Cheating on your spouse in Maryland can do more than just strain your relationship.

State law makes breach of monogamy between spouses a punishable crime. It is a basis for an immediate divorce with no waiting period. Neither evidence of condonation (i.e., forgiveness) nor recrimination can prevent divorce based on adultery. That is how sacrosanct Maryland law holds the tenet of monogamy in marriages.

However, juxtaposed to Maryland’s archaic laws, the times are a changin’! Monogamy is no longer a precondition to healthy romantic relationships in our society. We are seeing that in our community and pop culture.

“Ethical non-monogamy,” or ENM, is an umbrella term for a number of consensual non-monogamous relationship forms (i.e. polyamory; open marriages; swinging). The practice of having multiple sexual relationships or partners is ethical when undertaken only with the advanced knowledge and consent of all partners involved. In some instances, there are written contracts to memorialize the agreed-upon terms and conditions.

Ethical Non-monogamy and the Courts

So, how are ENMs viewed in our courts given the backdrop of Maryland adultery law? There are no reported cases providing insight into how the courts will interpret adultery in ENMs. But, some insights can be divined from the law that exists today.

For example, from a divorce grounds perspective, advanced knowledge and consent could be seen as condonation of sexual activity with other partners. Similar activities on the part of the accusing spouse could be deemed recrimination. Certainly, a breach of transparency, or of the ground rules for the ENM, could be deemed to be an act of adultery. But, might participation in an ENM itself be seen as condonation, regardless of whether or not rules are broken?

As it stands now, these questions will be answered by judges borne of the era that gave rise to our existing adultery laws. It is hard to imagine them finding amoral breaches of transparency when monogamy itself is the standard set by the law. More likely, the court will find fault with both participants for pursuing an alternative lifestyle that contributed to the demise of their marriage.

ENMs are also the subject of analysis in the context of “the circumstances that contributed to the estrangement of the parties,” which is a factor the court must consider when awarding alimony and distributing property. There, the court can decide, absent any objective criteria, what or who caused the breakup of the marriage. Deciding exactly when the ENM became troublesome for the marriage, or when the ethics of the ENM eroded, are entirely subjective analyses.

Through the lens described above, it seems likely that spouses of ENMs will find underwhelming the court’s assessment of [and empathy for] their relative fault in the breakdown of their marriage. Great thought should be given to how to present these facts and issues to the court in a manner that respects the dignity and privacy of the parties’ choices and does not expose them to unnecessary judgments about their lifestyle.

For more information, contact Erik at 301-657-0725 or eparena@lerchearly.com.