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Same-sex couples can commit adultery too, attorney general says

With marriage equality comes divorce equality.

To clear up a murky area of state law, Maryland Attorney General Brian E. Frosh has written a legal opinion that says cheating by spouses in same-sex marriages can also be considered adultery.

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The opinion might seem superfluous, but for those couples struggling in an unfaithful marriage, the opinion is important when it comes to filing for divorce. A spouse, including one from a same-sex couple, clearly can now file for divorce over adultery, which is one of several fault-based grounds for divorce under Maryland law.

Under "fault" grounds such as adultery, a husband or wife can obtain an absolute divorce without first having to live apart from a spouse for a year. Adultery can also become a factor in alimony and child custody matters.

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"We're pleased by it. It's an example that equality means equality," said Jer Welter, the deputy director and managing attorney for FreeState Legal, a legal advocacy organization for low-income lesbian, gay, bisexual and transgender residents in the state.

Frosh's July opinion is "an affirmation that Maryland will equally recognize the dignity of marriages between same sex couples," which can equally be harmed by adultery, Welter said.

Frosh wrote that the opinion was issued not only for the purpose of clearing up murkiness in family law, but also out of "the respect and dignity owed to same-sex marriages as equal to opposite-sex marriages under State law."

Maryland Del. Luke Clippinger requested in February that the attorney general's office review the issue and how it applies to same-sex couples under state law. The Baltimore Democrat, who sponsored the 2012 legislation that legalized same-sex marriage, said the Family Law Section of the Maryland State Bar Association, Free State Legal and Equality Maryland had raised the issue.

"It goes back to an issue of fairness," Clippinger said in an interview Thursday. "We don't often like to talk about the bad sides of marriage, but having said that, the same rules should apply."

He said the opinion applies the responsibilities of marriage equally.

"It means we're all in the same place," he said. "The same responsibilities that every partner in every married couple has — to be true to each other — that applies to everyone. And it should apply to everyone fairly."

A spokesman for Frosh said the opinion speaks for itself and did not offer further comment.

Same-sex marriage has been legal in Maryland since 2013 after voters approved a referendum the year before. The U.S. Supreme Court ruled in June that all states must legally recognize marriage between same-sex couples.

In his opinion on the adultery issue, Frosh wrote that the state should "recognize that sexual infidelity is a breach of the marriage vow and causes damage to the marriage, such that the injured party should be allowed to dissolve the marriage more easily than would otherwise be the case."

It continued, "Extramarital sexual activity with someone of the same sex is just as damaging to a marriage as sexual activity with someone of the opposite sex."

The Maryland Judiciary doesn't track same-sex marriage divorces, a spokeswoman said, but it tracks total divorce filings. In fiscal year 2012, there were 34,773 divorces in the state; in 2013, there were 33,291; and in 2014 there were 32,436, according the Judiciary's annual statistical report.

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Adultery is one of several fault-based grounds for divorce in Maryland. Others include desertion, conviction of a serious crime and insanity. A couple without fault-based grounds must live apart for 12 consecutive months before a divorce is granted. But a new law that takes effect in October allows couples to bypass that requirement and dissolve a marriage by mutual consent if they have no minor children in common.

As a cause for divorce, adultery can be difficult to prove, said Lee Carpenter, an associate at Semmes, Bowen & Semmes, a Baltimore law firm.

"You need evidence of an inclination to engage in adultery and evidence of an opportunity to have done so," he said.

But Carpenter said simplifying the process for same-sex couples would be "helpful."

Carpenter, who prepares prenuptial agreements and handles LGBT estate planning, said divorces for adultery can prevent unfaithful ex-spouses from receiving possessions bequeathed to them in their exes' wills. Any changes to divorce law should be made carefully, he said.

"You don't want to make the law too broad," he said. "Is kissing adultery? Is oral sex adultery? It's a delicate thing to be talking about. This is one place where they need to use caution. ... It can vary from couple to couple."

Adultery has been recognized in Maryland law dating back to 1650, and it is still a misdemeanor but has not been enforced in some time, according to the attorney general's office. At one time, defendants charged with killing their spouse could argue that their cheating spouse drove them to commit murder, which provided grounds to reduce the charge to manslaughter, the office said.

In the past, some cases have shown a struggle in defining adultery — whether under the law it applied only to sexual intercourse between a married woman and a man who was not her husband. Eventually, all states had laws prohibiting adultery for both men and women, reflecting an evolving attitude toward gender equality.

But another issue raised is whether adultery "also encompasses other sexual acts — either between a man and a woman or between two persons of the same sex," the attorney general's office said.

Frosh's opinion points out that the plaintiff in a divorce case don't have to prove evidence of the sexual act, but merely that a spouse and paramour had the opportunity. There is no need to prove details about specific sexual acts.

The opinion said same-sex partners therefore should not have to meet a "higher burden by proving such details."

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