Maryland Divorce Requirements

Under Maryland Law, you have the right to represent yourself in all legal cases, including divorce.

The legal term for representing yourself is “pro se,” pronounced “pro say”) which is Latin for “on your own behalf.” Representing yourself is not a good idea for everyone. It is important to understand that by representing yourself, you may be giving up important rights. It is very important for you to find out if your spouse has a pension, retirement account, insurance or other significant property before you decide whether to file your own divorce. If you do not ask for such things in the divorce, you will give them up forever.

Before you file for divorce on your own, you need to talk to your spouse, if possible, and find out how he/she feels about the divorce and about the issues mentioned above. This will give you an indication on how to proceed with the divorce.

The law limits the authority of the court to grant divorces (known as a question of jurisdiction-can this court hear this divorce?). The law also dictates when the court has jurisdiction over a divorce proceeding.

Within Maryland, the circuit courts have jurisdiction to hear divorce cases. Generally, the circuit court with jurisdiction for your case is the circuit court in the county where you (the filing party or Plaintiff) live or the circuit court in the county where your spouse lives or works. When you file the relevant papers, you must have stated your grounds for that court to have jurisdiction. If not stated correctly, your spouse could file a motion to dismiss your case.

After you file your papers, your spouse has 30 days (if your spouse lives in Maryland), 60 days (if your spouse lives outside of Maryland, but in the United States), or 90 days (if your spouse lives outside the United States) to respond to your request for divorce (known as a Complaint). If your spouse fails to respond, the court will proceed with the divorce so long as service of process has been completed correctly. Whether or not your spouse responds, you will have to appear before the court (in almost all cases the hearing will be before a Magistrate) in a hearing scheduled by the clerk.

At the hearing for Absolute Divorce, you will no longer need a corroborative witness.  While a witness is no longer required to testify at a divorce hearing in Maryland, you will still need to testify as to the circumstances of your case. Having a witness with knowledge of your case may still be useful, but is optional.  A witness is a person who testifies for you and supports your version of the facts. The witness gives his/her testimony based on the facts he/she saw or heard.

After you testify and have presented other evidence, and if your spouse answers or shows up, then your spouse will also have a chance to do the same. Note that in "mutual consent" filings, at least one party is required to appear and participate in the hearing. At the end of the hearing, the court (in most cases it will be a Magistrate who makes a recommendation to the court) will decide at some later time (normally 30 days) to grant a divorce and a settlement of marital issues.

In order to start the divorce process you must file a complaint in the circuit court where you or your spouse lives. In your complaint or at the hearing, you will have to meet the residency requirement for the ground you specified above. Divorce laws apply only to the residents of a state, and each state has its own residency requirements. In Maryland, at least one of the parties must have been a Maryland resident, living in Maryland, for at least six months prior to filing for divorce. For example, you cannot have lived in Maryland for six months before moving to Nebraska for another six months and then come back to Maryland to file for a divorce.

You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the state from which you are filing. The forms do not require you to list all addressees, but you should be prepared to prove where you lived during the separation in the final hearing.

Your residency is substantiated by your sworn complaint. The testimony is all that most courts require to verify residency. But cases have been dismissed and even overturned because of improper proof of residency.

A court may take on a divorce proceeding even if your spouse is not a resident of Maryland. If you or your spouse move to another state after the divorce has been filed, you may still have your case heard in Maryland.

Register to vote. Get a driver’s license. Get a job. Open charge accounts. Register your car. Take out a library card. The list is endless. But whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in the state from which you file.

Maryland has counties that govern which court your divorce will take place in. This is called venue. The divorce must be filed where the filing party (Plaintiff) resides or where the Defendant resides or is regularly employed or has a place of business.

Divorce is the ending of a marriage ordered by a court. In Maryland, you can file for an absolute divorce. When the court decrees (orders) an absolute divorce, it means that the divorce is permanent, permits remarriage, and terminates property claims. Since divorce in Maryland is statutory, the law is located in The Maryland Annotated Code under the Family Law section of the Code in subsection 7.

