When a Spouse Will Not Agree to a Divorce in Maryland

By Mary Jane Freeman

Sometimes, ending a marriage is not something both spouses want. While divorce may be the right choice in the eyes of one spouse, the other may think it's a bad idea and refuse to participate or assist in the divorce process. Although an uncooperative spouse cannot stop a divorce, his actions can sometimes delay and frustrate the proceedings. Luckily, in Maryland, there are ways to overcome these roadblocks and get the divorce you want, and there's nothing your spouse can do to stop it.

No-Fault Divorce

Like all states, Maryland offers spouses the option of filing for a no-fault divorce. With no-fault divorce, you don't have to prove misconduct on the part of your spouse, only that you have been living separate and apart for 12 consecutive months. You cannot live under the same roof or engage in sexual relations during this 12-month period. Prior to October of 2011, divorce based on a 12-month separation required the spouses' mutual consent as evidenced by a settlement agreement. Today, Maryland permits divorce based on a one-year separation, regardless of whether your spouse consents to the divorce or signs a settlement agreement.

Contesting No-Fault Divorce

In an attempt to stop the no-fault divorce, your spouse may challenge your grounds of separation. His defense may be that you have not been living separate and apart for the required 12-month period, have engaged in sex during the separation period or otherwise reconciled and decided to continue with the marriage. If any of your spouse's allegations are true and can be proved, such as having sex while separated, you may wish to file for divorce on fault-based grounds rather than risk a denial of your divorce. If a no-fault divorce has already been filed, you can amend the divorce petition to reflect a fault-based ground instead.

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Fault Divorce

In addition to no-fault divorces, Maryland permits divorce based on fault, meaning a spouse's misconduct caused the end of the marriage. The state recognizes several fault-based grounds, including adultery, desertion, commission of a crime, insanity, mental or physical cruelty, and excessively vicious conduct. But you must prove your spouse engaged in the alleged wrongdoing or your divorce will be denied. For example, if you cite adultery as your grounds for divorce, you must prove your spouse had the disposition and opportunity to cheat; mere speculation is not enough. Evidence of this may include repeated displays of public affection between your spouse and another and sightings of your spouse at that person's apartment late at night.

Fault Divorce Challenges

Even in a fault divorce, your spouse may attempt to stop the action by challenging your allegations. Common defenses include condonation and recrimination. With condonation, your spouse claims you knew of his activity but forgave him for it. For example, with adultery, he may present evidence of your participation in marriage counseling and remaining married to him after the affair took place. In contrast, recrimination occurs when your spouse claims you also engaged in the same or similar bad conduct. For example, if you file for divorce on the grounds of cruelty, your spouse may present evidence that the abuse was mutual, perhaps with police reports that list you as the aggressor at least as often as your spouse.

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Wiretapping & Divorce Law in Maryland

It may seem blatantly unfair that your spouse could end your marriage, either by committing adultery or physical or emotional cruelty, then receive financial assistance from you for years to come as you pay him alimony. Some states agree with this premise, including Maryland. The state considers fault in some contexts of divorce litigation, but you'll have to prove your spouse's bad behavior. Unfortunately, you can't wiretap him in order to do so.

Which States Are No-Fault Divorce States?

All states offer some version of no-fault divorce. California was the first to pass no-fault legislation in 1970, while New York brought up the rear by finally passing a no-fault law in 2010. As a result, no matter where you live, you can get a divorce by simply telling the court that your marriage is over. You no longer have to prove that your spouse caused the breakup. The similarity ends there, however. Individual states put their own spin on no-fault rules.

Can a Third Party in Virginia Be Held in a Divorce Case in an Extramarital Affair?

If an extramarital affair leads to divorce, the jilted spouse might want to know whether Virginia laws provide a way to sue the third party, or the person involved in the affair with her spouse. Although adultery may become relevant to a divorce case, state law does not allow a spouse to sue the third party as part of the divorce proceedings.

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