Ashley Madison: Does Adultery Matter in Maryland?

Your spouse was on Ashley Madison. Your world has imploded. But does it matter?

Fellow divorce attorneys and I have debated this topic. Some flatly advise their clients that infidelity doesn’t matter. So what is the law and what is reality?

Adultery is a Ground for Divorce in Maryland

Maryland has both fault and non-fault grounds for divorce. One of the fault grounds for divorce is adultery. That means you don’t have to separate for any period of time before you can file for a divorce. With adultery grounds you can file immediately, so you can get into court faster. That is one way that adultery does matter.

Adultery is a Factor in the Equitable Distribution of Property

Maryland also requires a court to consider “the circumstances that contributed to the estrangement of the parties” as one of eleven factors relevant in equitably dividing property. The statute doesn’t tell judges how heavily to weight each of those factors, or whether one is any more important than the other. From the judges’ point of view, it is often hard to evaluate infidelity. What caused a spouse to stray? Was that spouse inherently duplicitous or evil? Or was that spouse simply human? Was the faithful spouse a difficult person with their own issues? Did the straying spouse contribute to the family in economic and other important ways?

Remember, judges are people, too.   Any jurist you appear before on a given day may be a person who had (or is having) an affair. Or they may be a person whose own life experiences make them understand that relationships are nuanced and fraught with ups and downs. They may be reluctant to be punitive towards a person based on one set of circumstances, given the complexity of the entirety of a marriage and family.

Family court judges can become inured, or seem inured, to the tragedies of exploding families. But perhaps it’s simply easier for judges to focus on the monetary and non-emotion-laden facts in doing their jobs. The family court judges’ daily fare is listening to the stories of dissolving families, and those stories often have infidelity as an element. At least fifty percent of the divorce cases I handle involve adultery. It is easier to crunch numbers and evaluate economic issues than it is to listen to and assess someone’s emotional pain, or make what might seem to be a moral judgment.

In tort law, people sued for damages. Those damages can include pain and suffering. If you negligently drive your car through a red light and hit me, I can sue you for damages. These can include the cost of my medical care, lost wages, and pain and suffering, including emotional pain and suffering. Divorce laws are different. Courts must allocate property, determine spousal and child support, and award custody. Fault in the breakup of the marriage is one of many enumerated factors to be considered in an array of decisions. The divorce framework is primarily, “How will each spouse and the children live moving forward?” It is not, “How can one injured party be compensated for wrongs committed?”

Bottom line: it cannot be predicted that adultery, in and of itself, will have any significant impact on property awards. Judges seem to place more weight on adultery when marital resources in significant amounts were used to further the illicit relationship. On the other hand, divorce cases are heavily fact-specific. In any given case, the adultery might matter in the division of property.

Adultery is a Factor in Alimony Awards

The Maryland alimony statute has the same language that appears in the equitable distribution statute. In awarding spousal support, a court is also required to consider “the circumstances that contributed to the estrangement of the parties” as one of twelve factors.

Here the analysis is a bit different. Based on my experience, I usually caution an adulterous spouse who needs alimony that their conduct will likely harm their claim. This doesn’t mean all alimony will be denied, as might have been the case under old alimony law. However, the amount or duration of alimony might be affected.

Alternatives to Litigation—such as Collaborative Law-- are Appropriate When Adultery is a Factor

The reality is that the faithful spouse is not going to get their “pint of flesh” from a court. However awful and devastating the betrayal, a court will not make a betrayed spouse emotionally whole. Hopes of the adulterous spouse being appropriately punished are unlikely to be fulfilled. People who litigate as a way of venting their anger are likely to spend lots of money on attorneys and the court process, without any guarantee of a more satisfactory result than they might have negotiated privately.

When there has been adultery, mediation, attorney-attorney negotiation, or collaborative law can provide a far more effective way of dealing with the emotional and other consequences of an affair. Guilty spouses are often contrite or sad at the pain caused by their conduct. In my experience, they are frequently willing to factor their conduct into a settlement. Indeed, this is preferable to spending lots of financial and emotional capital trying to prevent the other spouse from proving the adultery in a public forum. Indeed, both spouses, in the long run, may benefit from the privacy of a non-litigation process. In collaborative cases, where there are mental health professionals assisting as coaches, there is sometimes even an opportunity for an apology, and significant, if not transformative, growth, affording the parties and their children a path to a healthier future.

This is not legal advice. Please read our “disclaimer” to understand why this information is not a substitute for legal advice.