Absolute Divorce

The state of Maryland recognizes two types of divorce, limited and absolute.  While a limited divorce is not permanent, an absolute divorce is permanent.  The parties are free to remarry and all claims to property are terminated. At this time, the judgment may provide for sole or joint custody of the children, payment of alimony and child support and the disposition of personal property.  The court will also make a decision regarding distribution of property and assets, custody of children, alimony payments and sale or jointly held property and proceeds.  The spouse may also ask the court to order that she resume her birth name.                

In order to obtain an absolute divorce, the filing spouse must prove that at least one ground for absolute divorce exists.  There are eight grounds and at least one must be proven as taken from Maryland Divorce Law § 7-103 Fam. Law:

• Adultery
  Voluntary sexual intercourse between a married person and a person other than the offender’s spouse.  There is not a need to show actual intercourse.  Evidence can include proof that the offending spouse had the opportunity and means for extra-marital intercourse.  Please note that adultery means the actual act of intercourse must have taken place, thus meaning that the state of Maryland does not consider homosexuality adulterous act.
• Desertion
  As in a limited divorce, desertion may be actual or constructive.  If the desertion has continued for 12 months without interruption before the filing of the application for divorce; the desertion is deliberate and final; and there is not reasonable expectation of reconciliation.
• Voluntary separation
  If the parties voluntarily have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce and there is no reasonable expectation of reconciliation.
• Conviction of a felony or misdemeanor in any state or any court of the United States if before the filing of the application for divorce the defendant has:  been sentenced to serve at least 3 years or an indeterminate sentence in a penal institution; and served 12 months of the sentence.
• Two year separation
  This is when the parties have lived separate and apart without cohabitation for 2 years without interruption before the filing of the application for divorce;
• Insanity
  Permanent and incurable.  For a person to be considered permanently insane they must be confined to a mental institution, hospital or other similar institution for at least 3 years prior to the filing of the application for divorce.  The court determines from the testimony of at least two physicians who are competent in psychiatry that the insanity is incurable, there is no hope of recovery, and one of the parties has been a resident of the State for at least 2 years before the filing of the application for divorce.
• Cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.
• Excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.  There is no waiting period for these grounds and the spouse may file immediately.

Sometimes in the case of fault divorces such as adultery, desertion, cruelty or excessively vicious conduct, the offending spouse may argue the defenses of condonation and recrimination.  These are not an absolute bar to the divorce; however, the court may consider them when determining whether to award the absolute divorce.

Condonation is not an absolute bar to a decree of an absolute divorce on the ground of adultery, but is a factor to be considered by the court in determining whether the divorce should be decreed.

Recrimination is when the offending spouse claims that the filing spouse also engaged in behavior rising to the level of a fault ground as detailed in one thru eight.

Sometimes in the case of no-fault grounds for absolute divorce, a spouse may claim that the two either cohabitated or engaged in sexual intercourse during the separation, or also that the two never intended to dissolve the marriage.  A spouse may also allege in the case of voluntary separation that the parties never agreed to the separation.

Divorce is a difficult and emotional situation.  While it is always best to attempt to resolve marital problems between the spouses, this is not always possible.  If this is your situation, it is important that you contact a legal expert knowledgeable with the laws of the state you reside in as soon as possible so that your best interests may be handled.

Return to view more information on Divorce
Request a free consultation with a Maryland divorce lawyer