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amanda-vannBy:  Amanda Vann, Esq.

On Wednesday, the Maryland Court of Special Appeals, in the case of Bergeris v. Bergeris, issued a decision finding that phone sex (defined as sexually explicit telecommunications) is not a form of cohabitation which would prevent parties from having grounds for divorce.

Cohabitation and Divorce

Nick Bergeris (the husband) filed for absolute divorce from Jeanine Bergeris (the wife) based on the grounds of a 12-month separation. The wife objected to the divorce, arguing that the couple did not meet the statutory requirements for a divorce because they had continued to “cohabitate” by engaging in phone sex. The husband admitted that the parties had engaged in phone sex during the 12-month separation period before filing for the divorce, but he argued that there was no physical sexual contact between the parties during that period and, therefore, he should be allowed to proceed with the divorce based on the grounds of 12-month separation.

The Maryland statute states that in order to have grounds for divorce based on 12-month separation, the parties must have lived separate and apart without cohabitation for 12 months without interruption before the filing the complaint for divorce. According to Md. Code Ann., Fam. Law § 7-103(a)(4), “without cohabitation” means that there must be no sexual relations between the parties. If the parties fail to comply with the statute, for example by having sexual relations during that time, then the grounds for divorce are no longer present and the clock for the 12-month period starts over.

Determining Grounds for Divorce in Maryland

Because the parties had engaged in phone sex and both parties admitted to the conduct, the Maryland Circuit Court found that they had “cohabitated” and, therefore, the husband did not have grounds for divorce based on 12-month separation.

The husband appealed the decision and the Court of Special Appeals found that phone sex or sexual language in text messages, without any physical sexual contact, does not constitute cohabitation that would preclude a court from granting an absolute divorce.

If you have questions over whether or not you have legal grounds for divorce in Maryland, please contact attorney Amanda Vann at 301-244-4524. We are easily accessible all throughout Montgomery County, with offices conveniently located in Silver Spring and Rockville.

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