How to Prove Adultery in Maryland

How to Prove Adultery in…

Cheating, infidelity, unfaithfulness, extramarital affairs: a voluntary sexual relationship between a married person and someone other than their spouse may seem sexy on TV, but when it comes to the law in Maryland, adultery is a misdemeanor.

The fine is only $10 and prosecution is rare, but adultery does provide you with grounds to file a fault-based divorce in Maryland. The question is do you want to file a fault-based divorce? And if so, are you able to prove adultery happened?

On what grounds you decide to file divorce is dependent not just on the cause of the marriage’s breakdown but also on your ultimate goals in divorce. An experienced family law attorney can help you decide the best filing route and help you legally obtain the necessary evidence for your claims in court.

If you’re curious how to prove adultery in Maryland, what types of proof qualify as evidence in Maryland divorce cases, or how filing for divorce based on adultery will affect other areas of your divorce proceedings, read on.

Adultery as Fault-based Grounds for Divorce

First, here’s a quick refresher on filing for divorce in Maryland. There are two types of grounds you can file on: a no-fault ground for divorce and grounds based on the fault of a spouse (i.e., he or she did something to cause the demise of the marriage). Like I alluded to above, what grounds to file on may end up being a strategic decision by you and your attorney.

There are seven fault-based grounds that can be cited for divorce — adultery being one of them. But if filing a fault-based divorce based on adultery, you’ll need to prove adultery (yes, prove it) before a divorce is granted. Good news is that if you can prove adultery, your divorce will be granted immediately. On the flipside, filing a no-fault divorce in Maryland does not require proof, however will require either a 12-month separation period or mutual consent.

The topic of providing evidence of an affair makes a lot of clients anxious, but proving adultery in Maryland isn’t as complicated as you may think. You don’t actually need to prove that cheating occurred. To be blunt, you don’t have to show that your spouse had sex with someone else.

What you do need to prove is that your spouse had both the disposition and opportunity to cheat. What does that mean? First, proving your spouse had the disposition to commit adultery includes evidence demonstrating he or she had the desire for sexual relations with a non-spousal partner. An example of this is public displays of affection, even as innocent as hand-holding or hugging. And to prove your spouse had the opportunity to commit adultery, you’ll need evidence that he or she had the time and place to do so, which aligns with that of the accused sexual partner.

What is considered adultery evidence?

Of course, unless you catch your spouse in the act, the evidence you collect will be considered circumstantial. Meaning, you won’t be able to definitively say the extramarital affair happened, but the court should be able to infer such from the evidence you provide.

Some examples of the types of evidence you can collect to be used in court include:

  • Text messages
  • Photographs
  • Emails
  • Travel documents
  • Receipts

Hearsay is not considered sufficient evidence of cheating. This evidence must be tangible. Though it might be tempting, this does not mean you should start stalking your spouse. It’s important to keep in mind that this adultery evidence must be collected legally. You may unknowingly be breaking privacy laws, among others, while collecting evidence, so if you’re unsure of what’s legal, contact your lawyer first to avoid prosecution.

Is virtual infidelity considered adultery?

The topic of virtual infidelity is a hot topic and can be a bit tricky. However, all you need to know is that proof of virtual infidelity is going to be considered proof that your spouse had the disposition to commit adultery — even if you don’t believe there was physical infidelity.

So while virtual infidelity does not involve sexual intercourse between a married person and a non-spousal partner (the legal definition of adultery), this act (or proof of such) can be used to prove adultery in Maryland.

How Adultery Impacts Family Law Proceedings

If this sounds like a lot of work (and it can be!), you might decide to weigh what grounds you file on. Divorce by mutual consent is going to be the quickest and cheapest way for you to divorce in Maryland. An experienced family law attorney will help you through this filing decision, but there are some things to consider, such as how adultery can impact your additional family law proceedings.

Does adultery affect Maryland alimony cases?

In cases of adultery, spouses may wonder: "If I can prove adultery in Maryland, will I be guaranteed alimony?" In a fault-based divorce case, a judge may take into consideration “the circumstances that contributed to the estrangement” of the spouses when determining the right to alimony in Maryland. However, there are going to be several other factors that go into this decision. Read my blog post on how alimony is calculated in Maryland to learn more on this topic.

Unlike some other states, Maryland does not automatically keep the offending spouse from receiving alimony. So if you are the one who would be paying alimony and your spouse committed adultery, the judge will take this into consideration, but you may still have to pay.

Does adultery affect child support or child custody decisions in Maryland?

Plain and simple: adultery does not have a direct effect on your spouse's ability to parent. Cases of child custody in Maryland are based on the best interest of the child, while cases of child support are based on the Maryland Child Support Guidelines. So, unless you can prove adultery caused endangerment of some kind to your child, how Maryland courts calculate child support and determine child custody won’t be tied to your fault-based grounds.

Does adultery affect property division in Maryland divorce?

Like alimony, Maryland courts can take into consideration what contributed to the marriage's demise when determining property division. But also like alimony cases, Maryland property division cases take into account many other factors to reach a fair and equitable distribution of property.

However, if your spouse uses marital assets on a non-spouse partner (i.e., finances an affair with money that is also yours), you may be awarded a greater share of assets. This is called dissipation, and if the court finds that the property was dissipated during the marriage, it will value the assets, treat them as if they still exist, and use them as part of the property division — and to the detriment of the spouse that squandered them.

Whether you are planning to file for divorce or your spouse is doing so, you need a skilled divorce attorney who can help you through the twists and turns of the Maryland divorce process — especially when adultery is involved. Contact me for a consultation at (301) 637-6070 or by using my online contact form, and we’ll discuss what the best course of action is for you.