Infidelity… What Does it Mean for Your Divorce?

Infidelity… it’s a scary word for anyone in a monogamous relationship or marriage to hear. 1 out of 5 men have reported that they have cheated on their partner while married (General Social Survey). Uncovering infidelity can be an emotionally devastating experience and oftentimes leads to divorce. The anger and hurt that accompanies finding out your partner broke their marriage vows can leave many people furious and ready to take their partner for all their worth… it’s only fair, right???

Well, while cheating is certainly a horrible thing to do to a partner, there is not all that much you can do in the eyes of the law. A judge will not punish your spouse for infidelity. In Massachusetts, infidelity was actually considered a felony up until 2018. Nowadays, couples in Massachusetts have the option to file a no-fault or an at-fault divorce. At-fault divorces can only be used in very specific cases, such as chemical dependency, a criminal conviction resulting in five-plus years in prison, and infidelity.

However, while infidelity is a possible reason for a person to file an at-fault divorce, it is rarely done. This is because the one accusing the partner of infidelity has to prove, with evidence, of this occurrence. It is an extremely time-consuming and financially draining process, as you must show concrete proof of the infidelity beyond a friend or the mistress telling you of the extramarital affair.

Therefore, most people choose to file for a no-fault divorce, even if they have the proof of infidelity, because it can be a long and drawn-out process to go through, and can be emotionally damaging to have to relive one of the worst times of your marriage.

So, the state does not care at all that my partner cheated on me and broke our marriage vows?

This is not necessarily true. There are a couple things your attorney can do while helping you through the divorce process.

The Cheating Clause

Hopefully, you sat down with your attorney before your marriage and signed a prenuptial agreement! In your prenuptial agreement, some couples choose to add “lifestyle clauses". One of these clauses, the “infidelity clause” can set some ground rules on how much money a partner owes their spouse if they do cheat on them. Lifestyle clauses are not usually legally enforceable, but the cheating partner will often not contest this if the spouse refers back to this clause as it can be very embarrassing for the cheater to see all the evidence of the affair brought in front of a judge and do not want anyone else to find out of their indiscretion as court proceedings are public.

Conduct of the Parties

In 1B divorce proceedings, which are divorces that are contested and not jointly-filed, a pre-trial memo is written up by the divorce attorney for each party. One section of the pre-trial memo is titled “Conduct of the Parties.” If your spouse did commit infidelity, this is where that information would go. Judges do take into consideration the conduct of the parties when making their judgement on the divorce.

Impact on Childcare and Marital Financial Assets

The main takeaway to get from this post is that a partner’s infidelity will affect the divorce proportionally with the extent that the infidelity affected that partner’s child rearing and use of the marital financial assets. It is possible that a historial absence from contributing toward regular parenting time may be reflected in a more permanent parenting time schedule. Furthermore, if your spouse was depleting marital financial resources to spend on their extramarital affair, there could be a potential offset to any marital funds they may be entitled to after the divorce.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.

Source: https://www.helloprenup.com/prenuptial-agreements/cheating-clause-prenup/