Discovering & Dealing with Adultery in VA, MD, and DC

It was my pleasure to be a featured speaker at the D.C. Bar Association’s panel discussion titled “Discovering  & Dealing with Adultery in VA, MD, and D.C.”  Along with another attorney, Regina DeMeo, a private investigator, Ken D’Angelo, and mental health counselor, Robin Tucker, together we shared our collective thoughts with fellow attorneys from the D.C. Metro Area.  My role was to compare how adultery impacts divorces in Virginia, Maryland, and D.C. and provide other lawyers with tips on effectively presenting an adultery case at trial.  Below I have posted my speaker outline.  I hope you find these notes helpful.

Can you explain differences between VA, MD, and DC re: adultery?

Adultery Overview:

Virginia: “Garden-variety Adultery or Something More?”

1. Adultery; sodomy or buggery committed outside marriage would be grounds for divorce. VA Code §20-91(1).
   1. Adultery is sexual intercourse with another person who is not your spouse.
      1. Currently only male/female intercourse is recognized as adultery.
   2. Sodomy is oral or anal sex with a person of the same sex, the opposite sex, or an animal (outside of marriage).
   3. Buggery is bestiality.
2. Adultery is relevant to Equitable Distribution of Property:
   1. Negative non-monetary contribution to the well-being of the family. VA Code §20-107.3(E)(1)
   2. Circumstance which contributed to dissolution of the marriage. VA Code §20-107.3(E)(5)
      1. Explains the discounted consideration for post-separation adultery.
   3. Such other factors. VA Code §20-107.3(E)(11)
3. Adultery can be highly relevant to Spousal Support and not terribly relevant to Child Support. Most importantly, adultery is a bar to Spousal Support absent “Manifest Injustice.” VA Code 20-107.1(B)
   1. Negative non-monetary contribution. VA Code §20-107.1(E)(6)
   2. Circumstances which contributed to dissolution of the marriage. VA Code §20-107.1(E)(6)
4. Defenses to Adultery Claim
   1. Condonation & Cohabitation, Hollis, 427 S.E.2d 233;
   2. Connivance/Procurement Hollis;
   3. Recrimination, Davis, 277 S.E.2d 640
5. Adultery is a crime in Virginia. VA Code §18.2-365
   1. Five year statute of limitations.

Maryland:

1. Adultery is a ground for divorce. Md. Fam. Law Code §7-103(a)(1)
2. Adultery is sexual intercourse with someone other than your spouse during your marriage that is neither forgiven nor condoned.  Sexual intercourse typically requires some penetration of the female sexual organ by the male sexual organ, although completion of the sexual act is not required.
   1. Currently only male/female intercourse is recognized as adultery.
3. Adultery is relevant to Division of Property.
   1. Non-monetary contributions to the well-being of the family. Md. Fam. Law Code §8-205(b)(1)
   2. Circumstances that contributed to the estrangement of the family Md. Fam. Law Code §8-205(b)(4)
   3. Other factors appropriate to consider in order to arrive at a fair and equitable monetary award. Md. Fam. Law Code §8-205(b)(11)
4. Adultery is Relevant to Spousal Support:
   1. Non-monetary contributions to the well-being of the family Md. Fam. Law Code §11-106(b)(5)
   2. Circumstances that contributed to the estrangement of the parties. Md. Fam. Law Code §11-106(b)(6):
      1. Roginsky v. Blake-Roginsky, 129 Md. App. 132 (1999): “Court must consider all factors plus those not expressly listed.”
   3. Recrimination is not a bar, but is a factor. Besche, 121 A.2d 708.
   4. Adultery is still a crime in Maryland. MD Crim. Law. §10-501.
      1. Not often prosecuted likely not a crime for much longer.
         1. Per WTOP: 3 people were charged with adultery last year, Public Defender handed 5 adultery charges in last 8 years.

District of Columbia:

1. Adultery is not a ground for divorce or a crime (formerly DC Code §22-201 for criminal)
   1. Adultery is recognized as where a legally married spouse has a sexual relationship with someone other than his/her lawful spouse.
   2. Former criminal statute was interesting. If married woman and unmarried man, both guilty. If married man and unmarried woman, only man guilty.
2. Adulterous Conduct could be relevant to Property Division as the Court distributes property in a manner that “is equitable, just and reasonable.”
   1. Circumstances that contributed to the estrangement of the marriage. DC Code §16-910(b)(c)
3. Adulterous Conduct could be relevant to Spousal Support
   1. Circumstances that contributed to the dissolution of the estrangement of the parties. DC Code §16-913(5):

Generally Not Relevant to Custody and Visitation in any Jurisdiction

1. Adultery must impact children
   1. Children observing adulterous acts;
   2. Children being neglected due to relationship obligations;
   3. Children being confused about paramour’s “parenting role;” and
   4. Children being negatively impacted by depressed or angry parent.

