Just Stay Away! – New Maryland Separation Law

A relatively new law has been passed in the Maryland General Assembly making a change in the grounds for divorce. Maryland used to have two “no-fault” grounds for an absolute divorce: a mutual and voluntary separation of one year, or a separation of two years. As of October 1, 2011, the new law eliminates voluntary separation as a ground for absolute divorce. Instead, the parties now must only be continuously separated for one year. You no longer have to prove that you have agreed to the separation and that it was mutual and voluntary, which was a requirement under the old law.

A spouse now doesn’t have to wait as long to obtain a divorce, whether or not he/she has an agreement with their spouse to get divorced. If you want a divorce, simply separate from your spouse for one year. Maryland does requires that there be no sexual relations during the one year separation and that the parties live in separate residences for the entire year. In Virginia and in Washington DC, parties are allowed to separate but to live under the same roof while separated. For individuals with children and unresolved custody issues, we recommend attempting to enter into a separation agreement that specifically deals with the kind of custody arrangement that will occur; determine the amount of child support under the Maryland Child Support Guidelines; and set out a clear, definite, and certain visitation arrangement in order to minimize disputes over custody and support. If you own real property; have considerable deferred compensation such as a pension, 401k, or a defined pension plan that is for retirement; and have other assets, often it is better to have a written agreement regarding your wealth. In the examples given relating to custody, child support, division of assets, and deferred compensation, our opinion is to have an agreement that is comprehensive.

The new law does not affect the other possible grounds for divorce. Couples can still obtain a divorce on the fault grounds of cruelty, excessively vicious conduct, adultery, and desertion, even if the parties are living together under the same roof. In order to prevail under a claim of cruelty or excessively vicious conduct, the conduct must rise to the level of domestic violence. For example, an individual would need to have been assaulted, placed in imminent fear of bodily harm, or have suffered one or more of the types of acts amounting to domestic violence.

This change took place on October 1, 2011, when the Governor signed Senate Bill 139 into law, amending Section 7-103 of the Family Law Article of the Maryland Code.

In the past, clients who were thinking about divorce and had no grounds or an agreement to separate, often would be held up for two years before being able to divorce. With the new law, this lack of a fault ground or lack of an agreement to separate no longer stands in their way. The courts will usually not schedule a contested divorce case until after the parties have been separated for a year, and even a client who is “at fault” can now easily proceed with a divorce.

The law also did not change the grounds for a limited divorce (what many think of as a legal separation). These remain:

  1. Desertion
  2. Excessively Vicious Conduct
  3. Voluntary Separation
  4. Cruelty of Treatment.

A Limited Divorce can be seen as a head start in the divorce proceedings. This is often requested in initial pleadings, with the intent of amending the pleadings shortly before trial to request an Absolute Divorce. In these cases, a fault ground or voluntary separation must still be alleged in the initial filings even if the intent is to later amend to a one year non fault ground.

You can talk to our DIVORCE ATTORNEY if you are thinking about separating or divorcing your spouse. We can help you understand your options and help you through this difficult time in your marriage.  CONTACT US at 410-730-4404 for your FREE CONSULTATION.