Divorce is the legal termination of a marriage between two individuals. It is important to note that a divorce is not final until a judge signs a divorce order and the court enters a judgment of divorce. You are not free to remarry or to engage in intimate relations with an individual other than your spouse until you are legally divorced. Under Maryland Law, married individuals can file two types of divorce: limited and absolute.
Limited Divorce
Limited divorce is essentially a legal separation ordered by the court. However, a limited divorce does not mean that you are divorced from your spouse and therefore you are not free to remarry another individual. Additionally, it is important to note that sexual relations with anyone other than your spouse is considered adultery. Furthermore, engaging in sexual relations with your spouse during a limited divorce will affect your ability to file for absolute divorce based on the twelve (12) month separation ground.
It is very important to understand that although called a limited divorce, you are not actually divorced from your spouse. You are only legally divorced from your spouse once a judge grants an absolute divorce, discussed below.
So why file for limited divorce? Many individuals are often placed in a situation where they are precluded by law from filing for an absolute divorce. See section on fault and non-fault based divorces below. A limited divorce is often used to establish a date of legal separation and to settle matters that are unable to be settled privately. During the limited divorce process the court can temporarily settle issues of custody, visitation, child support, alimony and marital property.
Absolute Divorce
Absolute divorce is the legal dissolution of a marriage. Once a judge grants an absolute divorce, both parties are able to remarry. Additionally, absolute divorce proceedings also settle issues of custody, visitation, child support, alimony and marital property.
Under Maryland law, individuals are able to file for absolute divorce under two grounds: fault and non-fault grounds.
Divorce Based on Fault Grounds
Filing for divorce based on a fault ground allows individuals to file for divorce immediately and without having to wait the prescribed legal time-frame, usually twelve (12) months. The grounds for an absolute divorce are as follows:
Adultery
Adultery is defined as the “voluntary sexual intercourse by a married individual with someone other than that individual’s spouse.” It is important to note that it is very difficult to obtain a divorce under the fault-based ground of adultery. The person making the allegation of adultery has the burden of proving that the act was committed.
In order to prove adultery, you must prove that your spouse had the disposition and opportunity to commit adultery. Suspicious activity alone will not be enough to constitute adultery. Disposition and opportunity essentially means that one spouse must have been engaging in acts that would afford him the opportunity to commit the adultery. However, as previously stated, those acts must be something more than mere suspicious activity. For example, observing your spouse enter into a hotel with another person and observing them leave the hotel will usually not constitute enough evidence to prove adultery.
Desertion
Desertion is defined as “one spouse leaving the marital home without legal justification.” Desertion can be either actual or constructive. In order to prove actual desertion, you must prove that your spouse (1) left the house with the intention of ending the marriage, (2) that you and your spouse have not been living together and have stopped engaging in sexual relations, (3) that your spouse leaving the house was not legally justified, (4) that there is no hope of reconciliation, (5) that you did not consent to your spouse leaving the house, and (6) that your spouse has deserted the house for twelve (12) continuous months without interruption.
Constructive desertion is when one spouse leaves the marital home because of the actions of the other spouse. The standard used by the court to determine if constructive desertion has occurred is whether “remaining in the house would cause one spouse to lose their self-respect and dignity or whether that spouse is in danger of physical or mental harm.” The court considers many factors in determining whether constructive desertion has occurred. See cruelty of treatment and excessively vicious conduct. It is very important to note that if you leave your home but a judge does not find that constructive desertion has occurred, you can be found to be the deserting party and the marriage can be granted to your spouse under a fault-based ground.
Imprisonment of a Spouse Due to Conviction of a Crime
Maryland law allows you to file an absolute divorce under the ground of imprisonment if your spouse (1) was convicted of a crime, (2) has received a sentence of over three (3) years, and (3) has been imprisoned for twelve (12) months at the time of filing the divorce. It is important to note that you must wait for your spouse to have been imprisoned for twelve (12) months before you are able to file the divorce with the court.
Insanity
Maryland law allows you to file an absolute divorce under the ground of insanity if your spouse’s insanity is permanent and incurable. Insanity is considered to be permanent and incurable if (1) your spouse has been institutionalized in a hospital, mental or similar institution, (2) for a minimum of three (3) years, and (3) at least two physicians competent in psychiatry determine that the insanity is permanent and incurable.
