What does and does not qualify as “cheating” is, apparently, debatable, as evidenced by the recent pop culture/social media scandals (think Adam Levine, Behati Prinsloo, and Sumner Stroh).

However, in the divorce context, the term “adultery” is quite narrow and well defined. Does that mean cheating only matters if you can prove acts of adultery? Not necessarily.

Adultery Defined

The case law, all of which predates the legalization of same-sex marriage, defines “adultery” as a married person having sexual intercourse with someone of the opposite sex, other than his or her husband or wife. Note:

• Oral sex or any sexual acts besides intercourse do not qualify as adultery under the case law.
• Whether or not members of the same sex can commit adultery has not yet been decided by our courts. But, in 2015, the Attorney General issued an opinion suggesting not only that adultery could be a ground for divorce in same sex relationships, but also that the definition of the sexual acts constituting adultery needs to be expanded.
• Maryland considers adultery a crime – a misdemeanor punishable by a fine of $10.
• Efforts by lawmakers to change the definition of adultery for divorce purposes and memorialize the expanded definition by statute have failed to date.
• Adultery is a ground for divorce in Maryland. You can file for divorce based on adultery while still living together, without separating, and without a waiting period.
• Sexual intercourse with someone other than your husband or wife, while you are still married, but following your separation, is still, technically, adultery.

How Do You Prove It

The person alleging adultery must prove that their spouse committed an adulterous act via direct evidence (e.g., eyewitness accounts; admissions by the guilty spouse and/or the paramour) or, more often, via circumstantial evidence.

To prove adultery via circumstantial evidence, one must show that the adulterous spouse had both the “disposition” to commit adultery and the “opportunity” to do so. Evidence of “disposition” includes photographs of the adulterous spouse and the other man or woman kissing or engaging in other acts of affection. Evidence of “opportunity” includes proof that the adulterous spouse and the other man or woman had occasion to act on their desires (e.g., photographic or GPS evidence confirming that the adulterous spouse and the other man or woman slept overnight under the same roof).

Caution! Take Care in Your Pursuit of Evidence of Cheating

The advent of the internet, cell phones, GPS technology, and debit cards has made gathering evidence of infidelity far easier than in the ‘80s. But beware – privacy concerns abound. In response, lawmakers created several new state and federal laws that address unlawful access to these types of information, some of which impose criminal penalties. For example, these are all criminal acts according to Maryland and Federal law:

• Unauthorized use of or guessing your spouse’s cell phone passcode
• Creating a fake social media profile through which to monitor your spouse’s accounts
• Using key-stroke recognition software to obtain your spouse’s email password

Tread very carefully when snooping around your spouse’s computer, cell phone, or social media accounts in search of evidence of infidelity. Consult with an attorney to learn about lawful means for gathering evidence of infidelity before proceeding with collection. Otherwise, you may obtain evidence you cannot use, and possibly face criminal consequences.

It Doesn’t Have to Be Adultery as Defined for it to Matter

Once upon a time, the parent who committed adultery was unfit to have custody of minor children, but that is no longer the case. However, the reason for the breakdown of the marriage is a factor the court considers in determining alimony and property division in a divorce. It can and has substantially altered outcomes in various cases, depending upon the depravity of the cheating spouse. Therefore, infidelity, or the evidence of a relationship outside the marriage even without complete evidence of adultery, and the financial implications of such a relationship, may be part of what the court considers when resolving the monetary rights and equities of the parties in the divorce.

Obtaining and developing the evidence and facts related to your spouse’s adultery or extra-marital relationship, including evidence of any financial implications tied to the relationship, and determining what impact it may have on the outcome of the case, are a critical part of pursuing a divorce where cheating may be an issue.

Erik Arena is a divorce attorney who handles cases involving domestic relations and family law, including custody and visitation. For more information, contact Erik at eparena@lerchearly.com.