NOTICE: None of these questions and answers constitute 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 Maryland, whether or not a couple is separated is a question of fact. If a husband and wife are not having sexual relations and are not sleeping under the same roof (in the same residence), then they are separated. People usually use the phrase “legal separation” to mean that they have signed a contract, called a separation agreement, which settles all their marital property rights, alimony claims and other issues — but they have not yet obtained a divorce.

If a couple have a written separation agreement, they can get divorced immediately based on the grounds of mutual consent. This ground for divorce applies regardless of whether the parties have minor children or not. Otherwise, in order to obtain an absolute divorce (which is the legal term for a “real divorce”) in Maryland, unless the divorce is based on adultery or cruelty, the parties must have been separated for at least twelve months. However, no one should wait a year after separating to file for a divorce because court dockets are clogged and it will take most of that time to get a court date. In order to “get in line” for a court date after separation, many parties file for a “limited divorce,” a holdover from yesteryear which today serves two functions: getting temporary support and getting in line for an absolute divorce.

Not exactly. “Irreconcilable differences” is not a ground for divorce in Maryland. However, conduct which many couples describe as “irreconcilable differences” may fit into one of the other grounds for divorce discussed below.

The most common “fault” grounds are: (1) adultery, (2) desertion, (3) constructive desertion, (4) cruelty and (5) excessively vicious conduct.

It is rarely possible to obtain evidence of adultery by the testimony of eyewitnesses. Luckily, circumstantial evidence is sufficient, so there is no need to “catch them in the act.” There must be evidence that (1) the alleged adulterer and paramour were inclined to commit adultery when there was an opportunity to do so, and (2) they were together at a time and place and under circumstances which provided them with an opportunity to engage in sexual intercourse.

No. The Maryland appellate court has tackled this question in a reported decision. So far, “adultery” as used in Maryland’s divorce law has meant voluntary sexual intercourse between a married person and a partner other than the married person’s spouse. Intercourse, which means penetration of the vagina by the penis, does not occur between same-sex partners. Thus, same-sex intimate conduct may not be classified as adultery. However, such conduct may amount to constructive desertion, discussed below.

Cruelty encompasses mental as well as physical abuse. Verbal and physical abuse may have been tolerated in another era, but today evidence of controlling behavior, isolation from friends or family, taunting, violence and threats of violence, or other misconduct which is calculated to seriously impair the health or permanently destroy the happiness of the other spouse, may justify an absolute divorce on grounds of cruelty or excessively vicious conduct.

A single act of violence, in order to constitute cruelty, must indicate the intent of the offending spouse to do serious bodily harm or be of such nature as to threaten or place the victim in serious danger in the future.

Abandonment and desertion as grounds for divorce contain two elements: (1) ending cohabitation and (2) intent to end the marriage.

Ending cohabitation means ceasing to live in the same residence and ceasing to have sexual relations with one another.

Someone is legally justified in leaving when a spouse’s conduct presents such a threat to a person’s safety, physical health, or self-respect that continuation of the marital relationship has been made impossible. This is what Maryland law calls “constructive desertion” by the offending spouse.

The practice of kinky or abnormal sexual relations by one spouse and the demand that these practices continue may be inconsistent with the health, self-respect, and comfort of the other spouse. One who suffers from such unwanted demands may be justified in leaving on grounds of constructive desertion.

If a spouse, knowing he or she is afflicted with a sexually transmitted disease, continues to maintain sexual relations and infects the other spouse, such action constitutes extreme cruelty justifying divorce. However, to establish cruelty as the result of communication of a sexually transmitted disease, the diseased spouse must have known of the condition and the other spouse must have not known about it.

Under Maryland law, a spouse can obtain a “no-fault” absolute divorce based on 1) mutual consent – if the parties have a signed separation agreement, or 2) after one year of separation, with no hope or expectation of reconciliation. A “no-fault” absolute divorce can be obtained by either party.

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