How To Get Divorced

A divorce is a legal remedy, the same way that you might obtain a money judgment in a lawsuit.  It is unique in that the legal remedy is only offered to married persons against their spouse.  Often times, one party may not agree to the divorce or might only agree to the divorce on certain conditions.  In those cases, a judge would consider the case and make a decision about all issues, including whether or not the party asking for a divorce is entitled to the divorce.   In cases where the parties come to an agreement about any issues in the divorce and agree to get divorced, one party still must prove their case to the judge and present the agreement for judicial approval.  It is helpful to have an attorney draft a “separation agreement” which would cover all issues in the divorce.

In Maryland, there are seven ways to obtain a divorce.  Six are “fault-based” grounds for divorce, and one is often termed a “no-fault” divorce.  In many cases, even if one party is in fact at fault for a divorce the parties may wish to privately resolve the issues in the divorce and then proceed in court with a “no-fault” divorce.  Even when one party is primarily at fault for the divorce, privately negotiating a separation agreement and resolving issues out of court is preferable than ‘airing out dirty laundry’ in court for all to see (and it is usually much less expensive for both parties).  Discussing your divorce with an attorney before filing in the court can be helpful to consider how best to protect your interests and move forward in a productive and efficient manner.

“Fault Based” Grounds for Divorce.

The six fault-based grounds for divorce are:

• Adultery
• Desertion
• Conviction of a Felony with incarceration of more than one year.
• Insanity
• Cruelty of Treatment
• Excessively Vicious Conduct

One of the most common “fault-based” grounds for divorce is adultery.  Adultery occurs when a married person has sexual intercourse voluntarily with another person other than his or her spouse.  The Maryland courts have not yet decided whether same-sex intercourse constitutes grounds for adultery.  Sexual intercourse is also explicitly vaginal intercourse; other sexual acts are not considered adultery in the eyes of the law.  Adultery can be proven by circumstantial evidence of both “disposition” (for example, public displays of affection or flirtatious communication between the alleged adulterer and the paramour) AND opportunity (for example, evidence that the alleged adulterer and paramour visited a motel room together).  This type of evidence must be corroborated, which is generally accomplished by presenting multiple witnesses who would testify to the evidence supporting the adultery.  (Another example would be evidence that the wife became pregnant and that the husband is sterile.)  Presently, adultery is a crime in the state of Maryland (with maximum penalty of a $10 fine).  Because it is a criminal offense, alleged adulterers may invoke their Fifth Amendment right to remain silent as to not incriminate him- or her-self.  However, the statute of limitations for the criminal offense is only one year.  A common defense to adultery is that the complaining party condoned or ultimately provided forgiveness for the act.  This is not an absolute defense (the divorce can still be granted) but it is an important factor.

Desertion is another fault-based ground for divorce and means that one party ‘deserted’ the other without justification and with the intent to end the marriage.  A classic example of a desertion is one party packing her things, informing her husband by note, “I don’t love you anymore; this marriage is over,” and leaving the home never to be heard from again. Justification is the presence of some other legally recognized grounds for divorce.  In the above example, if the wife learned of the husband’s adulterous affair, and decided to pack her things and leave, she would have a defense of justification. Justification can also be proven by showing that continuing to stay would be unbearable. Another defense to desertion is that the desertion was consensual (“If you’re not happy, then just leave!”).

Fault-based grounds for divorce, including the other four that are not discussed in this article, are complicated and should be analyzed on a case-by-case basis.  They are rarely cut and dry “textbook” cases.  Instead, every case is different and consulting with an experienced lawyer is helpful in proceeding with your divorce case.

No-Fault Divorce

The most common divorce is the “No-Fault” divorce.  The Maryland law calls the “No-Fault” divorce a 12-month separation.  In order to obtain a no-fault divorce, the parties must live “separate and apart” from one another for a period of at least 12 consecutive months “without cohabitation.”  This means that the parties did not reside together even for one night for a period of 12 months, and stopped all marital relations including intercourse with one another.  During the 12 month ‘waiting period’ as required by law the parties are not “ripe” for divorce.  The no-fault divorce should only be filed once the parties have lived separate and apart for the minimum of 12 months (when the action becomes “ripe”). The party asking the court for the divorce must prove his or her case, even if the other party consents to the divorce.  In order to prove your case for divorce, the party that filed the divorce case must bring a non-party witness to court who is familiar with the separation to the extent that they can testify to when the parties were married, when they separated, and whether or not they have remained separated for at least 12 months.  Generally the judge (or sometimes a Master, who is authorized to take testimony and report his findings to a judge) will ask a series of questions to determine whether or not the divorce should be granted.

During the time of separation prior to the divorce action being “ripe,” even in an amicable divorce, the parties should contemplate separation issues including property, the marital home, any retirement accounts, and of course, any children’s issues including visitation or custody issues and child support.  Even if your divorce is an amicable one, consulting with an experienced family law attorney and having that attorney draft a separation agreement is a valuable way to make sure that you are protected and that your agreement will meet the legal requirements and you will receive the divorce decree.