My husband had an affair that resulted In a pregnancy. We do have children together. He and the paramour are business partners. I suspect the affair has continued. We haven't cohabited in over half a year and sleep in separate rooms. I want to get an immediate divorce from him. Can I still file for divorce on adultery?
Family Law Attorney
Yes. Adultery is both a misdemeanor and an immediate ground for divorce in Maryland and no separation period is required prior to filing. Proving adultery does not require you to catch your spouse in the act but you must prove the guilty spouse had the "inclination" to commit adultery and also the "opportunity" to do so. Evidence of inclination may be emails, text messages. love notes, eyewitness testimony of public displays of affection, etc. Evidence of opportunity may be hotel receipts, a private investigator's report that the guilty spouse's car was outside the paramour's home overnight, or similar information. In response to your claim for adultery, your spouse may assert "condonation", " reconciliation" and, or, "recrimination" as defenses. Condonation occurs when the aggrieved spouse, following discovery of the adultery, takes no action and the couple continues living together as husband and wife, sharing the same bed, etc. Reconciliation occurs when the aggrieved spouse, at some point following discovery of the adultery, forgives her spouse's adulterous activity and the couple resumes living together as husband and wife, sharing the same bed, etc. Recrimination is a defense where the aggrieved spouse asserts a claim of adultery and the adulterous spouse replies and asserts that both parties engaged in adulterous activity.
Continuing to reside together during the litigation--even separated under the same roof, though not prohibited, may present problems as your case advances and the Court has to decide your claims, if any, for: alimony, child support, custody, visitation, etc. Obviously, the facts of every case are different and pursuing a divorce on grounds of adultery requires the assistance of an experienced divorce attorney. Do not hesitate to contact me at (301) 717-6959 for a complementary consultation regarding your case.
This answer is provided for informational purposes only. It is not offered as legal advice and does not create an attorney-client relationship between the author and the reader. The author is an attorney licensed to practice law in the State of Maryland and the article is based solely on Maryland law.
Divorce / Separation Lawyer
Vance wrote a very detailed explanation. To simplify, if you have not condoned your wife's adultery you can file immediately. From your narrative it appears you have not condoned what her conduct. The bigger issue is the children. The mere fact that she has an ongoing affair does not mean the Court will find her an unfit mother for custody. I know this may sound foreign to you as a layperson. Finally, the caption "How long do I have to be a resident of MD before filing for divorce?" If the cause of action accrued in Maryland their is no residency requirement.
Consult with a lawyer for more detailed advice best on all your facts. If I can help call 301-738-5700
The answer to this question is general in nature and does not create an attorney client relationship.
Normally, you must reside in the state for at least a year. My colleagues are correct however, that when an action allowing for immediate divorce accrues within the state (e.g. adultery, abuse), there is no residency requirement.
Proving adultery is tricky, though, because the standard of proof is "clear and convincing" evidence (the middle ground between "by a preponderance of the evidence" and "beyond a reasonable doubt"). The evidentiary issues alone warrant consultation with an attorney. Good luck!