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What is Adultery and How Can It Affect My Case



ADULTERY

“Adultery” is generally defined as sexual intercourse with someone other than your spouse during the marriage that is neither forgiven nor condoned.  Sexual intercourse typically requires some penetration of the female sexual organ by the male sexual organ, although completion of the sexual act is not required.  
    

Maryland does not yet recognize adultery with someone of the same sex.

    
Resuming sexual relations with a spouse after learning of the adultery can be some evidence that the adultery was forgiven.  Couples who engage in sexual intercourse with other couples, i.e. "swingers," may have a more difficult time proving that they did not "condone" the sexual relationship.
    
Proving adultery can be difficult and Maryland Law requires that there be some corroboration beyond simply a spouse's admission.  To prove adultery, someone must show “disposition and opportunity”, which means evidence that a spouse was together with someone of the opposite sex at a time and place where it is reasonable to assume that they were having sex.  Evidence that can show disposition includes love letters, frequent telephone calls or text messages, and public displays of affection.  Evidence that shows opportunity includes hotel receipts or witnesses, including private investigators, seeing someone enter a hotel room or residence in the evening and leaving the next morning.  It is fairly common to hire a private investigator to establish adultery.
    
Adultery is technically a crime in Maryland, but it is almost never prosecuted.  Therefore, a person accused of adultery can refuse to testify or admit to adultery and, instead, the person can assert their privilege against self-incrimination under the Fifth Amendment of the United States Constitution.  However, the statute of limitations on adultery is one year, which means that the privilege cannot be asserted if the adultery occurred more than one year prior to the date that the admission is requested.  In addition, in a civil case for divorce or custody, the trial court can draw an adverse inference from one party’s assertion of privilege in response to questions concerning adultery.
    
Adultery gives rise to a grounds for divorce under Maryland Family Law 7-103 and is also a factor in determining issues of alimony, Maryland Family Law 11-106(b)(6) (circumstances that contributed to the estrangement of the parties), and property division, Maryland Family Law 8-205 (circumstances that contributed to the estrangement of the parties).  However, this is one of several factors that the Court must consider in awarding alimony or issuing a monetary award.  The weight given to this factor will depend upon the nature and other factors in the case.
    
Adultery is also a factor for the Court to consider in custody cases where it can be shown that the adulterous relationship has had a detrimental effect on the minor child.  

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