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Affairs and Divorce – How the Courts View Spousal Misconduct

On Behalf of | Aug 3, 2017 | Firm News

Following the Ashley Madison website scandal, many legal scholars expected a frenzy of divorce filings would follow as people learned that their spouse was among those identified in the Ashley Madison hack. In fact, according to some statistics, Massachusetts was ranked seventh highest among states with active members at the time of the hack. Opinions will vary as to whether this increase occurred, and in the meantime we are often asked if the court will punish a spouse for misconduct, leaving the “victim” spouse with a larger share of the assets for this breach of trust? If so, what type of misconduct, or what degree of misconduct, is punishable?

Massachusetts is among the majority of states in which a spouse may assign fault to the other spouse as grounds for the divorce. It is most common to attribute the cause of the divorce to an “irretrievable breakdown of the marriage” where evidence of fault is not required. There are several factual and strategic considerations regarding how to file a complaint and whether to utilize one of the fault-based grounds, which include: “…adultery, impotency, utter desertion continued for one year next prior to the filing of the complaint, gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs, cruel and abusive treatment, or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse….” Massachusetts General Laws Chapter 208 §1.

The court is required to consider the conduct of each spouse when determining the issue of property division. How large a role such conduct actually plays in the court’s determination depends greatly on the kind of conduct in each case.

Before rushing to allege what a terrible person the other spouse was during the marriage, parties should note that courts are reluctant to assign blame in divorce matters. The preference is to maintain a detached view in the separation of spouses, similar to the breakup of a business, when it comes to dividing the property. While conduct will be more closely scrutinized in matters involving the children, when it comes to alimony and property division neither spouse should expect to pay or receive a significant amount of the marital estate because of bad, immoral, or even criminal behavior. However, if the behavior was supported by spending money from the marriage, or if it was so offensive or outrageous that it could be considered cruel, and actually caused harm to the other spouse, then the court may be moved to take action.

By way of example, cases in which the courts have awarded one spouse a significant property or alimony award due to the misconduct of the other include the following:

  • fraudulent conduct in the use and depletion of marital assets,
  • soliciting the murder of the other spouse and other misconduct,
  • accumulation of gambling debts,
  • and spending marital assets to support an ongoing affair.

In each case the offending spouse did something that caused tangible and measurable harm to the other; whether it be financial, physical, or emotional harm. It would be difficult to include among these a case where one spouse discovered that the other was a member of a website, i.e. Ashley Madison, Backpage, etc., that provided connections for extramarital affairs, unless there were additional, and more egregious, circumstances.

Discovering that your spouse has been unfaithful, or was even considering infidelity, will surely cause a significant amount of emotional distress. The betrayal of trust can be a primary cause for the breakup of a marriage. Should a divorce be the result, existing case law suggests that it is highly unlikely that either spouse can expect the court to be moved to an otherwise unequal division of the marital estate, or to award an alimony amount in excess of what otherwise is indicated by the relative financial positions of each spouse.

It is important to remember that every case is different. If you are considering a divorce as a result of infidelity or other misconduct, you should consult an attorney to discuss the possible outcome of your particular case.