Although adultery is still a crime in Massachusetts, it is very rarely used as grounds for divorce. The reasons it is rarely utilized include the following:
1) There are additional technical filing requirements including filing an affidavit, ex parte hearing, and notice to the third party codefendant - see Prob. Ct.Supp.R.404 and 405 (below).
2) Pleading adultery will almost always increase the level of hostility involved in the divorce proceedings including involving a potentially very hostile co-defendant.
3) Adultery allegations may be difficult to prove from an evidentiary perspective.
4) Additional financial burdens and expense of trying the case.
5) If there are minor children involved, the additional bitterness, hostility and vindictiveness involved may make any type of future cooperation difficult.
6) There is usually little if any real advantage to be gained from pursuing these grounds and in fact the pursuit of these grounds may paint the plaintiff as particularly bitter, hostile and vindictive in the eyes of the Court.
Rule 404. Charges of Adultery or Criminal Acts
Whenever adultery, any specific criminal act with a third person or allegations derogatory to the character or reputation of a third person are charged in a complaint, cross-complaint, answer, statement of objections, or other pleading, it shall be stated therein that the name of the person, hereinafter called the co-defendant, charged with committing adultery with one of the parties, is known or is not known to the pleader, but such person shall not be named.
If the name of the co-defendant is stated as known, the party making such allegation, upon the filing of such pleading, shall deliver to the register a motion to amend the pleading by inserting the name of the co-defendant, and his residence, if known, and he shall also deliver to the register at least one affidavit, other than those of counsel, or a duly certified court record, with an affidavit of identity, supporting the allegation, or he shall present such motion to a judge at an ex parte hearing, as provided by statute.
The motion with the affidavit or affidavits and certificates shall be sealed up by the register until presented by him or by counsel to a judge, who shall inspect the same and hold such ex parte hearing, if any, as he may deem proper, and shall grant the motion if he finds probable cause has been shown that the allegation is true.
If the motion is allowed, it shall be filed and an entry shall be made on the docket, "Motion to insert name of co-defendant allowed," and the affidavit or affidavits and certificates shall be sealed and returned to the register to be held for the inspection of parties, including the co-defendant and counsel of record, but for no others except by order of the court.
If the motion is denied, it shall be sealed by the judge with the affidavit or affidavits and certificates and returned to the register, to be held subject to the order of the court, and the register shall enter upon the docket, "Motion to insert name of co-defendant denied."
If the co-defendant is unknown at the time of filing the complaint or other pleading, but becomes known while the matter is pending, a motion shall thereupon be delivered to the register and further proceedings had as hereinbefore provided.
This rule shall be applicable to separate support and divorce proceedings.
Effective July 1, 1975.
Rule 405. Notice to Person Charged with Adultery or Criminal Act
When a complaint, cross-complaint, answer, or statement of objections to an absolute judgment charges adultery, any criminal act with a third person or allegations derogatory to the character or reputation of a third person, a notice of such complaint, cross-complaint, answer or statement of objections shall be mailed by registered or certified mail to such person at his last known address at least 14 days before the return day of process on such complaint, or forthwith upon the filing of such answer or cross-complaint or statement of objections, or forthwith upon the amendment of the complaint so as to name such persons after the issuance of process. Such service by mailing shall be proved by affidavit containing a particular statement thereof, accompanied if practicable by the return receipt showing receipt of the copy sent by registered or certified mail. Such person shall be entitled to appear within 20 days after such return day or after the day of mailing such copy.
Effective July 1, 1975.