Although Maryland technically recognizes no-fault divorce, Maryland's laws are not as progressive as some other states'. Even with legislation updated in October 2011, living together while you wait for your no-fault divorce to conclude is almost impossible under Maryland's laws. However, you may have other options if it’s just not feasible for you or your spouse to relocate to another residence.
Maryland’s No-Fault Grounds
Unlike many other states, Maryland does not recognize irreconcilable differences or irretrievable breakdown of the marriage as a no-fault divorce ground. The only no-fault ground is separation. In Maryland, this literally means living in separate homes. Before the 2011 legislation, you could live apart for a year if you and your spouse were in agreement that the marriage was over. However, if one of you left the marital home without the consent of the other, the waiting period was two years.
Maryland’s fault grounds -- such as adultery or excessive cruelty -- do not require you and your spouse to live apart for any period of time. Sometimes, therefore, couples might decide to "get around" the separation requirement by using fault grounds. One spouse might be willing to accept blame for excessive cruelty, for instance, so you both can speed up the divorce process while living under the same roof. However, using fault grounds is usually only a viable option if you have a marital settlement agreement addressing property and support. If you don't -- and if the divorce is contested and goes to trial -- the spouse who took the blame for the marital misconduct might be at a disadvantage with regard to issues of property division, spousal support and custody.
In 2010, Maryland legislators introduced a bill to change the terms of the state’s no-fault grounds. Had the bill passed, it would have allowed spouses to remain living together during the separation period, as long as they did not engage in sexual relations during that time. The effort was unsuccessful. However, some separation terms did change. As of October 2011, the two-year requirement is no longer in effect. The waiting period is now one year, whether the separation is consensual or whether one spouse moved out against the wishes of the other. Nevertheless, you still have to live in separate residences to file for a no-fault divorce based on separation.
Maryland recognizes constructive desertion as a divorce ground. This is similar to a cruelty ground, and a loophole in the law exists that might make it possible for you and your spouse to continue residing together if you use it. Constructive desertion occurs when one spouse’s behavior is so intolerable that it forces the other to end the marital relationship. As early as 1920 and as recently as 2006, the Maryland Court of Appeals ruled in several cases that constructive desertion does not require spouses to live in separate residences. If one spouse severs the marital relationship by moving to another end of the house and refusing to engage in marital relations, this constitutes constructive desertion. If you think this ground might apply to your marriage, consult with a Maryland divorce attorney who can advise you. Case law regarding the success of using this ground while living together is complicated.
- Thyden, Gross & Callahan: Filing for Divorce While Living Together
- Thyden, Gross & Callahan: Opposition Arises to New Maryland Divorce Grounds
- Divorcenet.com: Maryland Laws on Divorce
- Maryland Family and Real Estate Law: New Maryland No Fault Divorce Law Effective October 1, 2011
- Divorcenet.com: Maryland Divorce FAQs
- Jimeno Gray: Filing for Maryland Divorce Based on 1 Year of Voluntary Separation
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