The computer age has revolutionized life in this country, even more so as forms of electronic communication have continued to evolve. Among the seamier aspects of the use of smart phones that we have all heard about is the “sexting” phenomenon. How the law tries to adapt old legal principles to the electronic age is illustrated by a case from Maryland’s intermediate appellate Court last week in a case called Bergaris v. Bergaris.
The opinion of the Court of Special Appeals indicates that Mr. Bergaris filed for a final divorce from his wife, relying upon Maryland’s “no fault” divorce statute which includes a 12 month voluntary separation as a grounds for divorce. Such a separation can serve as grounds for divorce “when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.”
Previous courts had included the “without cohabitation” requirement to prohibit sexual relations between the spouses during the separation period. The courts defined “cohabitation” (obviously before the advent of same sex marriage in Maryland) as “a relationship of living together as ‘man and wife’ and connotes the mutual assumption of the duties and obligations associated with marriage.”
Mrs. Bergaris in this case opposed the final divorce by asserting that during those 12 months she and her husband had exchanged “sexually explicit or provocative telephone communications and text messages,” which she claimed meant that grounds for divorce were not established. The only evidence admitted on this issue at trial was the husband’s testimony, where he admitted to the conversations and messages but denied any physical contact between them. The trial judge interpreted this situation as the resumption of relations and denied the divorce.
The Court of Special Appeals noted that there was no direct court precedent on this issue, but noted cases from other states holding that sexual telecommunications only were insufficient to prove adultery. It therefore held that “occasional instances of telephonic or electronic communication talking about sex, unaccompanied by intimate physical sexual contact, do not rise to the level of cohabitation.” It reversed the trial judge’s decision and held that grounds for divorce were established.