Does Ricketts Apply to Actual Desertion?
I had reason to question today if the Ricketts case, decided by the Maryland Court of Appeals on July 28, 2006, which involved constructive desertion, could be applied in the case of actual desertion.
Mr. Ricketts was permitted to file for a limited divorce against Mrs. Ricketts on the grounds of constructive divorce even though they still lived in the same house. He alleged she withheld sex from him and forced him from the bedroom. If she had left the bedroom, it would be actual desertion. We don’t know yet if Mr. Ricketts will be able to prove those grounds and get his divorce, but at least he can try.
As for desertion, the court had this to say:
To be sure, both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home. We have held, however, that constructive desertion may occur where both parties continue to live under the same roof.
The court quoted Scheinin, a 1952 case, which said:
It is beyond question that there may be a desertion although the husband and wife continue to live under the same roof. For desertion, as applied to husband and wife, signifies something more than merely ceasing to live together. It means ceasing to live together as husband and wife.
The court also quoted Fleegle, a 1920 case:
the true doctrine is believed to be that the statutory term “desertion,” as applied to husband and wife, means a cessation of the martial relation; and this doctrine is in accord with the general principles of the divorce law…[d]esertion implies something more than merely ceasing to cohabit or live together; for, as applied to husband and wife, it means the ceasing to live together as husband and wife.
And the court quoted Mower, a 1956 case:
it is unquestionably the law in this State that permanent refusal of either the husband or the wife to have sexual intercourse with the other spouse, from no consideration of heath or other good reason, constitutes matrimonial desertion although the parties continue to live in the same house.
So from this it appears that you can file for a limited divorce based on actual desertion or constructive desertion when the parties are still living under the same roof but not having sex and sleeping in separate bedrooms.
Next: can the theory of Ricketts be extended to an absolute divorce?
Related posts:
December 11th, 2006 at 2:24 pm
I am, like I suspect many are, watching the progress of this case (an effort similar to watching grass grow). The question in the short term I have is…so you serve your spouse with paperwork citing Ricketts v. Ricketts. What in heaven’s name happens next? Do you say good night, go to your bedroom, and pray you wake up the next morning? Seriously though, I know that I’m waiting to hear what’s happening so that I can make the call whether to proceed with my own case now or to wait.
December 12th, 2006 at 5:02 pm
You don’t need to wait for the outcome in Ricketts. Chances are good that it will be settled before trial. Even if Rickets is tried, every case is different and depends on its own unique facts as well as the judge who happens to try your case.
January 12th, 2007 at 3:03 pm
Can anyone the legal definition of “living together as husband and wife”? Are there a clear set of agreements or behaviors? If it’s ala carte…Is it a “must include all” or “must include 3 out of 4″ agreements/behaviors?
January 15th, 2007 at 4:28 pm
It could be eating meals together, going to church together, paying bills from a joint account, going to the movies together or having sex, but it doesn’t necessarily have to include any one of the above activities. It may be that you introduced each other as your husband or wife at a party or to a neighbor. It is the indicia of a marriage or facts and circumstances that would lead the judge to conclude the parties are living together as husband and wife. In the end it is up to the judge.
February 21st, 2007 at 10:45 pm
When will the Maryland legislature abandon its canonic fixation on concupiscence and finally join the civilized world and institute a “no-fault” divorce statute?
February 27th, 2007 at 10:41 am
Exactly how does one go about proving a lack of “marital relations”?