In 2006, the Maryland Court of Appeals considered the case of Ricketts, a couple who lived together in the same house, but in separate bedrooms and without cohabitation. The husband filed a complaint for limited divorce based on
constructive desertion, and for custody and visitation.The trial court dismissed the complaint because the parties were not living “separate and apart.” The husband appealed.
The Court of Appeals had to determine whether either or both causes of action — limited divorce and custody — could be maintained while the parties were “living under the same roof.” The Court decided that both causes of action could be
maintained, each for different reasons.
While acknowledging that “both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home,” the Court of Appeals revived a long-dormant framework for constructive desertion
based on refusal of sexual relations when the parties continue to reside together. To the chagrin of many couples, merely sleeping in separate bedrooms and ceasing to having marital relations will not suffice.
First, there must be “permanent refusal [by one spouse] … to have sexual intercourse with the other spouse, from no consideration of health or other good reason.”
Second, accompanying the permanent refusal of sexual intercourse, unless the nonrefusing spouse makes an “effort toward reconciliation, it is presumed that both spouses prefer to live under such circumstances” and the divorce will not be
As often occurs, what was left unspoken piques curiosity. The Court of Appeals noted that the only issue before it was the sufficiency of the pleadings. Mr. Ricketts sought a limited divorce based on constructive desertion, a fault ground, so the Court addressed the sufficiency of that claim. The Court did not address whether and under what circumstances parties residing in the same house might be able to obtain a limited or absolute divorce based on no-fault grounds.This possibility would be more in keeping with contemporary enthusiasm for and public policy favoring mediation, and other no-fault marital dissolution options.
Maryland law recognizes 12-month separation as grounds for an absolute divorce, if: (i) the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce; and (ii) there is no reasonable expectation of reconciliation. Maryland law has a similar provision for a limited divorce based on voluntary separation for less than 12 months.
Historically, the term “separate and apart” has meant the opposite of physically “living under the same roof.” In a 1964 case, where the parties “intermittently lived in the same house” during the statutory period, the Court of Appeals held “they were not living ‘separate and apart, without any cohabitation'” even though they slept in separate bedrooms and did not engage in sexual relations with one another.
Similarly, in 1972, the Court of Special Appeals (Maryland’s intermediate appeals court) held that “the separation contemplated by the statute does not occur until the parties cease living in the same house even though they may have ceased sexual relations prior to that time.”
However, in what might become a useful footnote in the 2006 case, the Court of Appeals explained: “By the phrase ‘live under the same roof,’ we mean that the parties are technically living together but are not cohabitating, sharing the same bedroom or engaging in marital relations.” The footnote goes on to equate “live under the same roof” with “cohabitation” as that term was re-defined in a 1996 case, Gordon v. Gordon.
In the Gordon case, in the course of interpreting a separation agreement, the Court of Appeals “formulated a [non exhaustive] list of factors to consider in determining whether a relationship constitutes cohabitation.” The factors are: 1. establishment of a common residence; 2. long-term intimate or romantic involvement; 3. shared assets or common bank accounts; 4. joint contribution to household expenses; and 5. recognition of the relationship by the community.
In theory, then, maybe it is possible to live “separate and apart” while only “technically living together.” Whether a limited or absolute divorce on no-fault grounds would be granted by a Maryland court under these circumstances
remains to be seen.
Meanwhile, back in Ricketts case, the Court of Appeals held that “jurisdiction to determine the custody and support of children and establish the visitation rights of the noncustodial parent … exists without regard to whether one of the parties has been granted, or is entitled to, a limited divorce.”
However, an award of custody is not required. The Ricketts opinion cites earlier cases, which held that “custody should be awarded and jurisdiction should be retained for the purpose of awarding support and maintenance if the circumstances should warrant such action.”