The bigger question may be, “Do you want to bring adultery into your divorce?” I generally discourage clients from claiming adultery. To understand why you need to know the definition of adultery as it applies to divorce.
The Cheating Spouse vs. Adultery
There is a big gap between what people understand adultery to be and what it is under the law. In your relationship, the standard of evidence is a lot lower when you are trying to determine whether your spouse is unfaithful. You rely on changes in behavioral patterns and trust your intuition. Someone’s coming home at 3:00 on a Tuesday without a good explanation. Maybe the phone is not being answered when it should be. It gets kind of cold in the bedroom. Your partner seems to have interest elsewhere, and they don’t want to spend time with you. You might even run across a suspicious message from someone.
All the weird happenings add up to a situation where you know that something’s not right in your relationship. Your instincts say that your spouse is cheating. You may be thinking it’s time to go your separate ways.
That’s the cheating spouse. That’s a different standard than in a divorce case.
Legal Standards for Adultery
A lot more evidence is needed to bring an adultery claim in divorce. Maryland law defines adultery as voluntary sexual intercourse between a married person and another partner who is not their lawful spouse. The language is painfully specific. “To amount to adultery, there must be some penetration of the female organ by the male organ.” Nobody wants to talk about this in court. But this is the element you need to demonstrate in court to prove adultery. And that’s the number one reason why I suggest that you find another way to proceed.
Now, you don’t necessarily have to have a video showing everything. People have proven adultery by showing that there was a “disposition and opportunity” to commit the act. They might have a private investigator show that your spouse’s car was parked outside another person’s house at 9:00 several nights, and they turned out the lights and the car was there overnight. Someone had to stay overnight to get the data to prove the car didn’t move. This is the type of reporting that’s needed to prove disposition and opportunity.
But it’s still a messy process. It’s emotionally brutal. You already know your spouse is cheating but you still have to dredge up evidence to prove it. In addition, the process is expensive because it needs to be corroborated by a third party.
There are better options.
Alternatives in Divorce
A mutual consent divorce is a much easier option. You need to live separately for 12 months to get a divorce based on separation, and with the pandemic, people were less inclined to move out, so we have had more people asking about a divorce based on adultery. But for a mutual consent divorce, you can still be living together. You just need to put together a separation agreement that resolves all the issues.
It takes some emotional maturity. But if you have evidence of cheating, usually guilt alone is enough to make the other party settle the case. If they are not willing to let you go easily, we can sit down and develop a strategy to deal with it. You should work with an attorney to prepare your settlement agreement—it is very easy to get taken advantage of with a DIY marital property agreement.
Let Your Divorce Lawyer Help You Find the Best Way Out of the Situation
Dealing with a cheating spouse is very tough. You should get support from family and friends, go to therapy, and do whatever it takes to make the big move you need for your happiness.
Filing for divorce based on adultery is an option, but it is only one option and may not be the best. At Carmiece Graves Law, we can help you find the best way out so you will be ready to start the next chapter in your life.