Modern Family Law Views – New Maryland Divorce Law Moves the Bar
August 4, 2016
The Maryland Legislature continues to reform and modernize the laws that address separation and divorce, and this past legislative session is no exception. Among the important new divorce related laws is HB 274, which takes effect on October 1, 2016. This law repeals the requirement that grounds for divorce must be corroborated by evidence other than testimony of the party seeking the divorce. Some context may help illustrate the extent of change this law represents.
Until recently, although Maryland had both “fault” and “no-fault” grounds for divorce, technical details could make it difficult, especially in high conflict cases, for families to achieve the resolution that their pain so desperately needed. For example, in order to meet “no-fault” grounds, a couple had to remain separated for two years unless both spouses agreed to the separation. Often, in high conflict cases, one spouse would withhold consent to the separation, at least officially, for tactical advantage or negotiation leverage. Even with agreement of the spouses, one year of separation was required before either spouse could even start the divorce. Separation meant living in different homes, without sleeping or having sex together, continuously and uninterruptedly, for the minimum statutory time. Moreover, at the final divorce hearing, corroborating evidence of the grounds elements was required. Even in an uncontested setting, this generally meant securing the testimony of a non-party witness, which only added to the cost and burden of the divorce process. Whereas the “fault” grounds involved no minimum waiting period, the need for corroboration acted as a brake against filing without some independent objective evidence of the grounds. Particularly in instances of adultery, this corroborating evidence could be difficult and/or expensive to obtain.
Past legislative reforms shortened the separation period to one year, regardless of whether the separation is voluntary or not, and added a ground of “mutual consent” where the parties have a written settlement agreement, no children, and both appear at the final divorce hearing. Obviously, these reforms help lower the artificial burdens that divorcing couples face. Consequently, it now is harder for one party to prolong or exacerbate the divorce process for purely tactical or leverage reasons.
The latest reform has consequences beyond simplifying procedure and relieving parties (and their witnesses) from the burden of providing corroboration evidence. It means the burden of proof for the party requesting divorce on the issue of grounds is the simple “preponderance of evidence.” See Meyers v. Montgomery Co. Police Dept., 96 Md.App. 668, 626 A.2d 1010 (1993). Theoretically, then, the burden could be met by more credible testimony from one party than from the other, where no other evidence is presented at trial. This is true regardless of whether the grounds are separation for one year, adultery, cruelty of treatment, desertion, or excessively vicious conduct. As such, the evidentiary bar for filing a divorce, and the level of proof required in a contested trial, will be lower beginning in October.
Moreover, the elimination of the corroboration requirement helps highlight the inefficient use of judicial resources and citizens’ time imposed by the uncontested divorce hearing process. Perhaps future legislative reforms could address this issue. For example, in uncontested divorces where parties are represented by counsel, the final divorce procedure could be completed on affidavit submission alone, thus saving time and money for the courts and the parties. This could be one way to continue the recent positive developments in Maryland family law practice and procedure.
© 2016 by Hadrian N. Hatfield
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