To obtain an absolute divorce, one spouse must first prove that at least one “ground” (a legally accepted reason) for absolute divorce exists. There are two types of grounds.
- “No Fault” grounds; and
- Grounds based on the “fault” of a spouse.
You may claim more than one ground for divorce when you file. Some grounds may require a waiting period. If you are considering divorce, a lawyer can help you decide which grounds fit your situation.
Read the law: Md. Code, Family Law § 7-103
No Fault vs. Fault Grounds for Divorce
There are two types of grounds: a “no fault” ground for divorce, and grounds based on the “fault” of a spouse.
What’s the difference?
- Proof: To obtain a fault-based divorce, you will have to prove to the court that your spouse acted in certain ways. Fault grounds include adultery, desertion, imprisonment for a crime, insanity, cruelty of treatment, and excessively vicious conduct. If you can’t prove a fault-based ground for divorce, you may still be eligible to file for divorce based on the “no fault” ground of 12-month separation or mutual consent. The person filing for a “no fault” divorce does not have to prove that their spouse committed any misconduct (i.e., cruelty, adultery, etc.)
Why does the difference matter?
- Alimony: A fault ground can be one of several factors in determining the right to alimony (financial support that one spouse pays the other) or how the court divides marital property.
- Custody: A fault ground does not usually affect custody, but it can be one of many factors considered by the court if the fault ground is harmful to the children.
One party must be a resident of Maryland to file for divorce. How long you must have lived in Maryland before filing for divorce depends on the where the ground (reason) for divorce occurred.
If the grounds occurred in Maryland, you only need to be currently living in Maryland when you file for divorce. If the grounds for divorce happened outside of Maryland, then at least one of the parties must have resided in Maryland for at least six months before filing for divorce.
Read the law: Md. Code, Family Law § 7-101
In the past, Maryland law required corroboration of the testimony of the party filing for divorce. Corroboration was usually provided by the testimony of a third party. This is no longer a requirement. A court may enter a divorce decree on the uncorroborated testimony of the party seeking the divorce.
No Fault Grounds
A 12-month separation is a “no fault” ground for absolute divorce. Before filing for divorce, the spouses must have lived separate and apart without cohabitation (living together or having sexual relations) for 12 months without interruption.
Mutual consent is a newer “no fault” ground for absolute divorce. A court may grant an absolute divorce on the ground of mutual consent, without a waiting period.
Read the Law: Md. Code, Family Law § 7-103
Adultery is a fault-based ground for divorce. There is no waiting period for adultery. If a party claims and proves that his or her spouse committed adultery, the court can grant the divorce right away.
To prove adultery in court, you do not need to show actual intercourse occurred. However, you must prove that the offending spouse had both the disposition and the opportunity for intercourse outside of the marriage.
- Examples of an adulterous “disposition”: Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the non-spouse.
- Example of an adulterous “opportunity”: Proving that your spouse was seen entering the non-spouse’s apartment alone at 11 p.m. and not coming out until 8 a.m. the following morning.
It is not enough for your spouse to simply admit to adultery. You must prove it using evidence (examples: text messages, photographs, emails, etc.) that your spouse committed adultery. However, if the offending spouse is the husband and a child is born outside of the marriage, this is usually enough to prove a claim of adultery.
The law is not completely clear about how adultery relates to same-sex marriages. However, the Maryland Attorney General has issued an opinion suggesting that adultery should include “a spouse’s extramarital sexual infidelity with a person of the same sex.” See the Opinion here.
Adultery may be a factor in determining the right to alimony. It may be a factor in awarding custody of the children only if the court determines that the adulterous behavior had a harmful effect on the children.
Read the law: Md. Code, Family Law § 7-103(a)(1)
Desertion - Actual and Constructive Desertion
Desertion is a fault-based ground for divorce. Desertion may be actual or "constructive.”
Generally, in actual desertion, the deserting spouse abandons the marital home without justification. In "constructive" desertion, the spouse who leaves is justified and the court will consider the leaving spouse the deserted one.
To prove actual desertion, the spouse seeking the divorce must prove ALL of the following elements:
- The desertion has continued uninterrupted for 12 months.
- The deserting spouse intended to end the marriage.
- Cohabitation (living together or having sexual intercourse) has ended.
- The deserter’s leaving was not justified.
- The parties are beyond any reasonable hope of reconciliation (making up).
- The deserted spouse did not consent to the desertion.
