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Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1507
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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Can adultery during marriage affect alimony and/or ...

Resolved Question:

Can adultery during marriage affect alimony and/or custody issues in MD?
Submitted: 6 years ago.
Category: Family Law
Expert:  Mike replied 6 years ago.
Spousal Support: Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.

The court shall determine the amount of and the period for an award of alimony. The court may award alimony for a period beginning from the filing of the pleading that requests alimony. At the conclusion of the period of the award of alimony, no further alimony shall accrue. In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including: (1) the ability of the party seeking alimony to be wholly or partly self-supporting; (2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment; (3) the standard of living that the parties established during their marriage; (4) the duration of the marriage; (5) the contributions, monetary and nonmonetary, of each party to the well-being of the family; (6) the circumstances that contributed to the estrangement of the parties; (7) the age of each party; (8) the physical and mental condition of each party; (9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony; (10) any agreement between the parties; (11) the financial needs and financial resources of each party, including: (12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health - General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.

The court may award alimony for an indefinite period, if the court finds that: (1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate. (Maryland Code - Family Law Chapter - Section: 11-106)
Customer: replied 6 years ago.
Reply to Mike's Post: But what about the effect that adultery during the marriage would have on deciding child custody arrangements?
Customer: replied 6 years ago.
And in MD, are you permitted to date other people during the mandatory one year separation period?
Expert:  Lawrence D. Gorin replied 6 years ago.
YOUR SPECIFIC QUESTION:
The specific question you asked, which has not been directly answered, is: What about the effect that adultery during the marriage would have on deciding child custody arrangements?

Let me try to provide an specific answer to your specific question (which I suspect is really what you are seeking).

ANSWER FROM ANOTHER EXPERT:
Adultery committed during the marriage, BY ITSELF, will not be a determinative factor in deciding the issue of child custody incident to the dissolution of marriage. HOWEVER, adultery MAY become a relevant factor for a judge to consider if the facts and circumstances of the adulterous conduct directly involved or otherwise directly and adversely impacted the safety, security or welfare of the child. (For example, adulterous sexual intercourse with the paramour while the child is watching; or leaving the child unattended and uncared-for while the adulering parent is out getting drunk with his/her lover.)

In other words, as a general rule, the conduct or life style of a parent during the marriage is relevant only if it is shown that it has caused or may cause emotional or physical damage to the child.

Maryland law lists several factors that a just must consider when awarding custody of children, there being no specific weight or priority assigned any particular factor. And note that “adultery” is not one of the listed factors. The facts and circumstances of each particular case will be determinative.

When considering custody in Maryland, the court must consider all the factors necessary to determine what would be in the best interest of the child, including, but not limited to the following (these factors are not intended to be all-inclusive, but merely to act as a guide for the judge):

(1) The fitness of the parents;
(2) The character and reputation of the parties;
(3) The desire of the natural parents and any agreements between them;
(4) The potential for maintaining natural family relations;
(5) The preference of the child, when the child is of sufficient age and capacity to form a rational judgment;
(6) Material opportunities affecting the future life of the child;
(7) The age, health, and sex of the child;
(8) The residences of the parents and the opportunity for visitation;
(9) The length of the separation of the parents;
(10) Whether there was a prior voluntary abandonment or surrender of custody of the child

When deciding whether to award Joint Custody, Maryland courts must consider the following factors:
(1) Capacity of the parents to communicate and to reach shared decisions affecting the child's welfare;
(2) Willingness of parents to share custody;
(3) Fitness of parents;
(4) Relationship established between the child and each parent;
(5) Preference of the child;
(6) Potential disruption of child's social and school life;
(7) Geographic proximity of parental homes;
(8) Demands of parental employment;
(9) Age and number of children;
(10) Sincerity of parent's request;
(11) Financial status of parents;
(12) Impact on State or Federal Assistance;
(13) Benefit to parents

Maryland appellate court opinions suggest that "there is no such thing as a simple custody case," and that "custody cases are like fingerprints because no two are exactly the same."

There is no litmus test that provides a quick and easy answer to custody matters. Ultimately, the guiding star principle is the "best interest of the child." Ascertaining what is in “the best interest of the child" involves a multitude of intangible factors that can be ambiguous and that generally varying from case-to-case.

Finally, under Maryland law, there are six (6) grounds on which the court can grant an absolute divorce:
* adultery;
* desertion (constructive and actual);
* voluntary separation;
* criminal conviction of a felony or misdemeanor;
* two-year separation;
* insanity

If the basis for the divorce is a claim of adultery, the action for absolute divorce may be brought at any time. In a claim of desertion, there is a waiting period of one year after the event of desertion an action for absolute divorce can be filed. For a voluntary separation, you must have been voluntarily separated for at least 12 months without cohabitation (without a single night under the same roof and without any sexual intercourse) before you can file for absolute divorce. If your spouse has been convicted of a felony or misdemeanor with a sentence of at least three years or an unspecified sentence in a penal institution, and has served 12 months of that sentence, you can then file for absolute divorce. In a two-year separation, before filing for absolute divorce, you and your spouse must have lived separate and apart, without cohabitation for two years without interruption. Finally, if the ground for the divorce is a claim of insanity and your spouse has been confined to a mental institute, hospital or other similar institution for at least three years, you can then file for an absolute divorce, provided you have met the residency required for this particular ground.

So, if your situation is one that does not allow for immediate filing but instead requires you to wait for one year, YES, you can date date other people during that period of time.

OK.... I hope that you specific questions have now been satisfactorily answer. And I wish you well.

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Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1507
Experience: 30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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