AG Comments on Same-Sex Adultery

By Carol G. Cooper, Esq.

One of the eight grounds for divorce in Maryland is adultery. Historically, adultery was considered to be sexual intercourse between a man and a woman. Times have changed particularly in light of the legalization of same-sex marriages. With marriage equality comes divorce equality.

The July 2015 Maryland Attorney General Opinion has dispelled outdated notions of adultery. This opinion clarified that adultery, in the family law context, includes sexual activity between a married person and a person who is not their spouse.

Without force of law, the opinion broadens the definition (1) to allow adultery grounds to be used in the divorce of a same-sex marriage and (2) to encompass types of sexual infidelity which, in the past, judges have not considered adultery.

Sexual infidelity breaches the marriage vows, thereby damaging the marriage. Extra-marital sexual activity with someone of the same sex is just as damaging to the marriage as sexual activity with someone of the opposite sex.

It remains to be seen what kinds of sexual activity will constitute adultery. I expect that there will be some interesting case law developing over time.

Carol Ghingher Cooper is an Adelberg Rudow Member who represents clients in matters related to divorce, custody, visitation, child support, pre-nuptial agreements, post-nuptial agreements, adoption and other civil litigation. She also is trained in mediation and interdisciplinary collaborative practice. She can be reached at 410.986.0852 or CCooper@Adelberg.com.


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