Should you file for divorce on no-fault grounds?

Dana McKeeBy Dana McKee

If you’re considering filing for divorce in the state of Maryland, you have a couple of options.

In Maryland, a spouse can obtain a divorce on one of two grounds: fault or no-fault.

In a fault-based divorce, one or both parties seek to end the marriage due to some type of perceived or actual wrongdoing on either side. In a no-fault divorce, no blame is placed on either party for the purposes of obtaining a divorce.

Today, let’s dig into the difference between the two:

What are the no-fault grounds for divorce?

Maryland recognizes two types of no-fault grounds for divorce: 12-month separation and mutual consent.

For a divorce based on a 12-month separation, the filing spouse must prove that (1) the parties have lived separate and apart for at least 12 months, and (2) they have not engaged in sexual relations during that 12-month period.  There is no requirement that the parties have entered into a written settlement agreement prior to filing under this ground.

In contrast, a divorce based on mutual consent requires that prior to the filing of the complaint for divorce, the parties have entered into a written settlement agreement. If there are minor children, they must attach the child support guidelines worksheet to the agreement.

The settlement agreement must resolve all issues relating to alimony, legal and physical custody, child support, and the distribution of property (including any monetary award and the use and possession of the family home and family use personal property).

In addition, after reviewing the terms of the settlement agreement, the court must be satisfied that the terms of the agreement relating to the minor or dependent children are in the children’s best interest.  There is no requirement that the parties have lived separate and apart.

What are the fault grounds for divorce?

Maryland recognizes the following fault grounds for an absolute divorce:

  1. Adultery;
  2. Desertion for 12 months without interruption, which occurred prior to the filing of the complaint for divorce, is deliberate and final, and with no reasonable expectation of reconciliation;
  3. Conviction of a crime with at least a three-year sentence and has served at least twelve years of the sentence prior to the filing of the complaint for divorce;
  4. Insanity if the insane spouse has been confined to a mental institution, hospital, or familiar facility for at least 3 years prior to filing the complaint for divorce;
  5. Cruelty toward the spouse seeking the divorce or the minor child of that spouse with no reasonable expectation of reconciliation; and
  6. Excessively vicious conduct toward the spouse applying for the divorce or the minor child of that spouse with no reasonable expectation of reconciliation.

What are the benefits of filing for a no-fault divorce?

Most judges prefer to grant a divorce on no-fault grounds.  The facts needed to satisfy the requirements for a divorce by mutual consent or 12-month separation are much more limited and are usually undisputed by the parties.  Furthermore, the judge is alleviated from having to ascribe blame to a party.

In contrast, the facts required to prove most of the fault grounds often are disputed and are capable of various interpretations.  For example, Maryland law does not provide bright lines of the conduct necessary to prove cruelty or excessively vicious conduct.  What might seem cruel or excessively vicious to the person who has been the victim of such conduct may not appear the same way to the perpetrator or the judge.

Similarly, proving that a spouse has committed adultery may be difficult in the absence of catching the spouse in the act or the spouse readily admitting to it.  The expense required to successfully prove adultery may outweigh the benefits of seeking a divorce solely on the grounds of adultery.

When is a fault ground for divorce more appropriate?

Whether a divorce should be based primarily on the grounds of fault is dependent on the facts of each divorce case.  In some cases, a party may decide to sue for a divorce on both fault grounds and a 12-month separation.  In other cases, a fault ground may be a party’s only alternative.  This is generally the case when a party wants a divorce but does not want to move out of the marital home for 12 months.  Fault grounds such as adultery, cruelty of treatment, and vicious conduct do not require the parties to be living separate and apart.

At the end of the day, a decision to sue for a divorce on one of the fault grounds is best made in consultation with an experienced family law attorney.

Brown, Goldstein & Levy’s family law attorney, Dana McKee, has provided counsel to numerous individuals seeking a divorce as well as those who never thought that their spouse would want one.

They understand that a divorce is a stressful experience and welcome the opportunity to assist their clients in making it less stressful.  If you need a divorce attorney, please call us at (410) 962-1320 to schedule a consultation.

Authored by

Dana McKee Partner