“I had an affair with a woman I work with a few years ago,” said the prospective divorce client in Attorney Hamilton Starke’s office.  “I think I should tell my wife about it.”

“No, no, no!’ exclaimed Starkes.  “Look, your guilt is making you want to confess.  But the more you explain, the more problems you will create.”

“But I thought Maryland was no-fault divorce?”

Grounds for Divorce

“No-fault applies to grounds for divorce.  Maryland has both fault and no-fault grounds for divorce,” Starkes explained.  “We started with only fault grounds which are desertion, adultery, imprisonment, and insanity. Then we added the no-fault grounds which are currently one-year separation and mutual consent.”

 Alimony

“In a contested divorce, even one brought on no-fault grounds, a judge must consider fault in determining the amount and duration of alimony,” Starkes continued.  “Or, as the law puts it, the circumstances that contributed to the estrangement of the parties.  That includes fault such as an affair.”

Property Distribution

“And that’s not the only trouble a confession will bring to your case,” Starkes said.  “Maryland law requires a three-step procedure for distributing property.  In Step One the judge identifies the marital property of the parties.  In Step Two the judge values the marital property.  In Step Three the judge adjusts the equities if necessary with a Monetary Award.

In determining a Monetary Award,” Starke explained, “the judge must consider several factors including the circumstances that contributed to the estrangement of the parties.  So here we are, back to fault again.”

Confession or Discretion

“So I should lie to her?” asked the prospect.  Is that what you’re saying?”

“No,”  Starkes said, “Always tell the truth.  You just don’t always have to be telling it.”

To file a complaint for divorce, you have to have to cite a reason. These are known as as grounds for divorce in Maryland. They are listed in the Maryland Code.

The Code has both fault and no-fault grounds.   Fault grounds, such as adultery, desertion and cruelty, are factors the court must consider in determing alimony and distribution of property.

You may have, and plead, multiple grounds for divorce.  Or, like in the following case, the wife may plead one ground and the husband may plead another.  Who gets to pick the grounds on which the divorce is ultimately granted if more than one applies?

Mary and Timothy Welsh married in 1961.  Timothy had degrees in accounting and law and was licensed as a real estate agent.  Mary took care of the house and their four children.  They acquired a 22 acre property during the marriage.

Mary left Timothy in 1994 and filed for divorce based on adultery.  Timothy counterclaimed for divorce after two years of separation.

The trial court said that Mary failed to prove adultery but Timothy conceded it at trial.  Nonetheless, the trial court granted the divorce based on separation.

The Maryland Court of Special Appeals upheld the decision, stating that:

It is ultimately up to the court, based on its fact finding, to declare the grounds for divorce. It is not reasonable that the court be obligated to grant the divorce on the grounds requested when the judge is more persuaded that it is more likely than not that other grounds for the divorce are more justified.

Welsh v. Welsh; 135 Md.App. 29 (1999)

Pistol Annies
It takes judge to get married, takes a judge to get divorced
Well the last couple years, spent a lotta time in court
Got my name changed back (yeah yeah)
I got my name changed back (yeah yeah)
Well I wanted somethin’ new, then I wanted what I had
I got my name changed back (yeah yeah)
Well I’ve got me an ex that I adored
But he got along good with a couple road whores
Got my name changed back (yeah yeah)
I got my name changed back (yeah yeah)
I don’t wanna be a Missus on paper no more
I got my name changed back (yeah yeah)
(Here we go)
I don’t let a man get the best of me
Spent an afternoon at the DMV
Got my name changed back (yeah yeah)
I got my name changed back (yeah yeah)
Now who I was ain’t who I be
I got my name changed back (yeah yeah)
(That’s right)

The tall beauty strode into my shabby downtown office like she owned the place.  I wasn’t complaining.  She had booked a half hour consult and my rent was due.

Her voice was sultry with a foreign accent.  “My husband is behaving strangely.  We never talk anymore.  He is always tweeting on his cell phone or watching Fox News.  We lead separate lives.  It’s like we are roommates.  What do you think it could be?”

Divorce lawyers are the repository of cynicism in the world.  I broke it to her gently.  “The French have an idiom.  Cherchez la femme.  It means, ‘Look for the woman’.”

Her eyes started to tear up as I handed her the box of tissues.  A gesture I had repeated hundreds of times in this office.

I read that 42% of Republicans believe President Trump has been faithful to his wife.  I’d bet dollars to doughnuts that none of them were divorce lawyers.

I could see this case calling for stormy weather and a big retainer.

 

 

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)

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.

Years ago Maryland and Virginia added no-fault divorce grounds to the traditional fault grounds.   DC has moved completely to no fault grounds.  However, even if you file on no-fault grounds, marital misconduct still comes into play in all three jurisdictions.

