Absolute and Limited Divorce
- Maryland distinguishes between two different kinds of divorce: limited and absolute. Limited divorce acts as an intermediate step between informal separation and full divorce, although the parties remain legally married. Absolute divorce conforms to traditional understandings of divorce as the permanent dissolution of marriage.
Most grounds require spouses to get a limited divorce first or to wait for a period of time after the marriage breaks down before they can file for an absolute divorce decree. Adultery counts as one of the only grounds that justify an immediate absolute divorce.
Defining Adultery in Maryland
- Maryland statutes do not define adultery, but commentators generally agree that it requires vaginal intercourse. Other acts of a sexual nature, including oral sex, do not qualify as adultery under Maryland law. This definition also suggests that same-sex cheating will not count as adultery for the purposes of Maryland divorce law.
Proof of Adultery Required for Divorce Decree
- Courts cannot grant a decree based solely on the uncorroborated word of the spouse filing for divorce, and one partner confessing to adultery will not fulfill the requirement for proof. However, courts do not demand absolute proof either. Instead, the complaining spouse must present at least one witness who can testify that the adulterous partner had both the inclination and the opportunity to have sexual intercourse with a person of the opposite sex.
Defending Against Adultery Charges: Condonation and Recrimination
- The husband or wife has two primary defenses against an absolute divorce decree based on adultery: condonation or recrimination. In a condonation defense, the adulterous partner argues that the spouse knew about the adultery but stayed in the relationship, suggesting that the spouse had forgiven the adulterous partner. In a recrimination defense, the adulterous partner accuses the other spouse of adultery or other conduct that would justify a divorce decree. Neither defense prevents a court from granting an absolute decree, but judges can take condonation or recrimination into account in deciding whether to allow a divorce.
Financial and Child Custody Consequences of Adultery
- As a fault ground for divorce, adultery can affect alimony awards. However, because judges consider the best interests of the child in awarding custody between divorcing parents, adultery will only affect custody decisions if the judge decides that it harmed the children.