This blog, the third and last in a multi-part series, considering Maryland’s trends and other states’ grounds from Part 1 and Part 2, discusses whether it is time for Maryland to overhaul its grounds for divorce. I welcome hearing from readers about their thoughts.
Is It Time for an Overhaul?
Perhaps. Undeniably, since 2011, Maryland has made filing for divorce more accessible, with the decrease in the minimum separation period from 2 years to 1 and the addition of the Mutual Consent ground, which requires no separation or end of marital relations. What Maryland has yet to implement is a no fault ground, that parties can pursue in contested divorce, without any separation requirement. Otherwise put, a ground allowing parties who live together, have not settled their case, but don’t have a fault ground, to get divorced.
A threshold question to answer is if there is an overhaul, should it be to expand Maryland’s grounds for divorce by adding additional grounds or to reduce Maryland’s grounds for divorce and become a no fault only state?
Looking Backward to Move Forward
The last time Maryland comprehensively looked at its grounds for divorce was around 1982 during The Governor’s Commission on Domestic Relations Laws – also known as The Groner Commission – which was a multi-year Commission to study and recommend overhaul of Maryland’s divorce law.
Then and in addition to grounds still existing today, Maryland’s grounds included impotence at the time of marriage, any cause rendering a marriage null and void. The Commission recognized that the grounds had come into existence piecemeal and not part of “a common plan”. The Commission found the following grounds obsolete: impotence, any cause rendering a marriage null and void, insanity, and conviction.
Interestingly, the Commission went out of its way to state “It should be clearly understood that the Commission does not desire to make divorce ‘easier’ in Maryland. What is desired is to foster the preservation of marriages that can be preserved, to make the procedure less legalistic for those that cannot, and to have the law of divorce in Maryland be understandable…the citizenry of Maryland is entitled to have grounds that are simply stated and comprehensive, a divorce law that encourages reconciliation, and one that does not tend to encourage vice while protesting its own virtue.”
The Commission opined that the then divorce law probably encouraged adulterous relationships, encourages parties to seek divorce in other states (with more easily accessed grounds), discouraged reconciliation, trapped the unwary through forfeiture of rights due to fault, and denied divorce to spouses both at fault.
The Commission recommended a significant paring down of the grounds for divorce to two grounds for absolute divorce: 1) adultery and 2) 12 month separation without cohabitation; and, one ground for limited divorce: living separate and apart without cohabitation. It rejected “irretrievable breakdown” or “irreconcilable differences” as a potential ground.
Do We (Still) Need Fault Grounds?
In 1982, The Groner Commission stated in response to suggestions eliminating fault as a consideration in divorce that “The Commission disagrees. As virtue, embodied in the respective contributions of the spouses to the well-being of the family…is relevant to the rights and equities of the parties in their marital property, so also is it correlative of fault…which refers to the circumstances and facts which contributed to their estrangement.”
Fault remains a factor the court can consider in divorce. At present, fault is most commonly a consideration in four general areas of divorce law:
- Grounds for divorce;
- Asset division, in the context of monetary award and potentially dissipation/waste of marital assets;
- Alimony; and,
- Custody, if the fault can be tied either to parental fitness or to demonstrated harm to the child(ren).
And, while not a required consideration, fault can also color a jurist’s opinion of a party’s credibility, sincerity, and (frankly) likeability.
Elimination of fault grounds would not eliminate all consideration of fault in divorce. But, is that what Marylanders want and need?
Looking – And Moving – Forward
What is needed is a workgroup of family law advocates to look at what our grounds have been, what they are now, compare Maryland to other states, and – most importantly – seek public input.
We need to identify gaps (or, more precisely, obstacles) in our current grounds for divorce that prevent couples desiring divorce from divorcing.
We need to explore social science on the advantages and disadvantages of quick versus prolonged divorce on families.
We need to weigh self-determination of individuals who want and choose divorce against public policies of preserving marriage and encouraging reconciliation and decide our 21st Century priorities.
We need to seek input from a variety of legal services providers, to understand the challenges the populations they serve encounter with the grounds for divorce.
When we develop a consensus, we need to develop proposed legislation.
The very first step is to identify family law advocates willing to take this on. Please contact me with your feedback and if interested in volunteering.
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.