Basic Considerations

• Jurisdiction: Maryland

II. BASIC CONSIDERATIONS

A. Distinction Between Absolute and Limited Divorce

An absolute divorce is permanent, permits remarriage, and terminates property claims. A limited divorce serves only to legalize the living apart of the spouses, to determine grounds for divorce, to determine ownership of property, and to provide support.⁵

1. Grounds not interchangeable

Different grounds are prescribed for the granting of the two types of divorce and neither kind of divorce will be granted except for the causes provided in the respective sections of the Code.⁶ The authority of a court to grant a divorce is based entirely upon statutory authority.⁷

2. Effect of limited divorce on complaint for absolute divorce

A court may decree an absolute divorce even if a party has obtained a limited divorce.⁸

A limited divorce, obtained on the ground of desertion not of the character and duration specified for an absolute divorce, does not prevent the granting of a subsequent absolute divorce on the same ground.⁹

(1) A limited divorce obtained on the ground of desertion which was of the character and duration specified for an absolute divorce does bar the granting of a subsequent absolute divorce on the same ground.¹⁰ However, there is also dicta in Kruse v. Kruse¹¹ to the effect that the granting of a subsequent absolute divorce is not barred.

(2) For the procedure concerning the filing of a supplemental complaint for absolute divorce after obtaining a limited divorce, see Md. Rule 9-202(d); see also Md. Rule 2-341(c).

(3) An original complaint for divorce can be amended at any time prior to 30 days before a scheduled trial date under Md. Rule 2-341(a) without leave of court, subject to the right of objection by the other party.

(4) A limited divorce granted on the ground of desertion does not prevent an absolute divorce for a spouse's subsequent adultery.¹² Under prior law, if the act of adultery were committed after the desertion had endured for the statutory period, desertion was a recrimination to the adultery.¹³ In cases filed after July 1, 1983, desertion is not a bar to a suit for adultery, but is one factor to be considered by the court.¹⁴

3. A limited divorce granted on a complaint for absolute divorce

The court may grant a judgment of limited divorce on a prayer for absolute divorce, and an amended bill is not necessary if the proof establishes a right to a limited divorce.¹⁵

B. Jurisdiction

1. Residency requirement

If the ground for divorce occurred outside of this State, one of the parties must have resided in Maryland for at least six months prior to the filing for divorce.¹⁶ "Residence," as it is used in Fam. Law § 7-101, is equated with "domicile."¹⁷

2. Effect of foreign enjoinment

The fact that a foreign court enjoined a party from filing for divorce will not preclude a court of Maryland from granting a divorce to that party.¹⁸

C. General Evidentiary Requirements

1. Existence of ground

The ground must exist at the time the suit is filed.¹⁹ However, a supplemental complaint can allege grounds for divorce occurring subsequent to the filing of the original complaint.²⁰ Although it was previously held that an amendment is not the proper procedure for asserting allegations of facts essential to the relief prayed which occurred subsequent to the filing of the original complaint,²¹ that principle has been changed, it now appearing "new" facts may be pleaded by either a supplemental complaint under Md. Rule 9-202(d) or an amended complaint under Md. Rule 2-341(c). Grounds can be alleged alternatively.²² However, grounds must actually be proven before a divorce may be granted; divorce by agreement of the parties is not permitted,²³ except for one limited scenario. Where the parties submit to the court a written agreement resolving alimony, property distribution, and, where applicable, the care, custody, access, and support of minor or dependent children, the court may grant a divorce by agreement of the parties.²⁴

2. Complaint

The initial pleading is called a complaint.²⁵ The complaint is sufficient if it alleges the ground in the language of the statute.²⁶

3. Corroboration is no longer required

4. Testimony

See Herbert Myerberg, The Practical Aspects of Divorce Practice 157-70 (2d ed., 1961).

D. Offer or Attempt to Reconcile

An unaccepted offer of reconciliation or a rejected attempt at reconciliation is not in and of itself a bar to a divorce or a defense to a divorce; the rejection of an offer of reconciliation or an attempt at reconciliation is not in and of itself a bar to, a defense to, or a ground for a divorce.²⁷

1. Effect on desertion-not interpreted

At this point, there is no helpful judicial interpretation of the effect of this statute on the ground of desertion. It is likely that it has ". . . reduced to a minimum the effect of offers of reconciliation in divorce litigation." At the most, an unjustified rejection of a bona fide offer can probably be used only to support the fact of a pre-existing desertion.²⁸

2. Effect on alimony

An unjustified rejection of a bona fide offer of reconciliation may be accepted as evidence of fault which is relevant in regard to any claim for alimony, even in cases where a divorce is granted on a nonculpable ground.²⁹

E. Parties Living in Same House

Except in cases of 12-month separation and insanity , the fact that the parties are living under the same roof at the time of the divorce trial is not an absolute bar to divorce.³⁰ This is particularly true in cases where parties are seeking a divorce on the grounds of mutual consent (7-103(a)(8)) and have not physically separated.

F. Procedural Considerations

1. Testimony

(1) In general. "A judgment granting divorce . . . may be entered only upon testimony in person before a magistrate or in open court. In an uncontested case, testimony shall be taken before a magistrate unless the court directs otherwise."³¹

(2) Stale testimony. Formerly, Md. Rule 9-208(c) provided that:

[i]n an action for divorce . . . in which the testimony has been concluded for more than 90 days without entry of a final decree, a final decree may not be entered until supported by additional testimony justifying the conclusion that there has been no substantial change since the prior testimony was concluded.

That former rule was derived from what had been Md. Rule S75(c).

(3) Error may be waived. A rule S75(c) error was found to have been waived where neither party raised the issue of stale evidence or brought it to the attention of the court, where neither party requested that additional evidence be taken, and where neither party moved to vacate, alter, or amend the judgment.³²

The above comments in connection to "stale testimony" have been included for historical purposes only. Former Rule 9-209(c) was rescinded as of July 1, 2001, when the [Supreme Court of Maryland] approved the revision to Title 9, Chapter 200. The Committee recommending the rescission stated:

[We are] of the opinion that the usefulness of this provision . . . is minimal in comparison to the time and expense of another mandatory hearing. If the court has concerns about events that may have occurred after testimony was taken, the court is not precluded from requiring affidavits or additional testimony before a judgment for divorce is granted.³³

2. Docket entry

Although Md. Rule 2-601 provided that "the clerk shall enter the judgment as directed by the court" by making a record of it in writing on the file jacket, on a docket within the file, or in a docket book, a failure of the chancellor to specifically utter the words "The clerk shall enter the judgment on the docket" does not preclude a finding that the judgment of divorce has been properly entered by the clerk.³⁴ Maryland Rule 2-601(b)(2) now states "The clerk shall enter a judgment by making an entry of it on the docket of the electronic case management system used by that court along with such description of the judgment as the clerk deems appropriate." A court would most likely continue to follow the principle stated in Scott v. Scott in a similar situation.

3. Limitation of the use of the entry of a judgment of divorce nunc pro tunc

In Doser v. Doser, the Appellate Court of Maryland stated:

It is clear . . . that the function of the entry of an order or judgment nunc pro tunc is to make the record reflect an action actually and properly taken but improperly recorded due to a clerical error, not to correct a judicial error or to adjust for a failure to have a matter resolved in a timely fashion.³⁵

4. Appeals

(1) Conflict between mandate and opinion. The Appellate Court of Maryland concluded in Harrison v. Harrison that:

[W]hen an order or judgment (sometimes erroneously referred to as our mandate), other than a 'bare-bones' reversal, appended to one of our civil opinions and the 'mandate' that subsequently issues-although providing for a reversal,

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