Legal same-sex marriages have been taking place here in Maryland since 2013. However, Maryland Attorney General Brian E. Frosh has now clarified what had been a somewhat murky legal issue in the past -- whether a spouse in a same-sex marriage can use adultery as grounds for divorce.
Frosh issued a legal opinion last month stating in part: "We see no reason either to define adultery so narrowly as to ignore 'the sexual realities of our world'....or to deny same-sex couples the ability to divorce on the same terms as other married couples."
That opinion is significant since in Maryland, adultery is one of just a few fault-based grounds that spouses can use. Currently, when a divorce is fault-based, the couple does not have to live separately for a year prior to being granted a divorce. Other fault-based grounds are a spouse's alleged insanity, desertion or conviction for a serious crime.
Beyond the waiving of the separation period, adultery can factor into child custody and alimony decisions. It can also impact a divorce settlement if it's written into a prenuptial agreement.
Legal advocates for lesbian, gay, bisexual and transgender Marylanders applaud the AG's action. It was spurred in part by a Maryland delegate behind the original marriage equality legislation. He noted that the obligation of married couples "to be true to each other....should apply to everyone fairly." Frosh's opinion essentially said that as well. He wrote, "Extramarital sexual activity with someone of the same sex is just as damaging to a marriage as sexual activity with someone of the opposite sex."
Part of the confusion over same-sex adultery lay in the nitty-gritty of specifically what sexual acts constitute adultery. The AG's opinion noted that in opposite-sex divorces where adultery is alleged, the plaintiff is not generally required to specify what acts were engaged it. It further states that the plaintiff "is not required to provide direct evidence of the sexual act." He or she must only be able to show evidence "that the sexually unfaithful spouse and his or her paramour had the 'disposition' and 'opportunity' to commit adultery."
If a spouse believes that his or her partner is or has committed adultery and is considering divorce, it's wise to consult with an experienced family law attorney to determine the best course of action.
Source: The Baltimore Sun, "Same-sex couples can commit adultery too, attorney general says," Jessica Anderson and Colin Campbell, Aug. 18, 2015