If you are considering filing for divorce in Maryland, your filing must include the grounds, or basis, for the divorce. Beginning this fall, selecting the grounds when filing for divorce will become an easier determination. During the 2023 Legislative Session, the General Assembly passed bills eliminating limited divorce in Maryland and changing the grounds available for an absolute divorce. On May 16, 2023, Governor Moore signed Senate Bill 36,which was cross-filed with House Bill 14, into law. The new version of Md. Code, Family Law § 7-103 will become effective on October 1, 2023, and will apply to all divorce cases filed on or after that date.
Current Law through September 20, 2023
Maryland law currently provides for two different types of divorce: limited divorce and absolute divorce. An absolute divorce is a permanent end to the marriage. An absolute divorce severs all legal ties between the parties and allows the parties to resume use of a former name or remarry if they choose. In contrast, a limited divorce does not end the marriage. A limited divorce allows a person who does not satisfy the grounds for absolute divorce and cannot reach an agreement with their spouse to ask the court to order temporary relief regarding child custody, child support, alimony, and use of real or personal property. Because a limited divorce is not a permanent end to the marriage, the court may revoke a limited divorce at any time if both spouses jointly request that the limited divorce be revoked. The differences between these two types of divorce and the grounds for each are explained in more detail in Common Questions about Divorce in Maryland.
There are currently two categories of grounds for absolute divorce in Maryland: “fault” grounds and “no-fault” grounds. Under current law, the “no-fault” grounds are mutual consent and 12-month separation. To file for absolute divorce based on mutual consent, the parties must submit a written settlement agreement signed by both parties resolving all issues related to their marriage. This includes alimony, property distribution, and custody and support of the parties’ minor children. To file for absolute divorce based on 12-month separation, the parties must live separate and apart without cohabitation for 12 months without interruption before filing for divorce. The “fault” grounds include adultery, desertion, criminal conviction, insanity, cruelty of treatment, and excessively vicious conduct.
New Law Effective October 1, 2023
The new law scheduled to become effective in October eliminates the concept of limited divorce and changes the grounds for absolute divorce. Beginning in October, there will be only three grounds for absolute divorce: 6-month separation, irreconcilable differences, and mutual consent.
Under current law, separation is a basis for absolute divorce if “the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.” Md. Code, Fam. Law § 7-103(a)(4).
Separation will remain a ground for absolute divorce when the new version of Md. Code, Fam. Law § 7-103 becomes effective in October; however, there are some significant changes. First, the requisite period of separation is reduced from 12 months to 6 months. Second, the phrase “without cohabitation” is removed from separation ground in the new version of Md. Code, Fam. Law § 7-103. Furthermore, the new statute adds language clarifying what qualifies as separation. Even if the parties reside in the same home or if the separation is pursuant to a court order, parties “who have pursued separate lives” for at least 6 months qualify as living separate and apart.
Starting in October, to file for absolute divorce based on separation, the parties must live separate and apart for 6 months without interruption before filing. In the new version of the statute, 6-month separation will be codified at Md. Code, Fam. Law § 7-103(a)(1).
Irreconcilable differences is a new ground for absolute divorce. The specific language included in the new version of Md. Code, Fam. Law § 7-103 is “irreconcilable differences based on the reasons stated by the complainant for the permanent termination of the marriage.”
The statute does not provide a definition or explanation of what qualifies as an irreconcilable difference. Because the new law has not yet taken effect, there is no Maryland caselaw interpreting or elaborating on irreconcilable differences. Taken literally, an irreconcilable difference is a difference between spouses that cannot be resolved. In other words, the marital relationship is broken and cannot be repaired. Examples could include differences of opinion about religion, having or raising children, financial matters, or general discord between the spouses. It is not necessary for both spouses to agree that their differences are irreconcilable. If one spouse believes that the marriage cannot be repaired, it is unlikely that the other spouse will be able to prevent a divorce by asserting that the parties’ differences can be reconciled. In the new version of the statute, irreconcilable differences will be codified at Md. Code, Fam. Law § 7-103(a)(2).
Mutual consent will remain a ground for absolute divorce when the new version of Md. Code, Fam. Law § 7-103 takes effect in October.
To file for absolute divorce based on mutual consent, the parties must submit a written settlement agreement executed by both parties that resolves all issues relating to the marital estate, including alimony, monetary award, and the distribution of property. If the parties have children together, the written settlement agreement must also resolve all issues relating to the care, custody, access, and support of minor or dependent children. Provided that neither party files a request to invalidate or set aside the settlement agreement before the divorce hearing, the court will grant an absolute divorce based on mutual consent if the court is satisfied that any terms of the settlement agreement relating to minor or dependent children are in the best interests of the children. If a court grants an absolute divorce based on mutual consent, the court may merge or incorporate the settlement agreement into the Judgment of Absolute Divorce. In the new version of the statute, mutual consent will be codified at Md. Code, Fam. Law § 7-103(a)(3).
Expected Impact of 2023 Updates to Maryland Divorce Law
Overall, we expect the impending changes to Md. Code, Fam. Law § 7-103 to make divorce a quicker process for many divorcing couples in Maryland.
For the separation ground, the reduction of the required separation period from 12 months to 6 months will obviously accelerate the process. Furthermore, the addition of language clarifying that parties who reside in the same home but pursue separate lives qualify as living separate and apart will make divorcing easier for couples who cannot afford to live in separate residences before their divorce is finalized.
We also expect the addition of irreconcilable differences as a new ground for divorce to streamline the divorce process for some individuals seeking a divorce. This new ground for divorce will allow a person who cannot reach a settlement agreement with their spouse to file for divorce without waiting until the 6-month separation period has elapsed.
Mutual consent will remain an attractive option for couples who decide to seek a divorce and are able to reach an agreement addressing all issues relating to alimony, property distribution, and their children. In a settlement agreement, the parties or their attorneys can craft creative provisions tailored to a couple’s unique circumstances.
Generally, the elimination of the fault-based grounds for divorce should decrease the degree of conflict in many divorce cases. However, the elimination of the fault-based grounds for divorce does not mean that fault will no longer be a consideration in divorce cases because the circumstances that contributed to the estrangement of the parties will still be a required consideration for a court evaluating a request for alimony or a monetary award. For example, in a case involving adultery, adultery will no longer be a ground for divorce under the new absolute divorce statute, but adultery will still be relevant to a court’s consideration of a request for alimony or a monetary award.
If you are considering seeking a divorce, we encourage you to contact an experienced family law attorney at Silverman Thompson to discuss your unique situation and see how we can help you achieve your goals.
Disclaimer: This blog is informative in nature. The information contained herein is not to be considered legal advice and there is no attorney-client relationship formed between Silverman Thompson and the reader. The materials in this blog cannot be repurposed without permission of Silverman Thompson.