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| Divorce: 'Technically Living Together' |
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| To learn more, please read these FREQUENTLY ASKED QUESTIONS AND ANSWERS |
Can a couple living apart in the same residence get divorced?
In Ricketts v. Ricketts, 393 Md. 479, 903 A.2d 857 (2006), the
Maryland Court of Appeals considered 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 non-refusing spouse makes an "effort towards
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 Ricketts, 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 Gordon v.
Gordon, a 1996 case.
In Gordon v. Gordon, 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, the Court of Appeals held that
"jurisdiction to determine the custody and support of children and
establish the visitation rights of the non-custodial 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."
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 Ricketts v. Ricketts, 393 Md. 479, 903 A.2d 857 (2006), the
Maryland Court of Appeals considered 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 non-refusing spouse makes an "effort towards
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 Ricketts, 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 Gordon v.
Gordon, a 1996 case.
In Gordon v. Gordon, 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, the Court of Appeals held that
"jurisdiction to determine the custody and support of children and
establish the visitation rights of the non-custodial 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."
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.
