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Thyden Gross and Callahan LLPCounselors and Attorneys at Law



Maryland Divorce Legal Crier

News and comments about divorce, child support, child custody, alimony, equitable property distribution, father’s rights, mother’s rights, family law, laws on divorce and other legal information in Maryland.

Filing for Divorce While Living Together

If you had come to my office and told me that you wanted to file a complaint for divorce against your husband or wife while you were still living together, I would have told you to forget it unless there was adultery or cruelty involved. I always thought the law of Maryland was that one of you had to move out first. You had to be separate and apart and that meant not living under the same roof. I would have said, even if you claim constructive desertion, the judge will ask you, if it was so bad, why didn’t you leave sooner?

But the lawyer for Robert M. Ricketts, Jr., apparently never heard of this law, and filed a complaint for limited divorce against Mary C. Ricketts for constructive desertion while the couple were still living together. To support his claim, Mr. Ricketts said that she had denied him sex and they were sleeping in separate bedrooms. Mrs. Ricketts’ lawyer filed a motion to dismiss saying you cannot file a complaint for constructive desertion while you are still living together. The Circuit Court for Carroll County, Maryland agreed and dismissed the case. All was right with the world and my view of the law of Maryland.

Then Mr. Ricketts’ lawyer appealed to the Maryland Court of Special Appeals. And then, the Maryland Court of Appeals, on its own, decided to issue a writ of certiorari, and take over the appeal. The Court issued its decision in Ricketts v. Ricketts on July 28, 2006.

At first the Court confirmed my view and said, “To be sure, both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home.”

Then the bombshell: “We have held, however, that constructive desertion may occur where both parties continue to live under the same roof.”

What? When did they hold that? Well it turns out they said something like that in Mower v. Mower in 1956. That was the most recent decision. The court also cited cases from 1946, 1938, 1934, 1924 and 1920. So the Court of Appeals reverses and tells us this has been the law of Maryland all along. News to me, Mrs. Ricketts’ attorney and the Judge for Carroll County. Will more people who are living together be filing for divorce now, under the Ricketts case, before trying to work it out?

Mr. Ricketts also asked for custody of the minor children. But can you even get custody when you are still living together? Think you know the answer? See my next Blog.


10 Responses to “Filing for Divorce While Living Together”

  1. Anonymous Says:

    I am so glad that the courts in Maryland are begining to join the real world. I am now curious about wether he will have to pay alimony while living together?

  2. Anonymous Says:

    What if you withhold physical intimacy because your spouse is committing adultery and refuses to stop. Nor will the cheating spouse take a std or aids test. Can they still claim constructive dessertion in the state of maryland and use the Rickets v. Rickets case as grounds?

  3. Anonymous Says:

    I think the ground-breaking part of Ricketts is not the cause but the fact that nobody “has” to leave in order to sue for divorce (limited).
    I see no reason why you couldn’t just sue for divorce based on adultery without having to leave in light of Ricketts.
    We don’t yet know how Ricketts played out and no one has yet filed a similar suit.

  4. Anonymous Says:

    Why would either have to pay alimony?

    If alimony is intended to help the “poorer” of the two maintain a certain standard of living until they are able to provide for themselves there is no need for this help.

    The standard of living “should” remain the same because neither has left the home.

  5. Anonymous Says:

    That’s all I needed to hear…thanx for the update.

    Question: How long must the withholding of sex go on before one can claim desertion? And, should the cheating spouse leave the house or the person filing?

  6. anonymous Says:

    my spouse filed for a limited divorce while we were living together. I did not desert him, deny him sex, and we never slept in different bedrooms. He was the one who actually was obsolete from the home due to his alleged work schedule. There was no adultury on my part or cruelty. Is it against the law to falsely file for this type of divorce?

  7. admin Says:

    #6. anonymous: MD Rule 1-341 provides that a court may award attorneys fees for defending a claim brought in bad faith or without substantial justification.

  8. Anonymous Says:

    is it possible to go through the 3mos required separation waiting period by MD law, filing under grounds of adultery and have my husband living in the home due to lack of finances to afford his own place since he is the breadwinner and pays the bills in this home where i/we live with our daughter? especially as we are not intimate and he contracted an std last yr when we were separated.

  9. James J. Gross Says:

    Maryland requires one year mutual and voluntary separation or two years of involuntary separation. But no separation is required in the event of adultery.

  10. RT Says:

    I cannot afford to leave the house I share with my husband, and there’s no way that he will leave as he intends to fight for as much of the property value as possible.

    Our home has a COMPLETELY separate apartment in the basement. It has a kitchen, bathroom, living room, and two bedrooms. It has its own SEPARATE electric service. For the last three years, he has lived upstairs and I have lived downstairs. There has not been any sex in our relationship in over five years (out of a six year marriage).

    Can this be counted as living in separate homes? I think that it does. He thinks that it does not and wants me to move out. He only wants this so that he can claim that I left him and thus he deserves the lion’s share of the assets.

    I don’t see why I should have to move out and live in a very cheap apartment just to satisfy this requirement. We have been as good as separated for years.

    Our mail address is the same, but the electric bill does come addressed to “Unit B”.

    Any opinions on this? I just want to unload our property, split the profits 50/50 and get on with my life!!

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