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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.

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.

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.

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

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.