Adultery Law in Massachusetts

Adultery is defined as a married person having sex with someone who is not their spouse. It has long been considered by most people to be reprehensible on social, religious and moral grounds. It is regarded similarly in many cultures.

Is It a Crime To Commit Adultery?

It is a crime in the state of Massachusetts to commit adultery. It is classified as a “concurrent felony” in Massachusetts law. The punishment is a term of incarceration in state prison for up to 3 years or 2 years in jail or payment of a fine of up to $5,000. A person might be able to access rehabilitation through a diversionary program. Apparently, the crime of adultery is rarely, if ever, prosecuted in Massachusetts today.

In the past, courts required the prosecution to provide clear and convincing evidence of adultery. This meant that there had to be direct testimony of an eyewitness or substantial circumstantial evidence. Because of this stringent requirement for convincing evidence, and because of changing social attitudes, prosecution for adultery is, for the most part, not done in Massachusetts.

\While a person is unlikely to be criminally prosecuted for adultery today in Massachusetts, their adultery may have consequences in a civil proceeding for a divorce or legal separation.

Massachusetts offers no-fault divorce. This means that in most divorces, the spouses simply state that there has been an irretrievable breakdown of their marriage and for this reason they want a divorce. Listing adultery as a reason for divorce can be done, but is usually cited along with other grounds. That is because there can be complications to alleging and proving adultery.

In addition, divorce proceedings are public, and many people would be reluctant to make an extramarital affair public.

While there is no firm deadline that applies to filing for separation or divorce after learning of a spouse’s adulterous affair, not acting promptly may be seen as forgiving or at least condoning the adultery. In this case, a court would be more reluctant to consider the adultery as a factor in deciding issues in the divorce.

Adultery may influence property division if the affair involved financial misconduct. The adultery of a spouse should not have a significant effect on a judge’s decision about the obligation of the other spouse to pay the adulterous spouse alimony. A judge could, however, give it some consideration in some aspects of decisions regarding awards of alimony.

If an individual has knowledge to the effect that their spouse is squandering marital assets or incurring debt in an adulterous affair, they might want to consult a Massachusetts family law attorney about injunctions and restraining orders. These are court orders that direct a person to do or refrain from doing actions that can harm others.

A court might be persuaded to issue a restraining order in cases in which there is domestic violence. An injunction would be appropriate if a spouse seeks a court order that would direct their spouse to refrain from squandering marital assets or incurring debt that could burden both spouses.

A spouse’s adultery could have a more significant effect on a judge’s decisions regarding child custody, if the adultery is shown to harm or impair a child of the marriage.

Are Adultery Statutes Constitutional?

Adultery statutes are constitutional, and adultery is still a criminal offense in several states and in Puerto Rico. The states in which adultery is still a criminal offense are as follows:

• Alabama,
• Arizona,
• Florida,
• Georgia,
• Illinois,
• Kansas,
• Maryland,
• Massachusetts,
• Michigan,
• Mississippi,
• Oklahoma,
• South Carolina,
• Virginia,
• Wisconsin.

Other states, e.g. New York and Minnesota, have repealed the state adultery law that made adultery a crime.

In the states where it remains a crime, the offense is usually a misdemeanor, although it is a felony in some of them. For example, in Michigan, Oklahoma, and Wisconsin, adultery can be charged as a felony offense.

Who May Initiate a Prosecution for Adultery?

As noted above, a person who believes they are the victim of a crime has to report the crime to law enforcement. Law enforcement takes a report and may investigate to find evidence. If law enforcement officials believe they have enough evidence to justify a prosecution, they take the case to the local government attorney.

In many states, this person is referred to as the “district attorney,” and each county in a state may have a district attorney. In other states, they are called the “state’s attorney.” In any event, the district attorney has the authority to proceed with a criminal prosecution.

Again, however, in the state of Massachusetts, the prosecutor is unlikely to initiate a prosecution for adultery, although it is still defined as a criminal offense in that state.

Who Has the Burden of Proving Adultery?

In a criminal case, the prosecuting attorney, who represents the government, always has the burden of proving that the accused perpetrator committed a crime beyond a reasonable doubt.

The accused perpetrator, the “defendant” in legal terminology, has the burden of proof as to any defenses they may have. The defendant can also present evidence that creates doubt about the prosecution’s case.

What if I Am a Victim of Adultery?

If an individual is the victim of adultery in the state of Massachusetts, how they proceed would be a personal decision for them to make. They would want to decide if their spouse’s adultery is fatal to their marriage. If they believe that it is, then they would want to have a lawyer consultation with a Massachusetts lawyer about their options, e.g., a legal separation or divorce, and what each would entail.

A person whose spouse has committed adultery could consider making a report to local law enforcement, but they would want to give careful consideration to the issue of what a criminal prosecution would really achieve. In addition, the local prosecutor is likely to decline prosecution.

Should I Hire a Lawyer for My Adultery Case in Massachusetts?

You could be charged with the crime of adultery in Massachusetts, although it is unlikely. However if you are, you want to talk to a Massachusetts criminal defense lawyer.

However, if your spouse has had an affair or if you yourself have, you may see a legal separation or divorce in your future. You would want to consult a Massachusetts family law attorney for guidance regarding what the next best step for you would be.