Somebody Cheated. Does It Affect the Divorce Process?

Infidelity is one of the most emotionally charged reasons marriages break down. Discovering a spouse’s unfaithfulness can trigger anger, grief, and betrayal. This can make it much harder to make important decisions about custody, support, and property during the divorce process. As a result, divorces involving adultery are often more complex and contentious than other cases. You might also wonder whether the divorce process itself will look any different if the marriage breakdown is due to infidelity. Read on to learn about how infidelity affects Massachusetts divorce cases.

Defining Infidelity

One person’s definition of infidelity can be quite different from another person’s. While many people think of sexual infidelity (adultery), other people can characterize other conduct as being examples of infidelity, including:  

• Emotional or romantic relationships outside of the marriage
• Secretive or “highly” personal communication with another person
• Significant financial decisions made without the spouse’s knowledge

Under Massachusetts law, adultery is defined as: “Sexual intercourse by a married person with a person not his spouse or by an unmarried person with a married person.” It is important to note that sexual infidelity is not against the law in Massachusetts. That law was repealed in 2018.

How Do I Prove Infidelity?

One cannot simply allege that their spouse was unfaithful; they must provide some proof of this conduct. In jurisdictions such as Massachusetts, where adultery is still a fault ground for divorce, proving it can be difficult. Proving infidelity typically requires clear, convincing evidence such as witness testimony, electronic communications (such as text messages), or financial records. Some spouses will hire private investigators to gather proof of the infidelity. However, this can be very costly and raise privacy concerns. It is always a good idea to consult your attorney before collecting evidence to ensure you comply with state and federal privacy laws.

Fault Divorce vs. No-Fault Divorce

In Massachusetts, there are two types of divorce that can be sought if infidelity played a role in the breakdown of the marriage: fault divorce and no-fault divorce. 

In a fault divorce, the spouse seeking the divorce, known as the Plaintiff, must provide evidence that the other spouse, or Defendant, has engaged in behavior that legally justifies ending the marriage. Grounds for divorce may include: 

• Adultery
• Desertion
• Gross and confirmed habits of intoxication
• Cruel and abusive treatment
• Non-support
• Impotency
• A prison sentence of five years or more

A fault divorce may be more complex and contentious because it requires evidence and legal argumentation. 

In a no-fault divorce, neither spouse is required to prove that the other party was responsible for the breakdown of the marriage. Instead, the court only needs to be satisfied that the marriage has irretrievably broken down or that the couple has irreconcilable differences that make it impossible for them to continue living together. This approach allows both parties to end the marriage without assigning blame.

No-fault divorces come in two types: contested or uncontested.  

• Uncontested (1A Divorce): Both parties agree on all terms, including property division, custody, and support.
• Contested (1B Divorce): Parties cannot agree on one or more issues, requiring court intervention.

Do I Need to Pick a Fault Divorce If My Spouse Cheated?

No, you do not need to file a fault divorce, even if your spouse has cheated. Spouses who are divorcing have the option of choosing either a fault or no-fault divorce in Massachusetts. As stated, a fault divorce requires an additional step: proving one of the grounds for divorce in Massachusetts. Therefore, in a marriage where infidelity has happened, the spouse is permitted to file a fault divorce. They are not prohibited from filing a no-fault divorce if infidelity played a role in the breakdown of their marriage.

Even if there has been infidelity, couples might be better off filing no-fault divorce. 

Benefits of a no-fault divorce include:

• Faster processing
• Lower legal costs
• Less emotional stress
• Avoiding the need to prove wrongdoing

Nevertheless, you may wish to file a fault divorce. Filing a fault divorce reflects your belief that the marriage has ended due to the conduct of your ex rather than your own. Because these divorces are more contentious and involved, filing a fault divorce could cause your spouse more headaches, which might motivate scorned lovers to pursue them.

Will I Get More in the Divorce If I’m Not the Cheater?

Many people believe that filing for divorce on a fault ground, such as divorce, gives the Plaintiff an advantage in property division or alimony. This is generally not true. Courts consider the same factors when deciding these issues in both fault and no-fault divorces, and pursuing a fault-based divorce does not automatically result in a more favorable financial outcome. Similarly, just because one spouse cheated does not necessarily affect child custody, where the cheater loses custody because of their decision. So long as the infidelity did not demonstrate that the cheating parent’s behavior directly impacted their ability to parent (for example, leaving a child unattended in the car to have an affair), the parent’s conduct will not affect custody.

Contact an Experienced Massachusetts Divorce Attorney

Going through a divorce after infidelity can feel overwhelming, but no one has to handle it alone. An experienced divorce attorney can offer guidance during this difficult time, including deciding what type of divorce to file.