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Divorce: The Difference Between Absolute and Limited Divorce in the State of Maryland

When couples seek to divorce, they may quickly get overwhelmed.  In the state of Maryland, the type of divorce that one may file for depends on the facts and circumstances of a given marriage.

Absolute Divorce

Absolute divorce is governed by Maryland Statute §7-103.  As you might imagine, when an absolute divorce is granted, the marriage is over.  Couples are free to remarry.  There are eight specific situations where a couple can file for an absolute divorce.  Each of these situations has additional sub requirements that will be discussed in greater detail below.  They include the following:

  • Adultery;
  • Desertion;
  • Criminal convictions;
  • A 12 month separation;
  • Insanity;
  • Cruelty;
  • Excessively vicious conduct;
  • Mutual consent.

Adultery

In the state of Maryland, adultery is defined as a married person having intercourse with someone who is not their spouse.

Desertion

Desertion qualifies if three requirements are met.  First, the desertion is deliberate.  Additionally, the deserter must believe the desertion to be final, with no reasonable expectation that the couple will reconcile.  Finally, the desertion must be ongoing without interruption for 12 months or more.

Criminal Convictions

Criminal convictions can be a basis if a party to the marriage has been convicted of either a misdemeanor or felony in any state and has been sentenced to serve at least 3 years in a penal institution.  Alternatively, if a party receives an indeterminate sentence, or has served 12 months of a sentence, this will qualify.

A 12 Month Separation

When the parties have lived apart without cohabitation for 12 consecutive months, they qualify under this section.

Insanity

Insanity can be grounds under limited circumstances.  In order to use this ground, all three requirements below must be met:

  • The insane spouse has been confined to an institution for 3 years or more;
  • At least two physicians competent in psychiatry testify the insanity is not curable, and that there is “no hope of recovery”; and
  • At least one of the parties has been a resident of the state of Maryland for at least two years prior to filing for the divorce.

Cruelty

Where a spouse is sufficiently cruel to the party filing, and there is no reasonable expectation of reconciliation, this can be grounds.  This is also true if the cruelty is towards or the party’s minor child.

Excessively Vicious Conduct

Similarly, where a spouse commits excessively vicious conduct to a party filing, and there is no reasonable expectation of reconciliation, this can be grounds.  This is also true if the cruelty is towards or the party’s minor child.

Mutual Consent

Thanks to a recent change in Maryland law, there are some situations where parties can file for an absolute divorce by mutual consent, without waiting 12 months.  This can happen if the parties don’t have any minor children in common.  The parties must come to an agreement that resolves issues of alimony and property distribution.  Additionally, neither party can file a pleading to set aside the settlement agreement.  Finally, both parties are required to appear before the court for the absolute divorce hearing.

Limited Divorce

Limited divorce is governed by Maryland Statute §7-102.  Unlike with an absolute divorce, couples are not free to remarry after filing for a limited divorce.  If a party has sexual relations with someone other than their spouse after filing, that is considered adultery under the law. This filing is used, in part, to set the timeline for when a couple legally separates.  After a 12 month separation, the couple can file for an absolute divorce.  However, if the couple engages in sexual relations with each other after the date of the filing, this resets the clock and the 12 month separation time starts over.

It is not necessary to file for a limited divorce in order to qualify for an absolute divorce after a 12 month separation.  However, it can be a good idea to do so.

The court can grant a limited divorce under the following circumstances:

  • Cruelty;
  • Excessively vicious conduct;
  • Desertion; or
  • Separation.

Why You Should Consider Filing for a Limited Divorce

Some people may recognize the term “legal separation.”  This best sums up the purpose behind a limited divorce.  Issues that can be addressed in a limited divorce include child custody, child support, the use and possession of property, the responsibility of debts, the responsibility for health insurance coverage for both the spouse and any minor children, the division of assets, and alimony, where appropriate.

A limited divorce, or legal separation, provides the parties with an opportunity to clearly delineate rights and responsibilities of both parties.  Particularly in the area of calculating child support or alimony, there are legal requirements that the parties should expect to be held to during the filing of an absolute divorce.  Filing a limited divorce can assist in managing the expectations of both parties.  While a legal separation may start amicably, it can be important to have a legal document outlining all agreements regarding property, debts, and assets, should things get ugly later.

Trial Separation

Some couples are unsure whether a divorce is right for them.  One of the advantages of a limited divorce is that it can set up the same parameters as an absolute divorce, but you remain legally married.  This can be important to people for religious reasons.  It can also provide for a trial separation to allow the parties to make a more informed decision about what is the best choice for their family.

If You Are Contemplating a Divorce

If you are considering a divorce, it is a good idea to talk to an attorney well versed in family law.  At Fait & DiLima, we appreciate that family conflicts can be difficult.  We have over 50 years of experience handling family law cases.  Let our attorneys work with you to help calm the waters.  Together we can discover the best possible outcome for you and your family.  We offer our services as Rockville Family Law Attorneys and Fredrick Family Law Attorneys.

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