For even the most amicable of ex-spouses-to-be, undoing “I do” is undoubtedly an emotionally complex process. But when a spouse cheats, walks out, or is cruel, you’re left holding a bag of feelings that are even more complex. People in situations like these often feel a mix of shock, anger, and grief.

Now that Maryland has eliminated fault-based divorce, you may be wondering if the fact that your spouse broke your marriage vows even matters. The truth is that, while their (bad) behavior may fall under the bigger umbrella of irreconcilable differences, their specific conduct can still play a role in the nuts and bolts of the divorce. Issues that will need to be resolved as part of the divorce, such as finances, property, and even custody of minor children, can sometimes be affected by their decision to act poorly.

It is worth noting, too, that when your spouse commits infidelity, abandons the marriage, or is otherwise unkind, it can feel like that defines your whole marriage. And these feelings are completely understandable. But there is power in not letting immediate emotions drive decisions that carry long-term impact, especially at the negotiation table or in litigation strategy.

Knowledge is power, too.

With all of this in mind, let’s take a look at what changed in divorce laws in Maryland in 2023. And then, let’s look beyond the change to where fault still matters today, including a recent Maryland Supreme Court case where the court recognized the consequences of spousal misconduct, even after the law had changed.

Key Takeaways

• A new law that went into effect on October 1, 2023 repealed the prior law that allowed for fault-based divorces in Maryland.
• Under the new law, a divorce is available to parties under three scenarios: 6 month separation, irreconcilable differences, or mutual consent with a written and signed settlement agreement resolving all issues.
• Fault still matters when deciding specific issues, such as alimony, property allocation, and sometimes the custody and care of minor children.
• In Lloyd v. Niceta, Maryland's Supreme Court upheld a $7 million penalty clause for adultery in a postnuptial agreement, confirming that spouses can enforce financial consequences for fault-type conduct leading to divorce through their own contracts.
• Fault-type behavior can also surface outside the divorce grounds analysis entirely, in custody decisions, settlement negotiations, and mediation, depending on the facts of the case.

What Changed When Maryland Eliminated Fault Grounds

On October 1, 2023, changes to existing Maryland law affecting divorce went into effect. The law, passed by the Maryland General Assembly as Senate Bill 36, repealed provisions that allowed for divorce on fault-based grounds. Before this change, these grounds included adultery, desertion, criminal convictions that resulted in incarceration, insanity, and cruelty towards a spouse and/or a minor child or children. The new law also completely eliminated limited divorce.

The Maryland General Assembly’s intent in passing the new law was two-fold. One was an effort to reduce conflict and costs by removing the requirement to prove fault to end a marriage. The other was to bring Maryland into line with the laws of other states, as the vast majority had already transitioned to no-fault divorce frameworks.

For absolute divorces (now the only type of divorce allowed in Maryland), the State now recognizes just three grounds.

Senate Bill 36 was signed into law and modified MD Family Law Code § 7-103. The new law allows divorce if the parties have been separated for six months or have irreconcilable differences. The third ground is mutual consent between the parties, provided there is also agreement on the terms of the divorce.

These terms include alimony, property distribution, and the care, custody, access, and support of minor or dependent children. So long as the parties agree on all relevant issues in their divorce, follow the proper process, and the presiding judge finds that any agreement regarding minor children is in the best interest of the children, a divorce should be granted.

Where Fault Still Counts: Alimony and Property Division

The elimination of the fault-based grounds for divorce doesn’t automatically mean that fault will no longer be considered in divorce cases. Fault must still be considered by a court evaluating a request for alimony or when determining property division. For example, in a case where a spouse committed adultery, that spouse’s conduct is still relevant to a court’s consideration of a request for alimony or an award of property.

Still, the consideration of fault isn’t a guarantee that you will receive a divorce decree that is dramatically different than if your divorce is based on, say, irreconcilable differences. But it does mean that judges will at least take the at-fault spouse's actions into account when money is at stake.

The Lloyd v. Niceta Case: Fault Has Real Teeth in Contracts, Too

A recently decided Maryland Supreme Court case shows the impact fault had in one couple’s divorce. In Lloyd v. Niceta, Anna Niceta discovered that her husband, Thomas L. Lloyd, engaged in an adulterous relationship during their marriage. To rebuild trust in their marriage and avoid divorce, Lloyd agreed to a postnuptial agreement that would penalize him should he ever be unfaithful again.

The Agreement contained a provision that said Lloyd would pay Niceta a lump sum of $7 million from his share of the marital assets if he ever engaged in adultery again.

After the parties consented to the Agreement, Lloyd committed adultery again, and the parties finally ended their marriage. When Niceta sought to enforce the postnuptial agreement, Lloyd argued that it was an unenforceable penalty. But the Court disagreed.

Instead, the Court held that Maryland public policy supports allowing spouses to set their own financial consequences for conduct such as infidelity in a properly negotiated agreement. So, even as the legislature moved divorce itself toward no-fault, Maryland courts (including its highest court) continue to consider spousal misconduct that can carry financial consequences, whether through a private agreement or a judge's discretion.

Custody, Negotiations, and Other Places Fault Can Still Surface

Marital fault can also still surface when it comes to custody determinations. Judges will look at how the at-fault spouse’s conduct affected minor children in the married family. Conduct that affects a child’s safety, stability, or well-being still matters in a custody case.

Specifically, in a divorce where custody is at issue, Maryland courts can consider issues such as:

• Domestic violence
• Substance abuse or mental health issues
• Neglect
• Threatening behavior
• One parent’s choice to involve children in marital and/or divorce conflict

This isn’t to make a judgment on which parent was a better spouse or is to blame for the marriage’s end. Instead, courts consider the parent’s conduct through the lens of how it has or could impact the best interests of the child, and then use that information to determine a custody and parenting arrangement to best serve the child going forward.

Fault Can Also Shape How Divorce Negotiations Proceed

An affair, abusive behavior, or other misconduct can undoubtedly change the way both parties approach settlement. What matters in settlement discussions is not always the same as what a judge could ultimately order in court.

Some common questions that change when a spouse has acted badly include:

• Who is most willing to compromise?
• What issues become sticking points for each party?
• Would the at-fault spouse rather agree to a settlement during mediation to avoid having their conduct discussed in court?

But remember, misconduct does not automatically give one spouse more overall leverage during a divorce.

What This Means If You're Considering Divorce After a Betrayal or Mistreatment

The repeal of at-fault grounds for divorce that Senate Bill 36 ushered in does take some of the pressure out of the divorce process. You no longer have to prove that your spouse did something wrong, or convince a court that one spouse was solely responsible for the end of the marriage.

If the relationship is over, you can focus on moving forward rather than proving why it ended.

Still, it’s always a good idea to keep records. Anything that could impact issues of alimony, property, and custody is fair game. So if you have financial records showing money spent on an affair, or communications or other evidence of a spouse’s behavior relevant to custody, keep this evidence in your back pocket until those issues are up for discussion.

Contact a Maryland Divorce Attorney to Talk Through Your Situation

Fault still matters in Maryland divorces; the issue of fault can play a part in your case when it comes to alimony, property, custody, and other issues that are being negotiated.

Again, knowledge is power. Before assuming whether your spouse’s bad actions are or are not relevant to your divorce, it’s a good idea to get a clear and practical assessment of your situation. Contact Lindsay Parvis today to schedule an appointment to discuss the intricacies of your case.