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Modern Family Law Views

Modern Family Law Views – Are we there yet?

February 2, 2011

Are we there yet?

The Maryland General Assembly is now in a new session, and for the second consecutive year is considering a Bill to shorten the waiting period before a married person can file for divorce.  If it becomes law, this Bill (SB 139, submitted by Senator Zirkin) will help divorcing couples save money.  It will help the domestic violence system function more properly and justly.  It will help protect Maryland children from the conflict that often accompanies separation and divorce.  And it will bring Maryland into the mainstream compared with how other states treat their citizens.

Currently, for a divorce in Maryland one must prove either “fault” grounds (adultery, cruelty, desertion, etc.) or “no-fault” grounds.  For “no fault” grounds, a party must show that before the divorce was filed the couple lived in separate homes, without cohabitation, continuously and without interruption, for 1 year if the separation was mutual and voluntary – 2 years otherwise.

One consequence of current Maryland law is that families must support the financial burden of two households, at a time when stresses are increasing, for no less than one year before divorce proceedings can even start.  This is true whether the parties agree to divorce, or not; whether they have children, or not; and whether they can afford two households, or not.

Another practical consequence of long waiting periods for divorce is to distort the domestic violence system.  This results because the only way to get a divorce where nobody has a fault ground is to get one spouse to leave the house.  And in most cases, the only legal option to get a recalcitrant spouse to leave the house involuntarily is through a domestic violence claim.  This means that judges every day must struggle with whether the domestic violence claims before them are legitimate, or are being used just to help get a divorce.  This reality detracts from the goal of the domestic violence laws, which are meant to provide rapid protection to vulnerable and abused persons.  Instead, the interplay between divorce grounds and domestic violence laws winds up worsening the tension and conflict already present in many divorce cases, and inserting doubt into the true domestic violence cases.

A third consequence is that one party in a divorce can prolong the whole process for another year, simply by asserting that the separation is involuntary.  While some time to recover emotionally can be helpful, the harm done by extending the divorce process for purely tactical reasons can be worse.  Perhaps the greatest negative consequence of current Maryland divorce law is that children must endure the turbulence of parents in conflict for an inordinate amount of time before the relative peace that comes after divorce can settle into their lives.

Maryland’s divorce laws are unique – no other state requires so long a separation period before its adult citizens can decide for themselves to end a bad marriage.  Indeed, more than one-half the states require no separation period at all before a no-fault divorce.  Only five states (including Maryland) require a separation period longer than one year, and three of those allow divorce after much shorter (3 or 6 months) separations if the spouses mutually consent.

Maryland has made much needed improvements recently in the way it addresses domestic violence, child support, custody enforcement, and alternative dispute resolution in the divorce context.  When it comes to grounds for divorce, though, we definitely are not there yet.

SB 139 will halve the waiting periods under current law, to 6 months in cases of mutual and voluntary separation, and one year otherwise.  This will bring much needed relief to Maryland families, and is consistent with laws in neighboring states.  It is a worthy legislative effort.

© 2011 by Hadrian N. Hatfield

Modern Family Law Views is meant as an information tool to help people going through the separation or divorce process and those working with them.

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Scott M. Strickler

Hadrian N. Hatfield

Heather L. Mehigan

Geoffrey S. Platnick

Kelly E. Davis