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.