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Impact of Adultery on Divorce in Maryland

Learning that a spouse has been unfaithful in a marriage is understandably devastating and leads to a range of emotions from anger and frustration to pain. There is typically a breakdown of trust and often difficulty with communication in navigating the next steps of the relationship when someone has been wronged by a cheating spouse. For most, discovering a spouse has cheated is the beginning of the end of a marriage and figuring out how to navigate the next steps can be daunting. You may be wondering how does the adultery impact the divorce? Is a cheating spouse sufficient grounds for divorce?

Grounds for divorce in Maryland

Unlike most states, in Maryland, one can get a divorce based on either “no fault” grounds or grounds which are based on the “fault” of one spouse. The grounds for divorce are articulated in the Complaint that is filed at the outset. Some grounds require a particular waiting period in order for a divorce order to be entered, but some grounds do not require a waiting period.

If a fault ground – such as adultery – is alleged this can impact several areas of the divorce, including alimony and custody. As to alimony, a fault ground is one of the many factors that the court can consider when evaluating whether to require one party or another to pay alimony. A fault ground can impact custody if the particular fault ground is harmful to the child and/or directly impacts the best interest of the child.

Fault grounds

With a fault ground, the person alleging the grounds must offer proof of the alleged fault grounds. There is no particular time period that a fault ground must be taking place in order for it to “qualify” as a grounds for divorce. There are several common fault grounds which include:

– Adultery

– Desertion

– Cruelty of treatment

– Excessively vicious conduct

No fault grounds

No fault grounds require a separation period of twelve (12) months prior to the granting of a divorce order. The parties must live separate and apart from one another, without cohabitation or hope of reconciliation for a consecutive period of twelve (12) months. Cohabitation includes both living together or having sexual relations with one another.

Another form of no-fault grounds is mutual consent. If both parties agree to a mutual consent divorce, then the 12 month waiting period is not required and neither party has to prove any fault ground, because they are simply agreeing to getting a divorce. Often attached to a filing for a mutual consent divorce will be a settlement agreement outlining the terms agreed to between the parties.

How to prove adultery

Adultery is a “fault” ground and there is no prescribed waiting period for filing for divorce based on adultery. Under Maryland law, adultery is considered to be “voluntary intercourse between a married person and a person other than that person’s spouse.” In proving adultery, however, you do not need to show the actual intercourse. But you must demonstrate that the offending party had both the “disposition” and “opportunity” for the extra-marital intercourse to occur.

Disposition can be proven with evidence of: holding hands, hugging, kissing, public displays of affection.

Opportunity can be proven with evidence of: spouse entering and exiting the home of non-spouse on an evening the spouse would normally be home.

Adultery must be proven with extrinsic evidence. So, the admission of the offending spouse is not enough to prove adultery. It is the existence and gathering of extrinsic evidence which can make proving adultery extremely difficult to accomplish.

Are there any defenses to adultery?

If a fault ground, such as adultery, is alleged the alleged cheater does have defenses available that if proven would prevent the court from entering a divorce. These defenses are: condonation and recrimination.

Condonation: the alleged offending spouse is stating that the other spouse condoned the cheating or forgave the bad act.

Recrimination: the alleged offending spouse is stating that the other spouse’s behavior was also inappropriate in that it rises to the level of a fault ground. In other words, each of their “wrongs” cancels each other out.


If you are considering filing for divorce or have questions about your rights should you file for divorce, do not hesitate to contact the experienced family law attorneys at Krum, Gergely & Oates LLC today for a consultation.