Adultery Laws in Maryland: An Overview
Maryland law does not define "adultery" and the definitions of terms such as "adulterer", "co-respondent" and "adultery" are set forth in the Maryland Rules. While adultery generally is understood to mean a spousal act of "sexual infidelity," the amendments to the Rule concerning divorce grounds and any reference to adultery did not include a definition of adultery.
While Maryland law does not define adultery, it has been suggested that the doctrine of repose defines adultery as a "Marital Act (Sexual) by a Spouse with a Person Other than the Spouse". "Adultery" also is understood to be a voluntary, sexual act between a married person and someone who is not their married partner, without cause or excuse , and occurring while the spouses are legally married. The legal consequences of adultery vary by state and include ground for divorce and impact on equitable asset distribution. In Maryland, adultery is still technically a fault ground for divorce.
The statute concerning divorce grounds is codified at MD.COURTS CODE ANN. § 7-103(a)(iii) where it states a husband or a wife may obtain an absolute divorce a mensa et thoro from the other spouse on the ground that the other spouse:
In addition to this adultery ground for divorce, a person may be found guilty of adultery under MD.COURTS CODE ANN. § 10-501 and MD. CRIM. LAW CODE ANN. § 10-205. Maryland criminal law gender distinguishes this act by only penalizing the woman for committing adultery. The punishment includes a maximum of $10, a fine that was set more than 100 years ago in 1845.
The Legal Implications of Adultery
The idea that adultery can have legal consequences in a divorce is solely an old English common law relic. The general rule since the 1970s has been that adultery, like other forms of marital misconduct, has no bearing on issues of property, alimony or child custody and visitation. The practical result of this rule is that spouses no longer need to find titillating evidence of illicit relationships to bolster their case. Since the evidentiary weight given to adultery was abolished, Courelli v. Courelli, 274 Md. 230 (1975), the topic has become a staple of daytime television but a non-issue in the divorce court. The courts have made clear that "sexual relations of living persons, cohabiting in a marital relationship, during the period of separation is of little probative value in a case of divorce." Fathallah v. Fathallah, 92 Md.App. 70 (1992). Similarly, the court in Sheehan v. Sheehan, 103 Md.App. 633 (1995), held, "to hold that sexual relations during the period of separation are relevant for purposes of alimony would obviate the rationale of establishing a period of separation." Courts have also distinguished between married parties and cohabitating couples in cases where the relationship is the subject of a tort claim. Cohen v. t/f Bank, 453 Md. 190, 101 A.3d 99 (2014) (majority, showing "commendable restraint" in holding that "married and unmarried cohabitants should be treated alike" when each seeks recovery under Maryland law for losses they incurred in furtherance of a common lawful purpose); id. (Barbera, C.J., dissenting) (expressing discomfort in the majority’s extension of "the theory of unjust enrichment" to "unlawful cohabitation" claims).
How to Prove Adultery in a Court of Law
To prove adultery, the accusing party must present evidence to substantiate the claim. In a Maryland court, this requires a standard of proof known as "clear and convincing evidence," which means that the evidence presented must be highly and substantially more likely to be true than not. To provide this level of proof, evidence of adultery must point reasonably and convincingly to the fact that the defendant did have a voluntary sexual relationship with a person other than his or her spouse.
Forms of evidence that can be considered adultery in the state of Maryland include: In order to successfully obtain a divorce on the basis of adultery, the incriminating evidence must come to light and be filed with and present to the courts within 12 months of when the adultery was originally discovered. This will significantly narrow the amount of circumstantial evidence you have to work with, explaining why the most effective way to build a case for adultery is to not only seek immediate legal counsel, but also and most importantly, document details of your spouse’s behavior. This can include photographs, e-mails, phone records and text messages, descriptions of places and people associated with the affair, where and when the two of you were living at the time and times when your spouse was frequently absent or unreachable.
History of Adultery Laws
In the years preceding the Maryland Divorce Reform Act of 2015, adultery was not just a ground for divorce, but also a crime. A criminal act of adultery was a felony in Maryland, and a conviction could result in imprisonment for up to 10 years. As well, seven other states still make adultery a crime, and it is still a crime in the military. Only a dozen years ago, the Code of Maryland read: "Adultery means sexual intercourse by a married person with a person other than a qualified spouse." This included acts of homosexuality, since the statute defined "qualified spouse" as one who was lawfully married, and heterosexuality was presumed until 2014, when homosexuality became legal.
In 2002, two years prior to the legislative repeal of criminal activities involving adultery, the Maryland Court of Special Appeals issued a ruling that adultery may be deemed by a clear and convincing standard of evidence in determining the fate of a contested divorce .
However, the 2015 Divorce Reform Act repealed the law making adultery a ground for divorce altogether (as well as the more common ground of "conviction of a felony with a sentence of more than three years or imprisonment under the laws of the State or any other state or country.") Now, the two grounds for divorce in Maryland are: 1) the irretrievable breakdown of the marriage that results in the an absence of a reasonable likelihood that the couple can be reconciled; or, 2) an agreement signed by both parties to live apart. The only fault-based grounds for divorce are desertion and constructive desertion (when one spouse effectively forces the other out of the home), and insanity, which is recognized by a court document.
Advice and Legal Representation
Facing an ongoing or potential adultery case can be a harrowing endeavor for anyone. Rather than attempting to work your way through all available legal options, it is best to allow trained and experienced lawyers to assist with the case on your behalf. The experienced Maryland adultery lawyers at our firm are adept at guiding clients through every stage of this complex area of law . We offer advice and representation from professionals who understand the many tools that are available to address these legal matters. Whether your case involves the proven occurrence of adultery, material confessions by an unfaithful spouse, resulting divorce proceedings or disputes over child custody, the attorneys at Brock & Gonzalez, LLC have the legal experience and support services you need.
