On July 24, Maryland Attorney General, Brian E. Frosh, issued an opinion that clarifies an important and relatively new aspect of family law: same-sex divorce. The opinion – which was hailed by such organizations as Equality Maryland, FreeState Legal Project and the Maryland State Bar Association – further defines the term “adultery” to refer to any extramarital affair, regardless of the sex of the individuals involved.
As the Attorney General Frosh said in his opinion:
In our view, this conclusion is compelled not only by the broad purposes behind the concept of adultery in the family law context, but also by the respect and dignity owed to same-sex marriages as equal to opposite-sex marriages under State law. We see no reason either to define adultery so narrowly as to ignore “the sexual realities of our world” … or to deny same-sex couples the ability to divorce on the same terms as other married couples.
While divorce equality might seem like a strange subject for which to advocate (after all, most couples don’t get married expecting a divorce), it’s an important topic for those in same-sex marriages. Dissolving a marriage under the law has important implications for the parties involved. Adultery in particular can have an affect on alimony and child custody determinations.
In this post we’ll explore just why this opinion is so important and how it could affect couples seeking a divorce in Maryland, whether the couple is in a same-sex or opposite-sex marriage.
What Is the Status of Same-Sex Marriage?
The push for same-sex marriage has been a highly public effort since the beginning of the 21st century. For years, proponents and opponents were locked in feuds – often bitter and personal in nature – about the morality and legality of same-sex unions. In fact, up until June of this year, the debate over same-sex marriage was predominantly the providence of the states, with the issue usually being decided by popular vote, the legislature or the opinion of the courts. (For example, Maryland didn’t officially recognize same-sex marriage until Jan. 1, 2013, after the issue was put forth to popular vote the year prior. Maryland actually has the distinction of being the first state to pass same-sex marriage by popular vote.)
The lack of consistency among the states created a complicated patchwork of laws that, in practice, led to some fairly strange outcomes. For example, this time last year, a gay couple married in Illinois – which legalized same-sex marriage in June of 2014 – could drive to nearby Indiana and no longer have their marriage legally recognized.
But then on June 26, the debate over same-sex marriage took a turn when the U.S. Supreme Court issued its decision in the now famous case Obergefell v. Hodges, with the Court holding that the 14th Amendment requires all states to license marriages between two people of the same sex and for all states to recognize such marriages should they occur in a different state. The great debate over the rights of same-sex couples was, effectively, over.
Or was it?
Are There Issues with Same-Sex Divorce?
Before the watershed decision in Obergefell v. Hodges, most same-sex couples could only file for divorce if their state recognized same-sex marriage. In fact, on multiple occasions, gay couples who were legally married in one state attempted to divorce in a different state that did not recognize same-sex marriage. (There have been high-profile cases in Texas as well as one in Florida regarding this issue.)
These cases were seen as tests of the bans on same-sex marriage that were in place at the time, with the logic being that if a court recognized same-sex divorce then it might be an acknowledgement that it would honor same-sex marriages. But once the Supreme Court made same-sex marriage the law of the land, same-sex divorce seemed like a moot issue.
What Are the Divorce Laws in Maryland?
However, just because the issue of same-sex marriage was settled doesn't mean that all issues related to same-sex marriage had been settled. While it was clear that Maryland gay couples could legally file for divorce, the question of what type of divorce they could file for was still up for debate. That’s because Maryland – like some other states – distinguishes between fault and no-fault divorces
Under Maryland family law, a no-fault divorce is one in which the couple has been living apart for at least a year. This type of divorce is used when neither spouse alleges anything occurred that would constitute legal grounds for a divorce. If there are legal grounds for a divorce, then it is considered a fault divorce. This type of divorce does not require the one-year waiting period, but it does demand that the petitioner cite and prove one of a handful of legally recognized grounds for a divorce. These grounds include:
- Certain criminal convictions
- Excessively vicious conduct
While most of the grounds listed are neutral when it comes to the sex of the parties involved, the last one – adultery – raises an interesting issue: What exactly is adultery, as defined by the state of Maryland, when it comes to a married couple who are of the same sex?
Can Same-Sex Couples Allege Adultery in Maryland?
Prior to Attorney General Frosh’s opinion, the question of whether same-sex couples could cite adultery as reason for a divorce was left to assumption. People could presume that, because same-sex marriage is now the law of the land, all aspects of family law involving same-sex marriage would automatically conform to the new standard. However, there was still a justified concern among same-sex partners that, should they wish to allege adultery as a grounds for divorce, their requests could be denied by a court or effectively called into question by an opposing party.
In his opinion, Attorney General Frosh details the history of adultery as a legal concept. Even in its earliest incarnations under England’s ecclesiastical courts, which oversaw divorce and alimony proceedings, the law defined adultery quite broadly. As Frosh wrote in his opinion: “The ecclesiastical courts defined adultery to include sexual intercourse between any married person—not just a woman—and ‘someone other than his or her spouse.’” That said, in practice, the law typically referred to extramarital activity involving someone of the opposite sex.
In Maryland, appellate courts had yet to decide on whether same-sex activity constitutes adultery. However, as Attorney General Frosh highlights, there was a single occurrence in 1997 in which a Maryland court addressed the issue, and in that instance, it held that extramarital same-sex conduct constituted adultery for the purposes of divorce.
Referencing the opinion in the 1997 case, Attorney General Frosh concluded that extramarital affairs involving individuals of the same-sex constitute adultery because the affect it has on the spousal relationship can be identical to an affair between opposite sex individuals. Or, as the court in the 1997 case stated, a same-sex affair “damages the foundation of the marriage” in the same way as do all extramarital affairs.
Benefits to Same- and Opposite-Sex Couples
Attorney General Frosh’s opinion clears up any confusion individuals or the courts might have regarding adultery among those in same-sex relationships. What this means going forward is that married same-sex couples who are residents of Maryland can cite adultery as a grounds for divorce. If such accusations are proven, it could have important implications for the divorcing parties and their dependents.
However, the opinion does not only benefit same-sex couples. Opposite-sex couples also stand to benefit from this opinion, as it clarifies that same-sex extramarital affairs – even those that occur within oppose-sex marriages – constitute adultery. This means that opposite-sex couples can also successfully cite adultery as a grounds for divorce even if the marital infraction is between individuals of the same sex.