As we all know, for a married person to resume his or her status as a single person, a divorce action must take place. A divorce cannot occur unless one spouse successfully asserts a legally sufficient reason that will entitle him or her to a divorce. This legally sufficient reason is called a ground for divorce. Title 7 of the Family Law Article lists the grounds for divorce in Maryland.
The available grounds for divorce depend on the state where the divorce action takes place. Many people are surprised to learn that the ground of “irreconcilable differences” has no application in Maryland. In Maryland, there are several alternative grounds available when seeking an absolute, or final, divorce. The ground that is most frequently pled in Maryland is the one year separation. This is a no-fault ground and before filing a claim, the spouses are required to live separate and apart (in two different homes) for one year without interruption, without cohabitation (sexual relations), and without any expectation of reconciliation. The elements of this ground, along with the elements of other grounds for absolute divorce, must be corroborated with independent evidence, most typically through the testimony of a third party witness.
With Maryland’s embrace of same sex marriage through referendum, an interesting interplay between Maryland’s statutory scheme and its case law arises when addressing the ground of adultery. While infidelity by one marriage partner with a same sex paramour is not a new form of human behavior, at the present time, Maryland’s case law does not recognize adultery to occur when a spouse in a heterosexual marriage engages sexually with a same sex partner. However, because same sex marriage is now available to all Marylanders, denying an injured spouse the opportunity to assert a claim based on adultery simply because the offending party participated in a same sex relationship outside the marriage is both illogical and unjust. I anticipate that new legislation will be introduced in the next session of the Maryland General Assembly to correct this current ambiguity in our law.