Under Maryland law, an absolute divorce dissolves the marriage. Following entry of a judgment of absolute divorce, the parties are free to remarry and all issues arising out of the former marriage will have been resolved. These may include but are not limited to: custody of children, alimony and/or child support, and the equitable distribution of all marital property including real estate and personal property, including financial assets, retirement accounts and businesses. Prior to filing for an absolute divorce, one of the parties to the litigation must have been a resident of Maryland for at least one year for Maryland to have jurisdiction over the case. Finally, a spouse may resume the use of a former name given to that party at birth, or any name used by that party prior to marriage, if the returning to the use of that former name is not intended for any fraudulent, illegal or immoral purpose.
Grounds for Absolute Divorce
To obtain an absolute divorce, you must prove that at least one ground for absolute divorce exists. The following are brief descriptions of each of the "at fault" grounds as and "no fault" grounds for absolute divorce.
Adultery: By common law, adultery is a consensual sexual intercourse involving penetration between a married person and someone other than that individual's spouse. Historically, adultery is intercourse between a man and a woman. Adultery is rarely witnessed, so proof of adultery by circumstantial evidence must include both a showing of disposition by the defendant and his or her alleged paramour and sufficient opportunity to commit the offense.
Desertion: Actual and Constructive
Actual Desertion: A spouse deserts by leaving the marriage unjustifiably with the intention of ending the marriage. Proof of desertion requires the party seeking a divorce to show that the deserting spouse intended to terminate the marriage, that the deserting spouse was unjustified in leaving the marriage, that an uninterrupted desertion has continued for 12 consecutive months, and that the parties are beyond any reasonable hope of reconciliation.
Constructive Desertion: The most common justification for constructive desertion is cruelty. If cruelty or intolerable conduct by one spouse causes the other spouse to leave the home, the departing spouse might file for divorce alleging constructive desertion of the relationship by the other spouse's misconduct. In cases involving constructive desertion, the court will take into account the nature and duration of the misconduct, the length of time the spouse endured the misconduct; and any attempts made to salvage the marriage.
Cruelty of Treatment
Now available as a ground for an absolute divorce, cruelty of treatment is frequently discussed interchangeably with constructive desertion because the cruel treatment frequently results in one party leaving the marriage. Generally, an absolute divorce based upon cruelty is limited to situations involving gross misconduct and not a single act or instance of cruelty. There must be evidence the cruelty was detrimental to the recipient's health or happiness. Conduct such as complaining, cursing, displays of jealousy and nagging are not sufficient. An absolute divorce may be granted upon proof of cruelty of treatment if there is no reasonable expectation of reconciliation between the parties.
Excessively Vicious Conduct
Historically, this ground was intended as a ground for divorce in cases where one spouse was excessively vice-tious, engaging in a particular vice to an excessive degree. More recently, courts discuss cruelty and excessively vicious behavior without much distinction between the two grounds. An absolute divorce may be granted upon proof of excessively vicious conduct if there is no reasonable expectation of reconciliation between the parties.
Conviction of a Crime
Conviction of a crime can be a satisfactory grounds for divorce if a spouse is convicted of a felony or a misdemeanor in any state or federal court in the United States and if before filing for divorce, the non-filing spouse was sentenced to serve at least three years or a sentence of undetermined length in a penal institution and has already served twelve months of that sentence.
Permanent and incurable insanity is a ground for divorce. For insanity to be considered permanently incurable, a person must have been confined in a mental institution, hospital, or similar institution for at least three years preceding a filing for divorce, and the court must determine from the testimony of at least two physicians, competent in psychiatry, that there is no hope for recovery.
No Fault Grounds for Divorce
In Maryland there are two "no fault" grounds for divorce.
Voluntary Separation-12 months: If there has been a consensual separation for one year, either party may file for divorce. Proof of the voluntary separation requires the party seeking a divorce to show that both parties have mutually agreed to live separate and apart without cohabitation, and have done so, for twelve consecutive months before any filing for divorce and that there is no reasonable hope of reconciliation between them.
Involuntary Separation-24 months: If there has been a non-consensual separation for two years, either party may file for divorce. Proof of an involuntary separation requires only that the party seeking a divorce to show th
This article is provided for informational purposes only. It is not offered as legal advice and does not create an attorney-client relationship between the author and the reader. The author is an attorney licensed to practice law in the State of Maryland and the article is based solely on Maryland law.
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