You can Sext if You Want To (And Still Get Divorced!)

This week, the Maryland Court of Special Appeals reversed and remanded a trial court’s decision denying a Husband’s request for a divorce from his Wife on the grounds that the parties had cohabited and had not been separated for the statutory period of 12 months prior to filing for divorce.

The main issue on appeal: whether the court erred when it found that phone sex was a form of cohabitation within the scope of the divorce statute.

Husband and Wife physically separated in March 2011 and did not resume any physical relations with each other after that time.  Husband filed his action for divorce in March 2012.  Wife filed a Motion to Dismiss his Complaint on the grounds that the parties had cohabited since March 2011 by virtue of engaging in telephonic communications of a sexually explicit nature (both telephone calls and text messages).  Husband conceded that the parties had engaged in phone sex as recently as January 2012, but denied that they had had any physical sexual interactions.

Based on Husband’s concession, the trial court found that the parties had not been living separate and apart, without cohabitation or interruption, for twelve months prior to the filing of the divorce.

Pursuant to the applicable Maryland statute, a court may grant an absolute divorce “when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.”   A court may also grant a divorce before the 12 months have expired if a party is able to prove “fault” grounds such as: adultery, desertion, cruelty of treatment and excessively vicious conduct.

On appeal, the Court of Special Appeals held that the circuit court erred in determining that phone sex or sexual language in text messages constituted cohabitation that precluded the grant of an absolute divorce.  In reaching that conclusion, the Court looked to courts in other states who have indicated that extensive telephone conversations are not sufficient evidence to constitute adultery in the divorce context.

In the decision, the Court makes clear that sexually explicit telephonic communications, without more, are not sufficient to prove cohabitation within the 12 month period immediately preceding the filing of divorce.  However, the Court’s reliance on other state opinions finding that sexually explicit telephone contact is not sufficient to establish adultery grounds leaves open the question of whether phone sex, without physical intimacy, will be sufficient to prove adultery for fault-based divorce moving forward in Maryland.