In 2015, the Maryland General Assembly added “Mutual Consent” as a ground for absolute divorce. Mutual Consent requires that:
(i) the parties do not have any minor children in common;
(ii) the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to:
1. alimony; and
2. the distribution of property, including the relief provided in §§ 8–205 and 8–208 of this article;
(iii) neither party files a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules; and
(iv) both parties appear before the court at the absolute divorce hearing.
But, “minor children in common” is not defined.
So, what does “minor children in common” mean in the context of Mutual Consent divorce?
Clearly, it applies to biological and adopted children of both spouses. And, “minor children” are children under age 18 years. So, spouses with adult children are free to divorce by Mutual Consent.
Likewise, it does not apply to step-children who are only biologically related to or adopted by only one of the two spouses and whose other parent is from a prior relationship.
Nor does it apply to unrelated, non-adopted children raised by the spouses.
However, what about a child born during the marriage, who is only related to one spouse or to neither spouse?
Pursuant to Maryland’s Estates & Trusts Article §1-206, a “child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Except as provided in § 1-207 of this subtitle, a child born at any time after his parents have participated in a marriage ceremony with each other, even if the marriage is invalid, is presumed to be the legitimate child of both parents.”
This is a parentage presumption – the presumption that a child born during the marriage is the child of the spouses. The child will therefore be treated as a minor child in common for purposes of Mutual Consent divorce. Unless the spouses and non-spouse biological parent rebut the presumption and prove that the child is not the child of the two spouses.
The U.S. Supreme Court decided in Pavan v. Smith
that statutes like §1-206 above must be applied gender neutrally to married spouses (so, the same way to heterosexual and to same sex spouses), it was not asked to decide if a statute like §1-208 involving unmarried parents should apply gender neutrally to children born to unmarried parents.
So, it is fair to assume that Pavan v. Smith
requires gender neutral application of Estates & Trusts §1-206(b), which applies to children born via in vitro fertilization, making them children in common for purposes of Mutual Consent divorce:
(b) A child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes. Consent of the husband is presumed.
What about children born before marriage, raised as children of the spouses?
Per Estates & Trusts Article §1-208, a child born prior to the marriage is considered the child of the father if the father:
(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings;
(2) Has acknowledged himself, in writing, to be the father;
(3) Has openly and notoriously recognized the child to be his child; or
(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.
But, this statutory language does not account for children born before the marriage of a same sex couple. While one can argue that the gender neutrality of Pavan v. Smith applies, Maryland has not yet adopted this as law, inviting inconsistency and uncertainty.
If, however, the parents recognize the non-adoptive, non-biological spouse to be a de facto parent
, then the court should treat the child as a “child in common”.
This uncertainty could be fixed in one of two ways:
- Eliminate the exclusion of no minor children in common from the Mutual Consent ground for divorce; or,
- Establish an updated parentage framework to legally recognize parent-child relationships for same sex parents without adoption.
All that said, if spouses do not agree about whether they have minor children in common, they are unlikely to be entitled to a Mutual Consent divorce, which requires – afterall – a written and signed agreement resolving all issues between them.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked In, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.