Skip to content
  • Maryland
  • Virginia
  • Washington, D.C.

Divorce Lawyers

Thyden Gross and Callahan LLPCounselors and Attorneys at Law

301-907-4580

 

Maryland Divorce Legal Crier

News and comments about divorce, child support, child custody, alimony, equitable property distribution, father’s rights, mother’s rights, family law, laws on divorce and other legal information in Maryland.

Posts Tagged ‘Adultery’

Maryland Alimony Factor #6

Tuesday, October 6th, 2015

The sixth factor the court has to consider in determining the amount and duration of alimony is “the circumstances that contributed to the estrangement of the parties.” MD Family Law Article 11-106(6).

But can adultery after separation contribute to the estrangement of the parties? Nan Willoughby married Robert Willoughby in 1928.  They had a stormy marriage for several years and Nan moved out in 1966 filing for divorce based on constructive desertion. Robert then moved in with another woman and Nan filed a supplemental complaint for adultery.

The trial judge found that the husband’s adultery was the fault that destroyed the home. The husband appealed arguing that the home had been destroyed with the separation of the parties some time before.

The Maryland Court of Appeals disagreed with the husband finding that:

Appellant wishes to isolate one point in time and determine the ‘fault which destroyed the home’ as of that time. We think the concept is broader than this, and permits the trial judge properly to consider all of the circumstances resulting in the destruction of the marriage, including the conduct and acts of the parties both prior and subsequent to actual physical separation.

Willoughby v. Willoughby, 256 Md. 590 (1970)

Ashley Madison and Grounds for Divorce

Friday, August 28th, 2015

Do you have grounds for divorce if you find your spouse among the 37 million hacked users of Ashley Madison, the dating website for married people looking to cheat?

In DC, the answer is no. There are only two grounds for divorce in DC — six months voluntary separation or twelve months involuntary separation. But the court must still consider marital fault, among other factors, in deciding alimony and property distribution.

Maryland and Virginia have fault and no-fault grounds for divorce. Adultery is a fault ground in both states. Using Ashley Madison by itself does not prove your spouse has committed adultery. But it is probably enough to plead adultery in a complaint for divorce. Then you have to obtain the evidence. You can use then use the court discovery rules to ask your spouse directly. Your spouse must answer under oath and penalties of perjury.

Your spouse may take the Fifth Amendment but the divorce court is allowed to presume this means that adultery was committed. And some spouses will lie. In addition, Maryland and Virginia require corroboration of the adultery by independent evidence. So you may still have to hire a private investigator to follow your spouse.

Despite what you see in the movies, the private eye doesn’t usually burst into the hotel room with a camera. You can use circumstantial evidence to prove adultery with inclination and opportunity.
The testimony for inclination might be, “I saw them holding hands at dinner and watched them go into a hotel.”

For opportunity, the detective would say, “I put a chalk mark on the tire of the car in the parking lot and it was in the same place when I returned in the morning.”

Ashley Madison Hack Spurs Divorces

Friday, August 21st, 2015

Divorce lawyers are seeing an upsurge in business as a result of the hack attack on the Ashley Madison Internet dating site for married people.

The hackers posted names, street and email addresses and payments for millions of users, mostly men, since 2007.

“There’s definitely going to be a lot of people calling me in and wanting to quote-unquote know their rights,” Jacqueline Newman, a New York City lawyer, told Huffington Post.

Adultery No Bar to Custody

Thursday, May 9th, 2013

In 1978, Robert Swain divorced Nancy Swain because of her adultery.  She did not deny it.  In fact, she was living in an apartment with another man she intended to marry.

What Robert objected to was the order giving Nancy custody of their minor daughter.  His position was that exposure to an adulterous relationship inevitably causes detriment to the morals and welfare of a child of impressionable years.

The Maryland Court of Special Appeals disagreed.  It said there are no presumptions that adultery makes you an unfit parent.  Adultery is relevant only as if it actually affects the child’s welfare.  There is no presumption of harm.  Adultery will not tip the balance against a parent in a custody case.

Swain v.  Swain, 43 Md. App. 622; 406 A.2d 680 (1979)

Divorce for Real Housewife of DC

Monday, September 26th, 2011

Tareq Salahi has filed for divorce from Michaele Salahi, White House gate crasher and one of the Real Housewives of DC.

Tareq accuses Michaele of desertion and adultery with Journey guitarist Neal Schon.

In the Complaint, Tareq claims Schon sent Michaele a picture of a part of his body via email.

There is no lawyer’s name on the Complaint, but it appears to be drafted by someone who knows divorce law.  There is no mention of a prenuptial agreement.

Divorce in Maryland if No Sex for a Year

Friday, January 29th, 2010

“My husband and I have not been intimate for over a year,” Louise, an unhappily married woman tells Joe, a Maryland divorce lawyer, “and I want a divorce.”

“OK, any other woman in his life?” inquires Joe.

“No.”

“Hmmm, any domestic violence or threats?”

“No.”

“Then you’re going to have to move out of the house for a year before you can file a divorce complaint,” says Joe trying to push the box of tissues across his desk toward Louise unobtrusively.

