Law Advisor Blog

Back

Do I have to be separated from my spouse for 1 year to get a divorce in Maryland? – Not Necessarily

Lindsey K. Erdmann


A common myth in family law is that you must be separated for 1 year prior to getting a divorce in Maryland.  Although a 12-month statutory separation remains a common way to obtain an absolute divorce in Maryland, it is not the only way.

Maryland law recognizes both fault based and no-fault based grounds for absolute divorce.  The grounds for absolute divorce (both fault and no-fault) are codified at Section 7-103 of the Family Law Article of the Annotated Code of Maryland.  Several fault based grounds do not require a separation period at all - adultery, cruelty of treatment, and excessively vicious conduct.  For each of these grounds, the spouses can actually still be living in the same house at both the time of the filing of the complaint for absolute divorce and also at the time of absolute divorce. 
 
Similarly, the no-fault ground of Mutual Consent does not require a separation period.  However, to satisfy this ground, it is not as simple as both parties agreeing to and wanting to be divorced.  Certain other conditions precedent must be met:

     (1) the parties must have signed a written settlement agreement resolving all issues relating to alimony, the distribution of property, and the care, custody, access, and support of minor or dependent children

     (2) the settlement agreement must attach a completed child support guidelines worksheet if the settlement agreement provides for payment of child support;

     (3) neither party files a pleading to set aside the settlement agreement prior to the divorce hearing; and

     (4) after reviewing the settlement agreement, the court is satisfied that any terms of the agreement relating to minor or dependent children are in the children’s best interests. 

[Please note that the former statute on Mutual Consent, effective from October 2015 to September 2018, did not permit Mutual Consent divorces to be granted if there were minor children, and also required that both parties appear at the absolute divorce hearing.  This old rule was replaced with the current statute, effective October 1, 2018, which allows spouses with minor children to qualify if all other conditions are met, and eliminates the need for both spouses to personally appear at the divorce hearing.]

It is important to discuss your marital rights and responsibilities with an attorney prior to signing a written settlement agreement.  Once signed by both parties, a written settlement agreement becomes a binding contract.  It is important to consult with an attorney prior to binding yourself to a contract and prior to asking the Court to accept that written settlement agreement as part of a Mutual Consent divorce.       

Please also be mindful that obtaining a fault based absolute divorce is not a simple task.  The burden of proof rests with the spouse seeking the divorce on the fault ground, and certain elements must be established to the Court’s satisfaction.  It is not uncommon for the Court to deny a fault based divorce for failure to meet the burden of persuasion.  It is important to speak with an attorney about your case to assess its merits. 

For additional information contact family law attorney, Lindsey Erdmann.