Read the law: Md. Code, Family Law § 7-103(a)(2)
Technically, "constructive" desertion also requires proof of the above elements. The most common justification for constructive desertion is cruelty. If a spouse’s actions cause the other spouse to leave the home, the court may consider the spouse who remained in the home to have deserted the relationship because of how he or she acted.
For constructive desertion cases, the court will consider the following factors:
- The nature and duration of the misconduct;
- The length of time the leaving spouse endured the misconduct; and
- What attempts the leaving spouse made to try to save the marriage.
Generally, the court will allow the spouse to leave and obtain a divorce for "constructive" desertion if remaining in the home would make them lose their self-respect or put them or their children in danger of either physical or mental harm.
If you are thinking about leaving the home, before you leave, consider the following:
- Does your spouse’s conduct justify your leaving? If not, he or she may be able to get a divorce against you for actual desertion (and potentially be awarded alimony and child custody). Consider consulting a lawyer before leaving the home.
- Will your own conduct prevent you from getting a divorce on a fault-based ground? If you want to seek a divorce for your spouse’s adultery, the court may not grant it to you if you are also at fault (for example if you commit actual desertion without justification).
- Practical considerations:
- Do you have somewhere to go?
- If you are thinking of taking the children with you, will you be able to meet their needs alone?
- Will you be able to financially support yourself (and your children, if taking them with you)? Even if you are entitled to alimony or other money from your spouse, it may take a long time to receive those funds.
If your spouse has left the home without cause and you want to use actual desertion as a ground for divorce, remember the following:
- Once your spouse has left, you must not have sexual relations with your spouse. A single act of intercourse or a night spent together under the same roof will interrupt the 12-month continuous desertion requirement and will also violate the requirement of no cohabitation.
- You must not consent to your spouse’s desertion. If you consent, it is not desertion but rather voluntary separation, a ground for divorce not involving “fault.” There is a difference between consenting and giving in to something you cannot avoid. "Giving in" to your spouse and accepting the desertion will probably not be considered consent.
- You must not be guilty of any misconduct that would justify the desertion.
- If your situation does not meet the requirements for desertion, you may still be able to obtain a “no fault” divorce if you have lived separate and apart without cohabitation for 12 months.
What if your spouse deserts you but then returns?
- In the past, the court favored “good faith” attempts at reconciliation (making up), and a failure to see or listen to your returning spouse could result in a divorce against you for desertion. This is not a requirement anymore. An attempt to reconcile or a refusal to reconcile is no longer a defense or hurdle to a divorce action.
- However, to prove desertion, you must still show that there is no reasonable expectation of reconciliation. The court may consider any attempts or refusals of reconciliation in determining this.
There is no waiting period for these grounds. A party may file for divorce based on cruelty of treatment or excessively vicious conduct right away.
Read the law: Md. Code, Family Law § 7-103(a)(6) and (a)(7)
Conviction of a Crime
To obtain a divorce based on conviction of a crime, you must show that your spouse:
- was convicted of a crime in any state; AND
- received a jail sentence of over 3 years (or an indeterminate sentence); AND
- has served 12 months at the time of filing for divorce.
Permanent and incurable insanity is a fault-based ground for divorce. In the context of absolute divorce, a spouse is considered permanently incurable if:
- the spouse has been confined in a mental institution, hospital, or other institution for at least three years prior to filing for the divorce; AND
- at least two physicians competent in psychiatry testifies that the insanity is permanently incurable and there is no hope of recovery; AND
- one of the parties has been a resident of Maryland for at least two years before filing for divorce.
If your spouse is not competent (i.e., your spouse does not have the legal capacity to make their own decisions), you may need to ask the court to appoint a guardian.
Defenses to an Absolute Divorce
For fault-based grounds, an offending spouse can claim certain defenses. These defenses are factors for the court to consider when deciding whether or not to grant the divorce. The defenses to fault-based divorce include:
- Condonation: The offending spouse claims that the other spouse forgave their bad conduct. This defense can only be used in an absolute divorce based on adultery. It does not apply to any other ground for divorce.
- Recrimination: The offending spouse claims that the other spouse also behaved badly rising to the level of a fault ground. (The two wrongs cancel out the fault-based divorce.) This defense is only considered in an absolute divorce based on adultery. It does not apply to any other ground for divorce.
Reconciliation is no longer, on its own, a defense to a ground for divorce.
If the defense is successful, then the court will not grant the divorce on a fault-based ground. Unless the other side can prove the grounds for divorce, the court may decide not to award the divorce.