Do you really have to separate before getting a Maryland divorce?

If you live in Maryland and are considering getting a divorce, you may have heard that Maryland requires grounds for divorce, but it doesn't require fault. What does that mean?

As you may already know from reading this blog, there are two types of divorce in Maryland, "absolute divorce" and "limited divorce." Only absolute divorce actually ends the marriage. Limited divorce is what people sometimes call "legal separation," meaning that the couple can't remarry but can obtain some court-ordered relief in the areas of property division, child custody, child and spousal support, and similar issues. Grounds are required to obtain either type of divorce in Maryland.

When we talk about "separation" in Maryland, however, we generally mean something different -- actual physical separation. That's because one of the grounds for divorce here is that you've lived separately for a full year, without interruption and without having sexual relations. The 12-month separation is the only "no fault" option for divorce in Maryland.

So no, you don't absolutely have to separate before getting a divorce in Maryland. Living apart for a year is not the only grounds for absolute divorce, however; it's just the only "no fault" grounds. Maryland also has several fault-based grounds:

  • Your spouse has committed adultery as defined in Maryland law
  • Cruelty of treatment and excessively vicious conduct, such as physical abuse, which threatens your health and safety or that of a child
  • Your spouse has been sentenced to more than 3 years of incarceration and has been imprisoned for at least a year before you file
  • Desertion (your spouse has left you for at least a year) or "constructive" desertion (your spouse's behavior forced you to leave) with the intent to end the marriage
  • Insanity, if your spouse has been committed to a mental institution for 3 or more years and you can prove a diagnosis is of incurable insanity

Does it matter whether I choose fault or no-fault grounds for divorce?

It might. Beyond the emotional issues that may come into play, some fault-based grounds (adultery or cruel treatment) have the advantage of allowing you to divorce immediately. However, fault-based grounds can have unexpected consequences, as some of them affect the availability of alimony and may be taken into account when child custody/visitation decisions are made by the courts.

A family law attorney can answer any specific questions you have about these issues.