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Last page edit 01/16/08
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Absolute Divorces Source: This section is drawn from the booklet entitled "Legal Rights in Marriage and Divorce in Maryland" produced by and available from The Women's Law Center. Updated 3/30/01. General
Overview An absolute divorce dissolves the marriage. Once a judgment 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, and any property owned by them jointly as husband and wife automatically becomes property held in common (each owns one-half). In addition, the judgment may provide for sole or joint custody of the children, payment of alimony and child support, and the disposition of personal property. The court may also make an equitable distribution of all the parties’ assets, including ordering the sale of jointly held property and the dividing the proceeds. See Chapter Eight, Division of Property. Finally, a spouse may ask the court to order that he or she resume their birth name. These requests are almost always granted. Grounds for an Absolute Divorce To obtain an absolute divorce, a spouse must first prove that at least one ground for absolute divorce exists. There are eight grounds for absolute divorce in Maryland. The following is a brief description of each ground. 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. To prove adultery, one need not show actual intercourse. Evidence that the offending spouse had the disposition and opportunity for extra-marital intercourse will suffice. 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. 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 spouse committing adultery to simply admit the adultery. Adultery may be a factor in determining the right to alimony. It may also be a factor in awarding custody of the children, but only if the court determines that the adulterous behavior had a detrimental effect on the children. As in the limited divorce, desertion may be actual or constructive. 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:
A lawyer can best help determine whether these elements are present. Constructive desertion also requires proof of the above elements. The justification for constructive desertion that arises most frequently closely resembles cruelty. If the cruelty or intolerable conduct by one spouse causes the other spouse to leave the home, the spouse remaining in the home could be adjudged to have constructively deserted the spouse who leaves. In cases involving constructive desertion, the court will take into account the following factors:
Generally, the court will allow grant a divorce on the grounds of constructive desertion if remaining in the home would result in the loss of self-respect or the deserting spouse or the deserting spouse’s 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:
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. Like adultery, desertion is a “fault” ground for divorce, and therefore may be a factor in the award of alimony and custody. In Maryland, an absolute divorce on the ground of voluntary separation may be obtained by either party 12 months after the parties agree to separate and then live separate and apart in separate homes without sexual intimacy. To get a divorce on this ground, there must be a mutual agreement, either oral or written, to separate, with a mutual intent to terminate the marriage relationship. In addition, the marriage must be beyond any reasonable hope of reconciliation. As a basis for voluntary separation, the parties may draft a separation agreement that includes a statement of their mutual desire to separate. Maryland law does not require a written separation agreement or legal separation in order to divorce. This ground for divorce requires that the couple have lived apart in separate homes without sexual intimacy continuously for two years. No agreement to separate is necessary, and neither party needs to prove or claim “fault”. The party seeking the divorce only has to show that there has been no cohabitation between the parties for at least two years. Generally, cruelty is limited to conduct which threatens or inflicts bodily harm. Mental cruelty may also be recognized as a form of vicious conduct, but it usually must be coupled with other abuse or misconduct which endangers the life, person or health of the spouse or causes reasonable apprehension of bodily harm. Like the other fault grounds, cruelty of treatment may be a factor in awarding alimony or custody. In addition, there is no waiting period, so a party may file for divorce immediately. Excessively vicious conduct is a term used to describe extreme acts of domestic violence. This ground usually applies in a case where there has been a pattern of or on-going abuse. However, one incident of violence may be sufficient, if it 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, so a party may file for divorce immediately. A jail sentence of over three years or an indeterminate sentence imposed on the spouse and imprisonment for 12 months following criminal conviction, is a ground for divorce. Permanent and incurable insanity is a ground for divorce. For insanity to be considered permanently incurable, a person must have been confined in a mental institution, hospital, or other institution for at least three years, and at least two physicians competent in psychiatry must testify that the insanity is permanently incurable. The above information is meant to be only an introduction to the grounds for divorce provided for by Maryland law. If you are considering a divorce, your lawyer will help you decide which grounds fit your particular situation. Additional Requirements & Considerations Defenses to an Absolute DivorceIn the case of fault divorces, such as adultery, desertion, cruelty or excessively vicious conduct, an offending spouse may allege the defenses of condonation and recrimination.
These defenses are not an absolute bar to the divorce, but the court may consider them in determining whether to award the absolute divorce. In the case of no-fault grounds for absolute divorce, such as separation, a spouse may allege that the two cohabitated or engaged in sexual relations during the separation, or that the two never intended to end the marriage. In the case of the voluntary separation, a spouse may also allege that the parties never agreed to the separation. Source: This section is drawn from the booklet entitled "Legal Rights in Marriage and Divorce in Maryland" produced by and available from The Women's Law Center. Updated 3/30/01. |
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| Source: Maryland State Law Library (MSLL) |
Last date of legal review 01/15/08 (PLL/M.A.J.) |