| background |
NOTICE: None of these questions and answers constitute legal
advice. To obtain legal advice, consult with an attorney. This is
especially important in divorce and family law matters, in which
outcomes are often peculiar to the particular facts and
circumstances of the case.
Q. What is a "legal separation"?
A. In Maryland, whether or not a couple is separated is a question of
fact. If husband and wife are not having sexual relations and are not
sleeping under the same roof (in the same residence), then they are
separated. People usually use the phrase "legal separation" to mean
that they have signed a contract, called a separation agreement,
which settles all of their marital property rights, alimony claims, and
other issues-but they have not yet obtained a divorce.
Q. Is there a waiting period for a divorce in Maryland?
A. In order to obtain an absolute divorce (which is the legal term for
a "real divorce") in Maryland, unless the divorce is based on adultery
or cruelty, the parties must have been separated for at least 1 year.
However, no one should wait a year after separating to file for a
divorce because court dockets are clogged and it will take most of
that time to get a court date. In order to "get in line" for a court
date, many parties file for a "limited divorce," a holdover from
yesteryear which today serves two functions: getting temporary
support and getting in line for an absolute divorce.
Q. Are "irreconcilable differences" grounds for divorce?
A. Not exactly. Maryland law nowhere lists "irreconcilable differences"
as grounds for divorce. However, conduct which many couples
describe as "irreconcilable differences" may fit into one of the other
grounds for divorce discussed below.
Q. Is a "no-fault" divorce possible?
A. Under Maryland law, there are two kinds of "no-fault" divorce.
After 1 year of mutual and voluntary separation, with no hope or
expectation of reconciliation, either party can obtain an absolute
divorce. "Mutual and voluntary" means that both parties agreed to
separate, that they did so without any coercion or threat, and that
they intended to end their marriage. After 2 years of separation for
any reason, either spouse can obtain an absolute divorce. (Even a
philandering and abusive spouse who stays away for 2 years is
entitled to a divorce.)
Q. What are the most common "fault" grounds for divorce?
A. The most common "fault" grounds are: (1) adultery, (2)
desertion, (3) constructive desertion, (4) cruelty, and (5)
excessively vicious conduct.
Q. What evidence is needed to prove adultery?
A. It is rarely possible to obtain evidence of adultery by the
testimony of eyewitnesses. But there is no need to "catch them in
the act." Circumstantial evidence is sufficient. There must be
evidence that (1) the alleged adulterer and paramour were inclined
to commit adultery when there was an opportunity to do so, and
(2) they were together at a time and place and under circumstances
which provided them with an opportunity to engage in sexual
intercourse.
Q. Does adultery include an extra-marital same-sex
relationship?
A. No Maryland appellate court has tackled this question in a
reported decision. So far, "adultery" as used in Maryland's divorce
law has meant voluntary sexual intercourse between a married
person and a partner other than the married person's spouse.
Intercourse, which means penetration of the vagina by the penis,
does not occur between same-sex partners. Thus, same-sex
intimate conduct may not be classified as adultery. However, such
conduct may amount to constructive desertion, discussed below.
Q. What kind of conduct constitutes cruelty or excessively
vicious conduct?
A. Cruelty encompasses mental as well as physical abuse. Verbal
and physical abuse may have been tolerated in another era, but
today evidence of controlling behavior, isolation from friends or
family, taunting, violence and threats of violence, or other
misconduct which is calculated to seriously impair the health or
permanently destroy the happiness of the other spouse, will justify
an absolute divorce on grounds of cruelty or excessively vicious
conduct.
Q. Is one act of violence grounds for divorce?
A. A single act of violence, in order to constitute cruelty, must
indicate the intent of the offending spouse to do serious bodily
harm or be of such nature as to threaten or place the victim in
serious danger in the future.
Q. What acts constitute abandonment or desertion?
A. Abandonment and desertion as grounds for divorce contain two
elements: (1) ending cohabitation and (2) intent to end the
marriage.
Q. What does "ending cohabitation" mean?
A. Ending cohabitation means ceasing to live in the same residence
and ceasing to have sexual relations with one another.
Q. When is someone legally justified in leaving?
A. Someone is legally justified in leaving when a spouse's conduct
presents such a threat to a person's safety, physical health, or
self-respect that continuation of the marital relationship has been
made impossible. This is what Maryland law calls "constructive
desertion" by the offending spouse.
Q. Are demands for kinky or abnormal sex grounds for
divorce?
A. The practice of kinky or abnormal sexual relations by one spouse
and the demand that these practices continue is inconsistent with
the health, self-respect, and comfort of the other spouse. One who
suffers from such demands may be justified in leaving on grounds
of constructive desertion.
Q. Is infecting a spouse with a sexually transmitted disease
grounds for divorce?
A. If a spouse, knowing he or she is afflicted with a sexually
transmitted disease, continues to maintain sexual relations and
communicates the disease to the other spouse, such action
constitutes extreme cruelty justifying divorce. However, to establish
cruelty as the result of communication of a sexually transmitted
disease, the diseased spouse must have known of the condition and
the other spouse must have not known about it.
advice. To obtain legal advice, consult with an attorney. This is
especially important in divorce and family law matters, in which
outcomes are often peculiar to the particular facts and
circumstances of the case.
