In Maryland, separating couples usually need to offer “grounds” – basically a legal term for “justified reasons” – for getting divorced. Establishing grounds for divorce shows the court that you and your spouse have an actual reason to end the marriage.
What type of grounds for divorce applies to your situation depends on the type of divorce you’re seeking. Make sure you pick the right reason for divorcing. If you can’t prove your grounds for divorce, a judge may end up deciding in your partners’ favor.
Limited divorces occur when both parties can’t resolve their differences, but still haven’t obtained grounds for an absolute divorce. (They are also useful in cases where one party requires financial relief of some kind, or if you haven't been apart long enough to qualify for an absolute divorce.)
In a limited divorce, the state recognizes that you and your spouse live apart as a step toward absolute divorce. However, you’re still considered legally married to each other.
For example, if one spouse has sex with someone other than their partner during the separation, that’s still legally considered adultery.
Cruel treatment by one spouse toward the other spouse or that spouse’s minor child
Excessively vicious conduct by the defendant toward one spouse or their minor child
Desertion. Note that for desertion to be a valid ground for divorce, there must be desertion for less than 12 continuous months with no sign of reconciling. A court will not accept desertion if abuse or violence was involved.
Living separately for less than 12 consecutive months without having sexual relations before the divorce complaint is filed.
An absolute divorce is what most people associate with a stereotypical divorce: It legally dissolves your marriage. As soon as a divorce decree is filed, you can remarry and divide your property. Absolute divorce is the most common type of divorce in Maryland.
Couples are not required to get a limited divorce prior to seeking an absolute divorce, although the court may decide to order a limited divorce in some circumstances. If you can’t come up with better grounds for divorce, then 12-month separation period of a limited divorce would help offer solid grounds for absolute divorce.
Any of the previous grounds for a limited divorce may be filed to seek an absolute divorce, with the following additions:
Insanity. Divorce grounds based on insanity generally mean that one spouse is in a mental institution, hospital, or similar facility for at least three years before the divorce complaint is filed. The court must also hear from at least two psychiatrists that the insanity is incurable and there’s no hope of recovery.
To prove adultery in court, you must show the offending spouse had both the “disposition and the opportunity” for relations outside of the marriage.
A “disposition” might be public displays of affection – such as hand-holding, kissing, and hugging – between the guilty spouse and someone else.
An “opportunity” might be proving that your spouse was seen entering someone else’s apartment alone at 11 p.m. and not coming out until 8 a.m. the following morning.
The court does not accept verbal admissions of adultery. You must prove it through text messages, pictures, e-mails, and similar items. If a cheating partner has either fathered or borne a child whose biological parent is not the other spouse during the marriage, then the court may consider that as proof of adultery.
The law is not completely clear about how adultery relates to same-sex marriages. However, the Maryland Attorney General issued an opinion stating that adultery should include “a spouse’s extramarital sexual infidelity with a person of the same sex.”
Desertion as Grounds for Divorce
Desertion is a fault-based ground for divorce that can be either “actual” or “constructive.”
In “actual” desertion, the deserting spouse generally permanently leaves the family home without justification. To prove actual desertion, the spouse seeking the divorce must prove ALL of the following elements:
The desertion has continued uninterrupted for 12 months;
The deserting spouse intended to end the marriage;
Cohabitation has ended;
The deserter’s leaving was not justified;
The parties are beyond any hope of getting back together; and
The deserted spouse did not consent to the desertion.
In “constructive” desertion, the person who leaves the home is justified in their actions. Therefore, the court actually consider the leaving spouse the “deserted” party, and the spouse who remained the one at fault.
Technically, filing for divorce on grounds for constructive desertion also requires the same proof offered for actual desertion, but in reverse. If a spouse’s actions cause the other spouse to leave the home – such as cruelty or abuse – then the court may consider the spouse who remained in the home to have deserted the relationship, due to their actions.
For constructive desertion cases, the court will consider:
The nature and duration of the misconduct;
The length of time the leaving spouse endured the misconduct; and
What attempts the leaving spouse made to try to save the marriage.
Neither you nor your spouse asks the court to “set aside” – or basically legally ignore – the MSA before the official divorce hearing; and
The plaintiff must appear at the uncontested divorce hearing.
If you meet the above criteria, you can get an absolute, “final” divorce without the one-year separation period. It also means that you can stay living in the same residence while you and your spouse negotiate the terms of your MSA, which can save you both money in the long run.
With so many nuances to consider, it may be hard to pick which grounds best fits your situation. After all, picking the wrong grounds for divorce could sway the court in your ex-spouse’s favor. Just be sure to pick a reason that you can prove with documentation.