Annulment establishes that your marital status never existed. The court will declare that you were never married. Because the courts rarely grant an annulment, you should think twice about using this route if you want to end your marriage. The court may look to, but is not limited to, the legitimacy of children and the preservation of the sanctity of marriage. Because of these considerations, a court will look to granting a divorce instead of an annulment.

There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.

In Maryland, there are three different no-fault grounds for a court to grant an absolute divorce:

• six-month separation
• irreconcilable differences
• mutual consent

Any one of these grounds, if proved, will result in the complete dissolution of the marriage (look to each ground in order to find out how to prove that ground):

Six-month separation: the parties must have lived separate and apart for 6 months, without interruption, before the filing of the divorce. Separate and apart includes living under the same roof but living and “pursuing separate lives”. It is at the Judge’s or Magistrate’s discretion as to whether your particular living situation meets the “pursuing separate lives” criteria.

Irreconcilable Differences: your divorce documents must state clear reasons as to why the marriage should be permanently terminated for the court to grant the divorce. It is at the Judge’s or Magistrate’s discretion as to whether your particular explanation meets the “irreconcilable differences” criteria.

Mutual Consent: to file under mutual consent divorce, the parties must have a written and signed settlement agreement that resolves all issues related to alimony, distribution of property, the care, custody, access, and support of the minor or dependent children.

Note that Maryland’s prior “fault” grounds for absolute divorce (such as adultery, desertion, cruelty, insanity, etc.), are no longer considered primary grounds for divorce, though such circumstances may be considered as part of a divorce filing by the court in certain divorce actions.

Also note that a Parenting Plan is required for filing with the divorce if there are minor or dependent children born to (or adopted by) the parties during the marriage.

Annulment: In Maryland there are two types of annulment. In the first type the marriage is declared void ab initio, or from its inception, as though it had never existed. You do not legally have to go to court to have the marriage declared void ab initio, although it’s a good idea to do so. In the case of an annulment, a marriage must be “totally void” in order for it to be considered annulled.

There are two characteristics of a “totally void” marriage:

• the marriage has some defect rendering it susceptible to collateral attack (some evidence that shows the marriage never happened or should have never happened) even after the death of one or both spouses; and
• no direct step or proceeding to annul is necessary (although the latter may be desirable).

One such defect is if your spouse was formally married to someone else and still has not divorced that person. Your marriage to this spouse is considered totally void.

Another defective marriage is one done between “blood” relatives. There is also a provision that a minor of 16 and 17 years of age or younger than 16 could not marry unless the statutory provision of the Family Law code §2­301 is met.

The second type of annulment is called voidable. A voidable marriage can only be annulled by going to court and having it declared void. Annulment is available in Maryland, and in some cases it can be obtained under the name of a divorce. Along with obtaining an annulment for bigamy and for lack of consensual age, a marriage may be declared void if the parties did not really intend to marry or if they are incapacitated, as in insanity, intoxication, fraud, and duress. Although annulments may be granted, the preference of the court is not to annul, but for the parties to divorce. Also, any marriage that is expressly prohibited by statute is void by annulment.

For mutual consent divorce, there is no waiting period (if you meet the requirements outlined above).

So long as you meet the residency requirements (also discussed above) to file for divorce in Maryland, under the six-month separation ground, you and your spouse must have lived separate and apart, without interruption, for six months prior to the filing of divorce. Separate and apart doesn’t necessarily mean you have to live in separate residences so long as you are both living and pursuing separate lives, even under the same roof.

If filing under the grounds of irreconcilable differences (or mutual consent), there is no waiting period for absolute divorce (though there are certain requirements for both of these grounds).

The State of Maryland has a “no fault” divorce known as voluntary separation. It usually means that you and your spouse have separated after mutually and voluntarily agreeing that you no longer wish to live together as husband and wife and that there is no hope for a reconciliation. Your spouse cannot threaten or blackmail you into leaving; you separate because you both want to. To get a divorce on this ground you have to be separated, pursuing separate lives, even if still living under the same roof, for at least six months prior to the filing of the divorce. Remember though, if this is not a mutual and voluntary situation you will have to use another ground to get a divorce.

Also see Mutual Consent Divorce in Maryland.