How Do I Prove Separation?

In Maryland, one may obtain a limited divorce or an absolute divorce on the ground of separation. Maryland law defines separation as the condition in which two spouses refrain from BOTH:

  • Seeping under the same roof, which generally means in the same building, AND
  • Engaging in sexual intercourse. At any point in which two spouses sleep under the same roof even once, even if they sleep in separate rooms, or engage in sexual intercourse, the separation stops and starts over.

In order to obtain a limited divorce on the ground of separation, one must show “voluntary separation”. Voluntary separation requires any period of separation that is voluntary. That is, the separation must be voluntary and with the intent to end the marriage on the part of both spouses. If one of the spouses disagrees with the separation, the separation is not voluntary and does not provide grounds for a limited divorce. In addition to being voluntary, the separation must also exist without there being any reasonable hope or expectation of reconciliation.

A limited divorce based on voluntary separation does not require any particular length of separation. It only requires that the separation have already started. Therefore, the parties may file for a limited divorce based on this ground after only one day of separation.

In order to obtain an absolute divorce on the ground of separation, one must show one of two separation-related grounds–“voluntary separation for one year” or “separation for two years”.

“Voluntary separation for one year” requires that one prove that the separation be voluntary and with the intent to end the marriage on the part of both spouses and that it exist without interruption for one full year prior to the filing of the complaint for absolute divorce. If one of the spouses disagrees with the separation, the separation is not voluntary and does not support an absolute divorce based on “voluntary separation for one year”. In addition to being voluntary, the separation must also exist without there being any reasonable hope or expectation of reconciliation.

The second separation-related grounds for absolute divorce is “separation for two years.” Such ground requires only that the separation have occurred without interruption for two whole years prior to filing the complaint for absolute divorce, and that the separation exist without any reasonable hope or expectation of reconciliation.

Such ground does not require voluntariness or intent to end the marriage, therefore, the court may grant it regardless of whether the other spouse agreed or disagreed with the separation. In fact, the very purpose of this ground is to provide a spouse who wants a divorce a means of obtaining one over the objection of his or her spouse.

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