What Can Be Used Against You in a Divorce in Maryland?

patrickcrawford | August 29, 2023

In the State of Maryland, either spouse can seek a divorce based on fault – or one or both of you can pursue a no-fault divorce, which means you are in agreement on the matter of needing a divorce – or have lived separate and apart from one another for 12 consecutive months. If your spouse has filed divorce papers that cite you as being at fault, the burden of proving your fault falls to them, but if they’re able to establish fault on your part, it can directly affect your divorce terms. 


If you’re facing a divorce that involves fault or wrongdoing, it’s time to consult with an experienced Maryland divorce attorney

An Exception for Fault Grounds

In the State of Maryland, divorcing couples pursuing no-fault divorces are required to separate for at least one year prior to filing. There are, however, two notable exceptions. 


Mutual Consent

When the divorce is based on mutual consent, there is no separation requirement. Mutual consent, however, goes beyond simply agreeing to divorce. In order for mutual consent to apply, you and your spouse must have both signed a written settlement agreement resolving each of the following divorce concerns that apply in your unique situation:


This is a tall order, and many divorcing couples find that it takes at least a year to reach this level of agreement. 


Specific Fault-Based Grounds

If the divorce sought is based on one of the following grounds, no separation is required:

  • Adultery
  • Cruelty of treatment
  • Excessively vicious conduct

If your spouse, however, is unable to meet the court’s burden of persuasion regarding your guilt, it will deny the fault-based divorce.


Other varieties of fault accepted as grounds for divorce in Maryland include all the following:

  • Desertion that lasts 12 consecutive months and is both deliberate and final – with no reasonable expectation of reconciliation
  • Felony or misdemeanor conviction that leads to at least a three-year sentence or to an indeterminate sentence that leads to 12 years served
  • A continuous separation of at least 12 months in which the couple lives separate and apart 
  • Confinement to a mental ward, hospital, or another institution for at least three years or residency for at least two years with no hope of recovery


Change Is Coming

While the State of Maryland has very specific requirements in relation to separation and divorce, it’s important to note that change is coming. In October of 2023, only the following grounds for divorce will apply:

  • The spouses must have lived separate and apart for at least six consecutive months prior to filing for divorce, but living separate and apart under the same roof qualifies. 
  • The spouses have irreconcilable differences, which the state has yet to elaborate upon.
  • The spouses mutually consent as defined above.   


While Maryland will be eliminating the specific fault-based grounds for divorce, this in no way means that the matter of fault will not be taken into careful consideration in relation to how the divorce terms will be resolved.



If your spouse is pursuing a divorce based on adultery, it’s important to know that it can affect the division of your marital property, the matter of alimony, and – in highly specific situations – even your child custody arrangements. However, it’s also important to recognize that adultery is difficult to prove and often comes down to hearsay. This said, you should not count adultery out as a means for establishing your fault in the divorce. In our social media-driven world, there are evermore ways to establish a spouse’s infidelity, and you shouldn’t think it can’t happen to you. 


The kinds of evidence that might bolster claims of adultery include all the following:

  • Eyewitness testimony, which can include a family friend or acquaintance seeing you doing something you shouldn’t with someone who isn’t your spouse
  • Pictures and videos that capture you doing something you shouldn’t with someone who isn’t your spouse, such as if your spouse hired a private detective, which you shouldn’t count out
  • Electronic messaging between you and the person to whom you’re alleged to be having an affair that alludes to adulterous activities
  • An immense volume of phone calls, texts, and other forms of messaging between you and the person to whom you’re alleged to be having an affair


While proving adultery isn’t easy, it’s certainly not impossible, and if proven, it can be used against you to significant effect. 

Cruelty of Treatment

In the State of Maryland, cruelty of treatment can be based on physical violence towards one’s partner, but it’s not limited to physical acts. Instead, the matter of cruelty can be based on both verbal and psychological abuse that’s calculated to seriously interfere with or impede the health or happiness of the other. 


Divorce that’s based specifically on cruelty of treatment isn’t common because there’s often another ground that applies. Nevertheless, cruelty of treatment can be proven via the testimony of those who know you well as a couple, including those friends and loved ones who are inclined to share the specifics of what your spouse has shared with them.


Being accused of cruelty is not the same thing as being guilty of cruelty. You will, however, need to bring your strongest defense against a well-considered charge. A divorce that’s predicated on the cruelty of treatment can have a direct impact on your financial future.  


Excessively Vicious Conduct

If your spouse finds that remaining married to you is impossible without jeopardizing their own safety, health, or well-being, they can seek a divorce based on excessively vicious conduct. If your allegedly vicious conduct affects your shared children, it can also affect your child custody arrangements – in addition to the division of your marital property and alimony. The kind of conduct that rises to this level is often proven by eyewitness testimony, communications between your spouse and their trusted confidants, and the testimony of your children – if they’re deemed mature enough to weigh in. 


Child Custody Generally Isn’t Affected by Fault

If your divorce is based on adultery, it can affect the financial terms of your divorce, including both property division and alimony, but it’s unlikely to have any effect on your child custody arrangements. The only exception is if the person with whom you’re having an affair is deemed to put your children at risk. If, however, your divorce is based on cruelty or vicious conduct that involves your children or directly affects your children, it can play a role in your child custody arrangements.


What Not to Do While Your Divorce Is Pending

Even if your divorce is not fault-based, there are things that can be used against you and that you’ll want to avoid while your divorce is pending. 


Temporarily Reuniting with Your Spouse

Currently, a no-fault divorce in Maryland requires a year of separation, and even a one-night reconciliation with your spouse can set the calendar back. If your spouse chooses to reveal the mutual indiscretion, it can prolong the amount of time it takes to divorce, which is unlikely to be your goal. 


Failing to Separate Your Finances during Your Separation

When you’re living separately, it’s a good idea to also separate your income and bills to the degree possible. If you’re not sure about your legal entitlement to separate your finances, your focused divorce attorney will provide you with the guidance you need. Even if separating your finances at this juncture isn’t advised, being prepared to make the shift as soon as your divorce is finalized can only work in your favor. 


Putting Your Kids in the Middle

Divorce is hard on everyone, but your children may take it hardest of all. Regardless of how angry you are with your soon-to-be ex and regardless of how unreasonable your spouse’s accusations against you may be, you do your children a real disservice by putting them in the middle. Children don’t have the maturity or the powers of introspection to separate themselves from concerns that don’t involve them, and they are very likely to blame themselves. When it comes to your children, the best policy is always putting their best interests first, which is exactly what the court will do. 


Failing to Seek Professional Legal Guidance

Divorce can come at you fast, and if your reaction is to bury your head in the sand, you’re not alone. The fact is, however, that your parental and financial rights are on the line, and reaching out for the skilled legal guidance of a trusted divorce attorney early in the process is always in your best interest.  


It’s Time to Consult with an Experienced Maryland Divorce Attorney 

Patrick Crawford at the Law Office of Patrick Crawford in Annapolis is a divorce attorney with a wealth of experience helping clients like you protect their financial and parental rights in the face of divorce accusations. For more information about what we can do for you, please contact or call us at (410) 216-7905 today.

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Patrick Crawford, who has more than 16 years of legal experience practicing family law.