What are the “no fault” grounds in Maryland?

“No fault” divorces can be granted based on either of the following.  These are the most common reasons given for a divorce.  

Mutual and Voluntary Separation for 12 months  

    You must prove that:  

• You and your spouse agree to separate and intend to end your marriage.

• You and your spouse have lived apart (without sexual relations or living together) for 12 months in a row.

In Maryland you or your spouse can obtain, an absolute divorce on the ground of voluntary separation 12 months after 

• The couple agrees to separate and 

• Then live separate and apart in separate homes without sexual intimacy 

To get this sort of decree, you must have:

• An agreement, either oral or written, to separate with 

• A mutual intent to end the marriage relationship and 

• The marriage must be beyond any reasonable hope of reconciliation.  

Maryland law does not require a written separation agreement or legal separation in order to divorce. 

Involuntary Separation for 24 months

You must prove that you and your spouse have lived apart (without sexual relations or living together) for 24 months in a row.  

You and your spouse do not need to agree to separate or to divorce.

This ground requires that the couple have lived apart in separate homes without sexual intimacy continuously for two years. Neither party needs to prove or claim “fault”. The person seeking the divorce only has to show that there has been no cohabitation (living together) between the couple for at least two years. 

What are the Other Grounds for Divorce?

Under Maryland law, you can also claim a divorce using one of the following grounds (reasons): 

• Adultery - voluntary sexual intercourse between a married person and some one other than his/her spouse

• Cruelty of Treatment

• Excessively Vicious Conduct 

• Desertion for 12 months  

• Conviction of a Crime and Jail Sentence of Three Years or More

• Permanent and Incurable Insanity

General Overview of Grounds for Absolute Divorce
An absolute divorce actually dissolves the marriage. Once a decree of absolute divorce is entered, the parties are free to remarry. After an absolute divorce, one party can no longer inherit property from the other, any property owned by them jointly as husband and wife automatically becomes property held in common (each owns one-half). 

In addition, the decree may provide for 

• Sole or joint custody of the children

• The terms for payment of alimony and child support, and the disposition of personal property

• An equitable distribution of all the parties’ assets, including ordering the sale of jointly held property and the dividing the proceeds

Finally, a spouse may ask the court to include an order in the divorce decree which will allow the spouse (almost always the wife) to resume his or her birth name. These requests are almost always granted. 

Grounds for an Absolute Divorce 
To obtain an absolute divorce, one spouse must first prove that at least one ground for absolute divorce exists. The following is a brief description of each ground for divorce in Maryland. 

Adultery 
Adultery is voluntary sexual intercourse between a married person and a person other than the offender’s spouse. It is a fault ground for divorce, which means that there is no waiting period for getting a divorce. If a party pleads and proves adultery, the divorce will be granted immediately. 

In Maryland, neither cunnilingus nor fellatio (which the law defines as sodomy), is a ground for divorce and generally neither is considered adultery.  The sexual intercourse necessary for adultery must involve some penetration of the female organ by the male organ, but a “completion” of the sexual intercourse is not required.

To prove adultery, you do not need to show actual intercourse. Evidence that the offender had the disposition and opportunity for extra-marital intercourse will be enough.  Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the non-spouse are generally sufficient to indicate an adulterous disposition.  For example, opportunity may be proven by showing that your spouse was seen entering the non-spouse’s apartment alone at 11 p.m. and not coming out until 8 a.m. the following morning.  If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is simply mere speculation.  The same is true if you only show that there was opportunity but cannot prove disposition. 

An attorney can determine whether your facts meet the legal requirements for proving adultery. Evidence must include the testimony of a corroborating third party. It is not sufficient for the offender to simply admit the adultery. Additionally, if one spouse has a child and the other spouse is not the natural parent of that child, this is usually sufficient to sustain a claim of adultery. Finding Legal Help

Adultery may be a factor in determining the right to alimony. It may be a factor in awarding custody of the children only if the court determines that the adulterous behavior had a detrimental effect on the children. 

Desertion

Like adultery, desertion is a “fault” ground for divorce, and therefore may be a factor in the award of alimony and custody. As in the limited divorce, desertion may be actual or "constructive". 

