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As you may have heard, there are some major changes to Maryland divorce law effective October 1, 2023. Md. Code, Family Law § 7-103 brings the law into alignment with modern thinking about divorce, including making sweeping changes to the grounds for divorce in Maryland.
Like any other lawsuit, a divorce needs a legal basis, commonly known as “grounds for divorce.” What that means has evolved over time. At one time, Maryland and other states required people to show that the other spouse was somehow at fault in order to be granted a divorce. The reasoning behind that requirement was to discourage couples from seeking a divorce impulsively or for frivolous reasons.
Eventually, most states offered some form of no-fault divorce, recognizing that sometimes it is in everyone’s best interest to end a marriage, even absent any of the fault grounds provided for by law. Until fairly recently in Maryland, a no-fault divorce required that the couple live in separate households for at least 12 months—again, to prevent impulsive divorces.
In 2015, Maryland established mutual consent divorce, which allowed couples without children to divorce without a waiting period so long as they agreed on all terms of their divorce and met other criteria. In 2018, the option of mutual consent divorce was made available to divorcing couples with minor children.
In 2023, the Maryland legislature eliminated fault grounds for divorce (cruelty, excessively vicious conduct, desertion, adultery, imprisonment, and insanity) altogether. There are now three “no-fault” grounds for divorce only, described below.
If you intend to seek a divorce in Maryland, you can do so under one of the following three grounds:
One ground for divorce in Maryland is for the couple to have lived separate and apart for six months. This reflects a change from the previous requirement of having lived separate and apart for twelve months, but there is another important difference.
Previously, living “separate and apart” required that the divorcing spouses live in different households. That requirement has been eliminated, likely in recognition of the fact that maintaining separate households imposes an often unnecessary financial burden on the family. Instead, the standard is that the parties “have pursued separate lives” for the six-month period, even if the parties are living in the same home or are separated pursuant to a court order. This generally means the couple have slept in separate bedrooms, have had no sex with one another, and otherwise have lived as college housemates might, sharing neither social activities nor services for one another, during the separation period.
Though other states have allowed divorce based on “irreconcilable differences” for years, this is a new ground for divorce in Maryland. In a nutshell, “irreconcilable differences” means that the spouses are in conflict over one or more issues and that the conflict cannot be resolved to allow the marriage to continue. No waiting period is required before filing for a divorce based on irreconcilable differences.
The spouse who files for divorce must include in their divorce complaint that there are “irreconcilable differences based on the reasons stated by the complainant for the termination of the marriage.” In other words, the person asking for the divorce must state in their first filing what the irreconcilable differences are. It is not necessary for the other spouse to agree that there are irreconcilable differences, so long as the spouse filing for divorce believes that the marriage cannot be saved.
Because this is a completely new ground for divorce under Maryland law, we expect legal questions to arise if there is any ambiguity about the meaning of terms; Md. Code, Family Law § 7-103 does not define “irreconcilable differences.” Those questions may need to be resolved by the courts, possibly with reference to the laws of other states that have had divorce based on “irreconcilable differences” for longer. It is likely, however, that evidence of what were fault grounds in the past, including adultery and cruelty, will qualify as irreconcilable differences.
The relatively new ground of mutual consent divorce remains available to Maryland residents. As mentioned above, mutual consent divorce does not require a waiting period of any length, so long as the other criteria are met.
To file for a mutual consent divorce, the couple must have a marital settlement agreement that is written and signed by the parties, and which resolves all issues in the divorce, including alimony (if applicable) and the distribution of all marital property. If the couple has minor children, the agreement must also resolve all issues related to the children, such as child custody and parenting time, and be accompanied by a child support guidelines worksheet. When the divorce is granted, the agreement they signed will become the terms of their divorce.
Individuals who are interested in mutual consent divorce but who believe they might be unable to reach a full agreement on their own should speak with an experienced family law attorney about options such as divorce mediation that could help them and their spouses reach a settlement.
In general, these 2023 changes to Maryland divorce law are positive developments. They make it easier for Maryland residents who want a divorce to get one, while avoiding unnecessary delay and minimizing the expense associated with proving fault or establishing separate households.
If you are considering filing for divorce in Maryland and have questions about grounds for divorce, contact Strickler, Platnick & Hatfield to schedule a consultation.
We practice in Maryland, Virginia, and Washington, D.C.
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