Interpretations Affecting Pleading and Practice

JurisdictionMaryland

IV. INTERPRETATIONS AFFECTING PLEADING AND PRACTICE

A. Grounds

1. Adultery

Direct proof is almost impossible to obtain. As a result, the standard to prove adultery is a showing of opportunity and disposition.384 The "natural tendencies" of persons living together are insufficient, without any evidence of disposition.385 Disposition may be established by conduct which consists of some public display of intimacy or indifference to propriety that is observed by others.386 Mere association is not enough to prove adultery.387

Spousal admissions are valid evidence but corroboration of some sort is still necessary. The corroboration may come from anyone having personal knowledge of facts establishing opportunity and disposition.

In adultery cases, the standard of corroboration is stated to be one of more than slight corroboration.388 But see Barr v. Barr,389 indicating that husband's admissions of adultery to spouse and children was sufficient corroboration, when coupled with husband's leaving the home, and the fact that the case was hotly contested.

Recrimination is a factor for the court to consider in adultery cases but is not necessarily dispositive.390 Condonation is not an absolute bar, either, but is a factor to be considered.391

2. Desertion

As grounds for an absolute divorce, Plaintiff must prove that the desertion has continued for 12 months without interruption before the filing of the Complaint, that it was deliberate and final, and that there is no reasonable expectation of a reconciliation.392

Abandonment (desertion) is defined as the unjustified separation of one spouse from the other with the deliberate intention of terminating the marriage relation as well.393 It is more than merely ceasing to live together, requiring a cessation of the marital relation.

A desertion may exist though the parties continue to live under the same roof.394 However, merely moving to another bedroom, standing alone, may not be sufficient.395

Intention to desert is necessary; that is, there must be proof of an intent that the marriage relation shall no longer exist.396

The intention to desert need not coincide with the actual desertion as long as they co-exist during the required period.397

Permanent and irrevocable refusal, without proper cause, to have sexual relations constitutes abandonment.398 But if this refusal were for cause, such as for cruelty, then that is not abandonment.399

In Barr v. Barr,400 where husband refused to have sexual intercourse but stated that he did not intend to terminate the marriage, the Court held that it was not bound to believe the litigant's expressed intent. The inference from admitted refusals of intercourse, with subsequent departure from the home, showed the requisite intent to terminate the marriage.

In Barr, corroboration of cessation of sexual relations was provided by the testimony of both parties. The Court also noted the possibility of corroboration by the silence of a party, under proper circumstances. This distinguished that case from Zink v. Zink. In Zink,401 there had been an agreement between the parties that husband would not contest a desertion charge if an adultery charge against him was not pursued. As this raised the question of collusion in the court's mind, greater corroboration was required there. Since the adoption of no-fault grounds for divorce, the concern about collusion is not nearly as great, as a matter of policy, as it has been in the past. As so often stated, in the hotly contested case, only slight corroboration is required.

a. Constructive Desertion

Desertion caused by the other party, even though the complaining party left the home, is defined as constructive desertion.402 This is a difficult ground to prove. Plaintiff must show a pattern of conduct, not just an isolated incident.403 The objectionable conduct must be such as to render continuation of the marital relationship impossible if the plaintiff is to preserve health, safety, or self-respect.404 Physical violence and abuse may constitute sufficient grounds though, again, more than an isolated incident is required. Medical evidence may provide the best corroboration in a violence case. Mere nagging and "jealousy" are not sufficient grounds.405 Marital indifference, lack of demonstrated love, rudeness, or an expressed desire to end the marital relation is insufficient to justify the spouse's departure, no matter how intolerable it may seem.406

The central issue for constructive desertion is whether the offending conduct is so intolerable that the spouse is justified in leaving. It is not necessary to show that the pattern of persistent conduct was intended to end the marital relationship. The chancellor must consider the totality of the circumstances and, although incidents of language or violence alone may not be sufficient, the entire course of conduct may nonetheless constitute grounds for divorce.407

