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To obtain an absolute divorce, one spouse must first prove that at least one “ground” (a legally recognized 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
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?
To obtain a fault-based divorce, you will have to prove that your spouse acted in certain ways. The fault grounds include: adultery, desertion, conviction of 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 (see below).
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 1 year before filing.
For all of the grounds of divorce, the court cannot base the divorce on your and your spouse’s testimony alone. You must bring someone to court with you who has person 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 the only “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.
As of October 2011, this is the only ground for absolute divorce based on separation.
The rest of the grounds for divorce are fault-based grounds.
Adultery is voluntary sexual intercourse between a married person and a person other than the offender’s spouse. If a party claims and proves that his or her spouse committed adultery, the court will grant the divorce immediately.
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. You must prove that the offender had the disposition and opportunity for intercourse outside of the marriage.
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:
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:
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:
If your spouse has left the home without cause and you want to use actual desertion as a ground for divorce, remember the following:
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.”
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.
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:
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:
Unless the other side can prove the grounds for divorce, the court may decide not to award the divorce.
John F. Fader II & Richard J. Gilbert, Maryland Family Law § 4-4 (4th ed. 2006).
Each Maryland county has a variety of family resources. Click here for Local Contacts.
This site offers legal information, not legal advice. We make every effort to ensure the accuracy of the information and to clearly explain your options. However we do not provide legal advice - the application of the law to your individual circumstances. For legal advice, you should consult an attorney. The Maryland State Law Library, a court-related agency of the Maryland Judiciary, sponsors this site. In the absence of file-specific attribution or copyright, the Maryland State Law Library may hold the copyright to parts of this website. You are free to copy the information for your own use or for other non-commercial purposes with the following language “Source: Maryland's People’s Law Library – www.peoples-law.org. © Maryland State Law Library, 2013.”