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Massachusetts family law: A discussion of the harm of adultery

When the recent scandal involving David Petraeus and his mistress exploded across Massachusetts and the rest of the nation the topic of adultery again became a topic of conversation. But this time, the subject became mixed with family law and the discussion ventured into territories where adultery could be considered a crime or, at minimum, seriously harmful to the stability of a family. Several states recognize adultery as criminal, although it is rarely prosecuted these days. However, adultery often lands couples in court for separation or divorce proceedings.

Adultery can be severely punished if the culprits serve in the armed forces, but it is usually only prosecuted when the service member has been involved in other criminal behavior. Adultery and other sexual offenses go all the way back to the days of the Old Testament. However, family law has radically changed since then. In an 1838 decision, a court ruled that adultery by a wife could result in a husband giving an inheritance to someone who is not his own blood. In the 1992 decision, a court ruled that adultery was a rejection of the other spouse and intimacy with another outside of the marriage.

Many states have abolished outdated laws concerning adultery. A 2003 Supreme Court decision ruled that consensual sex between adults was legal, but that decision still appears to be raising more questions than answers because at its root adultery can harm innocent people, especially the other spouse and any children they have between them. Although adultery remains a crime in 24 states and territories, it is unlikely anyone would actually be prosecuted for it.

Adultery can be grounds for divorce in Massachusetts and elsewhere. It is highly unlikely anyone would actually be charged with a criminal offense, but the damage affairs can do is widespread. Anyone involved in a marriage or other relationship marred by adultery and where children are present may have family law options available to them to pursue a legal separation or divorce. While adultery may not be prosecuted criminally, it could be considered a moral offense serious enough to warrant action from the other party.

Source: The New York Times, “Adultery, an Ancient Crime Still on Many Books,” Ethan Bronner, Nov. 14, 2012

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