Does Adultery still Matter? 5 Reasons Why it Does.

Besides the obvious issues that adultery presents for a marriage, does it still matter in a divorce?

As a divorce attorney and mediator, I often see divorce cases where one party or the other has moved on and begun an affair. As suggested by fellow attorney, Gabriel Cheong, on his blog on this issue, I don't think this is as often the cause of divorce as it is a sign that the marriage was already over. So does adultery matter in a divorce case?

Regardless of whether adultery is a cause of the divorce or just the nail in the coffin, it can still have a major effect on how the divorce case proceeds in 5 different ways:

1. THE FIRST IMPRESSION: Adultery is still at base an emotionally charged issue. Most people's first reaction to hearing of one party cheating on the other, is to side with the "victim." This feeling is based on our own immediate reaction to the thought of being cheated on ourselves. This impression is not based on all the facts, and is an emotional, not rational, reaction. But because first impressions matter, adultery can have an impact on how a case begins which can often set the tone. It can sometimes be difficult to overcome this first impression and focus on how to move a case forward.

2. THE MORAL IMPACT - APPORTIONING FAULT: Adultery is still considered morally abhorrent conduct, even if it somewhat common. Therefore, discovery of adultery is often the moment when a party accepts that their marriage is irreparable. In addition, conduct is one of the factors in M.G.L. c. 208 s 34, the statute which directs the court in how to divide property and/or award spousal support. However, it is important to note that "conduct" is not necessarily weighed as heavily as the other factors and may not result in any major impact on the division of assets or award of support. Adultery is also still available as a cause for filing a Fault-based divorce. However, filing a case under the adultery statute is usually more trouble than its worth given the availability (and lower cost/ease of use) of the No-Fault grounds.

3. THE FINANCIAL IMPACT: While the conduct factor itself may not be weighed heavily in today's courts, any finances misdirected for use in an affair could directly affect the division of property. In fact, any funds spent directly on an affair (such as funds used for gifts, vacations, hotels, etc.) should arguably be replaced, or credited against the offender's share of the assets.

4. THE CRIME: That's right. Adultery in Massachusetts is still a crime. M.G.L. c. 272 s. 14 prohibits adultery and provides for both jail time and/or a $500 fine. Although a case hasn't been prosecuted since 1983 (Commonwealth v. Stowell) the statute is still in effect. This has certain unintended consequences, such as being able to use the 5th Amendment in a deposition if asked about the affair (i.e. invoking your right not to incriminate yourself in a crime). In most cases, the criminal aspect has a minimal impact on how the divorce proceeds.

5. THE DELAY: The biggest impact adultery has on a divorce case is usually the delay it causes in resolving the case because of the impact the affair has on the "victimized" spouse. The specific facts of the affair can have a major impact on how upset the other spouse is, as described in this recent NY Times Article about Adultery in the Martial Bed. The only way to avoid a trial in a divorce case is when both parties are ready to settle, and the hurt and anger that an affair causes can prevent the affected spouse from being ready to settle.

Is it Possible to have More than Two Parents?

Whether or not everyone approves, it is a fact of life that the "traditional nuclear family" is becoming less the norm. In the practice of family law we are encountering more and more unique family structures; some brought on by the advance of technology (like artificial insemination or surrogate parenthood), some brought on by divorce and re-marriage creating step or second families, and some brought on by the changing laws around gay marriage and adoption.

There are situations in the law in which the Courts have already dealt with the issue of whether a non-biological parent could be a "Parent" as well. For instance, in Massachusetts there is a Grandparent Visitation Statute that provides for visitation for grandparents with their grandchildren if they have been significantly involved in the children's lives. Although this standard is strictly applied by the Courts, a win on a grandparent visitation case is essentially a recognition that a child's grandparent is acting as another parent in some capacity and it would benefit the child to continue that relationship.

Similarly, the Courts in Massachusetts have also recognized "de facto" parents in situations where another person (such as an aunt or uncle or step-parent) has been so involved in a child's upbringing that they have become indispensable in that child's life. The Courts have awarded "de facto" non-biological parents rights of custody or visitation (and sometimes obligations for child support) when it is found that that person has been such a large part of the child's life that it is in that child's best interest to maintain that relationship.