Cruelty of Treatment and Excessively Vicious Conduct
Maryland law allows you to file for an absolute divorce under the ground of cruelty of treatment and excessively vicious conduct if you have been subjected to physical or mental abuse by your spouse. (If you are undocumented, this ground of divorce may allow you to become eligible to obtain lawful permanent residence status through a VAWA petition).
Generally, one act of violence will not be enough to constitute cruelty of treatment and excessively vicious conduct unless you can prove that your spouse intended to cause serious bodily harm or the harm was severe enough to threaten your life in the future. However, a pattern of physical domestic violence may be enough to prove cruelty of treatment and excessively vicious conduct.
Mental abuse includes acts that are not physical violence. These can include threats of violence, verbal abuse, being kicked out of the house or threats of being kicked out of the house, having the locks changed while you are out of the house, and having your house keys taken away by your spouse. However, simple harshness or rudeness will not constitute cruelty of treatment and excessively vicious conduct. Proving cruelty of treatment and excessively vicious conduct can be quite complicated and therefore it is recommended you consult with a family law attorney.
Defenses to Grounds for Fault-Based Divorce
Defenses to absolute divorces are not absolute bars to filing a divorce. In other words, having a defense does not necessarily mean you will be able to avoid the divorce proceeding entirely. Defenses are taken into consideration by judges throughout the divorce proceeding.
Condonation
Condonation essentially means forgiveness. Condonation occurs when one spouse forgives the other spouse for things they did during the marriage which would amount to a ground for divorce. Condonation can occur by saying the words “I forgive you” or by the continued marital cohabitation by both spouses. It is important to note that condonation also requires the condition that the spouse who committed the wrong agree not to commit the same act in the future.
For example, spouse A has an intimate affair with a person other than spouse B. Spouse A’s affair constitutes adultery and spouse B is able to file an absolute divorce under the fault-based ground of adultery. However, Spouse B becomes aware of that affair but chooses to forgive spouse A under the condition that spouse A refrain from having another affair. Spouse A and spouse B then continue their marital cohabitation.
In the example above, spouse B has “condoned” the actions of spouse A. If spouse B then chooses to file for absolute divorce one (1) month later under the fault-based ground of adultery, spouse A can use spouse B’s condonation as a defense to the absolute divorce.
Recrimination
Recrimination essentially means that both spouses have committed acts that are grounds for absolute divorce under a fault-based ground.
For example, spouse A has an intimate affair with a person other than spouse B. Spouse A’s affair constitutes adultery and spouse B is able to file an absolute divorce under the fault-based ground of adultery. Spouse B becomes aware of spouse A’s affair. Spouse B then has an affair with a person other than spouse A. Spouse B’s affair constitutes adultery and spouse A is able to file an absolute divorce under the fault-based ground of adultery.
In the example above, both spouses have committed adultery meaning that both spouses can file an absolute divorce under the fault-based ground of adultery. In addition, each spouse can raise the defense of recrimination throughout the divorce proceeding. However, that does not necessarily mean that you will be able to avoid the divorce proceeding. This defense will only serve as a factor the judge will use in making a determination in your divorce proceeding.
Divorce Based on Non-Fault Grounds
Under Maryland law, individuals can file for absolute divorce based on non-fault grounds as follows:
Twelve (12) Month Separation
Under the non-fault ground for twelve (12) month separation, the married parties must wait twelve (12) months before they can file an absolute divorce with the court. The requirements are that the parties must have been living separate and apart without cohabitation for a continuous twelve (12) month period and without interruption.
Living separate and apart generally means that the parties must not have spent one night under the same roof. Without cohabitation means that the parties must not have engaged in sexual relations during a continuous twelve (12) month period. An interruption of the twelve (12) month period would exist if the married parties spent one night under the same roof or engaged in sexual relations at anytime after the separation of the parties and before the date twelve (12) months after the date of separation. If an interruption exists, the twelve (12) month period will reset and the new date of separation will become the date after the interruption took place.
Mutual Consent
Mutual consent was recently enacted as a ground for non-fault absolute divorce. In order to obtain an absolute divorce based on mutual consent the parties must (1) not have any minor children in common, (2) the parties must enter into a settlement agreement resolving all issues of alimony and marital property distribution, (3) the parties must sign the settlement agreement and file it with the court, (4) neither party must object to the settlement agreement before the final divorce hearing, and (5) both parties must appear in court at the final divorce hearing.
So what’s the difference between the twelve (12) month separation and mutual consent grounds for absolute divorce? The mutual consent ground for absolute divorce does require the married parties to wait twelve (12) months before they are able to file for divorce.