New Changes to Maryland’s Divorce Laws in 2023
Maryland divorce laws are going to see an overhaul this fall, and the impending changes are quite significant. If you are facing the prospect of divorce, this is what you need to know about the legislative amendments set to go into effect in October 2023. If you are dealing with the breakdown of a marriage, it is always recommended that you seek legal advice about your best course of action and your rights, as the outcome will likely have long-lasting effects on all parties.
The Current Divorce Regime in Maryland
As it currently stands, there are two kinds of divorce under Maryland law: the absolute divorce and the limited divorce.
The absolute divorce is what most people think is a normal divorce: a process that legally terminates the marriage and settles matters of property distribution, custody and visitation, and financial support. An absolute divorce can be sought in a Maryland court for any of these grounds for divorce:
- Separation — the parties have been living apart and not having intimate relations for 12 months or more
- Cruelty/excessively vicious conduct — one spouse has subjected the other spouse and/or a child of the marriage to cruel or vicious treatment
- Incarceration — a spouse has been convicted of a crime (felony or misdemeanor) and has been sentenced to jail
- Adultery — a spouse has had an extramarital affair
- Insanity — one of the parties has been found to be insane by a court or committed to a mental institution
- Desertion — a spouse has left the family home (or moved out of the bedroom into another room), was kicked out, or was forced to leave because of abuse
Among these grounds, separation is the only one considered “no-fault.” The other grounds are essentially allegations by one spouse that the other has caused the end of the relationship as the parties knew it. The parties may also obtain an absolute divorce by mutual consent, which is also “no-fault,” as they both acknowledge that their marriage should end and that they have worked out the relevant issues between the two of them — for example, child custody, visitation, financial support for children and alimony, and how the assets will be divided. They will need to enter into and sign a “Marital Settlement and Separation Agreement,” which outlines these matters. Parties that proceed by mutual consent do not need to argue or prove any of the above grounds.
A limited divorce gives the parties temporary relief in that they can resolve certain issues such as child custody, child support, child visitation, alimony, as well as the possession and use of the matrimonial home — but decisions related to the distribution of marital property won’t be finalized. More significantly, a limited divorce does not legally end the marriage, and the parties are not free to remarry. While Maryland doesn’t have “legal separation,” a limited divorce is the closest thing to it in the state. You can seek a limited divorce on these grounds:
- Cruelty/excessively vicious conduct
The court may grant a limited divorce for a finite amount of time or indefinitely. It can also revoke a limited divorce if the parties make a joint application to set aside the decree. Sometimes a couple will be going for an absolute divorce but do not have enough evidence for a judge to be willing to grant one. In a case like this, the court may grant the parties a limited divorce instead. A limited divorce can be a way to deal with the important issues while waiting for the 12-month separation clock to run, after which the parties may be eligible for an absolute divorce. It can also serve as a sort of test run for couples who aren’t sure whether they want to permanently end their marriage. For religious parties for whom divorce is frowned upon, a limited divorce may be an option that allows a couple to separate but is not technically a formal end to a marriage.
The Upcoming Changes
On October 1, 2023, the limited divorce section of the Maryland divorce laws will be revoked. This means that as of that date, limited divorces will no longer be granted. Absolute divorce will still exist, but the requirements will be significantly different than the current process. The two main grounds for divorce will be:
- Irreconcilable differences — the parties cannot resolve their disagreements and therefore can no longer maintain their marriage. The applicant just needs to provide the court with a sufficient basis based on the facts of the case.
- Mutual consent — the parties will still be required to enter into and sign a separation agreement outlining how issues like property division, child custody and visitation, child support and alimony, and other relevant matters will be handled.
To be clear, separation may still be a basis for an absolute divorce, but many parties may find it even easier to apply based on irreconcilable differences. Furthermore, the required time period has been reduced from 12 months to 6 months, uninterrupted, and the parties may be considered separated even if they are technically living under the same roof.
An absolute divorce may also be available in the case of legal incapacity. This means that the spouse in question is permanently, legally unable to make their own decisions. The finding of legal incapacity will be based upon medical and/or psychiatric evidence or testimony.
How the Changes Affect You
Approved by the Governor on May 16, 2023, the legislative amendments take away the fault component, which, proponents argue, makes the current divorce process more adversarial and focused on finding blame rather than solutions. Rather than increasing acrimony by looking for reasons the other spouse “wrecked” the marriage, the parties (and any children of the marriage) can put their efforts into tying loose ends cooperatively.
