Maryland and Adultery and Division of Assets

 Posted on January 27, 2025 in Uncategorized

One of the questions I get asked most often is whether a spouse whose significant other "cheated" on them can benefit financially from that spouse’s behavior.  The answer is, "It’s possible."

On October 1, 2023, Maryland became a no-fault divorce State. As such, adultery has been eliminated as a ground for seeking a divorce. In other words, Maryland changed to a "no fault" divorce State, which is in line with most other States.  Divorce can be requested and granted for the following reasons/grounds:

• Irreconcilable differences

• The couple has lived apart for at least six months or

• The couple seeks a divorce by mutual consent

Can Adultery Affect the Outcome of a Divorce? 

Even though adultery is no longer a reason/ground for divorce, adultery can — and will — still be a valid consideration in Maryland divorce proceedings. This is because Maryland divorce courts are still required to take into account the "reasons for the estrangement" of the couple when making decisions about alimony and division of property. That’s what "sitting as a Court of Equity" literally means.   

In a recent case decision by the Maryland Supreme Court, Lloyd v. Niceta, Case No. 33 (Md. Supreme Court, Sept. Term, August 30, 2023), the case involved what is called a postnuptial agreement. The couple had been married for several years, and the wife caught the husband engaging in adulterous behavior. The wife wanted to file for divorce, but the husband begged her not to and promised to cease his philandering ways. The couple agreed to remain married, but the wife demanded that they sign a postnuptial agreement. In the agreement, the husband agreed to pay her $7 million as part of the divorce property settlement if he ever cheated on her again.

As it so happens, he did commit adultery again. The wife then filed for divorce, and the lower Maryland divorce court and the Court of Appeals enforced the postnuptial agreement. The wife was awarded the "normal" division of marital property and also the $7 million lump sum penalty for his adulterous behavior.

The Maryland Supreme Court affirmed the lower courts. Niceta was entitled to the $7 million penalty. Importantly, the Maryland Supreme Court held that Maryland public policy justified this ruling. Second — and most importantly — the Supreme Court noted that Maryland still permits divorce courts to consider adultery in making decisions about property distributions and alimony in a divorce proceeding. From this, the Supreme Court noted that these statutes establish that Maryland’s public policy still disfavors adultery. Thus, couples were still free to make agreements related to adultery and divorce, and Maryland’s divorce courts were still able to consider adultery in making divorce-related decisions. The Maryland Supreme Court indicated that its decision was a "narrow" decision that allowed a couple to make agreements about allocating "marital assets in the event of divorce based on adultery." The court said that spouses may not "… impose on each other monetary penalties unrelated to marital assets or unrelated to the division of such assets during a divorce …"

The bottom line is this: while you can’t file for divorce based on adultery, the Court absolutely CAN consider adultery as it decides the distribution of marital assets.  I continue to advocate for clients to attend mediation: it is far less expensive than Court, it’s less emotionally-draining, and frankly the Court doesn’t really care who people are sleeping with. But, to answer the question: Yes, the Court can account for adultery in deciding a marital distribution of property.

Call a Montgomery County, MD Divorce Lawyer Today

If your marriage is ending because one partner "cheated" and you are wondering how this might impact the outcome of your divorce, call Diamant Gerstein, LLC today at 301-560-2685 to schedule a consultation with our Bethesda, MD asset division attorney.