“But we can’t afford that,” cries Louise reaching for the tissues, “There must be another way.”

Neighboring jurisdictions, DC and Virginia permit parties to be separated while living in the same house, but not Maryland.  In Maryland, spouses are required to live separate and apart under different roofs for one year if the both agree, and two years if they don’t.  This waiting period must occur before they can even file for divorce.  And the divorce might take a year or longer after that.  These are the no fault grounds.  Adultery and cruelty have no waiting period.

The purpose of this waiting period is to favor marriage over divorce and make sure the parties really, really want to be divorced and not married.  After all, sometimes people change their minds.  But the recession has forced many couples to live together in misery because they cannot afford to separate.

So Montgomery County Delegate Luiz Simmons, an attorney, will support legislation this year to add a new grounds for divorce in Maryland, according to this morning’s Frederick News Post.  If this law passes, couples who go a year without sex would be able to file for divorce.

Adultery No Bar to Custody

Friday, October 23rd, 2009

Mary Louise Davis married John Franklin Davis, Jr. in 1958.  Sixteen years and three children later, Mrs. Davis, together with her six-year-old daughter Leigh, left the marital home and moved into an apartment.  Mr. Davis filed for divorce in Maryland on the ground of his wife’s adultery, and asked for custody of the children.

Judge Latham, after a custody investigation and a hearing, awarded custody of Leigh to the mother.  The father appealed to the Court of Special Appeals, which reversed the judge.  The Court said the father should have custody of Leigh because the mother had failed to show repentance for her adultery.

The mother appealed to the Court of Appeals.  The Court of Appeals held:

“Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare.”

The Court said the primary determination was the best interest of the child.  In determining this, Judge Latham had taken into account that Leigh had been living with her mother alone for the past two years and was adjusted to this arrangement; that she was doing well in school and was adequately provided for at home; that even though Mrs. Davis had engaged in adulterous conduct in the past, there was no  showing that it had ever deleteriously affected Leigh; and that Mrs. Davis had engaged in no sexual misconduct since February 1975.

So Leigh got to stay with her mother.

Davis v. Davis, 280 Md. 119; 372 A.2d 231 (1977)

Sorting Out Grounds for Divorce

Thursday, October 22nd, 2009

Grounds for an absolute divorce in Maryland can be a confusing and complicated concept.  You have to have grounds for divorce in order to file a complaint.  Grounds are reasons for the divorce.  Some grounds have a waiting period.  Others do not.  Some require you to live in separate places.  Others can occur while you are still living together.  Maryland has the traditional fault grounds.  It also has the more modern no-fault grounds.

No-Fault Grounds

The no-fault grounds are one year voluntary separation or two years involuntary separation.  Both of the no-fault grounds have a waiting period before you can file for divorce and you have to be physically separated continuously for that period.  That means you live in different places, or under separate roofs, as the court says.  You cannot meet the no-fault ground requirements if you both live in the same house.

Fault Grounds

The fault grounds are adultery, cruelty, excessively vicious conduct, desertion, insanity and imprisonment.  Three of the fault grounds have no waiting period before filing a complaint.  Those are adultery, cruelty and excessively vicious conduct.  You can live in the same house and file for divorce based on adultery, cruelty, excessively vicious conduct and even desertion.

Related Posts:

Filing for Divorce While Living Together
Child Custody While Living Together
Does Ricketts Apply to Actual Desertion?
Does Rickets Apply to an Absolute Divorce?
Ricketts Revisited

The C Street House

Friday, July 17th, 2009

The infamous “C Street House” will make a good novel and movie.  The Christian home for legislators near the U.S. Capitol Building in Washington, DC seems to be another Peyton Place.

The Associated Press reports that earlier this week Leisha Pickering filed a lawsuit against Elizabeth Creekmore Byrd of Jackson, Mississippi, for alienation of affection (a suit that is barred in MD, VA and DC but not in Mississippi).

Mrs. Pickering is divorcing Chip Pickering, a former Republican Congressman, now a lobbyist.  She alleges that Chip Pickering and Creekmore Byrd had an affair while Pickering was in Congress and living at the C Street House.

Two More Ways to Leave Your Lover

Thursday, June 25th, 2009

Paul Simon, in his famous song, told us there must be fifty ways to leave your lover. I wonder if he counted the two new ways we saw on television this week:

1.  Use Your Reality TV Show.

Monday night, John and Kate Gosselin announced their separation and intention to divorce on cable tv.  This came amid months of tabloid speculation concerning extramarital affairs.  The show got its highest ratings ever.  The parties say they are going to split custody of their eight children equally.  The children will stay in the house and the parties will alternate living there in what is called a nesting arrangement.

2.  Call a Press Conference.

On Wednesday, Mark Sanford, 49, governor of South Carolina, held a news conference and announced that he had been unfaithful to his wife.  He had been missing for several days and told his staff that he was going hiking on the Appalachian Trail.  However, a newspaper report confronted him in Atlanta getting off a plan arriving from Buenos Aires, Argentina.  His public confession came just before the newspaper broke the story of his mistress in Argentina.

 
© 2018 Thyden Gross and Callahan LLP. All rights reserved.