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FREQUENTLY ASKED QUESTIONS ABOUT
Divorce

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. Starting in October 2015, if a couple have no minor children and a written
    separation agreement, they can get divorced immediately.  Otherwise, 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 one 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. 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 extramarital 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.

    Q. Is a "no-fault" divorce possible?

    A. Under Maryland law, after one year of separation, with no hope or expectation of
    reconciliation, either party can obtain an absolute divorce. Even a philandering
    and abusive spouse who stays away for one year is entitled to a divorce.
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