Is it time to overhaul Maryland’s grounds for divorce?

Part 1

This blog, the first in a multi-part series, poses the question of whether it’s time to update Maryland’s grounds for divorce and starts to answer that question by looking at developments in Maryland over the last several years.  We’ll then look at how other states approach grounds for divorce, and finally turn to what changes might benefit Maryland.  I welcome hearing from readers about their thoughts.

What Are Grounds for Divorce?

In order to get divorced in Maryland, whether an absolute or limited divorce, one must prove “grounds”.  Grounds for divorce means proving a legally recognized set of facts that entitles the court to grant a divorce.  As of 2019, Maryland recognizes the following as grounds for an absolute divorce:

• Adultery;
• Desertion;
• Conviction of a felony or misdemeanor;
• 12-Month separation;
• Insanity;
• Cruelty;
• Excessively vicious conduct; and,
• Mutual consent

plus the following grounds for a limited divorce:

• Cruelty;
• Excessively vicious conduct;
• Desertion; and,
• Separation.

As can be seen, these grounds fall into two general categories – fault grounds and no fault grounds.  Fault grounds hold one spouse responsible for the marriage’s end.  No fault grounds are just that – they assign no responsibility.

The Maryland General Assembly is almost entirely responsible for establishing and changing Maryland’s grounds for divorce.

How Have Maryland’s Grounds Changed in Recent Years?

Since the 2011 Maryland Legislative Session, there has been a trend to change Maryland’s grounds for divorce in some pretty significant ways.  These changes have largely focused on absolute divorce grounds.  Absolute grounds terminate a marriage, whereas a limited divorce does not but does address pressing issues like custody, support, and use of family property.  These developments have generally made divorce more accessible by reducing separation periods in contested no fault divorces and by eliminating separation altogether in uncontested no fault divorces with a signed and written settlement agreement.

In 2011, the first of these major changes consolidated two grounds for divorce: 

1)  12-month voluntary separation (which required the parties to live separate and apart, by mutual and voluntary agreement, without cohabitation and sexual relations); and,

2) 2-year separation (which required the parties to live separate and apart, without cohabitation and sexual relations, regardless of whether the separation was mutual and voluntary). 

This resulted in a single 12-month separation ground, which requires living separate and apart, without cohabitation and sexual relations.  So, a reluctant spouse, who did not want the separation, could no longer hold up a divorce until the couple had been separated for 2 years.

In 2013, efforts to reduce the 12-month separation period to 6 months failed, as did an attempt to define “separation” to include living in the same residence and sharing expenses, as long as the parties maintained separate bedrooms.

2014 saw a further failed effort to introduce a new ground for divorce of “execution of a settlement agreement”.  This, however, paved the way for the Mutual Consent ground, which debuted and passed in 2015.

The Mutual Consent ground for divorce marked a significant change.  Passed in 2015 and effective October 1, 2015, Mutual Consent afforded parties, who had no minor children in common, the opportunity for a no-fault divorce without the time and cost of a 12-month physical separation or even ending sexual relations.  It requires a signed and written settlement agreement resolving all issues between the parties and both spouses to appear at the uncontested divorce hearing.

2015 also saw a minor change to the limited ground of separation, eliminating the requirement that the separation be mutual and voluntary and bringing it in line with the absolute ground.  Also, Maryland’s Attorney General issued its opinion that, after passage of same sex marriage, adultery was an available ground, regardless of gender and putting to rest questions over whether to pursue a legislative fix to confirm this.

Then, developments largely stalled in 2016 and 2017 with:

• A failed attempt to eliminate the exclusion of no minor children in common from the Mutual Consent ground and eliminate the requirement that both spouses attend the Mutual Consent divorce hearing; but,
• Success eliminating the requirement of corroborating evidence of the grounds for divorce (except for Mutual Consent).

2018 was comparatively full of successes:

• Making Mutual Consent divorces available to all couples, including those with minor children in common;
• Allowing oral amendments to request a 12-month separation at the divorce hearing; and,
• Eliminating the requirement that both spouses attend the Mutual Consent divorce hearing,

plus a few failures:

• To allow Mutual Consent divorce based on an oral agreement in open court; and,
• To allow Mutual Consent divorce for military members with minor children in common, which became moot.

2019 renewed efforts to make contested no fault divorce available to spouses who live together with the introduction of “separation of affection”, which would have allowed parties residing in the same home to divorce if they had not engaged in sexual relations for 12 consecutive months.  This was ultimately unsuccessful.

Concluding Thoughts

Recent years have seen a marked shift to make divorce, especially no fault grounds, more readily available to Marylanders.  Legislative progress often happens in incremental steps.  But this overall trend begs the questions of how Maryland compares to other states and whether it is time for a broader overhaul?  I welcome your thoughts and comments.

My next blog in this series focuses on other states’ grounds for divorce and how Maryland compares.

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 for discussion, news, and developments in Maryland family law on LinkedIn, Facebook, Instagram, Twitter, and LindsayParvis.com, as well as subscribe to her Newsletter.