Adultery as Grounds for Divorce

One of the most distressing and devastating challenges to any marriage is the challenge of adultery. Though some marriages survive the stressful impact of one spouse’s unfaithfulness, others simply cannot.

Adultery is defined by Black’s Law Dictionary as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” For good reason, adultery is a fault ground for divorce in many states, including Massachusetts.

Adultery is also considered 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.” 1

The case of Commonwealth v. Stowell upheld the constitutionality of the criminal adultery statute in Massachusetts. 2 In that case, the defendant was convicted of adultery after being arrested for having sexual intercourse with a man who was not her husband. On appeal, she alleged that the adultery statute violated the Constitution’s fundamental right to privacy, but 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.

In terms of divorce actions, some specific procedural considerations apply when a party pleads adultery as a fault ground. First, adultery must be specifically pleaded in the Complaint. Second, circumstantial evidence may be used to prove adultery. In one case, for example, the husband observed another man leave the husband’s home on several occasions while the wife was home, and on one of those occasions, the wife wore a kimono and slippers. The court allowed the case to proceed on the basis of adultery. 3

It should be noted, however, that pure speculation is not enough to prove allegations of adultery. 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 that adultery occurred. 4 “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.” 5

Another issue to discuss is that of condonation. If a spouse forgives a party who engaged in an adulterous relationship and continues to live together as a married couple, he or she is will not be able to plead adultery as a ground for divorce. This is provided that the spouse has full knowledge of the adulterous behavior, and that the behavior is not repeated after condonation.


1 Mass. Gen. Laws ch. 272, s. 14

2 Commonwealth v. Stowell, 389 Mass. 171 (1983).

3 Murphy v. Murphy, 244 Mass. 110 (1923).

4 DiRosa v. DiRosa, 350 Mass. 765 (1966).

5 Id., at 765.


Impotence as Grounds for Divorce in Massachusetts

A touchy subject to discuss, but one which becomes an issue from time to time, is the subject of impotence as grounds for divorce. In Massachusetts, a spouse may choose to request either an annulment or a fault-based divorce on the grounds of the other party’s impotence. Choosing to file for divorce means the spouse may request the division of marital property in line with the applicable domestic relations statutes.

According to Black’s Law Dictionary, impotence means “the incapacity for copulation or propagating the species,” for purposes of medical jurisprudence. It is important to discuss here that impotence does not mean infertility for purposes of family law and divorce. Infertility, referring to an inability to conceive a child, is not a ground for a fault-based divorce in Massachusetts. However, impotence, referring to an inability to copulate, is grounds for divorce or annulment.

Only a few (generally older) cases have addressed the issue of impotence as fault grounds for divorce in Massachusetts. The cases typically deal with issues of impotence which exist at the time of marriage, and not issues which develop later in the marriage.

In one case, the husband filed for divorce based on impotency where sexual intercourse was impossible without causing the wife such pain as to endanger her health. 1 In that case, after the parties lived together for nearly seven years, a physician advised them to separate. The husband’s request for a divorce was granted. In another case, the husband was likewise granted a divorce where, unbeknownst to him, the wife suffered from congenital physical abnormalities which prevented her from engaging in sexual intercourse. 2

If you have any questions about divorce or other domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

1 S. v. S., 192 Mass. 194 (1906).

2 M. v. M., 342 Mass. 773 (1961).

The Standard of Proof in Civil Contempt Cases

How do civil contempt cases work? What is the standard of proof: in other words, what must the plaintiff prove in order to prevail in a contempt action?

Kyle is divorced and has primary custody of his two children. Kyle is concerned that his former spouse, Kevin, constantly returns the children hours later than he is supposed to after visiting with them. Kevin has told Kyle repeatedly that he “doesn’t care” about the time he is supposed to bring the kids back, and that he will continue to bring them back “on his own time.”

Mariah received an order of alimony during her divorce from her former spouse Michael. Now, Michael hasn’t paid the appropriate payments ($500 weekly) for the past two months. Michael refuses to talk to Mariah and will not return her calls.

What do Kyle and Mariah have in common? They may both file an action for contempt against their former spouses.

Contempt actions

Contempt, generally, involves a failure to comply with something that the court has ordered. An action for contempt may be appropriate where the defendant has demonstrably disobeyed a court order. Just a few examples include:
• refusing to pay the appropriate amount of child support or alimony ordered by the court;
• refusing to leave the marital home when ordered to do so;
• violating a court order of protection from abuse or harassment;
• violating the terms of a child custody order or the provisions of parenting time.

