Towson Divorce Lawyers: Does “Phone Sex” Constitute “Sexual Relations?”

Believe it or not, the Court of Special Appeals in Maryland recently decided this issue as a matter of law in the recent case of Bergeris v. Bergeris, decided April 30, 2014.

Under Maryland law, a divorce can be granted on the grounds of a twelve month separation, if the parties have lived “separate and apart without cohabitation for twelve months without interruption” before the filing of the divorce complaint. The term “cohabitation” has been interpreted by the cases as including “sexual relations;” if the couple engage in sexual relations while apart the continuous period of separation is ended.

This couple initially separated on June 30, 2010 but thereafter did resume a sexual relationship for a period of time.  Under the testimony, the last time they were physically intimate was in March, 2011. There was then a period of twelve months, without physical relations. However, Mr. and Mrs. Bergeris did continue to communicate by telephone and text message. Some of those conversations were of a provocative sexual nature. Mr. Bergeris admitted that he had engaged in “phone sex” with Mrs. Bergeris, although he had no physical contact with her during the period of the twelve month separation from March, 2011 through April, 2012.  The trial court decided that Mr. Bergeris had not met the statutory requirements for a twelve month separation because of his engaging in phone sex with Mrs. Bergeris during those twelve months.

Mr. Bergeris appealed.  He contended that his engaging in sexual explicit telephone calls with Mrs. Bergeris during their separation did not constitute “sexual relations” as prior cases had interpreted that term.  The Appellate Court agreed with Mr. Bergeris.  It decided that phone sex, and sexually explicit text messages, did not constitute “cohabitation” that precluded the granting of an absolute divorce. In the Court’s view, instances of telephone calls talking about sex, but unaccompanied by intimate physical sexual contact, did not arise to the level of sexual relations that would preclude the granted of a divorce.

This was certainly an interesting and unusual decision.  It demonstrates the need to consult counsel about issues concerning your divorce, as the interpretation of the legal requirements for divorce are not as clear and easy as they might initially appear.   For more information on grounds for divorce, call the Towson divorce lawyers at Huesman, Jones & Miles, LLC, at (443) 589-0150 or contact us online. We represent clients throughout Baltimore County, Carroll County, Harford County and Howard County, including Towson, Baltimore,  Bel Air, Columbia, Westminster and Essex.

av 2019 rating
avvo client choice award
avvo top contributor award
Huesman, Jones & Miles, LLC is a BBB Accredited Lawyer in Hunt Valley, MD
maryland chamber