Can I Get Divorced On Adultery Grounds? What If I’m In A Same-Sex Marriage?
First a primer: in Maryland, you have to have grounds in order to be divorced. Most frequently, the grounds for divorce are a 12-month separation (a no-fault ground). There are grounds which are known as “fault” grounds, too: desertion, excessively vicious conduct, etc. Included in the fault grounds is the ground of adultery. One advantage to the adultery ground it is that adultery is an immediate grounds for divorce.
For the longest time, judges strictly construed adultery to mean sexual intercourse between a man and a woman. That didn’t (and doesn’t) mean that you had to have pictures of the act, but you did have to show motive and opportunity to commit adultery. Sometimes that was (and is) done with the help of a private investigator who can take photos and video of a spouse going into a hotel with an opposite-sex paramour. There are other ways to make the case, but you get the drift. Given the strict definition, too, same-sex sexual conduct did not constitute adultery.
Now that Maryland has same-sex marriage, our judges are also granting same-sex divorces. With the advent of same-sex divorces came the question of whether judges should more liberally construe the definition of adultery than they had been previously. Last week, Maryland’s Attorney General Frosh weighed in. According to our Attorney General, the meaning of adultery should be read by judges more expansively than it has historically been interpreted. So Attorney General Frosh suggests that adultery includes not just opposite-sex sexual intercourse, but anal and oral sex too. So, whether you are in a heterosexual marriage or a lesbian or gay marriage, you may be able to pursue a divorce on adultery grounds for same-sex sexual conduct outside of the marriage. Still, the Attorney General’s opinion is not binding on judges, but it does give judges authority to stand on if they were inclined to find adultery between a same-sex divorcing couple (or a heterosexual divorcing couple where one was involved in a same-sex extramarital affair).
The attorneys at McCabe Russell, PA, have offices in Howard County (just a few minutes south of Columbia) and Montgomery County, Maryland (near the courthouse in Rockville). Our attorneys have assisted hundreds of separating and divorcing couples – both heterosexual and LGBT. Please contact the firm to make an appointment for a consultation.
At McCabe Russell, PA, we have an established reputation as assertive and confident negotiators and litigators, offering legal guidance designed to eliminate any of our clients’ worries and confusion. We are experienced family law attorneys in Howard and Montgomery County, but we serve clients throughout Maryland. Read more about McCabe Russell, PA.