Adultery is one of the most distressing and devastating challenges to any marriage. Although some marriages survive the stressful impact of one spouse’s unfaithfulness, others simply cannot. Sometimes a party files for divorce because of a spouse’s infidelity. In that case, what should a spouse do if he or she wants to plead adultery as the grounds for divorce?
What is Adultery?
Black’s Law Dictionary defines adultery as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” For good reason, it is a fault ground for divorce in many states, including Massachusetts.
In Massachusetts, It’s Considered a Crime
Adultery also counts as a crime in Massachusetts. The relevant criminal statute reads, “A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.”
Constitutionality of the Criminal Adultery Statute
The case of Commonwealth v. Stowell upheld the constitutionality of the criminal adultery statute in Massachusetts. In that case, the defendant was arrested and later convicted for having sexual intercourse with a man who was not her husband. On appeal, she alleged that the statute violated the Constitution’s fundamental right to privacy. The Supreme Judicial Court disagreed. While the court noted its awareness that adultery is rarely prosecuted as a crime, it also noted that did not mean the statute was invalid or judicially unenforceable.
Proving Adultery
In terms of divorce actions, some specific procedural considerations apply when a party pleads adultery as a fault ground. First, the Complaint must specifically plead it. Second, a party may use circumstantial evidence to prove it. In one case, the husband saw another man leave his home on several occasions while his wife was at home. One of those times, the wife wore a kimono and slippers. The court therefore allowed the case to proceed on the basis of adultery.
Pure speculation is not enough to prove allegations, however. In one case, for example, the court found that simply having ample opportunity to engage in adultery, by way of a husband’s many visits with another woman, did not establish the occurrence of adultery. “The fact that the parties had ample opportunity to commit adultery is not, of itself, grounds for divorce,” the court noted. “There must be some evidence of speech or conduct indicating an adulterous disposition.”
Condonation: What if a Spouse Forgives?
Another issue to consider is that of condonation. If a spouse forgives a party who engaged in an adulterous relationship and they continue to live together as a married couple, he or she will not be able to plead adultery as a ground for divorce. This is so long as the innocent spouse has full knowledge of the adulterous behavior and that the offending spouse does not repeat the behavior after condonation.
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