By: Susan M. Wyckoff, Esquire
You are meeting with your divorce attorney who has answered your questions about adultery. You have discussed the legal definition of adultery, that adultery is one of the grounds for divorce in Maryland and whether you and/or your spouse have committed/condoned the same. You also discussed the fact that adultery is a misdemeanor in Maryland, which leads to a discussion of the grounds rules of asserting your privilege not to incriminate yourself. Armed with the law, at the end of the conversation, you sheepishly ask that awkward question. “When can I date?” Your attorney may want to say “when you are divorced.” Not satisfied with your attorney’s answer, you rephrase your question. “What I really want to know is, if my soon-to-be ex finds out that I’m dating during the separation/divorce process, will it negatively impact my case?”
As to how having sexual relations with someone other than your spouse will affect your divorce is fact driven. It should be evaluated by your attorney after they have had the opportunity to ask you detailed questions. Some issues that it might affect are alimony, custody, monetary award, and counsel fees. However, there are several other issues that arise when dating while married that merit discussion.
Know that if your case goes to litigation, you more than likely will be asked the following question either in the form of what is called an Interrogatory, during a deposition or at trial:
State whether you have had sexual relations with anyone other than your spouse at any time during your marriage and, if your answer is in the affirmative, identify each person with whom you have had sexual relations, and the date and place of each such act of sexual relations.
You can see where a reasonable person would consider this question to be highly invasive and to answer it, particularly knowing other people may read/hear your answer, is embarrassing, harassing, and humiliating. However, the above question is standard in a family law case involving divorce. Very little, if anything can be done about past behavior, but when you are going through divorce and your life is under the proverbial microscope, it does give you pause to stop and think about how your actions will be viewed in the public eye of the litigation process.
You may be asked to produce your calendar, e-mails, texts, diary, photographs, social media sites, bank statements, cancelled checks, credit card statements, and numerous financial documents, as well as contracts or receipts reflecting trips that may provide details of your spending marital funds on a romantic partner. Members of your family, friends, and/or co-workers with knowledge of your dating and romantic relationship may be deposed and/or be called to testify at trial.
Your spouse may hire a private investigator to conduct surveillance on you and/or your paramour. Private investigators have been known to photograph and/or film parties having sexual relations with someone other than their spouse in public area, cars, etc. Private Investigators may then be called into Court to testify as to what they witnessed first-hand, along with presenting any photographs or videos to the Court.
One final thought when considering whether to begin dating while going through a divorce, is that the individual with whom you may have a very innocent dinner date may end up being dragged into your divorce litigation. That is not exactly the best beginning to a new romance, in my opinion.
 For purposes of this Interrogatory, “sexual relations” includes sexual intercourse, “sexual act” or “sexual contact” as defined in Maryland Criminal Law article §3-301.