If you're facing the end of your marriage because you or your spouse had an extramarital affair, you may be wondering whether the infidelity could affect what happens in your divorce case. When you live in Maryland, you have the option of filing for divorce based on your spouse's adultery. Then, if you can prove that claim, the judge might take the adultery into account when deciding whether to award alimony. But there are several other considerations that go into those decisions.
In Maryland, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Maryland include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (Md. Code, Fam. Law § 7-103(a)(1) (2022).)
If you file for divorce in Maryland based on your spouse's adultery, you'll need to prove that claim. Circumstantial evidence, such as hotel receipts, phone records, emails, texts, and photos may be sufficient. In other words, you don't need to provide evidence of the actual sexual encounters.
You'll need to show that your spouse both was disposed toward adultery and had the opportunity to commit it. For example, you might be able to prove a disposition toward adultery by showing that your spouse was seen kissing someone else in public. And you might prove opportunity if your spouse was seen entering an alleged paramour's home in the evening and not leaving until the next morning.
If you're defending yourself against an allegation of adultery, there are a couple of arguments you can make to try to convince the judge that adultery isn't a legitimate ground for divorce. For instance, you might argue that your spouse was also guilty of adultery (the defense known as "recrimination") or tacitly accepted the adultery by continuing to live with you after learning of the affair ("condonation"). But you should be aware that neither of these defense will absolutely prevent your spouse from using adultery as a ground for divorce. Rather, they are just factors the judge may consider when deciding whether to grant the divorce. (Md. Code, Fam. Law §§ 7-103(b), (d) (2022).).
An award of alimony in a Maryland divorce isn't automatic. A judge has to determine that it's warranted under the circumstances of each case.
When Maryland judges are making decisions about alimony, they must consider a long list of factors, including "the circumstances that contributed to the estrangement" of the spouses. (Md. Code, Fam. Law § 11-106(b) (2022).)
Adultery can certainly qualify as a circumstance that contributed to the marriage falling apart. But Maryland law also says that the existence of a ground for divorce (such as adultery) doesn't automatically bar the offending spouse from receiving alimony. (Md. Code, Fam. Law § 11-103 (2022).) So it's just another factor for a judge to consider.
Maryland is an "equitable distribution" state. This means judges will divide the couple's property in a way they believe is fair under the particular facts of each case. It's important to note that "equitable" doesn't necessarily mean a 50-50 split.
Judges must also consider a number of factors when they're deciding what would be a fair division of a couple's marital property. Many of those are the same as the factors impacting alimony, including the circumstances that contributed to the spouses' estrangement. Judges should also take into account any other factor that's necessary or appropriate to reach a fair and equitable distribution of property. (Md. Code, Fam. Law § 8-205(b) (2022).)
When it comes to adultery, there's one scenario that might be relevant to property division in divorce: dissipation (misuse or squandering) of assets. Let's say the cheating spouse dipped into marital assets (such as bank accounts) to finance the affair with lavish gifts, trips, or even financial support for a lover. That behavior would reduce the pool of assets available for distribution in divorce. By taking that into consideration, the judge may compensate the "innocent" spouse by awarding that spouse a greater share of the couple's assets.
Decisions about child custody and parenting time (visitation) in Maryland, as in all states, must be based on what would be in the children's best interests. Maryland courts have set out the factors that judges should look at when they're making custody decisions. Those factors include the parents' fitness, as well as their character and reputation. (Montgomery County v. Sanders, 38 Md. App. 406 (Md. Ct. Spec. App. 1978).)
At one time, Maryland courts held that there should be a presumption that a parent who committed adultery shouldn't get custody. But that's no longer the case. Now, although judges may take adultery into consideration, it should be seen as a factor only if it affects a child's welfare. (Davis v. Davis, 280 Md. 119 (Md. 1977).)
That new standard makes sense. Although it could be argued that having an affair is a moral failing (or at least shows a lack of judgment), the real question is whether that impacts the adulterer's ability to be a good parent. In most cases it probably doesn't. So it's unlikely to affect a judge's decision about where the child will live most of the time, as well as visitation. In most situations, contemporary judges are aware that it's best for children to have ongoing relationships with both of their parents after a divorce.
But certain circumstances might tip the scales the other way. There are situations where a parent's adultery could endanger the child's well-being—for instance, if the extramarital relationship involved exposing the child to abusive behavior, or if a parent became completely uninvolved in the child's life because of that relationship.
Note that if a court reasonably believes that a child has been abused or neglected by a parent—and there's a likelihood that the abuse or neglect will continue if custody or visitation is granted—the judge must deny those rights to the offending parent, except for possibly ordering that any visitation be supervised by a third party. (Md. Code, Fam. Law § 9-101(b) (2022).)
Child support in Maryland is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the income of the parents, the number of children being supported, the amount of time the children spend with each parent, and items like the cost of health insurance and childcare. Typically, the more time a child stays with a parent, the less child support the parent would be responsible for, because the parent is already spending money on the child during parenting time.
Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—theoretically either parent's adultery wouldn't play a role in determining which of them will pay support or the amount of the payments. As a practical matter, however, if a parent's adultery causes a judge to limit the time that parent spends with the children, because of concerns about the children's well-being, that might result in the parent having to pay more child support than would have been owed under a less restricted custody/parenting time arrangement.
Yes. Under Maryland's criminal code, adultery is considered a misdemeanor. (Md. Code, Crim. Law § 10-501 (2022).) However, the reality is that this law is rarely, if ever, enforced.
Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to try to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in Maryland, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.
Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims and convince a judge that your spouse's adultery should affect decisions about alimony, custody, or property division. (Here are some tips on questions to ask before you hire a divorce lawyer.)
Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.