When a client comes to you suspecting adultery, what evidence do you want supporting that?

1. I want to understand what the client knows as opposed to what the client suspects:
   1. Name, location, and marital status of paramour;
   2. Documents: typically emails, text messages, handwritten notes/journal entries, etc.;
   3. Photographs: typically cell phone photos, social media posts, or private investigator’s photos;
      1. Caution about social media spoliation;
   4. Financial account statements such as credit card and checking account statements reflecting suspicious purchases and/or party location;
   5. Phone records reflecting suspicious calling patterns and text activities;
   6. Electronic location data; and
   7. Potential Witnesses: typically paramour, paramour’s spouse, direct witnesses, mutual friends, family members, etc.

What is the benefit of having you retain the private investigator vs. the client?

1. Keep client focused on matters that matter.
2. Attorney gets to deploy investigator in meaningful way (and control costs).
3. In most jurisdictions, if the investigator is retained by the attorney, the investigator’s work product could be privileged and treated as attorney work-product
   1. Must be clear that investigator is working at the direction of the attorney and that materials are being prepared in anticipation of litigation.
   2. This privilege will ultimately be waived (you can’t keep secret what you’re relying on).

What if you have the person who committed adultery, how much detail do you really want to know?

1. Generally, I want to know quite a bit so I can assess the likelihood the grounds can be proven and the client’s exposure.

1. 1. Did they have actual sex? Where?
   2. Is the relationship on-going? How long has it been on-going?
   3. What are the client’s intentions with the paramour?
   4. Is the paramour local, married, and/or cooperative?
   5. Has there been an admission (written or oral) of adultery? If so, need to know exactly what was written or said.
   6. Was a record made of the encounter by video or photograph?
   7. How much money was spent on the paramour and what was the method of payment?

How would filing for divorce on the basis of adultery impact military personnel or those with security clearance?

1. Varies based on Agency (and Individual Security Officer);

1. 1. The Adjudicative Guidelines for Determining Eligibility for Access to Classified Information include Guideline D, which lists disqualification for “sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress” and Guideline E, which cites “personal conduct or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress.” It also includes Guideline B relating to Foreign Influence if the affair involves a foreign national.
   2. May damage career trajectory and/or industry reputation. This issues seems to get raised in D.C. quite a bit

2. Generally disclosure is best, because it is not typically the affair that causes problems, but the cover-up and deception.

How would your negotiation/litigation tactics change based on jurisdiction, level of evidence, etc.?

1. Tactics change based upon what I can (and cannot) accomplish by proving adultery.
2. Tactics change based upon the client’s goals.
   1. Effectively managing the emotional dynamics created by adultery cases
      1. Is the client angry and wanting to be punitive?
      2. Are we being punitive with purpose (“Is the juice worth the squeeze”)?
      3. Impact on credibility.
   2. Is the client sad and feeling victimized?
      1. Are we seeking respectful recognition and consideration?
   3. Discretion for all parties
   4. Quantifiability of adultery
      1. Rule of Thumb: close calls more likely to go to the innocent party.

As an attorney, how do you talk to clients that are angry? How do you address those that are clearly depressed?

1. I prefer angry clients.
   1. Refocus energy into identifying reasonable goals and executing on a plan to achieve those goals.
   2. Often the best “payback” is succeeding post-divorce and moving on.
   3. Client gives input, but does not set the strategy; attorney can’t merely be the client’s messenger.

2. Depressed clients need perspective.
   1. Clients have a right to be sad during divorce. It’s traumatic and people respond to trauma in different ways.
   2. Assess support structure and day-to-day activity levels.
      1. Mental health counseling.  I am a strategist and counselor.

Regarding witnesses: Have you ever subpoenaed the paramour? [Yes.] How often have you had the private investigator testify? [Many times]. What about therapist? [Not often as to adultery. Must connect mental state to adultery.]

1. Issuing a subpoena to the paramour can be particularly effective.
2. As to counselor:
   1.  Virginia
      1. VA Code 20-107.1.(E)(4): Physician-patient privilege, but Court can order release medical records where spousal support is an issue
   2.  Maryland
      1. Privilege for licensed psychologists, psychiatrists, professional counselors, but party cannot assert privilege if “mental state” at issue. Ct. & Jed. Proc. §9-109.
   3.  DC
      1. Code §14-307: Medical Privilege covers licenses psychologists, social workers and marriage counselors