Is Virtual Infidelity a Ground for Divorce in Maryland?

Many potential and current clients ask JC Law if their ex's virtual infidelity — the act of seeking or acting on romantic intentions with someone other than the established partner, specifically over the internet or using an online device — can be a legal reason, or “grounds,” for divorce.

The short answer is yes, you may be able to seek divorce if your spouse cheats online — with some caveats.

How Online Activity and Virtual Infidelity Can Justify a Maryland Divorce

Though married people can file for a divorce without including a particular cause, which is called a no-fault divorce, virtual infidelity could qualify as grounds for an at-fault divorce.

  • A no-fault divorce is one in which neither party is considered legally responsible for the end of the marriage.
  • An at-fault divorce, however, places blame on one of the individuals. There are several reasons someone can use to file for an at-fault divorce, such as abandonment, abuse, mental incapacity, or adultery.

Though virtual infidelity may not involve the legal act of adultery – which is sexual intercourse involving a married person with someone not in the marriage – it can still be used to create a case for an at-fault divorce based on adultery.

How to Prove Virtual Infidelity During an At-Fault Divorce

Because adultery in the legal sense does not usually have any first-hand witnesses, the legal standard is to prove that the accused party had both the disposition and opportunity to have had sexual intercourse with someone other than their spouse.

That is, the accusing party would only need to prove that the other party had the desire to cheat, as well as the chance to do so.

If someone is cheating online, then it may be easier to prove the disposition during an at-fault divorce case. The communications in question – whether emails, text messages or photos – are often digitally archived.

On the other hand, those who don't wish to be discovered may erase their digital footprints quickly, if they believe their partners suspect something is wrong.

Proving opportunity can be more difficult. Traditional adultery matters can use recorded photographs and other evidence of someone going to another person’s home at night and leaving in the morning. Demonstrating opportunity for virtual infidelity is often less concrete, but the evidence available varies from case to case.

What You Can Do If You Catch Your Spouse in Virtual Infidelity

If you find yourself considering a divorce after a spouse has cheated online and unable to reconcile, then remember that you do have legal options for splitting up.

Remember, Maryland has two different types of divorces: At-fault and no-fault. You may pursue either type of divorce from a cheating spouse, but both have their advantages and disadvantages.

Option A: Pursuing an At-Fault Divorce for Virtual Infidelity

If you choose to seek an at-fault divorce on grounds of adultery – that is, virtual infidelity – then you and your divorce lawyer must prove the adultery in family court before a judge. 

On the pro side, those seeking an at-fault divorce can often request a more advantageous division of assets than those pursuing a no-fault divorce. (After all, there would be no divorce if the other party hadn't broken their vows.)

These advantages can include a greater portion of the marital money or property, a preferential custody or visitation schedule, or a better alimony agreement. You may even justify getting reimbursed for marital resources spent during the online affair for app memberships, travel expenses, hotel rooms, etc.

On the con side, proving anything in court can take a long time. Spending more time in court proving the other party cheated will probably cost more money up-front than a no-fault divorce, even if the court rules more in your favor for the actual divorce decree. 

Of course, for that reimbursement to happen, your divorce lawyer must be able to convince the judge that legal adultery through online means occurred, which is not always guaranteed.

Option B: Pursuing a No-Fault Divorce After Virtual Infidelity

A no-fault divorce is filed when neither party blames or accepts responsibility for the dissolution of the marriage. These divorces still require grounds to be filed, but the infidelity would not be considered in court.

Positively, that means no evidence would need to be presented to prove the adultery occurred. That often speeds up a divorce trial, which saves you money up-front in attorney's fees. You might avoid court altogether, if you and your ex can get to the mediation table.

However, by pursuing a no-fault divorce, the division of marital assets will be as "fair" as possible. Your ex will not be "punished" for their infidelity by Maryland courts. Their previous actions may not be able to be presented as evidence for a more beneficial divorce decree.

If you're still not sure what you should do after catching your ex in virtual infidelity, talk to a Maryland divorce lawyer like the ones at JC Law. We offer free initial consultations so you can consider the advantages and disadvantages of each form of divorce, as well as get a measure of how we might approach your case, what you should expect, and how much it may cost.

With so many factors to consider – from child custody goals to your financial status after the divorce – a personal conversation with an attorney is by far the best way to start your separation.

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