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Maryland Contested Divorce Attorneys: Absolute Divorce

In Maryland, the law does not permit what other jurisdictions call a "legal separation." Couples may (and should) enter into separation agreements, but those agreements are contracts, not grounds for divorce. If you want more information about separation agreements, visit the page explaining our services in negotiating marital separation agreements. Maryland has two kinds of divorce, absolute and limited:

1. Absolute (which ends the marital relationship entirely, distributes marital property, and provides for child custody, child access (also known as visitation or timesharing), child support, sometimes use and possession of the family home and personal property, spousal support and name changes); and

2. Limited (which is not really necessary if a couple has a separation agreement, but which allows the courts to decide dispute about child custody, child access, child support, spousal support, use and possession of the family home and personal property, and permits the court to resolve disputes over what is and isn't marital property). For more information on Limited Divorce, visit our page that explains this form of divorce in Maryland.

In Maryland, a divorce is called "contested" when the husband and wife don't agree on one, some or all of a number of issues.

Your divorce is "contested" if you don't agree on:

• "Grounds" for divorce.

• Child Custody (both legal and residential, or physical)

• Child Support

• Child Access (or visitation, or timesharing)

• Division of Marital Property (real property, businesses, stocks and securities, retirement accounts, and other valuable assets)

• Spousal Support (or Alimony)

Corroboration: In Maryland, whether your divorce is contested or uncontested, you must have a witness to go to court with you to testify based on personal knowledge to every element of whatever ground for divorce you have.

Grounds for Absolute Divorce:

Sometimes, the trickiest thing to figure out (and the reason you need legal advice to do so) is whether a case is contested based on "grounds" for divorce. The legal term "grounds" means the reason Maryland's statutes give married couples to get divorced. The "grounds" for a limited divorce are different than those for an absolute divorce. Here are the grounds for an absolute divorce:

There are two main types of "grounds" for absolute divorce: those based on time and those based on fault. Maryland law does NOT allow "irreconcilable differences" as a "ground" for divorce! Many attorneys in Maryland who practice in other jurisdictions include this as a "ground" for divorce, but they are wrong! If your spouse has filed for divorce based on "irreconcilable differences," CONTACT US TODAY!

Time-Based "Grounds" for Absolute Divorce:

• You must have lived separate and apart (under separate roofs) for at least one (1) year, both of you must have intended to end your marriage, you cannot have had marital relations at any time AND you must have an agreement (usually in writing, signed by both husband and wife) that: (1) states specifically that your divorce is voluntary; and (2) covers all of the areas that the court would have to decide if you and your spouse do not agree (why you are getting divorced, child custody, both legal and residential; child support; child access; division of marital property; spousal support; and any name changes). If you and your spouse do not agree on these areas, even if he or she has filed a Complaint saying you agreed.

• You must have lived separate and apart (under separate roofs, not in the same house) for two (2) years and you cannot have had marital relations at any time.

• Separate and apart: So far, Maryland still requires that you live in separate residences, NOT in the same house in separate rooms, to qualify for an absolute divorce on either of the time-based grounds, as well as for the fault-based grounds that require a time period (desertion and constructive desertion). No exceptions until the legislature changes the statute.

• Without cohabitation: This means that not only must you live in separate residences, you cannot have resumed marital relations with your spouse at any time during the time-based grounds for divorce, as well as for the fault-based grounds that require a time period (desertion and constructive desertion). No exceptions until the legislature changes the statute.

Fault-Based "Grounds" for Absolute Divorce:

• Adultery:

  A lot of folks think they can claim their spouse has committed adultery because they've found compromising emails on their home computer. This is NOT sufficient proof to claim adultery. And for the record, snooping around your spouse's computer if you don't have a shared password, or using password cracking software or software that "monitors" the keystrokes of an email account to which you don't have the password can get you in serious criminal difficulty. Don't do it! Another thing that doesn't "prove" adultery are racy text messages or Facebook entries. In order to claim adultery, you must be able to prove that your spouse had motive to commit adultery and the opportunity to do so, and you must be prepared to provide the court with a corroborating witness to prove both the motive and opportunity. If you have all of these elements, you don't have to wait for any period of time to file for divorce and you may be able to get divorced based on an adultery claim, but don't try to figure it out for yourself! Contact us today for an initial office consultation.

• Cruelty:

  Cruelty means that your spouse has been abusive to you, no exceptions. It means that your spouse has engaged in a pattern of violence toward you and/or your child(ren) (either mentally or physically) that allows you to prove the abuse to the court. It does not matter whether you are a husband or a wife. What you cannot do is use only a protective order paper to show you were abused. If you have a protective order, you will have to present all of the evidence you presented at the protective order hearing again at your divorce to prove cruelty. But whether you have a protective order or not, if your spouse has treated you in a way that threatens your physical or mental health in an immediate sense, you don't have to wait any period of time to file for divorce and you may have grounds for divorce based on cruelty, but don't try to figure it out for yourself! Contact us today for an initial office consultation.

