In Maryland, to file a no-fault divorce (other than a mutual consent divorce), you must be living apart and separate from your spouse for at least one year prior to filing. In Maryland, living apart means to actually live in a different home from your spouse.
Is Living in the Guest Room or Basement Living Apart and Separate?
Unlike in a Washington, DC divorce case, Maryland requires the parties to actually live in separate dwellings for a period of one year or more to file for a no-fault divorce. This means that if you are living in the basement or the guest room, you are still considered living together with your spouse. If there were a case in the District, the court would consider that you are living separate and apart if you are not sharing a bed (and not having sexual relations) with your spouse. This stems from lawmakers recognizing the reality that many people cannot afford to live in a separate home while they are still married to their spouse.
If I am Still Living with my husband/wife in Bethesda, can I still file for divorce?
Unless we are dealing with a fault-based Maryland divorce, you cannot file for what is known as an absolute divorce while you are still living with your spouse. However, as your experienced Bethesda divorce attorney can explain, this does not mean you cannot file for a divorce. You may be able to file what is known as a limited divorce in Maryland.
What is a Limited Divorce in Maryland?
In Maryland, Pursuant to Family Law § 7-102, a limited divorce, can resolve many of the issues such as including financial issues, child custody and support issues, but you will still be legally married and cannot remarry. However, since the process of a contested divorce takes time, you can often amend the complaint for a limited divorce to become a complaint for absolute divorce at a later date.
There are technically three grounds upon which you can file a complaint for limited divorce and they are as follows:
- Cruelty and Successively vicious conduct
While these are three official grounds, in most cases, your spouse will not challenge the ground for a limited divorce, and if they do, the legal definitions of the grounds for limited divorce are actually fairly broad. For example, Desertion can be actual desertion where your spouse physically leaves you (and possibly the children), but it can also include actions in which your spouse has terminated the spousal relationship and has made it impossible for you to continue in good health, safely, while maintaining your self-respect. You also cannot have sexual relations with your spouse since the constructive desertion began, but as you can see, this would be a description that might match the facts of your actual situation, however, you should speak with an experienced Gaithersburg divorce attorney during your confidential consultation to see what would be appropriate for filing in your case.
Can I Live in the Same Home as My Husband/Wife after Filing for Divorce?
The legal answer is generally yes. You will not be required to vacate a home in which you have a marital interest absent a court order. However, as a practical matter, it is often a very uncomfortable situation to be living in the same home. It is obvious how this would result in arguments and possibly even in a physical altercation. This is certainly a situation you want to avoid so there may grounds to have your spouse removed from the home if you can establish you are in imminent danger through what is known as a Protective Order.
In addition to a Protective Order, you can also ask the Court for what is called an Exclusive Use and Possession Order. An Exclusive Use and Possession Order is an order from the court that grants one party (and possibly the minor children) the exclusive use of the marital home. This means that the other spouse has no right to live there and cannot enter (aside from a designated time to get his or her personal belongings) the marital home. It should also be noted that whose name is on the title to the marital home is not necessarily determinative as to the inclusion of the home as a marital asset and the equitable distribution the home.
In a Maryland divorce case, one party can also ask for “Suit Money” or “Fee for Suit.” This is a request of the court to have the other spouse pay your legal fees and court costs, but this is not something that typically occurs at the start of the case. The court will typically set a case for what is known as a pendente lite hearing. This hearing, often called a “PL” hearing for short, is basically a temporary custody or support hearing. This means that the court can set a temporary order for child support, alimony, fee for suit, and other issues that will remain in effect until the end of the case. The order can include the exclusive use and possession of the marital home as discussed above. The family magistrate will look at the case previous to this hearing and also the financial means and needs of the respective party and can enter an amount that one spouse must give the other for legal fees to pay for legal costs to date and for the remainder of the case.
If you are in need of representation in Maryland or Washington, DC for a family law matter, please feel free to contact the Gross Law Firm, LLC for a complete and confidential consultation by calling (301) 388-5434 or by contacting us online.