The most common type of divorce in Maryland is a no-fault divorce based on the voluntary separation of the husband and wife. In order to be legally sufficient, the voluntary separation of the husband and wife must be for a minimum of one year. According to Maryland law, the husband and wife must live separate and apart, without cohabitation, and without the intent to reconcile. By forbidding “cohabitation” the law of Maryland requires that the couple may not have sexual intercourse during their separation period. If they do, the one-year waiting period for filing a complaint for absolute divorce begins again.
No-Fault divorce in Maryland
Most friendly or uncontested divorces in Maryland are based on the kind of voluntary separation described above. Although one party files the complaint for divorce and thereby becomes the plaintiff, this does not mean that there has to be a contest in court. In order for the court to grant a divorce in these uncontested cases, the court only needs to hear testimony from one individual that at least one of the parties has been in Maryland for one year and that the couple’s separation complied with the law. The actual court proceeding in this kind of divorce is very short.
Adultery as a ground for divorce in Maryland
In contrast to the no-fault type of divorce described above, in cases where one spouse is convinced that the other spouse has been unfaithful, the faithful spouse has the option to file a complaint for absolute divorce immediately. In this type of case the plaintiff spouse will need to present evidence to the court that proves the alleged adultery occurred. The defendant spouse will have the right to contest the plaintiff’s allegations and to put on a defense. These contested divorce cases are often lengthy in duration and usually feature testimony by friends, neighbors, private detectives, and others concerning the alleged adultery. Going forward, it’s important to know that adultery is very simply defined as sexual intercourse between a married person and another person who is not that married persons spouse.
How to prove adultery in a Maryland divorce case
Many people I speak with are under the mistaken belief that nothing short of an eyewitness account of the unfaithful spouse’s extra-marital intercourse can prove adultery in court. The reality is that Maryland family law does not require proof of actual intercourse. Instead, the aggrieved spouse needs only to show the court that the cheating spouse had (1) the disposition and (2) the opportunity to commit adultery. If the aggrieved spouse can show these two things, then a Maryland court will find that the adultery took place. For the sake of clarification, disposition to commit adultery can be established in court by providing eyewitness accounts or video of the defendant spouse and the paramour kissing, holding hands, or engaged in other physical displays of affection. When this kind of behavior is established, and when other evidence that indicates that there was the opportunity for adultery, such as the defendant spouse spending the night at the paramour’s house, staying in a hotel room with the paramour, or traveling on holiday with the paramour, the court should find that the defendant committed adultery and grant the plaintiff an absolute divorce.
Why cite adultery as a ground for divorce?
There are two reasons why someone in Maryland would seek a divorce based on adultery. The first is that there is no waiting period before filing. Instead of having to wait a year, the complaining spouse is allowed to file a complaint for an absolute divorce immediately upon learning of the other spouse’s adultery. The second reason someone might wish to file based on adultery is that it may cause the court to grant the complaining spouse a more favorable division of marital property, preference in child custody, and possibly a better alimony award. This area of divorce law is not as clear as many would like for it to be. There are no prescribed penalties for a spouse who has engaged in adultery. Instead, the court is instructed by Maryland law to take into account the reason for the dissolution of the marriage when dividing property and awarding custody of minor children. What does this mean? While there is no presumption under Maryland law that the faithful spouse should be awarded more money or property than the unfaithful spouse, and no presumption under Maryland law that the adulterous spouse is an unfit parent, the plaintiff in a divorce based on adultery is usually in a position to argue for a better final disposition with respect to property and custody.
Should you cite adultery as the ground for your divorce?
Deciding whether or not to pursue a divorce based on your spouse’s adultery requires careful consideration of likely outcomes and the possible unwanted side effects. No one should ever assume that filing a divorce based on adultery is the best manner in which to proceed simply because it appears to be an available option under the law. There are many factors that should be considered before proceeding in this manner. For example, will the open and formal allegations of adultery hurt your family in ways that a no-fault divorce might not? Are you prepared to participate in a court hearing at which details of your spouse’s infidelity will be spoken of openly? Is the ability to file immediately and the opportunity to argue for a more favorable disposition worth the increased preparation, court time, and legal bills? Is it likely that a highly contested divorce might make it impossible to collaborate with your spouse when making future decisions about finances or your children? These and other questions should be considered as you contemplate how to handle a likely divorce.
Matthew Baum is an attorney with offices in Baltimore, Catonsville, and Columbia, Maryland. His office can be reached at (410) 929-3435.