Tag Archive for: Adultery

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)

“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.