December 22, 2011 1 Comment
In many divorce cases, the couple agrees to separate as the first step to dissolve the marital union. In Maryland, the couple can choose to voluntarily separate or one party may not, but there are certain requirements they must meet in order to legally separate:
Maryland law defines separation as the condition in which two spouses refrain from BOTH (1) sleeping under the same roof, which generally means in the same building, AND (2) engaging in sexual intercourse. At any point in which two spouses sleep under the same roof even once, even if they sleep in separate rooms, or engage in sexual intercourse, the separation stops and starts over.
A legally sufficient separation is important because that is how a couple qualifies (barring other issues) for an Absolute Divorce. In Maryland, there’s a quirky marital law issue that distinguishes between an “Absolute Divorce” and a “Limited Divorce”. What’s the difference? Our family law attorney Patrick Crawford answers the question:
An Absolute Divorce is a real divorce. It is what people think of when they think of divorce, and it is what people who want to get divorced want. An Absolute Divorce is the real McCoy. When two people are granted an Absolute Divorce, they are no longer married, all property issues and alimony issues have been addressed, child custody and child support issues have also been addressed, and the parties are free to marry other people.
A Limited Divorce, by contrast, is not a real divorce. It is not what people think of as a divorce. And when parties receive a Limited Divorce, they are still married!! That’s right. People who receive a Limited Divorce remain married and cannot marry other people.
When a couple doesn’t mutually agree to separate with an intent to dissolve the marriage, there used to be a provision in Maryland’s marital law that required the separation to be ongoing and uninterrupted for TWO years before an Absolute Divorce could be granted. This requirement has now been obviated, and whether the separation was voluntary and mutual or one-sided and without intent to end the marriage, it doesn’t matter. The fact is when a couple has lived apart and abstained from sexual relations for one continuous year that is enough to satisfy the separation required for an Absolute Divorce. So we think we no longer need to call it a voluntary separation in Maryland because a separation is a separation in order to qualify for a divorce.