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John S. Weaver, Esquire
Of Counsel, Z Family Law, LLC
Rockville, Maryland Divorce Attorney
GROUNDS FOR DIVORCE
John Weaver will counsel and guide you through the maze of divorce ground, informing you of which grounds apply to your case, and the timing of pursuing divorce to meet your personal objectives.
Effective October 1, 2023. Senate Bill 36/House Bill 14 enacted by the Maryland General Assembly and approved by the Governor on May 16, 2023 as Ch. 645 and 646 made significant substantive changes to Maryland divorce grounds. The Act, which takes effect October 1, 2023, repealed the authority of a Maryland court to decree a limited divorce, repealed most existing absolute divorce grounds, including the fault grounds of adultery, desertion, cruelty of treatment, and excessively vicious conduct. The legislation shortened 12-month separation to 6-month separation and added “irreconcilable differences” to the existing mutual consent ground. Accordingly, there are only three grounds for absolute divorce in Maryland. The legislation also permits spouses who pursue separate lives, yet who reside in the same residence or spouses who are separated pursuant to a court order, to be deemed to have lived separate and apart for purposes of the 6-month separation ground. The “circumstances that contributed to the estrangement of the parties” remains a factor to be considered by the court in its determination of any monetary award (FL 8-205(b)(4)) and alimony award (11-106(b)(6)), so fault still plays a role in divorce actions.
The grounds for absolute divorce in Maryland (FL §7-103(a)) are as follows
1. 6-month separation - FL §7-103(a)(1). If the parties have lived separate and apart for 6 months without interruption before the filing of the application for divorce.
- Parties who have pursued separate lives shall be deemed to have lived separate and apart for purposes of 6-month separation ground even if: (1) the parties reside under the same roof; or (2) the separation is in accordance with a court order. FL §7-103(b).
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- This is a significant change as prior law regarding “live separate and apart” and “without cohabitation” treated living “under the same roof” as not living separate and apart. Under prior law even a single overnight under the same roof would interrupt and reset the separation period. A different analysis applied to the previous fault ground of desertion.
- The new statute also makes it clear that a separation in accordance with a court order, e.g., a protective order in domestic violence proceedings, shall be deemed living separate and apart for purposes of the 6-month separation divorce ground.
- NOTE: “Separate lives” is somewhat subjective and will be open to judicial determination in a contested divorce proceeding where the parties are still living together. In any event, it may be advisable to also plead irreconcilable differences (which is also subjective) as an alternative ground for divorce in every instance in which the parties still live under the same roof.
- NOTE: FL §7-103(f): “For purposes of subsection (a)(1) of this section, the “filing of the application for divorce” includes an oral amendment made by a party with the consent of the other party at a hearing on the merits in open court to a previously filed application for limited divorce filed before October 1, 2023, or absolute divorce.
2. Irreconcilable differences based on the reasons stated by the complainant for the permanent termination of the marriage. FL §7-103(a)(2).
- The court will have to decide whether the stated reasons justify the permanent termination of the marriage. The statute does not define the term. It may be useful to review how “irreconcilable differences” has been interpreted and applied in other states that have had this ground for many years.
- California: CAL. FAM. CODE § 2311 (2023) defines irreconcilable differences as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.” See also IDAHO CODE ANN. § 32-616 (2022); South Dakota: S.D. Codified Laws § 25-4-17.1 (2023).
- New Hampshire: N.H. Rev. Stat. Ann. § 458:7-a (2023): “A divorce from the bonds of matrimony shall be decreed, irrespective of the fault of either party, on the ground of irreconcilable differences which have caused the irremediable breakdown of the marriage…” Similarly, Rhode Island: R.I. Gen. Laws § 15-5-3.1 (2023). Oregon: “when irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.” OR. Rev. Stat. § 107.025 (2023).
- These statutes refer to “substantial reasons” that are weighty enough to warrant the severance of the marriage relationship – they have caused “irremediable breakdown.”
- Parties will have to balance the need to sufficiently state reasons supporting the assertion that irreconcilable differences warrants termination of the marriage against Maryland Rules regarding form and content of pleadings.
| Serving Montgomery County and Frederick County
3. Mutual Consent. FL §7-103(a)(3). Elements of mutual consent divorce:
(i) the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to:
(1) alimony;
(2) the distribution of property, including the relief provided in FL §§ 8-205 and 8-208; and
(3) the care, custody, access, and support of minor or dependent children;
(ii) the parties attach to the settlement agreement a completed child support guidelines worksheet if the settlement agreement provides for the payment of child support;
(iii) neither party files a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules; and
(iv) after reviewing the settlement agreement, the court is satisfied that any terms of the agreement relating to minor or dependent children are in the best interests of those children.
- NOTE: FL §7-103(e) – If a court decrees an absolute divorce on the grounds of mutual consent, the court may:
- (1) merge or incorporate the settlement agreement into the divorce decree; and
- (2) modify or enforce the settlement agreement consistent with Title 8, subtitle 1 of the Family Law Article (See FL §8-101, 8-103, & 8-105).
B. Certain defenses. Recrimination is not a bar to either party obtaining an absolute divorce on the grounds of 6-month separation, irreconcilable differences, or mutual consent. FL § 7-103(c). Res judicata with respect to another ground under this section is not a bar to either party obtaining an absolute divorce on the ground of 6-month separation. FL § 7-103(d). Along with elimination of the adultery ground the defense of condonation was also removed from the statute.
C. Bigamy is ground for annulment, not for divorce. Ledvinka v. Ledvinka, 154 Md. App. 420, 840 A.2d 173 (2003). Moreover, a court with personal jurisdiction over the parties has the authority to void a bigamous marriage without any showing that it was invalid in the country where it was entered. Moustafa v. Moustafa, 166 Md. App. 391, 188 A.2d 1230 (2005). See Peete v. Peete, 257 Md. App. 186 (2023) for a discussion of annulment, void and voidable marriages, standing to annul a bigamous marriage, and laches.
D. Limited divorce - FL § 7-102. Repealed by the new law effective October 1, 2023. Limited divorce was, in effect, a judicially decreed legal separation, but it did not sever the marriage bonds and did not fully resolve all economic rights of the parties. For example, determination of real property issues and monetary award/equitable distribution of marital property was available in absolute divorce only. Complaints for limited divorce were generally filed where the separation periods did not yet meet the absolute divorce requirements and a party wanted to initiate proceedings to obtain financial or certain relief from a court. Limited divorces were rarely pursued to a decree of limited divorce as parties ultimately amended their pleadings for absolute divorce to be able to pursue the panoply of relief available from the court in an absolute divorce action. Some parties also sought limited, rather than absolute, divorces for religious reasons.
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