• Excessively Vicious Conduct:

  Excessively vicious conduct is a lot like cruelty, except that you don't need a pattern of conduct to prove you were abused. Like cruelty, you also don't need a period of time before you can file for divorce. What you do need to be able to prove is that your spouse was so vicious to you or your child(ren), even on a single occasion, that you reasonably believe he or she can and will do so again. If your spouse has treated you, even once, in a way that was so violent that you reasonably believe it could happen again, you may have grounds for divorce based on excessively vicious conduct, you may have grounds for divorce, but don't try to figure it out for yourself! Contact us today for an initial office consultation.

• Desertion:

  Desertion isn't all it's cracked up to be. It doesn't just mean your spouse moved out (although a lot of Maryland attorneys file for divorce claiming desertion on those facts). What it means is that your spouse both moved out and abandoned you and your family without any justification, intending to abandon and end the marriage. Abandonment often means no communication. Left the bills for you to pay. Cut off the checking account. And so on. And that he or she did so without any good reason and without your agreement. Not only that, but the desertion must have continued for one (1) full year, without interruption and without the couple resuming marital relations. But don't try to figure out for yourself whether this ground for divorce applies to you! Contact us today for an initial office consultation.

• Constructive Desertion:

  This "ground" is not specifically identified as a "ground" for divorce in Maryland's statute. It was developed by case law, beginning in 1958, but it is a recognized ground for divorce in Maryland. Usually, it applies to cases where there is bad conduct on the part of one spouse, but not so bad as to rise to the level of cruelty or excessively vicious conduct. If one spouse behaves so badly that his or her behavior drives the other spouse from their residence and makes it impossible to continue being married without threatening the "health, safety, and self- respect," of the spouse who leaves, and the constructive desertion has continued for one (1) full year, without interruption, and without the couple resuming marital relations, then the spouse who left can file for an absolute divorce based on constructive desertion. But don't try to figure out for yourself whether this ground for divorce applies to you! Contact us today for an initial office consultation.

• Incarceration:

  This "ground" isn't often used, but requires that one spouse have been convicted in any state or Federal court of a felony or misdemeanor and, before the complaint for divorce is filed, have been sentenced to serve at least three (3) years OR an indeterminate (such as a life) sentence AND have served at least twelve (12) months of the sentence. This is a difficult ground to claim and to prove, so don't try to figure out for yourself whether it applies to you! Contact us today for an initial office consultation.

• Insanity:

  This "ground" also isn't often used, but requires that, at the time the complaint for divorce is filed, the insane spouse have been kept in a mental institution or hospital or similar place for at least three (3) years, and that two (2) physicians testify that the insanity of the spouse is incurable and there is no hope of recovery. This is a difficult ground to claim and to prove, so don't try to figure out for yourself whether it applies to you! Contact us today for an initial office consultation.

Limited Divorce in Maryland

Here is the straight scoop: Maryland does NOT have anything in its divorce laws that allows for a "legal separation."

The closest thing we have is something called "limited" divorce. Most of us who are Maryland family law attorneys try not to use this form of divorce. The reason for this is that it doesn't help much unless clients can't agree on a separation agreement and there is some financial reason to get the litigation clock started to encourage the other party to start negotiating an agreement, or if the other party just won't cooperate in ensuring that the family expenses are maintained during separation.

What the Courts can do if you get a limited divorce:

• Order spousal support (or alimony);
• Order child support;
• Order use and possession of the family home and family use personal property;
• Order custody;
• Order visitation or child access; and
• Decide what is or is not marital property if you and your spouse disagree, and sometimes (although rarely)
• Order you and your spouse to try to work things out so your marriage continues (trust us, as far as we know, this hasn't happened in at least fifty years . . . but we stand to be corrected if anyone knows differently!).

What the Courts cannot do if you get a limited divorce:

• End your marriage;
• Value and/or distribute marital property, including real property and retirement accounts);

What this means is that if you don't have "grounds" for an absolute divorce in Maryland, and your spouse won't cooperate in negotiating a sensible financial resolution of your marital issues, you may have to file for limited divorce and hope that while the limited divorce case is pending in the courts, your spouse will agree to a sensible settlement of your marital issues.

Here are the "grounds" for limited divorce in Maryland:

• Cruelty of treatment of the complaining party;
• Excessively vicious conduct toward the complaining party;
• Desertion; or
• Voluntary separation IF the parties are living separate and apart (this means under separate roofs) without having marital relat9ons AND there is no reasonable hope or expectation that the parties will reconcile (NOTE ESPECIALLY that adultery is NOT a ground for a limited divorce, and that no time periods are required for desertion, constructive desertion or voluntary separation);

If your spouse cooperates, we can help you negotiate a final contract (called a Voluntary Marital Settlement Agreement) that may make you both eligible to file for an absolute divorce on uncontested grounds even if you've already filed for a limited divorce.

For more information on what kind of divorce you may qualify for, and what kind of help you need, CONTACT US TODAY!

If both you and your spouse have agreed that you no longer want to be married, and your agreement is shown in a document called a Voluntary Marital Settlement Agreement, you may be eligible for an absolute divorce based on one (1) year of continuous separation (living under separate roofs), provided you have not engaged in marital relations during that time and that you both intended that your marriage end when you separated. Your Marital Separation Agreement must reflect all of these facts.

We are happy to help you with an uncontested divorce or with the negotiation and drafting of the comprehensive voluntary marital settlement agreement that allows you to file for an uncontested divorce. If you need our help in either of these areas, CONTACT US TODAY!