Four months after Maryland’s law permitting divorce by mutual consent went into effect, pending legislation in the General Assembly session seeks to clarify the process, which in practice varies depending on the jurisdiction.
The law, passed in 2015, permits a court to decree an absolute divorce on the grounds of mutual consent so long as the parties do not share any minor children and they resolve issues relating to alimony and distribution of property. The couple must provide a written settlement agreement and both appear before the court at a hearing.
Confusion among courts arose almost immediately, according to family law practitioner Lorraine M.B. Prete, a member of the Maryland State Bar Association’s Family and Juvenile Law Section Council. Listserv emails began flying as attorneys learned different answers were being given to questions about mutual consent divorce depending on the jurisdiction.
“Everyone was talking about it,” said Prete, of Kaslick & Prete LLC in Frederick.
Some courts did not require both parties to appear for the absolute divorce hearing, as outlined in the law, Prete said. Others did not require a corroborating witness, as another section of Maryland divorce law requires.
A survey of Maryland’s circuit courts in January revealed a lack of uniform policy for practitioners and in at least one jurisdiction the necessity of a corroborating witness depended on the judge, according to Prete.
“The big question is the witness,” she said. “Was the mutual consent law meant to include the witness part?”
The survey prompted Washington County judges to confer, discuss the issues and revise the court’s policy, Prete said.
The issues also prompted legislation. House Bill 274 repeals the provision prohibiting a judge from granting a divorce on the uncorroborated testimony of the party seeking the divorce. The bill, sponsored by Del. Kathleen M. Dumais, D-Montgomery and a family law attorney, is scheduled for a hearing before the House Judiciary Committee.
Prete said the concern over allowing a judge to grant a divorce without a third party to corroborate facts was there would be fraud or collusion on the part of the separated couple. In practice, however, she said she hasn’t seen any instances of people attempting to abuse the system.
A similar bill in the Senate repeals the corroborating witness requirement. Senate Bill 359, introduced by Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and chairman of the Senate Judicial Proceedings Committee, also states that an absolute divorce on the grounds of mutual consent is initiated when the parties jointly file a complaint.
The Senate bill is scheduled for a hearing Feb. 18. Zirkin sponsored the divorce-by-settlement bill during last year’s legislative session.
Until the law is changed, Prete said the best practice is to contact the family support service coordinator for the jurisdiction where you are filing.