ANNAPOLIS – Divorcing couples would no longer need corroborating testimony that they have lived “separate and part” for an entire year under legislation the General Assembly passed this session and awaiting Gov. Larry Hogan’s expected signature.
But couples with minor children remain ineligible for “divorce by mutual consent.” The General Assembly failed to pass a bill to extend to divorcing spouses with kids the ability to legally call it quits by having a judge sign off on their written agreement resolving the distribution of their marital property.
Sen. Robert A. “Bobby” Zirkin, chief Senate sponsor of both bills, called the measures necessary to ensure Maryland family law keeps “pace with modern times.”
He assailed as outdated – and soon to be repealed – Maryland’s requirement that couples seeking to divorce introduce testimony from a family member or friend that the estranged husband and wife have not been intimate with each other for the prior year. The testimony is not only uncomfortable for the family member or friend but is inherently unreliable, Zirkin said, noting that even your closest friends do not keep constant track of your romantic activities.
“Obviously, no one would know except you and your partner,” said Zirkin, D-Baltimore County and chair of the Senate Judicial Proceedings Committee.
Del. Kathleen M. Dumais, chief House sponsor of the corroboration repeal, called the legislation “long overdue.”
Requiring testimony on whether the divorcing couple was intimate in the past 12 months “was a holdover from when divorce wasn’t particularly favored, not like it’s favored now,” said Dumais, D-Montgomery and vice chair of the House Judiciary Committee.
“It’s reached the point where it is just a silly requirement for the most part,” she added.
Dumais, who practices family law, said “the clients all look at us like ‘are you kidding?’” when told the testimony is required.
“How in the world would they [the family and friends] really know?” asked Dumais, senior counsel with Ethridge, Quinn, Kemp, McAuliffe, Rowan & Hartinger in Rockville.
The repeal of corroborating testimony was the only major family law bill the General Assembly passed this session, which is not unusual.
In 2015, for example, the legislature passed divorce by mutual consent and in a prior year replaced with 12 months the two-year separation requirement in cases where one of the spouses declines to agree to the divorce.
“Generally, the General Assembly doesn’t pass more than one family law bill at once,” said family-law attorney Ferrier R. Stillman. “There are so many other pressing issues.”
Dumais agreed, noting that the Senate and House judiciary committees – which have jurisdiction over family law legislation – were preoccupied this session with mammoth proposals to overhaul the state’s criminal justice system and bills to strengthen laws combating drunken driving.
However, the one family-law measure that did pass this year, Senate Bill 359, was “an excellent development” for a divorcing husband or wife who must ask friends and relatives to testify that he or she has not had sexual relations with his or her estranged spouse for the past year, said Stillman, a partner at Tydings & Rosenberg LLP in Baltimore.
“Going through a divorce is painful enough,” she said. “Adding another humiliation at the end serves no purpose and I’m glad the legislature recognized that.”
Mutual consent next?
Speaking of his bill that failed, Zirkin said the House Judiciary Committee did the minor children of divorcing parents no favor by preventing mom and dad from splitting by mutual consent.
As a result, the parents must wait the year, living separate and apart, before the divorce can be final. That year, and the divorce proceedings that follow, can be acrimonious for the parents and devastating for the children who often and “unfortunately get used as pawns,” said Zirkin, a civil litigator whose practice includes family law.
“It’s just the nature of divorce that it is emotional,” Zirkin said. “Without modernization we are escalating issues, not diffusing them.”
Permitting divorce by consent when children are involved would “keep these couples from warring with each other” by encouraging them to reach agreement on custody, support and visitation issues just as they do on the division of marital property, Zirkin said, adding that he plans to introduce the legislation again next session.
“Mutual consent has been extremely helpful for couples,” Zirkin said. “People are taking settlement negotiations very seriously.”
Dumais said she supports expanding mutual consent to include divorcing parents but that the House Judiciary Committee remains concerned that the best interests of the minor children would not be adequately protected under the agreements. The committee had also rejected the inclusion of parents of minor children when the divorce by mutual consent bill was enacted last year.
“I think it was too soon for my committee” to reverse its position, Dumais said.