Q. What is a "legal separation"?
A. In Maryland, whether or not a couple is separated is a question of
fact. If husband and wife are not having sexual relations and are not
sleeping under the same roof (in the same residence), then they are
separated. People usually use the phrase "legal separation" to mean
that they have signed a contract, called a separation agreement,
which settles all of their marital property rights, alimony claims, and
other issues-but they have not yet obtained a divorce.
Q. Is there a waiting period for a divorce in Maryland?
A. In order to obtain an absolute divorce (which is the legal term for
a "real divorce") in Maryland, unless the divorce is based on adultery
or cruelty, the parties must have been separated for at least 1 year.
However, no one should wait a year after separating to file for a
divorce because court dockets are clogged and it will take most of
that time to get a court date. In order to "get in line" for a court
date, many parties file for a "limited divorce," a holdover from
yesteryear which today serves two functions: getting temporary
support and getting in line for an absolute divorce.
Q. Are "irreconcilable differences" grounds for divorce?
A. Not exactly. Maryland law nowhere lists "irreconcilable differences"
as grounds for divorce. However, conduct which many couples
describe as "irreconcilable differences" may fit into one of the other
grounds for divorce discussed below.
Q. Is a "no-fault" divorce possible?
A. Under Maryland law, there are two kinds of "no-fault" divorce.
After 1 year of mutual and voluntary separation, with no hope or
expectation of reconciliation, either party can obtain an absolute
divorce. "Mutual and voluntary" means that both parties agreed to
separate, that they did so without any coercion or threat, and that
they intended to end their marriage. After 2 years of separation for
any reason, either spouse can obtain an absolute divorce. (Even a
philandering and abusive spouse who stays away for 2 years is
entitled to a divorce.)
Q. What are the most common "fault" grounds for divorce?
A. The most common "fault" grounds are: (1) adultery, (2)
desertion, (3) constructive desertion, (4) cruelty, and (5)
excessively vicious conduct.
Q. What evidence is needed to prove adultery?
A. It is rarely possible to obtain evidence of adultery by the
testimony of eyewitnesses. But there is no need to "catch them in
the act." Circumstantial evidence is sufficient. There must be
evidence that (1) the alleged adulterer and paramour were inclined
to commit adultery when there was an opportunity to do so, and
(2) they were together at a time and place and under circumstances
which provided them with an opportunity to engage in sexual
intercourse.
Q. Does adultery include an extra-marital same-sex
relationship?
A. No Maryland appellate court has tackled this question in a
reported decision. So far, "adultery" as used in Maryland's divorce
law has meant voluntary sexual intercourse between a married
person and a partner other than the married person's spouse.
Intercourse, which means penetration of the vagina by the penis,
does not occur between same-sex partners. Thus, same-sex
intimate conduct may not be classified as adultery. However, such
conduct may amount to constructive desertion, discussed below.
Q. What kind of conduct constitutes cruelty or excessively
vicious conduct?
A. Cruelty encompasses mental as well as physical abuse. Verbal
and physical abuse may have been tolerated in another era, but
today evidence of controlling behavior, isolation from friends or
family, taunting, violence and threats of violence, or other
misconduct which is calculated to seriously impair the health or
permanently destroy the happiness of the other spouse, will justify
an absolute divorce on grounds of cruelty or excessively vicious
conduct.
Q. Is one act of violence grounds for divorce?
A. A single act of violence, in order to constitute cruelty, must
indicate the intent of the offending spouse to do serious bodily
harm or be of such nature as to threaten or place the victim in
serious danger in the future.
Q. What acts constitute abandonment or desertion?
A. Abandonment and desertion as grounds for divorce contain two
elements: (1) ending cohabitation and (2) intent to end the
marriage.
Q. What does "ending cohabitation" mean?
A. Ending cohabitation means ceasing to live in the same residence
and ceasing to have sexual relations with one another.
Q. When is someone legally justified in leaving?
A. Someone is legally justified in leaving when a spouse's conduct
presents such a threat to a person's safety, physical health, or
self-respect that continuation of the marital relationship has been
made impossible. This is what Maryland law calls "constructive
desertion" by the offending spouse.
Q. Are demands for kinky or abnormal sex grounds for
divorce?
A. The practice of kinky or abnormal sexual relations by one spouse
and the demand that these practices continue is inconsistent with
the health, self-respect, and comfort of the other spouse. One who
suffers from such demands may be justified in leaving on grounds
of constructive desertion.
Q. Is infecting a spouse with a sexually transmitted disease
grounds for divorce?
A. If a spouse, knowing he or she is afflicted with a sexually
transmitted disease, continues to maintain sexual relations and
communicates the disease to the other spouse, such action
constitutes extreme cruelty justifying divorce. However, to establish
cruelty as the result of communication of a sexually transmitted
disease, the diseased spouse must have known of the condition and
the other spouse must have not known about it.
| FREQUENTLY ASKED QUESTIONS Divorce |
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| Meiselman & Helfant, LLC 29 Wood Lane Rockville, Maryland 20850 301-279-8840 Fax 301-279-9630 E-mail: info@mdfamlaw.com |
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| Contact Meiselman & Helfant, LLC Today Call 301-279-8840 |
| Meiselman & Helfant, LLC |
29 Wood Lane, Rockville, Maryland 20850
| Call 301-279-8840 |
| Serving Bethesda, Chevy Chase, Gaithersburg, Germantown, Kensington, Potomac, Rockville, Silver Spring, Wheaton, Montgomery County, Prince George's County, Frederick County, and Howard County. |
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