ADULTERY IN MARYLAND: PART 3 OF THE DIVORCE SERIES BY SHAVINA MUKESH, ESQUIRE

Shavina Mukesh, Esquire is a family law attorney associated with the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors. This law firm's motto is: "Still working. Still committed. Still here to make a difference."

This blog, titled "Adultery in Maryland", is Part 3 of the series of blogs by Ms. Mukesh titled Maryland Divorce Law.

ADULTERY

Adultery as used in Maryland Divorce law means voluntary sexual intercourse with someone other than one's spouse. Due to the strict definition of sexual intercourse (penetration of the vagina by the penis) adultery does not occur between same sex partners. Thus, same sex intimate conduct cannot be classified as adultery. However, such conduct may amount to constructive desertion.

In order to use adultery as a ground, there need not be an on-going extra marital affair; one act of adultery is sufficient because the details of adultery are rarely known to both parties, it is usually proven by circumstantial evidence. The evidence must show that a party had the opportunity and inclination to commit adultery.

How proving adultery can help your case.

Proving adultery may have an impact on custody of the children involved if adultery is proved to have harmed or impaired the children. For example, if the children have witnessed the art of adultery taking place.

If the adulterous spouse is claiming alimony, proving alimony may effect their ultimate award.

Naming the co-respondent.

The co-respondent (also known as paramour) is the person who is alleged to have committed adultery with the respondent. Although naming a co-respondent in the divorce proceedings may make you feel better - be careful! It can be tricky, particularly if your facts are incorrect or cannot be proven. Not only have you harmed your case, but you may also have a potential claim of defamation against you.

Adultery Forgiven.

If after learning about the adultery, you forgave your spouse, continue to live and cohabit as a married couple; courts will interpret that as you having 'condoned' the adultery. Condonation will also be inferred if you have had sexual intercourse with your spouse after knowing about the adultery. However, if your partner continues the adulterous relationship, without your knowledge, you can then sue on the grounds of adultery. Alternatively, if your spouse has multiple affairs and you only condoned one, you may be able to sue on the grounds of adultery based on the newly discovered information. In Maryland, condonation is not an absolute bar, but it is a factor to be considered by the court in determining whether the divorce be decreed.

5th Amendment Privilege.

The 5th Amendment Privilege against self incrimination is sometimes asserted in divorce claims, usually when the adulterous partner refuses to answer specific questions about the adultery.

Part 4 of this blog on Maryland Divorce Law will be forthcoming on the subject of "Desertion".

[See, sources and references at the end of Part 2 of this series]