What Constitutes Cohabitation under Current Maryland Law?

Published on
October 13, 2021
Written by
Angel Murphy

In some ways, modern relationship patterns have disrupted – or at least complicated – the existing legal structure underlying marriage and divorce. More and more, we see cohabitation as an alternative to marriage, and this can create complexity in the law. Furthermore, we’re also seeing how social media and other technological applications can impact relationships; in a recent case, for instance, Maryland courts were faced with a new issue: does having “phone sex” count as cohabitation for purposes of obtaining a divorce on the grounds of separation? In this post, we will go over the facts of this case and then discuss its significance.

Overview of the Case: What Counts as “Cohabitation”?

The couple in this case married in 2006 and then separated in 2010. After the separation, the husband filed for divorce on the grounds of voluntary separation and “constructive desertion.” The couple maintained separate residences during the proceedings but then started a sexual relationship while the divorce was still ongoing. The husband testified that the last time he and his wife had sexual intercourse was in 2011.Although the husband stated that 2011 was the last time he and his wife had engaged in intercourse, he admitted to taking part in “phone sex” after that last encounter. Consequently, the wife asserted that the husband had failed to establish adequate grounds for divorce, as one condition of divorce based on separation is continued separation for 12 months without cohabitation. The wife argued that the text communication and phone sex invalidated the husband’s grounds for divorce.The trial court ruled in favor of the wife and concluded that the husband had failed to satisfy the separation requirement for divorce. On appeal, the husband successfully argued that the trial court erred in ruling that phone sex was “cohabitation.”

Key Lessons: Avoid Contact after a Separation

This case sheds light on new problems that have developed due to the growth of technology. Specifically, it sheds light on how telephonic communication – text messages, conversations, etc. – can impact our conception of cohabitation and marriage. Although a couple seeking divorce on the grounds of separation must avoid sexual relations during the separation period, the key is that the parties live apart continuously for that time. Furthermore, in this context, phone sex shouldn’t be considered sufficient to overturn an otherwise valid separation. The husband’s attorney argued that allowing phone sex to invalidate a divorce in this manner would create undesirable complexity for future cases.After all, if that is sufficient to overturn an otherwise valid divorce, then where will the line ultimately be drawn? What about lewd conversations which only occur via text messaging, social media messaging, and so forth? At some point, the court has to determine whether the contact between the parties is enough to deny a divorce based on the grounds of separation. In this case, the appellate court decided that the contact witnessed this case simply wasn’t sufficient.

Contact the Murphy Law Firm for Additional Information

We expect to see more cases involving phone apps, social media, and other cutting-edge technology. If you’d like to learn more, reach out to The Murphy Law Firm today by calling 240-493-9116.

Angel Murphy

Personable. Passionate. Persistent.

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