Alimony. In each jurisdiction, the law provides a list of factors the court must court must consider in determining alimony.  In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties.  In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Property. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider.  In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate.  In Virginia, one factor is circumstances contributing to the dissolution of marriage.  In DC, it is circumstances contributing to the estrangement.

Custody. Marital misconduct does not necessarily make you a bad parent.  The test is best interest of the children.  But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

As a result, the parties spend 90% of their time in discovery and trial trying to prove fault.  While most of the judges I’ve talked to say it affects their decision by 10% or less.

When Marja Kaarina Bchara suspected her husband, Adnan Bchara, of adultery in January of 2000, she moved his possessions out of the master bedroom and into the guest bedroom, and sued him for divorce.

At trial the wife testified she took these actions to live separate and apart from her husband.  She stopped attending family functions with husband and his family.  She would not attend church with him.  She stopped depositing money into their joint checking account.   However, she continued to buy groceries, cook, do laundry, and clean house.  She said she asked her husband several times to leave the house, but he refused to do so.

A friend of the wife testified she visited the house once a week and observed the parties living in separate bedrooms.  The wife told her friend that she and husband were no longer “a couple.”   The divorce was granted.  Adnan Bchara V. Marja Kaarina Bchara, 38 Va. App. 302; 563 S.E.2d 398 (Va. App. 2002).

So in Virginia, unlike Maryland, you can get a divorce based on separation while living in the same house.  Also in Virginia, unlike DC and Maryland, a divorce may be granted upon separation for one year if only one of the parties intends that the separation be permanent.  Separation in the same house requires:

  • a separation – you cannot be separated in the same bedroom
  • a clear starting event – here the discovery of adultery, and
  • corroboration – so you need at least one frequent visitor.

You can maximize the likelihood of success by:

  1. a written separation agreement
  2. a clear event such as one spouse moves to the basement or lower level, documented and witnessed
  3. don’t have sexual relations
  4. separate the finances
  5. don’t go out together
  6. tell everyone you are separated and you are getting a divorce
  7. if you have children, don’t have family dinners and don’t drive to their events together

VA Grounds for Divorce

Paula Cook has filed a divorce petition in North Carolina alleging that her husband, Antwuan Cook, had an adulterous affair with the former American Idol winner, Fantasia Barino.

Lawyers are speculating that Mrs. Cook might file a lawsuit against Fantasia for alienation of affection and criminal conversation. Alienation of Affection is a civil lawsuit against a person who deprives you of the love and affection of your spouse. Criminal conversation is also a civil, not criminal, suit against a third party in which you have to prove adultery.

Alienation of affection and criminal conversation causes of action exist in a few states but not in Maryland, Virginia or DC.

by Michael F. Callahan

Last week we discussed how to pick a court in which to file your uncontested divorce case.  This is the first of several articles in which we’ll talk about circumstances in which a case would be decided differently depending on which local jurisdiction’s court hears the case.

There is no bar to alimony in the District of Columbia or Maryland for adultery.  Fault is only one of many factors that a court may consider in deciding whether to award alimony and, if so, how much and for how long.

However, in Virginia the court cannot award spousal support (alimony) at the conclusion of the divorce case from a spouse who has proven adultery of the other spouse as a ground for divorce, unless the court determines based on clear and convincing evidence that it would be a manifest injustice to deny support.

So there is more at stake when Virginia spouses, who suspect their spouses of cheating hire private detectives and snoop, electronically and otherwise.  This is because solid evidence of adultery strengthens the potential support paying spouse’s hand in negotiations and at trial.

It is necessary to find such evidence because you cannot rely on forcing your spouse to admit adultery by asking him or her under oath.  Adultery is a crime in Virginia, seldom prosecuted but still on the books.  Accordingly, your spouse can “take the fifth” when questioned about adultery.

Once adultery has been established, to overcome the adultery evidence and be awarded spousal support, the prospective support payee must establish by clear and convincing evidence that it would be a manifest injustice to deny support.   The statute provides that the court is to look at the spouses’ respective degrees of fault and relative economic circumstances.  So to prevail the adulterous support-seeking spouse needs to show (1) he or she  really needs support and the other spouse really can afford to pay, and (2) looking at the entire marriage and the conduct of both spouses, the other spouse’s conduct is really more culpable than the adultery of the spouse seeking support.  In short, it is very difficult burden.

If your spouse moves out of the Virginia marital house and into D.C. or Maryland, he or she may be forum shopping to avoid the Virginia adultery bar to alimony.  In that case you would be wise to file a divorce case in Virginia promptly.