Mutual Consent Divorce, Children in Common & Guardianship

If the parties have co-guardianship of a minor child, do they have a “child in common” that would exclude them from being eligible for a divorce based on the ground of mutual consent?

Short answer: No.

Spouses, who have a signed settlement agreement resolving all issues and who do not have any minor children in common, can obtain a divorce based on “mutual consent”. This does not require any separation period or even the ending of marital relations. It allows for an immediate divorce.

This ground excludes couples who have minor children in common. For further discussion of this, please see my previous post:

But, what does “children in common” mean? The statute does not define it.

But the legislative history provides some guidance, which requires a reading of an earlier draft of the bill – 2015 SB472:

• Starting on Page 2, line 29 and continuing through Page 3, line 17 – the language in all caps (not underlined) is Senator Zirkin’s original language. The underlined language is amended language, proposed by Senate Judicial Proceedings Committee.

• Page 3, lines 7 through 11 and 15 through 17, contains proposed language about minor children. This refers to minor and dependent children. Not “children in common”. That language was removed by House Judiciary Committee, replacing with the language of the law now. Law now:….

• The language in those lines refers to payment of child support and care, custody, and access. These concepts are encompassed by Family Law Article §5-203(b) (parents of a minor child who are jointly and severally responsible for the child’s support, care, nurture, welfare, and education) and §5-203(d) (award of custody to a parent). §5-203’s language:…

• Nowhere does the bill refer to guardianship. Guardianship is different from child custody and child support. Co-guardianship of a minor child is not the same as custody or duty to support under the law, so differentiating from an obligation of care, custody and support of a biological or adopted child.

• If the legislature meant to exclude persons with co-guardianship of a child, the law would so state.

Additional resources that may shed more light:

– House Judiciary Vote and notes about its amendments (excluding children in common):

– Fiscal Note (Amended):

– Video of House Judiciary Hearing:…/e656acc55d6844b19f5174b102…/… (after which amendments added re: excluding couples with minor children in common)

From the perspective of candor to the court (for attorneys) and truthfulness (for litigants), it may be appropriate to disclose the guardianship and confirm that the child is neither the biological or adopted child of the parties. But, guardianship of a child does not equal custody or duty of support, so should not preclude divorce based on mutual consent.

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