Grounds for Absolute Divorce
To obtain an absolute divorce, one spouse must first prove that at least one “ground” (a legally accepted reason) for absolute divorce exists. The grounds for absolute divorce are in the Maryland Code, Family Law § 7-103. If you are considering divorce, a lawyer can help you decide which grounds fit your particular situation.
Read the law: Md. Code, Family Law § 7-103
No Fault vs. Fault Grounds for Divorce
There are two types of grounds: a “no fault” ground for divorce, and grounds based on the “fault” of a spouse. A lawyer can help you determine whether you should base your divorce on a fault ground.
What’s the difference?
- Some fault grounds don’t require a waiting period and allow you to obtain a divorce immediately.
- A fault ground can be one of several factors in determining the right to alimony (financial support that one spouse pays the other) or how the court divides marital property.
- A no-fault divorce may require that you have been separated for a full year before filing.
- A fault ground does not usually affect custody, but it can be one of many factors considered by the court if the fault ground is harmful to the children.
To obtain a fault-based divorce, you will have to prove that your spouse acted in certain ways. The fault grounds include: adultery, desertion, imprisonment for a crime, insanity, cruelty of treatment, and excessively vicious conduct. (This article discusses each of these grounds in more detail below.)
If you can’t prove a fault-based ground for divorce, you may still be eligible to file for divorce based on the “no fault” ground of 12-month separation or mutual consent (see below). You may claim more than one ground for divorce when you file.
Residency & Corroboration
In order for a judge in Maryland to hear the case, the grounds for the divorce must have occurred in Maryland, or at least one of the parties must have resided in Maryland for at least six months before filing.
No matter what grounds are stated, the court cannot base the divorce on your and your spouse’s testimony alone. You must bring someone to court with you who has personal knowledge about your situation and who will testify about it, or you must present other evidence that proves the ground you are claiming.
Read the law: Md. Code, Family Law § 7-101.
12-month separation is a “no fault” ground for absolute divorce. Before filing for divorce, the spouses must have lived separate and apart without cohabitation (living together or having sexual relations) for 12 months without interruption. You can file for divorce based on 12-month separation even if your spouse does not consent to the divorce.
Mutual consent is a newer “no fault” ground for absolute divorce. A court may grant an absolute divorce on the ground of mutual consent, without a waiting period, if:
(1) the parties do not have any minor children in common;
(2) the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to alimony and the distribution of property;
(3) neither party files a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules; and
(4) both parties appear before the court at the absolute divorce hearing.
If the court decrees an absolute divorce on the ground of mutual consent, the court may merge or incorporate the settlement agreement into the divorce decree and modify or enforce the settlement agreement as authorized by statutory provisions. Read the Law: Md. Code, Family Law § 7-103
The rest of the grounds for divorce are fault-based grounds.
Adultery has been defined as “voluntary sexual intercourse between a married person and someone other than the person’s spouse.” (Black's Law Dictionary) If a party claims and proves that his or her spouse committed adultery, the court can grant the divorce right away.
The law is not completely clear about how adultery relates to same-sex marriages. However, the Maryland Attorney General has issued an opinion suggesting that adultery should include “a spouse’s extramarital sexual infidelity with a person of the same sex.” See the Opinion here.
To prove adultery, you do not need to show actual intercourse. You must prove that the offender had the disposition and opportunity for intercourse outside of the marriage.
- Examples of an adulterous “disposition”: Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the non-spouse.
- Example of an adulterous “opportunity”: Proving 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’t prove both disposition and opportunity, your claim of adultery is mere speculation. It is not enough for your spouse to simply admit the adultery. However, if the offending spouse is the husband and a child is born outside of the marriage, this is usually enough to prove a claim of adultery.
Adultery may be a factor in determining the right to alimony (support that one spouse pays the other). It may be a factor in awarding custody of the children only if the court determines that the adulterous behavior had a detrimental (harmful) effect on the children.
Desertion is a “fault” ground for divorce, and therefore may be a factor in the award of alimony and custody. Desertion may be actual or "constructive."
Generally, in actual desertion, the deserting spouse abandons the marital home without justification. In "constructive" desertion, the person who leaves is justified and the court will consider the leaving spouse the deserted one.
