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Wicked Stupid Laws: Former Spouses Who Cohabitate After Divorce "Guilty of Adultery" in Massachusetts

Divorce lawyer Kimberley Keyes examines an outdated Massachusetts law that criminalizes cohabitation by former spouses. Kimberley Keyes

Attorney Owens recently blogged about the state's pointless and outdated “divorce nisi” law, which forces divorced spouses to stay legally married for 90 days for no good reason at all. Today, we are highlighting what is arguably an even stupider Massachusetts law, which provides:

Persons divorced from each other cohabiting as husband and wife or living together in the same house shall be held to be guilty of adultery.

As Attorney Owens noted in his recent blog, adultery remains a felony in Massachusetts:

This is the state where adultery by a married person - something generally ignored by most probate court judges in divorce cases - is still punishable with prison time as a felony in a dusty state statute , no one has bothered to change.”

(Editor's note - In 2018, the legislature managed to repeal the criminal adultery statute. But the statute declaring that individuals who continue to reside together after being divorce are "guilty of adultery" remains on the books.)

Of course, even if you think that adultery – i.e. a married person having sexual intercourse outside of their marriage – should be a crime, it is hard to understate the incredible stupidity of Ch. 208, s. 40, which states that any divorced people who live together are guilty of adultery, even if the divorcees have no sexual relationship whatsoever.

Surely, This Stupid Law Does Has No Effect on Real People, Right? Wrong!

Unsurprisingly, our office has encountered divorce cases in which divorced spouses who co-own a home wish to continue living together in the home due to economic pressure and for the sake of their children. Such divorced spouses are not attempting to reconcile. They are not “living together as husband and wife” after the divorce. Indeed, they have no sexual relationship whatsoever. Nevertheless, we have been told by at least one judge that a divorce agreement that contemplates former spouses sharing a home they co-own – even as roommates – is “illegal” and cannot be enforced due to Ch. 208, s. 40.

Just to repeat – and it bears repeating – this Massachusetts law makes it a felony for former spouses to live in the same home. One way to illustrate the utter silliness of this law is to contrast it with another Massachusetts statute, Ch. 208, s. 24, which provides:

After a judgment of divorce has become absolute, either party may marry again as if the other were dead.

In other words, after a divorce is completed, each spouse may remarry as if the other were dead. But if they live together, these same ex-spouses are guilty of adultery.

Cowardly Legislators Leave Terrible Laws on the Books

As Attorney Owens covered in his recent blog, silly Massachusetts laws range from the pointless “nisi” law to the sodomy law that punishes consensual sex acts with 20 years in prison to the state’s blasphemy law to our “fornication” law, which punishes non-marital sex with three months in jail. Some morality-based laws, like the anti-sodomy statute, have been defanged by appellate courts when it comes to consenting adults, but the statute is still used in sexual assault cases.

As noted in this 2012 Boston Globe article, most states purged such laws from their books many years ago:

Most states have purged their codes of laws regulating cohabitation, homosexual sodomy, and fornication — sex between unmarried adults — especially after the 2003 Supreme Court decision in Lawrence v. Texas that made sexual activity by consenting adults in private legal across the country. But the question of how that ruling affects adultery remains unanswered because others may be harmed by adultery — a spouse and children. Several courts have alluded to the constitutionality of adultery laws since the Lawrence decision.

So why hasn’t Massachusetts done the same? The Globe article had an answer for that too:

Some law professors, including Joanna L. Grossman of Hofstra University, said one reason that adultery laws remain on the books is that getting rid of them would require politicians to declare their opposition to them, which few would do.

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Sen. William Brownsberger: Changing Old Morality Laws Would Upset “Values”

Recently, Masslive profiled the efforts of Byron Rushing, D-Boston, who has proposed a variety of bills that would repeal outdated Massachusetts law criminalizing morality. Rushing’s efforts have been largely thwarted by State Sen. William Brownsberger, D-Belmont, the co-chair of the Legislature's Judiciary Committee.

Why hasn’t Brownsberger supported Rushing’s bills to repeal stupid laws? Brownsberger’s comments to Masslive make clear how much he, and other politicians, fear making “people excited” over reversing ancient laws that, in Brownsberger’s words, represent “values”:

Certainly these laws do tie into values, so changing them can get people excited.

About the Author: Kimberley Keyes is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

Schedule a consultation with Kimberley Keyes today at (781) 253-2049 or send her an email.

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