There are two types of contempt: civil and criminal. In criminal cases, criminal charges are brought against the defendant for refusing to comply with a court order. In civil contempt cases, the plaintiff files a complaint for contempt against the defendant. The purpose of a civil action for contempt is to ensure the defendant’s compliance for the benefit of the plaintiff.

The standard of proof

In order to prove his or her claims, the plaintiff will have to meet the appropriate standard of proof. In cases of civil contempt, this means the plaintiff must prove “a clear and unequivocal command and an equally clear and undoubted disobedience.” 1

This means the plaintiff must show, first, that there was a clear and unambiguous court order. In one case, the Appeals Court held that there was no contempt by the wife when she disclosed certain financial misdeeds of her husband. The court held that the divorce decree was ambiguous as to this disclosure and did not specifically prohibit the wife’s conduct. 2

The plaintiff must show, second, that the defendant clearly disobeyed a court order. In one case, the Appeals Court held that there was no contempt by a wife who refused to allow her small children to visit their father out-of-state, unless an adult escort would accompany them on their flight. The husband filed an action for contempt and prevailed at trial, but the Appeals Court reversed, holding that the mother’s “reasonable” concerns and requests did not amount to a clear and undoubted disobedience of the divorce judgment and custody order. 3

1 Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990).
2 Sax v. Sax, 53 Mass. App. Ct. 765 (2002).
3 Pedersen v. Klare, 74 Mass. App. Ct. 692 (2009).

Intellectual Property Counts As Marital Property During Divorce

In what ways is intellectual property important during a divorce? Is it something that may be divided by the court between the parties?

Intellectual property and domestic relations

Intellectual property includes patents, trademarks, copyrights, trade secrets, and trade dress. Each of those categories may present property to be considered by the court as part of a couple’s marital estate. Therefore, during a divorce, it is important to consider any intellectual property holdings in property assignment.

The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. Intellectual property, like all other property, will be divided in this manner.

Future income from intellectual property

In addition to present property values, future income must also be considered. For example, royalties from copyrighted work or licensing fees from patents and trademarks may present considerable future income opportunities.

In one 2015 case, 1 the Appeals Court held that future royalties derived from a wife’s tremendously successful novel should be divided equitably between the parties. In that case, the trial judge noted that the husband supported his wife financially and emotionally while she wrote the novel. The judge also noted that the wife’s earnings from the novel neared $3,000,000 at the time of the divorce, and he ordered that she pay the husband a lump sum of $570,000. As for future royalties, the trial judge held that because they were too speculative, the husband was not entitled to them.
The husband appealed, seeking equitable distribution of future royalties obtained by the wife.

The Appeals Court agreed with the husband, holding that the wife’s “contractual rights to future royalty and other payments do not, in our view, involve mere expectancies as described in the foregoing cases. While the amount of the royalty and other payments to be received by [the wife] in the future cannot yet be ascertained, the right to receive those royalties and other payments was contractually established at the time of the divorce. Indeed, [her] interests in the present case are, in certain respects, analogous to a party’s interest in the payment of pension rights which has been recognized as marital property subject to division.” 2

The Court suggested that future royalties were particularly suited to “division on an “if and when received” basis, with the judge determining the percentages of any future payments to be assigned to [wife and husband.]” 3

Valuing intellectual property during a divorce

In many cases, it may be possible (whether through past royalties or payments or expert valuation) to establish the value of intellectual property. In those cases, the court may use those reasonable values in calculating marital property division.

If the value of intellectual property is too speculative to consider, however, the judge may opt to exclude the property from marital property calculations. In one case, for example, 4 the court considered the invention of the husband, who held patents on artificial skin. The trial judge held that future income from those patents was so speculative that they did not need to be included as part of property assignment. The Supreme Judicial Court agreed that the judge did not abuse his discretion in his division of the marital assets.

“He was not obliged to place a value on the husband’s royalties, patents, or copyrights. He was warranted in declaring uncertain the value of the husband’s patents on artificial skin,” the high Court noted. “The judge could have concluded on the evidence that the present value of the husband’s future income from this source was too speculative to consider. The asset was not one which obviously has current value but is difficult to appraise (such as a close corporation).” 5

1 Canisius v. Morgenstern, 87 Mass. App. Ct. 759 (2015).
2 Id., at 767.
3 Id., at 771.
4 Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985).
5 Id., at 714.

Desertion as Grounds for Divorce

Dean and Doreen are married, but they have not lived together since Dean left the marital home in Massachusetts about two years ago and moved out of state. While Massachusetts recognizes no fault divorce, meaning a party need only claim that there’s been an irretrievable breakdown of the marriage, some parties understandably prefer to file for fault, such as abandonment or desertion. In this case, Doreen would like to file for divorce and wonders if this approach makes sense.