To prove actual desertion, the spouse seeking the divorce must prove the following:
- The deserting spouse intended to end the marriage;
- Cohabitation (living together or having sexual intercourse) has ended;
- The deserter’s leaving was not justified;
- The parties are beyond any reasonable hope of reconciliation (making up);
- 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.
Technically, "constructive" desertion also requires proof of the above elements. The most common justification for constructive desertion is cruelty. If a spouse’s actions cause the other spouse to leave the home, the court may consider the spouse who remained in the home to have deserted the relationship because of how he or she acted.
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 obtain a divorce for "constructive" desertion if remaining to 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 justify your leaving? If not, he or she may be able to get a divorce against you for actual desertion (and potentially be awarded alimony and child custody). Consider consulting a lawyer before leaving the home. Finding Legal Help
- If you want to seek a divorce for a “fault” based reason, such as your spouse’s adultery or constructive desertion – the court will not grant it to you if you are also at fault (for example if you commit actual desertion without justification). Will your own conduct prevent you from getting a divorce on a fault-based ground?
- Do you have somewhere to go?
- If you are thinking of taking the children with you, will you be able to meet their needs alone?
- Even if you are entitled to alimony or other money from your spouse, it may take a long time to receive those funds.
If your spouse has left the home without cause and you want to use actual desertion as a ground for divorce, 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.
- If your situation does not meet the requirements for desertion, you may still be able to obtain a “no fault” divorce if you have lived separate and apart without cohabitation for 12 months.
What if your spouse deserts you but then returns?
If your spouse begs you to forgive and forget in good faith, you have the option to either accept or refuse him or 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 obtain a divorce against you for desertion. The waiting period would start all over again, beginning with the time of your refusal.
“Good faith” is the most important determining factor. For example, if your spouse deserted you and then tried to return, only after realizing what the high costs of alimony and legal fees would be, your spouse’s return would not have been made in “good faith.”
Cruelty of Treatment and Excessively Vicious Conduct
A spouse’s cruel treatment can be a ground for divorce where the conduct endangers the life or health of the other person or their minor child, and makes cohabitation (living together) unsafe. Often, physical abuse is involved.
A single act of cruelty can be a ground of divorce if it shows the party intends to do serious bodily harm or is severe enough to threaten serious danger in the future.
Cruelty as a ground for divorce can also include mental abuse. The spouse’s conduct must show that he or she planned to seriously impair the health or permanently destroy the happiness of the other person or their minor child. The cruel conduct puts the other person’s safety or health in danger, or causes that person to think that their safety or health is in danger, to the point that it is physically or mentally impossible for the person to stay in the marriage. There must be no reasonable expectation of reconciliation (making up).
Marital neglect, rudeness, and using profane and abusive language do not constitute cruelty or excessively vicious conduct. Usually, a pattern of serious domestic violence or other severe actions are required for these grounds of divorce.
There is no waiting period for these grounds – a party may file for divorce based on cruelty of treatment or excessively vicious conduct right away.
Conviction of a Crime
To obtain a divorce based on conviction of a crime, you must show that:
• Your spouse was convicted of a crime; and
• Your spouse has received a jail sentence of over 3 years (or an indeterminate sentence); and
• Your spouse has been imprisoned for 12 months at the time of filing.
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. Remember, you may also be able to obtain a divorce after 12 months of separation (see above).
If your spouse is not competent, you may need to ask the court to appoint a guardian.
Defenses to an Absolute Divorce
For fault-based grounds, an offending spouse can claim certain defenses. If he or she is successful in the defense, the court will not grant the divorce on a fault-based ground. The defenses to fault-based divorce include:
- Condonation - The offending spouse claims that the other spouse forgave their bad conduct.
- Recrimination - The offending spouse claims that the other spouse also behaved badly rising to the level of a fault ground. (The two wrongs cancel out the fault-based divorce.)
Unless the other side can prove the grounds for divorce, the court may decide not to award the divorce.
Fader's Maryland Family Law, § 4-4, Cynthia Callahan, Thomas C. Ries (5th ed. 2011).
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