Proposed Bill Would Alter Maryland’s Divorce Grounds

State Del. Vanessa Atterbeary (D-Howard) has introduced legislation to allow Maryland couples to file for divorce while cohabiting.

Maryland couples could file for divorce while living under the same roof under legislation heard in the House of Delegates Thursday. 

“The concern is for individuals who cannot afford to live separate and apart, but to help them get on with their lives,” said Del. Vanessa E. Atterbeary (D-Howard), who sponsored the bill and is vice-chair of the House Judiciary Committee. 

Maryland law now requires residents seeking a divorce to live separately and undergo “separation of affection” or lack of sexual intimacy, for a year before filing.

The bill would still require a year’s “separation of affection,” but would allow people to live in the same home. 

Atterbeary proposed the change during the 2019 session where it passed in the House but did not make it through the Senate. She noted former Del. Luiz R.S. Simmons (D-Montgomery) and now-Sen. Benjamin F. Kramer (D-Montgomery) also proposed the change a decade ago.

Legal Director of the Women’s Law Center of Maryland Laurence Ruth said that she hears frequent complaints about the current statute from thousands of people who call the Center’s Family Law Hotline seeking a divorce, but who are unable to file for one because of their living situation or finances. 

The bill is for people who don’t want to be together but can’t afford to live apart, Ruth said.

During the hearing Ruth often pointed to Ricketts v. Ricketts, a court case from the early 2000s in which a husband was granted a “limited divorce” — Maryland’s version of a legal separation — on the basis of desertion after he had lived in the basement of his family’s home, away from his wife, for a number of years.

“I think this is the extension of that case,” she said.

Committee members asked frequently about the problem of providing evidence that cohabitants are not having sex. 

“How do you prove a separation of affections and that a person hasn’t engaged in sexual relations?” Del. Robert L. Grammer Jr (R-Baltimore County) asked. “How does that play out?”

Because “separation of affections” is already a factor in divorce cases in Maryland, the burden of proving that would not change, Ruth said. Determining whether that requirement has been met is at the discretion of the judge.

Neighboring Delaware and Washington, D.C., already allow individuals to continue living in the same home while they seek a divorce.

“In fact, it’s six months in D.C.,” said Atterbeary, “but I think the will of this body has been one year.”

“I frankly would go for the six months,” said Ruth, “but I agree with Madam Vice-Chair that Annapolis tends to take baby-er steps that I would like to see.”

A representative of the Maryland State Bar Association Family and Juvenile Law section, Moges Abebe, testified in opposition to the bill, recommending that lawmakers instead establish a workgroup.

“Our view of this is that we’re not actually in principle against creating some pathway to divorce that does not require a physical separation of the parties,” said Abebe. “We’re not against that, but we’re saying is this is the wrong way to go about it.”

Abebe cited a number of issues with the bill, including its language, the guesswork that judges would have to do to determine that parties are no longer sexually intimate and the elimination of separation as a grounds for divorce — which he said is the most frequent way that his clients file.

“The removal of that twelve months ground by this is extremely problematic,” he said.

Abebe also brought up that people would be able to file for divorce because of their spouse’s inability to have sex due to a medical condition, a concern Del. Ronald L. Watson (D-Prince George’s) also raised.

Watson said he was “challenged” by the bill when it was presented last year and he questioned the panel about those terms.

“So someone has undergone some kind of serious accident and can along no longer perform the act of sex. The spouse can just get up one day after years and say ‘I’m done with it.’ Right?,” Watson asked.

“Yeah,” said Ruth. “They can do that now.”

“That’s the silliest thing I’ve ever heard,” he said.

Other recognized grounds for divorce in Maryland include:

  • Infidelity
  • Insanity
  • Abuse
  • “Desertion,” or when one spouse leaves the other for an indefinite period of time with no intention to reconcile
  • Conviction of a crime if one partner has been sentenced to at least three years in prison
  • “Mutual consent,” providing that the parties submit a number of documents that would settle disputes surrounding things like alimony and child custody.

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