Grounds for Divorce
In order to obtain an absolute divorce, one must first show that there are grounds for divorce. Grounds are legally acceptable reasons to end the marriage - in the state of Maryland, you cannot just point out irreconcilable differences and hope to end a marriage that way. There are seven different grounds. It doesn't matter which ground is used when it comes to simply terminating a marriage. For that purpose, one ground is as good as any other.
When deciding other factors, however, such as an award of alimony or the division of marital property, the judge will often consider which party is at fault for the divorce. In these circumstances, certain grounds (called fault-based grounds) can prove more beneficial to one party than another. The first two grounds for divorce this article will cover, twelve-month separation and mutual consent, are no-fault grounds. The rest are fault-based.
Twelve-Month Separation
To qualify for an absolute divorce by a twelve-month separation, both parties must have lived separate and apart for one year. That's all that it requires. It is very important, however, that one year apart remains continuous and uninterrupted. A single night of cohabitation can undo months of separation and force the parties to start all over again. "Cohabitation" does not necessarily mean sexual relations, either. Spending the night in the same house may have the same effect, even if the parties sleep in different beds. In a perfect world, a twelve-month separation can be as simple as one party moving out, and then the parties filing for divorce a year later. When things are less than perfect, however, a court's involvement might be necessary. In that case, you can file for limited divorce for the court to help establish some sort of spousal support or property distribution for the year.
Mutual Consent
This is another no-fault ground for divorce, and by far the easiest. Under the doctrine of mutual consent, parties simply agree to get divorce, and do not have to suffer the one year waiting period. There are some conditions that need to be met first, however. Both parties will need to have executed a settlement agreement that covers all issues that need to be addressed, such as retirement, alimony, and property. The parties cannot have minor children in common, either (NOTE: this is actually subject to change; as of October 1, 2018, minor children will no longer be a bar to mutual consent). It is important to make sure that the separation agreement is done correctly, as it will likely be merged or incorporated into the final judgment of absolute divorce. In other words, the agreement itself will become legally enforceable.
Adultery
Infidelity can be grounds for divorce, but it is not always as simple as one might think. To proceed with an adultery claim, one must be able to provide evidence to prove two elements of adultery: opportunity and disposition. Opportunity is the set of circumstances that allow for adultery to happen. For example, evidence that your spouse entered a hotel room with another man or woman at night and not did not leave until the morning after. Disposition is the state of mind of the cheating spouse. To prove disposition, you would need evidence to support that your spouse had the desire to commit adultery - such as public displays of affection between your spouse and their paramour. Proving adultery can be hard, especially in a same-sex marriage.
Cruelty of Treatment
Also known as excessively vicious conduct. This is another ground that can be difficult to prove. Simple rudeness is not sufficient. Proving to a judge that your spouse was mean to you or called you names, even if they shouted at you, will not quality for cruelty of treatment. You will need to prove that your spouse's conduct put you (or your child) in unsafe conditions, either physical or emotional. Emotional abuse giving rise to excessively vicious conduct often requires a pattern of behavior, such as an attempt to cause permanent emotional harm.
Desertion
Desertion is very similar to the twelve-month separation, in that it requires the parties to first have lived apart for one year before it takes effect. Unlike the twelve-month separation, however, which is a no-fault ground for divorce, one party is responsible for desertion. This can be done in one of two ways: actual desertion, or constructive desertion. Actual desertion is exactly what it sounds like: when one party leaves the other, with the intent on ending the marriage, and the other party did not consent to the desertion. Constructive desertion requires many of the same elements, except the blame would fall on the party who did not leave. If remaining in your home would subject you or your child to physical or emotional abuse, and you were forced to leave to protect yourself, that would be considered constructive desertion. Like actual desertion, constructive desertion must last for one full year.
Insanity
Insanity can be a ground for divorce, as well, though it is rarely feasible. Your spouse must have been declared insane by two psychiatrists, and they must be confined in a hospital or mental institution for no less than three years. You may need to ask the court to appoint a guardian for your spouse, as well, if they are not mentally competent to stand trial. Remember, after one year of living apart, you can file for divorce using that twelve-month separation as grounds.
Incarceration
A divorce can also be granted based on your spouse's conviction of a crime, if they have been sentenced to jail for three years or more, and your spouse has already served one year in jail as of the time of filing.
In order for an absolute divorce to move forward, the parties will need something called grounds for divorce. The grounds for divorce are mutual consent, twelve-month separation, adultery, desertion, cruelty or treatment, incarceration, and insanity. These will be discussed in more detail in a later blog post. Of note for today’s topic, however, is the twelve-month separation. If none of the other grounds apply, then the parties will have to live separate and apart for one full year.
For many people, this is a a simple process. Nothing needs to be filed with the court until a year has passed and both parties are ready to proceed with an absolute divorce. For some, however, it is not as easy. A year is a long time, and it is often difficult for one party to support themselves throughout that year. The parties may disagree on custody or child support through that one year, or who gets to remain in the marital home. In cases such as these, the court will need to get involved earlier than normal. If the parties do not yet have grounds for absolute divorce, but still need financial relief or are otherwise unable to resolve their matters privately, then limited divorce is an appropriate remedy. A limited divorce can establish child support and custody, spousal support (also known as alimony), and use and possession of property such as the marital home.
To ensure you are properly prepared for your divorce, contact us for your consult today!
