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Proving Adultery in a Maryland Divorce

Proving Adultery in a Maryland Divorce

adultery

Few things are more damaging to a marriage than finding out that your spouse has been unfaithful. Learning that your spouse may have committed adultery can lead to a whirlwind of emotions: rage, grief, confusion, doubt, fear and even a fierce desire for revenge.

Discovering infidelity is painful, and it is instinctive to want to cause pain to an unfaithful spouse because they have hurt you. It is also natural to want to immediately confront your spouse about your discovery, either to have them somehow reassure you it’s not true, or to chastise them because it is.

Sometimes an incident of infidelity can lead a couple to re-evaluate and even improve their relationship, usually with the help of professionals. Sometimes, though, this is not an option. If learning that your partner has been unfaithful makes you want to consider divorce, then there are plenty of reasons not to let your spouse immediately know what you know (or suspect). It is difficult not to act upon your strong emotions, but you will be in a better position if you are able to take a deep breath and talk to a professional to assess your various options. And if you are a spouse who has been unfaithful (or accused of doing so), you should speak with an experienced family law attorney to avoid making the situation worse.

What to Do if Adultery Becomes an Issue in Your Marriage

Whether your spouse has deceived you, or you have been unfaithful in the marriage, emotions may cloud your ability to think clearly about your next move. Before acting, it makes sense to talk to an objective professional who can help you identify your goals and evaluate your options.

If your spouse has committed adultery, your first consideration is whether you want to stay in the marriage. If you want to divorce, calling an experienced family law attorney, without letting your partner know that you are aware of the transgression, allows you to first learn how the infidelity could impact your divorce case—but more importantly, it allows you to gather evidence and strategize how best to utilize this information. Confronting your spouse at the wrong time could cause a person to hide or destroy evidence, making it difficult to prove adultery in court if you later need to do so.

Understand that infidelity does not end every marriage and not everyone wants to divorce a spouse who has been unfaithful. Specifically, many couples have worked through such issues with the assistance of a qualified marriage counselor, therapist, or clergy member. However, to resolve these difficulties, it requires both parties to be desirous and motivated to do so.

Unfortunately, unfaithfulness may also mean that your partner desires to end the marriage, and it is possible that he or she is already strategizing with a divorce lawyer to do so. So even if you want to try to work things out, you should strongly consider consulting with a family law attorney for your own protection and peace of mind. If your spouse wants a divorce, you cannot prevent that from happening, but working with a good family lawyer can make the process easier and the outcome better for you.

And what if you are the spouse who has been unfaithful, or who is falsely accused of infidelity, and you do not know how to remedy the situation? Whether the adultery was a single lapse in judgment or an ongoing interpersonal relationship, you need to get an objective view from a professional who can help you understand what options are available to you too. An experienced divorce attorney can help you understand how such actions, or even false allegations, are likely to impact your marriage and divorce case.

What Infidelity Means for a Maryland Divorce

Spouses are often wounded by a husband or wife’s infidelity and frequently want to hurt their spouse in return for the perceived transgression—sometimes by desiring to “take them for everything they’ve got” or restricting their relationship with the children. The former is an unrealistic expectation, and the latter is a terrible idea. No matter how much pain you feel, it is important to understand what adultery does, and does not, mean to a Maryland divorce.

It is true that adultery is one of the many grounds for divorce in Maryland. However, it is not necessary to prove adultery to be granted an absolute divorce; you can obtain a divorce in Maryland on no-fault grounds such as mutual consent or after a one-year separation. Depending upon your individual circumstance, it may still make sense to allege, and prove, adultery in your case or, conversely, disprove an inaccurate adultery claim even if your marriage is irretrievably broken.

Beyond it being a ground for divorce in Maryland, adultery may make a difference in the amount of alimony you receive or pay. In Maryland, the “circumstances that contributed to the estrangement of the parties” is one of the factors courts consider when awarding alimony. Being able to prove your spouse’s infidelity, or defend against such a claim, could help move the needle on an alimony award in your case.

Likewise, Maryland courts can consider fault on the part of one spouse in determining the equitable distribution of marital property at the time of the divorce. However, fault, including adultery, is only one of many factors courts consider -- all of which have equal weight under the law, even if in some circumstances certain factors may weigh more heavily in the eyes of the judge. One spouse’s adultery, coupled with some other salient factors, may mean that the other spouse gets more of the marital assets than they otherwise would; however, it is unreasonable to expect that the court will impoverish a cheating spouse and enrich the spouse who feels wronged.

Lastly, let’s talk about how adultery claims may impact child custody during a Maryland divorce. Parents often view a spouse’s infidelity as evidence of poor moral character and as an inability to parent their children. But the reality is that a person can be a terrible spouse and still be a great parent. Unless someone’s activities directly affected their parenting, or caused direct harm to their children, (like leaving young children unattended for hours to spend time with a paramour), a court is unlikely to restrict a parent’s access to their children solely because of infidelity.

Gathering Evidence of Adultery for a Maryland Divorce Case

As mentioned above, it is easier to gather evidence of possible infidelity if the suspected individual doesn’t know they should be hiding it. There are many ways to collect evidence of infidelity; some are decidedly low-tech options, but in recent years, technology has made it much easier to uncover—and prove—whether a spouse has been cheating.

However, caution is advised: in some states, spouses have been charged with crimes for illegally accessing their spouse’s computers, social media accounts and other electronic communications. This is one more reason to speak with a lawyer early in the process—to make sure that investigating your spouse does not get you in trouble.

Likewise, if you are a spouse who is accused of having committed adultery, you should be mindful that destroying evidence could hurt you during a divorce trial. For example, you may be asked during the discovery process whether you destroyed or deleted any electronic communications with an affair partner, and you must answer these questions truthfully. Furthermore, if you are being wrongly accused, or the alleged relationship did not rise to an intimate level, having a complete record of your prior communications may actually help you refute such a claim. Ultimately, a good family law attorney can help you get out in front of any unflattering facts or misunderstandings.

Note that information regarding infidelity is often collected in a myriad of ways; some ways evidence of adultery may be gathered during a divorce include:

  • Hiring a private investigator to observe a spouse’s whereabouts and activities
  • Reviewing past cell phone records
  • Analyzing recent credit card receipts or transactions
  • Examination of personal and business travel records
  • Evaluating statements and claims of potential eyewitnesses
  • Assessment of emails, social media posts, or texts if legally obtained.

While eyewitness testimony can be a valuable way for a spouse to prove adultery, there are some potential eyewitnesses you should never consult--your children (no matter what their age). Even if children suspect that a parent engaged in illicit activities, being compelled to gather or provide evidence against one parent, for the benefit of the other, could be devastating and riddle them with guilt for the rest of their lives. Furthermore, and as often occurs, the information they gather and provide to you will not be helpful to your situation and may backfire against you. A judge could reasonably conclude that you used your children as pawns in an attempt to hurt their other parent and find that you are unlikely to prioritize their best interests. That could hurt you in a custody determination—and most importantly—could impact your children for the rest of their lives.

Dealing with claims of infidelity within your marriage can be devastating to the entire family and you are encouraged to proceed delicately and strategically. If you have questions about what to do next, we encourage you to contact Strickler, Platnick & Hatfield to schedule a consultation to discuss your options.

Categories: Divorce

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