For most people, the impending changes to divorce requirements are expected to have big impacts:
- The time frame for requirements such as the term of separation has been reduced, so it could be quicker to obtain a divorce.
- As long as the intention is to separate and live apart, they can still live under the same roof. This may save the parties the expense and hassle of one of them having to move out and rent a new place while waiting for the separation period to finish. In the past, in some extreme cases, desperate parties have felt the need to concoct domestic violence allegations to force an unwilling spouse to vacate the home because separation was not recognized unless they physically lived separately from each other.
- Because of the reduced time and expense, the parties’ conflicts may be lessened — which would be beneficial to any children of the marriage — and may allow a smoother transition for families.
Even though the other grounds for absolute divorce will no longer serve as the basis for the divorce, those factors may be useful for the court to consider when deciding things like custody, visitation, child support, alimony, and other issues to resolve. For example, a jail sentence may have a significant bearing on the question of custody, as will evidence of a parent’s abusive nature, patterns of criminal behavior, or even indicia of insanity. An extramarital affair may affect the amount of alimony awarded to the aggrieved party.
The amendments essentially make it easier and quicker to get a divorce. For most people, the new system will be preferable to the current one, but it will do away with the ability to separate but remain technically married. It also means less money spent on legal fees because the process is simpler — which is always good news.
Depending on how carefully legislative amendments have been drafted, there may be some bumps in the road that are solved as cases make their way through the court system and the courts make precedential rulings to flesh out the details. There are a few things that will have to be explored when the new provisions come into force in October, including:
- How will the courts deal with divorces that have been commenced before October 1, 2023?
- Prior to this date, limited and absolute divorces will still be available, but only a modified (albeit arguably simpler) version of the absolute divorce will exist. If the expectation is that filings made before October 1 will continue under the current process, will we see a surge of limited divorce applications in the weeks ahead? Will those who have commenced divorce actions be able to convert to the new system? If so, what happens if the parties in a case disagree on which system to follow?
- How will the removal of the limited divorce affect groups for whom religion prohibits or frowns upon the termination of marriage?
- The limited divorce has been used as a kind of “crutch” for those who seek separation but not necessarily the permanent dissolution of marriage. Some couples want to stay “married” on paper so that a dependent spouse can stay on the other spouse’s health insurance benefits, for example. What will those people have to rely on now that the closest thing to legal separation no longer exists in Maryland? Also, in some cases, the parties who are granted a limited divorce end up reconciling and go back to court to have it revoked. This will no longer be an allowable course of action with the repeal of the limited divorce provisions.
- Since the concept of irreconcilable differences is new in Maryland, the first few cases going through the system will not have the benefit of precedents that delineate what will be sufficient for the courts to make a finding of irreconcilable differences. It is something courts in other states have dealt with, however. While court decisions from other states aren’t binding on courts, they can be persuasive. It will be interesting to see how Maryland courts interpret irreconcilable differences and how this doctrine develops in our state — specifically, the impact infidelity, drugs, and abuse may or may not have. Repealed grounds for divorce will have some bearing on areas like alimony, but will they have a role to play in a finding of irreconcilable differences?
- Similarly, what will Maryland courts require for a party to successfully prove someone’s capacity/incapacity to legally make decisions?
- In the previous provision related to insanity, there was some guidance in the legislation itself: being confined in a mental or similar institution for at least three years, as well as the testimony of at least two psychiatrists that there will be no cure or recovery. The personal incapacity provision in the amended divorce law is nowhere as detailed. Presumably, the court will consider decisions relating to health care and financial support, among other factors. What happens if the party filing for divorce on the basis of legal incapacity is the one with a health care policy? Eventually, as often happens, the court may delineate what it feels is the appropriate threshold or test in its interpretation of a statutory provision.
How to Navigate the Changes if You Are Headed to Divorce in Maryland
The legislative amendments were clearly intended to make the divorce process quicker and easier, but there will be parties who want to avail themselves of the limited divorce provisions. It may be tempting for people who want limited divorces to quickly file before October 1, 2023, but the termination of a marriage is not a decision that should be taken lightly.
The best recommendation is to seek legal advice — from a family law specialist — about your particular situation. Every case has its own unique circumstances and may dictate which regime would benefit you most. Getting a divorce, even in an “easier” legislative framework, has long-lasting implications for you and your family. With over three decades of expertise in all areas of family law in Maryland, Lebovitz Law, LLC is dedicated to fighting for the best outcome for our clients. This means really understanding their circumstances and objectives, and answering their questions and concerns. Contact us today to arrange your consultation with a divorce attorney in Towson, Maryland, with a family law background.