McNamee Hosea News & Press


LIMITED DIVORCE vs. ABSOLUTE DIVORCE: What is the Difference and Which Do I Need and When?

Lindsey K. Erdmann

The State of Maryland recognizes two types of divorce, an absolute divorce and a limited divorce.  An absolute divorce is what most people picture when they think about divorce.  It is the final termination of the marriage, allowing both parties to move forward separately of each other and to remarry if they chose.  An absolute divorce also allows the court to determine issues of alimony and marital property, including any division of assets, transfer of retirement interests, and granting of a monetary award to adjust any potential inequities created by the titling of marital property.  Although most people assume that a physical separation of more than 12 months in different homes is required before filing for an absolute divorce, this is not necessarily the case.  A 12-month statutory “no fault” ground remains the most common way to receive an absolute divorce in Maryland, but if eligible, a party may be granted an absolute divorce on fault based grounds requiring no period of separation (including adultery, excessively vicious conduct, and cruelty of treatment) or on mutual consent grounds requiring no period of separation (though requiring numerous other elements to be met, specifically, the parties cannot have minor children in common; the parties must execute a written settlement agreement resolving all issues relating to alimony and distribution of property; neither party can move to set aside the settlement agreement prior to the divorce hearing; and both parties must appear before the court for the absolute divorce hearing).   

Oftentimes a spouse finds him/herself in a position where an absolute divorce cannot yet be obtained.  This can result from a number of scenarios, most common of which is a situation where a fault based divorce cannot be proven, a 12-month separation has not yet accrued, and either there are minor children in common or there are no minor children in common but the parties cannot successfully negotiate a comprehensive settlement agreement, eliminating mutual consent as a possibility.  So, what are these parties to do with no agreement, no ability to obtain an absolute divorce, and potentially needing some relief from the court in the interim.  Enter the limited divorce. 

A limited divorce is a court-approved legal separation.  The use of the term “divorce” in this context is really a misnomer leading to significant confusion for parties.  A limited divorce is not a final divorce.  It does not terminate the marriage, nor does it allow a spouse to remarry or even to move forward in another relationship.  Contrary to popular belief, a limited divorce is not a blessing by the court to have sexual relations with another person.  Adultery is adultery until the granting of an absolute divorce.  A limited divorce also does not stop the clock or freeze the marriage at that point in time for a determination of marital property.  Marital property acquired by each party during the marriage after the separation of the parties and even after a limited divorce is awarded remains part of the “marital pot.”  The court is required to value all marital property at the time of the absolute divorce, not the limited divorce. 

So what then is the use of a limited divorce?  A limited divorce is not for everyone.  Many people do not need a limited divorce, and to be clear, a limited divorce is not required by Maryland as a precursor to an absolute divorce.  Although this list is not all-inclusive, a limited divorce is often recommended in cases where: (1) alimony and financial support is necessary and the parties have been unable to resolve this issue outside of court; (2) custody or child support is disputed and relief is needed before an absolute divorce can occur; or (3) a spouse has threatened to remove the other spouse from health insurance coverage and an order is needed for continued coverage.  Additionally, a limited divorce is often plead in order to begin a contested divorce process, with the intention to amend the complaint to include a 12-month statutory separation for absolute divorce once those 12 months have passed.  Simply put, a limited divorce allows a party who has not yet met grounds for an absolute divorce to obtain necessary relief from the court or to begin the divorce process in advance of the 12-month separation.    

Contact our Maryland family law attorney to learn more about your options. Whether you are contemplating a divorce or legal separation, we will represent your best interests and guide you through every step of the way. (301) 441-2420