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Sunday, May 18, 2014

Court: Phone Sex Not Grounds For Resetting Divorce Clock

A family law judge in Maryland held that a couple's phone sex with one another did not reset the clock on their divorce, which was filed on the grounds of a 12-month separation. The two had not been physically intimate during that time, but the wife contended they had "engaged in marital relations."

The allegation had the potential to derail the divorce proceedings entirely, as filing on the grounds of a separation required that the couple had not "cohabited." But is sex cohabitation? If so, does phone sex count?

New York City no-fault divorce lawyers know that this finding is relevant to New Yorkers because our state has significantly less previous case law on such matters than other states, having only adopted no-fault divorce legislation in 2011.

No-fault divorces in New York may be granted if husband and wife have lived apart pursuant to a written agreement of separation for at least one year or if the relationships has been "irretrievably broken down" for at least six months prior to the filing. Any indication that the couple has been intimate during this time won't necessarily force the couple to restart the proceedings, but it could certainly be used by one of the parties to delay matters.

Like Maryland, New York retained its fault-based divorce grounds, and just added the no-fault divorce ground. Prior to this addition, there were other fault-based grounds for divorce that could have been applicable if one spouse moved out. These included abandonment of 12 months or more, cruel or inhuman treatment that causes a spouse to discontinue cohabitation for 12 months or more or confinement of one spouse in prison for three or more years.

Today, family courts are less concerned with determining who is wrong in the situation and more concerned with whether the union is over, and if so, how to reach equitable solutions on matters of property distribution and child custody.

In the case of Bergeris v. Bergeris, the pair married in 2006. In 2010, the wife retained a restraining order against her husband, and he moved out. The order expired six months later, and the two continued to live separately. They did for a time resume a sexual relationship, but that ended in March 2011, after which they did not share in-person, intimate contact. However, the pair did exchange text messages and phone calls that were of an explicit sexual nature.

By March 2012, the husband had already filed for divorce, but amended his complaint on the grounds of a one-year, uninterrupted separation. The wife refuted this on the basis of their intimate electronic communications.

The questions before the court were whether sex should be considered the same as cohabitation in determining whether a couple is truly separated, and secondly, whether electronic sexual encounters should be considered.

The trial court ruled that "without cohabitation" should be interpreted as "without sexual relations," and that phone sex is considered part of a sexual relationship. That meant separation clock would have to be reset to the time of their last intimate communication.

Upon review, the Maryland Court of Special Appeals agreed with the first part of the trial court's ruling - that sex equals a form of cohabitation - but disagreed that phone sex qualified. The justices pointed to a persuasive argument presented by the husband, which was that there was a legal standard problem in how to define "phone sex," and there was also an evidentiary problem in determining whether it happened in the first place.

Therefore, the court held, instances of electronic or telephonic communication of an intimate nature - absent physical sexual contact - isn't considered cohabitation for the purposes of divorce proceedings.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Bergeris v. Bergeris, April 30, 2014, Maryland Court of Special Appeals

More Blog Entries:

Negotiating a Fair New York City Divorce Settlement, May 5, 2014, New York City Divorce Lawyer Blog


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