Wiretapping & Divorce Law in Maryland
By Beverly Bird
Updated March 28, 2020
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It may seem blatantly unfair that your spouse could end your marriage, either by committing adultery or physical or emotional cruelty, then receive financial assistance from you for years to come as you pay him alimony. Some states agree with this premise, including Maryland. The state considers fault in some contexts of divorce litigation, but you'll have to prove your spouse's bad behavior. Unfortunately, you can't wiretap him in order to do so.
Effect of Fault
Adultery is grounds for divorce in Maryland, and it can bar a spouse from receiving alimony. Judges consider it under some circumstances when deciding custody issues as well. Maryland's statutes also include grounds for "cruelty of treatment or excessively vicious conduct," and this sort of behavior can affect custody. The abuse doesn't have to be physical – threats are enough if they put you or your children in fear of harm. However, Maryland law draws a fine line here. Ridicule and rudeness – even if it includes profanities – usually don’t qualify as cruelty or vicious conduct.
Burden of Proof
It is not enough to tell a judge that your spouse cheated or displayed cruel or vicious conduct. Before this behavior will sway the court's decisions in a divorce trial, you must prove it happened. You don't actually have to establish that sexual intercourse occurred, however. You must only prove that your spouse had the opportunity to cheat and that she had the inclination to do so. For example, you can establish that she had a romantic relationship with someone else and that she disappeared with this individual for sufficient time to commit adultery.
Maryland's Wiretapping Law
One thing you cannot do in Maryland to prove marital fault is record someone else's conversations without his knowledge. The Maryland Wiretap and Electronic Surveillance Act is one of the strictest in the country. It requires that everyone who is a party to a conversation must give consent to being recorded. Therefore, if you find your spouse on the phone with his paramour, you can't record the dialogue without both his consent and that of the individual he's on the telephone with. If you wiretap or record your spouse without his knowledge, then try to use the evidence in court, you could end up in a world of trouble. The penalty is a prison term of up to five years, and a fine of as much as $10,000.
Maryland courts have ruled that the wiretapping law only applies in situations where the individuals believe they have a reasonable right to privacy. Therefore, if your spouse and his friend are in a public park, you may be able to record their conversation, but check with an attorney first to be sure the location is considered a public place. The law doesn't forbid videotaping someone if no conversation is simultaneously recorded. Cell phone records are admissible in court; you or your attorney can legally subpoena them as part of the divorce process. You can also present photographs and the testimony of witnesses. If your spouse is exchanging emails with his paramour, it's legal for you to access these provided you personally own the computer. If you're trying to prove cruelty, call the police when you feel threatened so you can create a documented record of abusive events. If you're injured, take photographs and get a copy of the doctor's and the hospital records.
- Cato Institute: Maryland Wiretapping Law Needs an Update
- The People's Law Library of Maryland: Grounds for Absolute Divorce
- Jimeno & Gray: Understanding the Grounds for Divorce in Maryland
- Jimeno & Gray: How to Prove Adultery in Your Maryland Divorce
- Georgetown University Law Center: Evidence Issues in Domestic Violence Civil Cases (PDF)
- The People's Law Library of Maryland: Custody
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.