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Can a couple living apart in the same
residence get divorced?

NOTICE: None of the contents of this page constitutes 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.
    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
    granted.

    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."
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