In Massachusetts Adultery is a Crime!?

Despite the tone of the title, I knew adultery is still a crime in Massachusetts but was quite shocked when my twitter friend, Corine K. Claxton (criminal attorney in Worcester, MA) sent me the court opinion of the last criminal adultery trial in Massachusetts.

The last adultery case to be tried criminally was in 1983.  The woman, Judith, had a late night rendezvous with a man in an abandoned lot in his van when police came up to the van and arrested both Judith and the man for adultery.  They were both married, but not to each other.

“We take judicial notice that the act of adultery frequently has a destructive impact on the marital relationship and is a factor in many divorces.”

I disagree with the court on that statement.  I don’t think adultery is a cause of most divorces – I believe it to be a symptom of a bad marriage.  People cheat because they’re unhappy or unfulfilled with their relationship.  So there is already a downhill relationship, usually, before any of the parties cheat.

“It seems beyond dispute that the [statute] defining or punishing the [crime] of . . . adultery . . . [has] fallen into a very comprehensive desuetude.”

Desuetude, to define, is law that is still on the books but is not used or exercised.

One of the frequent questions I get asked by divorcing clients is whether to file a no-fault divorce or to allege adultery as a grounds.  They also want to know what is the impact and reason for claiming adultery or not.  I usually tell them that it doesn’t matter what the grounds for divorce is (except for some very specific instances) because the divorce will be granted no matter what.  Adultery does go to the conduct of the parties during a divorce, which in turn is a factor in determining alimony and division of property – however, in all honestly, it’s only one of many factors that go into determining alimony and division of property.

Generally, it’s much better and easier to file based on no-fault than to allege a grounds such as adultery.  I’ve gotten divorces based on adultery before and I can assure you that it’s neither simple or pleasant.