Tough Economic Times are Causing Creative Divorce
Tough economic times are causing couples to be more creative when considering divorce. Whether the decision to separate and possibly divorce is mutual for both parties or not, the reality is that if either party has to establish another residence to move out of the marital home, this creates a financial burden for the entire family. Maryland law requires that in order to file for divorce, one of the parties to the divorce must have grounds to assert against the other party. Grounds for an Absolute Divorce include by way of example and not limitation:
Adultery – Is defined as the act of a married individual having sexual intercourse with a person other than that individual’s spouse. A Complaint for Divorce may be filed on adultery grounds as soon as the party discovers the adultery. To obtain a divorce on the grounds of adultery, the complaining party must prove at a minimum a) a public show of affection and b) the opportunity to commit the act.
Cruelty of Treatment – Is defined as a course of conduct that is calculated to seriously impair the health and/or happiness of the other party or a child of the party with no hope of reconciliation.
Excessively Vicious Conduct – Is defined as cruel and excessively viscous actions toward the party or a minor child of the party with no hope of reconciliation.
Insanity – To file for divorce on the grounds of insanity one party must be confined to a mental institution for at least 3 years before a Complaint may be filed and two physicians must certify that the insanity is incurable.
Conviction of a Crime - To file for divorce on this ground one party must be convicted of a felony or misdemeanor, sentenced to serve at least 3 years in prison, and have already served at least 12 months of their sentence.
In order for the court to grant an Absolute Divorce based on one of the grounds above, specific factors must be met Even though a party might believe that one of the specific grounds above exists, that party must prove that ground through evidence submitted to the court. For example, you may believe that your spouse is cheating, but unless you have sufficient evidence to submit to the court to prove it, you will not be able to proceed on the ground of adultery.
If a party is unable to prove the factors required for one of the grounds above, if none of the grounds above exists, or if a party prefers not to go through the emotional and financial burdens that sometimes accompany the open court trial to prove certain grounds, then a one year separation period is required by law.
This mandatory one year separation period must be complete prior to filing the Complaint for Absolute Divorce, even if both parties agree and want to divorce. As with any other ground for divorce, the devil is in the details or facts so to speak, and what constitutes living separate and apart is where couples are getting creative.
An opinion by the Court Special Appeals in the case of Rickets v. Rickets, 380 Md. 230, 844 A.2d 427 (2004) http://www.courts.state.md.us/opinions/coa/2006/136a03.pdf opened the door in some respects to the concept of living separate and apart under the same roof for the purposes of filing for a Limited Divorce. How far the courts will go to stretch this concept for couples trying to achieve an Absolute Divorce under the same or similar circumstances remains to be seen. However, as more couples face the reality of not being able to afford the expenses associated with two residences in order to meet the criteria for living separate and apart, people are getting very creative about dividing the space that exists in their homes. More and more judges and Domestic Relations Masters are being asked to determine if creative ways of living separate and apart, such as sleeping in separate bed rooms, one party living in a finished basement, one party living on a mother-in-law suite above the garage, or sleeping in a sleeper camper placed on the marital property are sufficient to meet the mandatory one year separation period prior to filing a Complaint for Absolute Divorce.
If you want to know how your idea to live separate and apart may fare in court, or to discuss any other questions you may have regarding divorce or separation, call us to schedule your free consultation.
