Voluntary Separation in Maryland

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.

How do I prove separation?

In Maryland, one may obtain a limited divorce or an absolute divorce on the
ground of separation.

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.

In order to obtain a limited divorce on the ground of separation, one must show
“voluntary separation”.  Voluntary separation requires any period of
separation that is voluntary.  That is, the separation must be voluntary and with
the intent to end the marriage on the part of both spouses.  If one of the spouses
disagrees with the separation, the separation is not voluntary and does not provide
grounds for a limited divorce.  In addition to being voluntary, the separation must
also exist without there being any reasonable hope or expectation of reconciliation.

A limited divorce based on voluntary separation does not require any particular length
of separation. It only requires that the separation have already started.  Therefore, the
parties may file for a limited divorce based on this ground after only one day
of separation.

In order to obtain an absolute divorce on the ground of separation, one must show one
of two separation-related grounds–“voluntary separation for one year” or “separation
for two years”.

“Voluntary separation for one year” requires that one prove that the separation be
voluntary and with the intent to end the marriage on the part of both spouses
and that it exist without interruption for one full year prior to the filing of
the complaint for absolute divorce.  If one of the spouses disagrees with the
separation, the separation is not voluntary and does not support an absolute
divorce based on “voluntary separation for one year”.  In addition to being
voluntary, the separation must also exist without there being any reasonable
hope or expectation of reconciliation.

The second separation-related grounds for absolute divorce is “separation for two years.”
Such ground requires only that the separation have occurred without interruption for two
whole years prior to filing the complaint for absolute divorce, and that the
separation exist without any reasonable hope or expectation of reconciliation.

Such ground does not require voluntariness or intent to end the
marriage, therefore, the court may grant it regardless of whether the other
spouse agreed or disagreed with the separation.  In fact, the very purpose of
this ground is to provide a spouse who wants a divorce a means of obtaining one
over the objection of his or her spouse.