Does Phone Sex Count as Cohabitation in Maryland Divorce Cases?

pink-telephone-1353144-mIn an interesting recent case, a Maryland wife opposed her husband’s request for divorce based on a 12-month separation. The basis for her opposition was that she had continued to have phone sex with the husband while they were separated. Under Section 7-103(a)(4) of the Family Law Article, a Maryland court can grant an absolute divorce to couples who were separated for 12 months if they lived separate and apart, not cohabiting for 12 months without interruption before they apply for divorce.

The couple had married in 2006 and then separated in 2010. The husband moved out because the wife had gotten a protective order against him. He filed a complaint for limited divorce, claiming voluntary separation and constructive desertion. When the protective order expired, the parties continued to maintain separate residences. Although divorce proceedings were pending, the couple started a sexual relationship. During the proceedings, the husband testified that the last time he had sex with the wife was in 2011 and after that he had not once spent the night with her.

Even so, the husband admitted he and the wife kept communicating through telephone conversations and text messages. Sometimes the conversations and text messages were explicit or sexually provocative, and the husband admitted the last time he did so was in 2012. He said the wife had come to his house unexpectedly on six occasions, but he didn’t allow her inside. The husband amended his complaint seeking absolute divorce on grounds of a 12-month separation.

Because the wife asserted they had cohabited and had sex, the court heard testimony on the issue of whether the husband could establish grounds for absolute divorce. The husband was the only witness to testify about whether the couple had truly not lived together. The court ruled against the husband after his testimony because the husband admitted to having phone sex with his wife. It found that the requisite time frame of 12 months without cohabitation and sexual relations had not been met.

The husband appealed, asking the appellate court to review whether the Circuit Court had erred in denying the complaint for divorce when the parties had met the statutory requirements for a divorce. The appellate court agreed with the husband’s claim that the court had made a mistake in concluding the parties’ phone sex counted as cohabitation.

The appellate court explained that “separate and apart” means the parties cannot live under the same roof together during the requisite period. This is a requirement even if the parties have stopped having sex. The parties must also refrain from sexual relations during that period with the intention of establishing grounds for divorce. The court further explained that cohabitation means more than having sexual relations. It means living together as man and wife and entails the mutual assumption of the duties and obligations connected with marriage.

The husband’s attorney had pointed out that including phone sex in the definition of cohabitation would create complications in future divorce proceedings. He also noted that there were times when people engaged in actions falling short of sex that involved physical touching. The wife argued the text messages would show they actually engaged in sex. The appellate court concluded, however, that occasional electronic communication talking about sex but involving no physical sexual contact could not be construed as cohabitation. It reversed.

As you can see, divorce cases can involve sensitive and difficult issues. Contact an experienced Maryland family law attorney for representation and legal guidance.

More Blogs:

Corporal Punishment in Maryland Family Law, Maryland Divorce Lawyer Blog, January 26, 2013

Untimely Objections in Maryland Family Law, Maryland Divorce Lawyer Blog, January 10, 2013

 

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