Within this framework, the Court has in the past recognized that third-parties can sometimes be indispensable in the raising of a child. Despite the complications that a third player in the custody/visitation arena can cause, the Courts have recognized in some situations it is more beneficial than cutting that person out of the child's life.

Similarly, this same logic is being applied in expanding how the court views parenting arrangements created by "non-traditional" family structures. As discussed at length in a recent Boston Globe Article, Johnny has two mommies – and four dads, this is becoming more common when lesbian or gay couples involve a third biological parent in the conception of the child.

Also discussed in the article is the opposition by some to the inclusion of any third or non-biological parents in parenting (despite the proven value of quality involvement by step-parents in many families). Of course, much of this opposition is just a thinly veiled opposition to any recognition of gay or lesbian rights as depicted in this news story video posted on the website of colleague Gabriel Cheong. As depicted in this news video and in this article, the law is struggling to catch up with how to categorize these different relationships despite the fact that we already have some precedent in how we deal with "de facto" parents.

In the news video the victim-Mother indicates that she was advised she didn't need to adopt her non-biological child because the law in Vermont recognized her parental rights under her marriage. Since all states don't recognize that marriage, though, it might have been more prudent for her also to adopt the child.

Even for parents in more unusual arrangements that involve three parents, some jurisdictions are now allowing third-parent adoptions.

The takeaway point from this struggle should be that until the law becomes clear in how it treats these relationships documenting your rights and agreements should be clear from the outset. No matter what your family structure is like, if it is "non-traditional" the law might be uncertain in how it treats you or require more "proof" of parental relationship. In order to protect your parental rights you should explore your options when everyone is "getting along".

Visit the Office of the Future in the World of Tomorrow!

Thanks to FirmFuture presenter Gabriel Cheong for inspiring us to make better use of our iPad in the office.

Now when you schedule an initial consultation we can use our iPad, displayed on the flat screen TV (pictured above), to show you:

• how to calculate Child Support or Alimony online
• how to create Parenting Plans online
• how calculate the cost of Bankruptcy online
• or evaluate the length of time a Bankruptcy will take online.

And if you want any of the information printed out so you can take it home, our new laser HP printer can print directly from the iPad right in our conference room, using WiFi magic.

These are just some of the ways that we are trying to design our new office, at 160 Speen St, Suite 202, Framingham, MA, to be as friendly, convenient and useful to current or potential clients.  If you are interested in checking it out, give us a call at 508.655.5980 or set up an appointment online here.

The Sanctity of Marraige

A recent tongue-in-cheek blog post by fellow attorney and blawger, Gabriel Cheong, describes his support for the 2010 California Marriage Protection Act.

The 2010 California Marriage Protection Act, a proposed amendment available at http://rescuemarriage.org/2009/08/22/2010-california-protection-of-marriage-act/, takes Proposition 8 one step further by banning divorce in the state of California.

Support of the 2010 California Marriage Protection Act demonstrates the hypocrisy of attacking gay marriage for being detrimental to the sanctity of marriage when the state allows divorce. Divorce, after all, is the ultimate attack on the sanctity of marriage.

Although this is the classic slippery slope argument, the method can hardly be questioned by those who claim gay marriage will lead to people wanting to marry their pets.

This leads to the question: What does it really mean to protect the sanctity of marriage?

Sanctity is defined by the Merriam Webster Dictionary as 1. the holiness of life and character, or 2. the quality or state of being holy or sacred.

So when you hear pundits, politicians and protesters telling you that the sanctity of marriage is being attacked in the United States, they are right. But it isn't under attack because homosexual couples want to get married. The sanctity of marriage has been under attack since the first time one spouse cheated on their spouse, lied to their spouse, or otherwise disrespected the bonds of marriage.

The fight to keep marriage sacred is not a fight that can be won by the writing of laws, or restricting certain people from enjoying that bond. The fight to keep marriage sacred is an ever vigilant effort by a spouse to support, love and respect their spouse, and it takes two spouses willing to make that effort.

Forcing people to stay in marriages where their spouse is unwilling to make that effort is just as silly as refusing to recognize that homosexuals also have the ability to participate in a sacred bond of support, love and respect with their partners (whether or not the laws support them).