The practice of "abnormal" sexual relations and a demand for their continuance endangers the health, self-respect, and comfort of the other spouse and will justify that spouse's leaving the marital home. The court pointed out that any coerced sexual performance must be regarded as "abnormal."408

Simply because a spouse plans her departure and does not leave immediately after some precipitous event, that does not make the abuser's conduct proper. The Court referred to recent scholarship on the battered women's syndrome and pointed out that no spouse should be penalized for trying to make an intolerable situation work.409

Condonation still seems to be an absolute bar.410 However, when the conditions upon which the original misconduct was condoned are breached, the original grievances are immediately revived as a cause or causes for divorce.411

For a limited divorce based on constructive desertion, the same elements apply except for the 12-month time requirement. However, duration of the separation may still be a factor in determining whether there is requisite intent if the holding in Boyd (Emily) v. Boyd412 is still valid. There also is no requirement in the limited divorce statute that there be no hope or expectation of reconciliation.

In 2006, the Supreme Court of Maryland examined whether a

spouse's complaint for a limited divorce alleging constructive desertion based on lack of marital relations may be maintained when both parties continue to live under the same roof, albeit not in the same bedroom and without cohabitation.

The Court explained that constructive desertion may occur where the spouses live under the same roof; however, the Court noted that in such a situation when no efforts are made to reconcile, there is a presumption that the parties prefer living under such conditions and consequently constructive desertion cannot be a cause of action for divorce. In this case, the husband alleged that the wife forced him out of the bedroom and denied him marital relations.413

Although there is no specific ground for divorce based on a spouse's homosexual or lesbian conduct, the only cause of action for absolute divorce which can be pled in this regard is constructive desertion and, for a limited divorce, either constructive desertion or possibly excessively vicious conduct (see Section IV.A.9.b. Excessively vicious conduct, infra).414

3. Separation

Family Law § 7-103(a)(4) permits divorce on this ground if the parties have lived separate and apart, without cohabitation and without interruption for 12 months, before the filing of the complaint.

The parties cannot live in the same house, even though they may cease sexual relations or reside in the same bedroom.415 Corroboration is no longer required.

For limited divorces, Fam. Law § 7-102(a)(4) permits the divorce if the parties are living separate and apart, without cohabitation.

4. Mutual Consent

Family Law § 7-103(a)(8) provides that parties may obtain a divorce by mutual consent if the parties execute and submit to the court a written settlement agreement, signed by both parties, that resolves all issues relating to alimony, the distribution of property, and the care, custody, access, and support of minor or dependent children. The parties must also attach a completed child support guidelines worksheet to the settlement agreement if applicable. Finally, neither party files a pleading to set aside the settlement agreement prior to the divorce hearing, and the court is satisfied that any terms relating to minor or dependent children in the settlement agreement are in the best interests of those children.

5. Conviction

Conviction of a felony or misdemeanor if, prior to the filing of the complaint, defendant has been sentenced to at least three years, or an indeterminate sentence in a penal institution, and has served at least 12 months of the sentence.416

Submission of certified docket entries and verification of sentencing should be sufficient proof.

6. Insanity

Where the insane spouse has been confined in a mental institution, hospital, or similar institution for at least three years prior to the filing of the complaint, insanity is a ground for an absolute divorce where the court determines from testimony of at least two physicians competent in psychiatry that the insanity is incurable and one of the parties has been a resident of the State for at least two years prior to the filing of the complaint.417

In a case of this nature, be aware of the alimony requirements of Fam. Law § 11-112 which may be imposed without regard to any agreement between the parties.

7. Cruelty of treatment toward spouse or his or her minor child

Family Law § 7-103(a)(6) permits an absolute divorce on these grounds if there is no reasonable expectation of reconciliation.

8. Excessively vicious conduct toward spouse or his or her minor child

Family Law § 7-103(a)(7) permits an absolute divorce on these grounds if there is no reasonable expectation of reconciliation.

9. Limited divorce (independent grounds)

a. Cruelty

Family Law § 7-102(a)(1) permits a...

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