I. Marriage in Maryland is considered a civil contract between the parties and not a sacrament, although the law regards it with a sanctity which is not attributed to any other kind of contract. The Maryland Court of Appeals reaffirmed this holding and view as far back as 1943, stating "...on the theory that the public has a direct interest in [marriage] as an institution of transcendent importance to social affairs" [Behr v. Behr, 181 Md. 422, 426, 30 A.2d 750 (1943); Fornshill v. Murray, 1 Bland 479, 18 Am. Dec. 344].
The requirement that a religious ceremony be superadded to the civil contract existed in Maryland until 1963. By statute, marriages may now be performed by the clerk of a circuit court or a deputy clerk appointed by the administrative judge of the circuit court [Dennison v. Dennison, 35 Md. 361, 379 (1872); Maryland Laws 1963, Ch. 406].
II. Annulments are hard-pressed to be granted in the state of Maryland. An "annulment" differs conceptually from a "divorce" in that a divorce terminates a legal status of marriage, whereas an annulment establishes that a marital status never existed [Sackman v. Sackman, 236 Md. 237, 240, 203 A.2d 903 (1964)]. The rule in Maryland has long been that a marriage procured through fraud may be avoided in the exercise of the inherent power of a court of equity to reform and rescind contracts. This inherent power refers to the authority of a court to grant an annulment separate and apart from any statute authorizing the granting of a divorce or annulment [Holland v. Holland, 224 Md. 449, 452, 168 A.2d 380 (1961); Towsend v. Morgan, 193 Md. 168, 174, 63 A.2d74 (1949); Family Law Code Ann. §1-201(a)(3), Cts. & Jud. Proc. Code Ann. §3-603(a); comments and casenotes, Annulment Jurisdiction Clarified, 9 Md. L. Rev. 63 (1948)].
III. Divorce
Grounds for Divorce in the State of Maryland:
- Adultery
- Desertion for 12 continuous months
- Separation for 12 continuous months
- Conviction of a felony or a misdemeanor with incarceration for at least one year (under sentence of three or more years)
- Insanity with the spouse institutionalized for at least three years and the insanity is incurable
- Cruelty of treatment
- Excessively vicious conduct
1. A party can file for an absolute divorce on the grounds of adultery or excessively vicious conduct or cruelty of treatment while they are still living together.
2. An uncontested divorce is when a party and their spouse agree to divorce and the issues related to the marriage are resolved. The parties would use the assistance of an attorney to draft a legal document often referred to as a Separation Agreement that memorializes their agreement.
3. A contested divorce means that issues in the case are disputed. A contested divorce can be time consuming, complicated, and expensive. When the issues are resolved, the divorce then becomes uncontested and a final divorce may be obtained.
IV. Adultery
To prove adultery in the State of Maryland, you must prove that your spouse had the “opportunity” and “disposition” to commit adultery. “Opportunity” may be shown through a spouse spending time alone with a significant other in a hotel, residence or other such place and “disposition” may be demonstrated through public display of affection or some form of intimate correspondence.
Adultery is a misdemeanor crime in the State of Maryland, and thus, a party can plead the 5th Amendment and refuse to answer questions about adultery. The two defenses to adultery are condonation or recrimination. The criminal fine for adultery in Maryland is $10.
Adultery may allow for an immediate divorce, without a period of separation.
V. Limited Divorce
A limited divorce grants spouses the right to live separate and apart from one another, but the parties remain Husband and Wife. A limited divorce may be granted by the court for religious or financial purposes when parties do not have the grounds for an absolute divorce.
The Court can decide custody, support, use and possession of the home and personal property at a limited divorce hearing. The Court CANNOT divide the marital property or order the sale of jointly owned real property.
VI. Residential Issues
If the home is a marital home, even if rented or titled in one party’s name, a party cannot force the other party to leave the home as both spouses have equal right to live in the marital residence.
However, under circumstances of domestic violence, the Court can order a party to leave the home for a specified period of time to protect a party and/or child. The Court can also award use and possession of the family home and the contents to the custodial parent and require the other party to leave the premises during the use and possession period.
At the time of divorce, the Court can either order the sale of the home, transfer of the home to one spouse, or award the custodial parental use and possession of the home for up to three years. Upon termination of said use and possession order, the home can be sold or transferred to one party with a buyout of equity.
VII. Filing for Divorce
A party can file for divorce in Maryland if they or their spouse have resided in Maryland for at least one year prior to the filing of the complaint for divorce or if the grounds for divorce occurred in the State of Maryland.
A party must be a resident of Maryland when the complaint is filed. Such residency is determined by the person’s intent, i.e. where they vote, set up their home, have a driver’s license or obtain employment.
VIII. Pendente Lite
“Pendente lite” is a term used in Maryland for “pending litigation” and is a hearing whereby temporary relief can be granted by the Court to spouses while their divorce litigation is pending. The Court may award temporary relief to either of the parties such as visitation, child support, alimony, attorney’s fees, litigation costs, maintenance of health insurance and use and possession of the family home at the hearing. The Court cannot divide marital property or order a sale of assets. A pendente lite order remains in effect until the parties’ reach a final resolution or the trial judge issues a final order.
The common practice in most counties in Maryland is that the pendente lite hearing is heard before a Family Law Master in the Circuit Court, who makes recommendations to a judge. A Family Law Master hears only family law matters. Either party may file exceptions (a form of appeal) if they disagree with the Master's recommendations. Exceptions are ruled upon by a Judge.
[Family law attorney Charles Jerome Ware is headquartered in Columbia, Howard County, Maryland. For questions or an initial courtesy consultation, contact him at (410) 720-6129 or (410) 730-5016, or email him at charlesjeromeware@msn.com]
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