9th May 2016
My spouse and I live in Maryland and we agree to get a divorce. Do we have to be separated for 12 months first?
It depends. Since October 1, 2015, married couples who live in the same home can get divorced based on mutual consent if they meet the following criteria:
- the parties do not have any minor children in common;
- the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to alimony and the distribution of property, including martial property, military pensions, any other pension, retirement, profit sharing, or deferred compensation plans, any monetary award, and use and possession of the marital home and family use property;
- neither party files a pleading to set aside the settlement agreement prior to the divorce hearing; and
- both parties appear before the court at the absolute divorce hearing.
Even though you and your spouse mutually agree to an absolute divorce, Maryland law requires the person who is seeking the divorce to bring a witness that can corroborate testimony regarding the date of marriage and that there is no hope of reconciliation.
The Maryland General Assembly has worked to eliminate the corroboration requirement and passed a bill in 2016 doing so. However, the bill was not signed into law by the Governor in 2016. A corroborating witness is therefore still required to get a divorce.
If you and your spouse have minor children in common, you are not eligible for a divorce based on mutual consent and still need to live separate and apart voluntarily for one year before filing a complaint for absolute divorce. To live separate and apart means sleeping under a different roof from your spouse for everyday of 12 months. In the event you and your spouse sleep in different rooms of the same house during the 12 months, the separation is interrupted and you can’t get a divorce based on a voluntary separation. The one year of separation rule applies even if you have resolved all issues pertaining to the divorce, such as alimony, distribution of property, custody, and child support. You must live separate and apart from your spouse without any cohabitation or marital relations for 12 months before filing for divorce unless you can prove that adultery or mental cruelty led to the break-down of your marriage.
To have more of your questions answered, please call us for a consultation at 301-650-0078.