Legal Question in Family Law in Maryland

How does adultery affect divorce/child custody in Maryland?

I found out that my wife cheated on me two months ago. She finally admitted it when confronted two weeks after. She swore it was a one time thing and for the sake of my 18 month old son, I believed her. We have been going to marriage counseling since then. I have now found out from eavesdropping on a telephone conversation that she also had sex with a married friend of the family three years ago, less than a year after we were married. I cannot bear the thought of how many others there have been. How does adultery affect divorce and child custody in Maryland? I love my son too much to give up custody. I know what kind of life my wife will lead if we seperate and I do not want him to live like that. What are my options?

Asked on 10/23/00, 11:03 pm

2 Answers from Attorneys

Lisa Lane McDevitt McDevitt Law Office
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Re: How does adultery affect divorce/child custody in Maryland?

You can file for divorce immediately based on adultery. However keep in mind that your forgiveness of the adultery is a defense. It is NOT a complete defense though. It is simply a factor that the judge can consider when deciding whether to grant a divorce based on adultery.

Forgiveness requires: 1) knowledge of the marital misconduct; 2) forgiveness of the misconduct; 3) resumption of marital relations. Have you forgiven the most recent adultery? Have you forgiven the adultery of 3 years ago that you just discovered? Forgiveness as a defense only applies to each adulterious affair so just because you may have forgiven the affair she admitted to doesn't mean you have forgiven the one of 3 years ago you just discovered!

There are other grounds of divorce besides adultery, including no-fault grounds. If she agrees to the divorce then you must live separate and apart with no hope of reconcilation for at least one year. If she doesn't agree then you will have to live separate and apart for 2 years. Adultery, however, requires no time period. You can file for adultery grounds immediately. And finally, you could file immediately for what is known as a limited divorce in MD based on a mutual agreement to end the marriage and to live separate and apart. This gives you a limited divorce but you may not remarry until you file for an absolute divorce (based on adultery, one year separation or two year separation).

As for child custody, the court determines custody based on the best interest of the child. In determining the best interest of the child the court weighs several factors. One of the factors is whether the adultery has had a deterimental effect on the child. Since your child is so young this argument will likely fail. The other factors the court will consider when determining custody of your child are as follows: the fitness of the parents; character and reputation of the parties; desires of the parents and any agreements between them; potential for maintaining family relations; material opportunities which will affect the future of the child; age, health, and sex of the child; residence of the parties and the opportunity for visitation; and finally, evidence of abuse.

Please call my office at 301-652-0663 if you have any questions.

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11/17/00, 5:59 pm
Carolyn Press Chung & Press. P.C.
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Re: How does adultery affect divorce/child custody in Maryland?

Adultery is a ground for divorce, if it has not been "condoned," which means something similar, but not exactly the same as, forgiven. Condonation is an act whereby you agree to accept a past mistake based on a promise or understanding that it won't happen again. If you continue to have sexual relations with your spouse after discovering the adultery, that is evidence of condonation, and condonation can be used by the adulterous spouse as a defense in a divorce action. If further evidence of adultery appears after the "condonation," the ground for divorce is revived.

Adultery doesn't usually have much to do with who gets custody of the children, unless the adulterous relationship is carried on in a way which is clearly harmful to the child. If it is discreet and the child is not directly exposed to improper conduct, the adulterous party may, but not necessarily will, be awarded custody.

Your options are (1) to continue with the marriage counseling and see if you can deal with the past and gain some assurance that the future will be different; (2) to file for divorce on grounds of adultery and ask the court to award you custody of your child; (3) to let your wife know that you are not able to deal with the uncertainties, in the future, resulting from her past behavior and that you want a divorce and would like to negotiate a separation agreement dealing with, among other things, the issues of custody and visitation. You will almost certainly need a lawyer to represent you if you file for a divorce without an agreement. You will also be wise to retain a lawyer to represent you if you and your wife are able to negotiate an agreement (agreements done without a lawyer are most often full of time bombs and pitfalls which you won't recognize until it's too late). If you fight for custody, and lose, your child will not necessarily be abandoned to the damage of living with a mother who is promiscuous. Even a non-custodial parent can, and should, exert a lot of influence over a child through regular visitation and lots of love and attention. But if you are a demonstrably good father you do have a good chance (but no guarantees) of being awarded custody. One good piece of advice: don't let the custody contest become a bitter battle which leaves you and your wife unable ever again to cooperate in the raising of your child. A good lawyer can help you avoid that nightmare.

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11/15/00, 4:11 pm

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