“My husband and I have not been intimate for over a year,” Louise, an unhappily married woman tells Joe, a Maryland divorce lawyer, “and I want a divorce.”

“OK, any other woman in his life?” inquires Joe.

“No.”

“Hmmm, any domestic violence or threats?”

“No.”

“Then you’re going to have to move out of the house for a year before you can file a divorce complaint,” says Joe trying to push the box of tissues across his desk toward Louise unobtrusively.

“But we can’t afford that,” cries Louise reaching for the tissues, “There must be another way.”

Neighboring jurisdictions, DC and Virginia permit parties to be separated while living in the same house, but not Maryland.  In Maryland, spouses are required to live separate and apart under different roofs for one year if the both agree, and two years if they don’t.  This waiting period must occur before they can even file for divorce.  And the divorce might take a year or longer after that.  These are the no fault grounds.  Adultery and cruelty have no waiting period.

The purpose of this waiting period is to favor marriage over divorce and make sure the parties really, really want to be divorced and not married.  After all, sometimes people change their minds.  But the recession has forced many couples to live together in misery because they cannot afford to separate.

So Montgomery County Delegate Luiz Simmons, an attorney, will support legislation this year to add a new grounds for divorce in Maryland, according to this morning’s Frederick News Post.  If this law passes, couples who go a year without sex would be able to file for divorce.

Mary Louise Davis married John Franklin Davis, Jr. in 1958.  Sixteen years and three children later, Mrs. Davis, together with her six-year-old daughter Leigh, left the marital home and moved into an apartment.  Mr. Davis filed for divorce in Maryland on the ground of his wife’s adultery, and asked for custody of the children.

Judge Latham, after a custody investigation and a hearing, awarded custody of Leigh to the mother.  The father appealed to the Court of Special Appeals, which reversed the judge.  The Court said the father should have custody of Leigh because the mother had failed to show repentance for her adultery.

The mother appealed to the Court of Appeals.  The Court of Appeals held:

“Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare.”

The Court said the primary determination was the best interest of the child.  In determining this, Judge Latham had taken into account that Leigh had been living with her mother alone for the past two years and was adjusted to this arrangement; that she was doing well in school and was adequately provided for at home; that even though Mrs. Davis had engaged in adulterous conduct in the past, there was no  showing that it had ever deleteriously affected Leigh; and that Mrs. Davis had engaged in no sexual misconduct since February 1975.

So Leigh got to stay with her mother.

Davis v. Davis, 280 Md. 119; 372 A.2d 231 (1977)

Grounds for an absolute divorce in Maryland can be a confusing and complicated concept.  You have to have grounds for divorce in order to file a complaint.  Grounds are reasons for the divorce.  Some grounds have a waiting period.  Others do not.  Some require you to live in separate places.  Others can occur while you are still living together.  Maryland has the traditional fault grounds.  It also has the more modern no-fault grounds.

No-Fault Grounds

The no-fault grounds are one year voluntary separation or two years involuntary separation.  Both of the no-fault grounds have a waiting period before you can file for divorce and you have to be physically separated continuously for that period.  That means you live in different places, or under separate roofs, as the court says.  You cannot meet the no-fault ground requirements if you both live in the same house.

Fault Grounds

The fault grounds are adultery, cruelty, excessively vicious conduct, desertion, insanity and imprisonment.  Three of the fault grounds have no waiting period before filing a complaint.  Those are adultery, cruelty and excessively vicious conduct.  You can live in the same house and file for divorce based on adultery, cruelty, excessively vicious conduct and even desertion.

Related Posts:

Filing for Divorce While Living Together
Child Custody While Living Together
Does Ricketts Apply to Actual Desertion?
Does Rickets Apply to an Absolute Divorce?
Ricketts Revisited

The infamous “C Street House” will make a good novel and movie.  The Christian home for legislators near the U.S. Capitol Building in Washington, DC seems to be another Peyton Place.

The Associated Press reports that earlier this week Leisha Pickering filed a lawsuit against Elizabeth Creekmore Byrd of Jackson, Mississippi, for alienation of affection (a suit that is barred in MD, VA and DC but not in Mississippi).

Mrs. Pickering is divorcing Chip Pickering, a former Republican Congressman, now a lobbyist.  She alleges that Chip Pickering and Creekmore Byrd had an affair while Pickering was in Congress and living at the C Street House.

Paul Simon, in his famous song, told us there must be fifty ways to leave your lover. I wonder if he counted the two new ways we saw on television this week:

1.  Use Your Reality TV Show.

Monday night, John and Kate Gosselin announced their separation and intention to divorce on cable tv.  This came amid months of tabloid speculation concerning extramarital affairs.  The show got its highest ratings ever.  The parties say they are going to split custody of their eight children equally.  The children will stay in the house and the parties will alternate living there in what is called a nesting arrangement.

2.  Call a Press Conference.

On Wednesday, Mark Sanford, 49, governor of South Carolina, held a news conference and announced that he had been unfaithful to his wife.  He had been missing for several days and told his staff that he was going hiking on the Appalachian Trail.  However, a newspaper report confronted him in Atlanta getting off a plan arriving from Buenos Aires, Argentina.  His public confession came just before the newspaper broke the story of his mistress in Argentina.

Louis and Charlotte Fletcher lived in Virginia for most of their marriage.  But when Charlotte left Louis she bought a lottery ticket and won $7,000,000.

Marital property is determined at the time of separation in Virginia, but at the time of divorce in Maryland.

So Louis moved to Maryland and filed for divorce, alleging that Charlotte had committed adultery in a condo she had purchased in Ocean City Maryland.

Two months later Charlotte filed for divorce in Virginia and moved to dismiss the Maryland case for lack of jurisdiction.  The judge decided that Louis moved to Maryland because of the lottery ticket, so he wasn’t a bona fide resident, and besides he hadn’t been here for a year before filing his complaint.  Therefore he dismissed the Maryland case.  Louis appealed.

The Court of Special Appeals of Maryland took a look at Section 7-101(a) of the Family Law Article of the Maryland Code, which provides:

“If the grounds for divorce occurred outside of this State, a party may not apply for a divorce unless 1 of the parties has resided in this State for at least 1 year before the application is filed.”

Does that mean the opposite is true as well?  That is, if the grounds for divorce occur inside Maryland, as the adultery in this case, a one year residence is not required?  Is any residence required?

The answers tomorrow.