If you've come to the difficult conclusion that your marriage is going to end because your spouse was unfaithful, then you might be wondering how adultery fits into the divorce laws in Maryland. Will adultery matter for purposes of the divorce proceedings? More specifically, will a judge consider adultery when deciding alimony?
This article will provide an overview of alimony in Maryland and explain the potential affect of adultery on alimony. If you have any questions after reading this article, you should speak with an experienced family law attorney for advice.
Alimony is the money that one spouse (the "obligor" or "paying spouse") pays to the other (the "obligee" or "supported spouse") during and/or after a divorce. The purpose of alimony is to make sure that both spouses live as closely as possible to the standard of living they enjoyed while married and that neither is left impoverished because of the divorce. (Md. Code Ann. [Fam. Law] § 11-101.)
There are different kinds of alimony that Maryland courts can award:
In Maryland, spouses can request a fault or no-fault divorce. A no-fault divorce means that neither spouse blames the other for the breakup or asks the court to grant the divorce based on the other spouse's misconduct. Spouses can also ask for a divorce based on a separation for a specific amount of time.
There is an alternative to these "no-fault" divorces, which is a "fault-based" divorce. In a fault divorce, one spouse will ask the court to grant a divorce based on one spouse's marital misconduct which caused the breakup. The grounds for fault divorce in Maryland are:
Maryland courts define adultery as a "married person having sexual relations with someone outside of the marriage." If your spouse committed adultery during the marriage, and you file for a fault divorce based on adultery, you will make that claim in your divorce petition and must also prove to a judge that the adultery occurred and caused the divorce.
There are pros and cons to trying to prove fault-based grounds, like adultery. Fault divorce often costs more and takes longer than a no-fault divorce. If you're contemplating which type of divorce to file, speak with an experienced attorney for advice on how to file.
Divorcing spouses often wonder, if the judge finds that a spouse was unfaithful and grants the divorce based on adultery, will that prevent the cheating spouse from receiving alimony? The answer is no. In Maryland, even though the divorce court may already have found that your spouse committed adultery and granted you a divorce for that reason, you won't be able to hold that fact against your spouse when it comes to alimony. The judge may or may not choose to consider adultery, but the judge can't say that your spouse is barred or prohibited from seeking alimony because of adulterous behavior. (Md. Code Ann. [Fam. Law] § 11-103.)
Family law judges who decide alimony in Maryland can consider fault, such as adultery, that resulted in divorce and destroyed the marriage. However, the judge can only consider adultery when it affects the economic needs of the spouse who's asking for alimony. In other words, adultery is only relevant to alimony if it somehow affected the supported spouse's finances. If, for example, the cheating spouse used the couples' life savings on a lover during the marriage to pay for gifts, hotel rooms, or vacations, a judge would most likely find that this affected the supported spouses' finances and order the guilty spouse to reimburse the innocent one.
Maryland courts are required to apply the normal statutory requirements to all alimony cases, even when there's been adultery, to determine the amount and duration of alimony (if any). To decide whether to award alimony, judges have to "consider all the factors necessary for a fair and equitable award," including:
Adultery will not impact a judge's child support decision. Judges in Maryland must follow specific guidelines when calculating child support, and those guidelines don't include consideration for either parent's behavior during the marriage (adultery.) Instead, the judge will consider the parents' income, healthcare costs, ordinary and necessary expenses, and the amount of time the child spends with each parent. (Md. Code Ann. [Fam. law] § 12-202.)
The court's primary focus in custody cases is determining what's best for the child's overall wellbeing. (Montgomery County v. Sanders, 38 Md.App. 406.) In the past, a parent's infidelity created a presumption of "unfitness" in custody cases. However, in 1977, a Maryland court concluded that a judge could only consider a parent's adultery if it impacted the child's welfare. (Davis v. Davis, 280 Md. 119.) (Md. Code Ann. [Fam. Law] § 9-101.) For example, suppose an unfaithful spouse continues a relationship with a third party who has a criminal history of child abuse or some other criminal behavior that makes the person unfit to be around the children. In that case, a court will likely consider these facts about the new partner when it decides how to arrange custody and visitation rights.
For self-help purposes, you can look at the Maryland Court's Self Help Information and Brochures page and official court forms.
If you're looking for free or reduced-cost legal aid, you can browse Maryland Legal Aid's homepage or try to seek help through the District Court Self Help Center. Finally, you can read the Maryland Statutes firsthand.