Members of a Senate committee contemplated the potential family law consequences of repealing the rarely charged crime of adultery and contemplated a broader discussion about moving toward no-fault divorce.
Del. Kathleen M. Dumais, D-Montgomery, is making her second attempt in as many years to have adultery, a misdemeanor offense, repealed, calling the law “archaic” in committee hearings.
“I think it’s silly to have it on the books,” Dumais said Tuesday. “It accomplishes nothing. There was no opposition in the House.”
The House of Delegates voted 106-35 in favor of House Bill 281 last month and it returned to the Senate Judicial Proceedings Committee, where it died last year after passing the House.
Dumais said it is her understanding that some divorce attorneys advise their clients to “plead the Fifth” when asked about adultery because it is a crime. Adultery is a ground for divorce and factors into alimony and financial settlement considerations.
But, Dumais said, she has rarely seen the ground of adultery alleged and in her practice has her clients admit to the conduct but provide no details.
Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and committee chair, said that he agrees it’s “ridiculous” to have the crime of adultery on the books but added that he wants to explore a broader conversation about removing adultery as a ground for divorce and a consideration in monetary awards.
“I’m not sure I understand why that in and of itself should be a factor for somebody getting more or less money out of a marital settlement,” he said. “If we made it meaningless in terms of divorce, that would make this (bill) easier to do.”
Dumais said she and Zirkin have talked about revisiting the grounds for divorce and moving toward no-fault, though parties could still put on evidence of bad behavior during trial.
Dumais said that she thinks judges should be able to consider the cause of the breakup of a marriage, which could be adultery, in alimony and property division, but said that it is not the sole determining factor unless a party has engaged in particularly egregious conduct.
“It’s not that you’re getting a big alimony award because somebody had an affair,” she said.