting time. When spouses are working out a parenting plan, it is not uncommon to restrict the parties from introducing the children to new significant others. Thus, if one or both parents are already dating while the divorce is pending, they can agree to not introduce significant others to the children until it is a serious relationship. Oftentimes, this means putting a time restriction before parents can introduce significant others to the children. This can be a few months, or even up to a year.
Also, if a parent is already in a serious relationship where he/she has already moved in with their new significant other, or is about to move in with their new significant other, sometimes the other parent can request background information on that significant other, and can sometimes even go so far as request for the court to perform a background check. However, the court is careful on the extent that a parent can look into this person’s background. Oftentimes the court will limit the background information to whether the new significant other has a criminal background and/or if the new significant other has any prior involvement with the Department of Children and Families. Having a new live-in significant other does not give the other parent carte blanche to do an unlimited background investigation.