In Massachusetts, by statute, desertion of a spouse is a fault ground for divorce. If you’ve essentially been abandoned by your spouse, this may be grounds for your divorce. The applicable statute reads: “A divorce from the bond of matrimony may be adjudged for…utter desertion continued for one year next prior to the filing of the complaint[.]”

The applicable statute sets out the elements as follows: “In order to establish grounds for divorce for desertion, the plaintiff shall establish that the defendant left voluntarily and without justification and with intent not to return, that at the time such defendant left, the plaintiff did not consent thereto, and that the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of the filing of the action.”

Under this statute, it is important to note that the intent to abandon one’s spouse must be present in order for this type of claim to stand. Therefore, if a party leaves but intends to return to the marital home, the other spouse may not have a valid claim for desertion. Moreover, if a party deserts his or her spouse for a valid reason, such as to seek employment, to escape domestic abuse, or for purposes of a military deployment, that reason may serve as justification, and a claim for desertion may fail as a result. Further, the desertion must happen without the consent of the other spouse—mutual separation, or consent to the spouse leaving, means that no desertion has taken place.

The courts also recognize the concept of constructive desertion, where a spouse might not physically leave the marital home but withdraws from the marital relationship. In one older case, the husband was held to have constructively deserted his wife when he abandoned all matrimonial communication and relationship with her and denied her the ability to live in his home.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

The Conduct of the Parties During the Marriage: A Factor in Dividing Marital Property

Larry and Leah have been married for a decade, during which Leah was the main bread-winner through her job as a human resources director. Though Larry has held a string of low-paying jobs, he has not managed to hold down a job for very long, and he can’t seem to manage saving any money—on top of that, Larry has spent substantial amounts of money on his gambling habit for the past ten years.

Leah has recently filed for divorce. She is concerned about the division of the property she has accumulated while she was married to Larry, particularly the marital home which was purchased with a down payment that she saved up from her job. Is the Court possibly going to order that Larry take half of the things Leah has worked so hard to accumulate and maintain, or will the Court take into consideration Larry’s lack of contribution and detrimental decisions?

Larry’s conduct during the marriage will likely be considered by the court here. The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process, and one of those factors is the conduct of the parties during the marriage.

As of the passage of the Massachusetts Alimony Reform Act, the conduct of the parties is no longer a factor in awarding alimony. However, the conduct of the parties remains a factor in the division of marital property. In what ways might it affect the judge’s decision? Past cases have looked at a slew of issues with conduct, including the following:

  • Failure to take care of the marital assets and responsibilities: in one case, the Court conveyed to the wife the primary home where the husband “did very little in house maintenance and spent much time outside the home” and the wife “was responsible for raising the children and taking care of the marital domicile.” [1]
  • Using the marital assets for a spouse’s own purposes, while relying on the other spouse to pay the family bills: in one case, where the wife contributed her money to home repairs while the husband, supported by his wealthy mother, spent his on motorcycles and a motor home, the Court considered the husband’s conduct and assigned almost all of the marital assets to the wife; [2]
  • Conveying marital property to another person in anticipation of divorce: the court in one case, where the husband obtained by fraud and coercion his wife’s permission to establish a trust to benefit his siblings, and moved marital property into that trust, the judge was able to invalidate the trust; [3]
  • Using the marital funds to “entertain” an extramarital affair; and [4]
  • Causing waste of the marital assets, such as by gambling; among other things. [5]

Typically, the conduct of the parties will be considered a factor in marital division only when it impacts the financial or economic state of the marriage. In other words, conduct which does not affect the couple’s finances or economic status—such as one spouse who is perhaps mean and condescending to the other but pulls his or her weight in maintaining the couple’s financial status—likely won’t be a controlling factor. Should that conduct impact finances, however, it may be considered by the Court.

If you have any questions about division of marital property, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.


[1] Tanner v. Tanner, 14 Mass. App. Ct. 922 (1982).

[2] Johnson v. Johnson, 53 Mass. App. Ct. 416 (2001).

[3] Yousif v. Yousif, 61 Mass. App. Ct. 686 (2004).

[4] See, for example, the cases of Ross v. Ross, 385 Mass. 30 (1982) and McMahon v. McMahon, 31 Mass. App. Ct. 504 (1991).

[5] See, for example, Yee v. Yee, 23 Mass. App. Ct. 483 (1987).