Generally, in actual desertion, the deserting spouse leaves the home without cause. In "constructive" desertion, the person who leaves is justified and is therefore regarded as the deserted spouse. To establish actual desertion, the spouse seeking the divorce must prove the following: 

• The deserting spouse intended to terminate the marriage;

• Cohabitation (living together) has ended; 

• The deserter’s leaving was unjustified; 

• The parties are beyond any reasonable hope of reconciliation; 

• The deserted spouse did not consent to the desertion; and, 

• The desertion has continued uninterrupted for 12 months. 

A lawyer can best help determine whether these elements are present. Finding Legal Help

Technically, "constructive" desertion also requires proof of the above elements. The most common justification for constructive desertion is cruelty. If the cruelty or intolerable conduct of the one spouse causes the other spouse to leave the home, the spouse remaining in the home could be considered to have deserted the relationship by his/her actions. 

In cases involving constructive desertion, the court will take into account the following factors: 

• The nature and duration of the misconduct;

• The length of time the leaving spouse endured the misconduct; and 

• What attempts the leaving spouse made to try to save the marriage. 

Generally, the court will allow the spouse to leave and get a divorce for "constructive" desertion if remaining in the home would make them lose their self-respect or put them or their children in danger of either physical or mental harm. 

If you are considering leaving the home, before you leave, make sure you consider the following:

• Does your spouse’s conduct warrant your leaving? If not, he or she may be able to sue you for actual desertion. It would therefore be wise to consult your lawyer before leaving the home. Finding Legal Help

• Will your own conduct prevent you from getting a divorce on grounds involving “fault” – adultery and actual or "constructive" desertion? 

If your spouse has left the home without cause, remember the following:

• Once your spouse has left, you must not have sexual relations with your spouse. A single act of intercourse or a night spent together under the same roof will interrupt the 12-month continuous desertion requirement and will also violate the requirement of no cohabitation. 

• You must not consent to your spouse’s desertion. If you consent, it is not desertion but rather voluntary separation, a ground for divorce not involving “fault.” There is a difference between consenting and giving in to something you cannot avoid. "Giving in to" and accepting the desertion will probably not be considered consent. 

You must not be guilty of any misconduct that would justify the desertion. 

What do you do if your spouse deserts you but returns?  If s/he begs you to forgive and forget in good faith, you have the option to either accept or refuse him/her.  In Maryland, the issue is settled if you accept the deserter.  However, if you refuse to even see or listen to your returning spouse, then your spouse could then sue you for desertion.  The waiting period would start all over again, beginning with the time of your refusal.  Keep in mind that “good faith” is the most important determining factor.  For example, if your husband deserted you and then tried to return, only after realizing what the high costs his alimony and legal fees would be, his return would not have been made in “good faith”.

Cruelty of Treatment 
Generally, cruelty is limited to conduct which threatens or inflicts bodily harm. Mental cruelty may also be recognized as a form of vicious conduct. Mental cruelty accompanied by other abuse or misconduct endangering the life, person or health of the spouse or causing reasonable apprehension of bodily suffering. 

Like the other fault grounds, cruelty of treatment may be a factor in awarding alimony or custody. 

In addition, there is no waiting period, a party may file for divorce immediately. 

Excessively Vicious Conduct 
Excessively vicious conduct is a term used to describe extreme acts of domestic violence. This ground would apply in a case where there has been a pattern of abuse. However, one incident of violence may be enough if the incident is severe. 

Like the other fault grounds, excessively vicious conduct may be a factor in awarding alimony or custody. In addition, there is no waiting period, a party may file for divorce immediately. 

Additional Requirements & Considerations

Residency – In order for a judge in Maryland to hear the case, one spouse must meet certain residency requirements.

Defenses to an Absolute Divorce - In the case of fault divorces (such as adultery, desertion, cruelty or excessively vicious conduct) an offending spouse can claim certain defenses. If s/he is successful in the defense, the divorce may not be granted.  

Condonation: The offending spouse claims that the other spouse forgave their bad conduct. 

Recrimination: The offending spouse claims that the other spouse also engaged in behavior rising to the level of a fault ground. 

Just because one spouse claims one of these defenses does not mean that a divorce will not be granted. But the court may consider them in determining whether to award the absolute divorce.