No-fault divorce: Long overdue, or a bad move?

“I think (the legislation) is really modernizing Maryland family law,” says Kelly Powers, of Miles & Stockbridge in Baltimore. “We’re overdue for this change.” (Submitted Photo)

Legislation before the General Assembly that would make Maryland a no-fault divorce state is prompting varied reactions from family law practitioners.

House Bill 14 and its cross-filed Senate Bill 36 would repeal adultery, desertion and cruelty, among other “faults,” as statutory grounds for divorce. Under the proposed legislation, Maryland would join 39 states in allowing a divorce for irreconcilable differences. The bills would also permit couples to divorce after a separation of six months, rather than the current 12 months. In addition, the bills would allow parties to live under the same roof for the duration of the waiting period, with certain conditions. Now, couples must live in different dwellings.

“I think (the legislation) is really modernizing Maryland family law,” said Kelly Powers, of Miles & Stockbridge in Baltimore. “We’re overdue for this change.”

Her enthusiasm was not shared by everyone in the Maryland family law community, Powers noted.

“I do think practitioners are divided on it, just based anecdotally on speaking with people,” she said.

Powers hailed the bills’ provision that parties seeking to split be allowed to remain in the same home during the waiting period.

“Lots of families just can’t afford to have two households when divorce is pending,” she said. “It’s circular: They don’t want to live together but don’t have another option financially. I think (the legislation) will make a huge difference for people stuck in that situation.”

While Maryland is not considered a no-fault state, two no-fault avenues to divorce do exist now: the 12-month waiting period and “mutual consent.” A relatively recent provision in Maryland law, mutual consent allows couples with a written settlement agreement to end their marriage without waiting for a year or living separately.

Laure Ruth, legal director of the Women’s Law Center of Maryland, said no-fault divorce would provide court resources for couples who cannot reach agreement and thus can’t use the ground of mutual consent to divorce.

“We want people to get in the door to get the assistance of the court in getting things resolved,” Ruth said, citing child support, alimony and the distribution of marital property as primary matters.

The legislation would also eliminate the need for one spouse to accuse the other of misbehavior, which now is a way to circumvent the waiting period and requirement that spouses live separately.

“I hate the call where the woman says, ‘So I have to wait until he hits me or goes and commits adultery before I can file (for divorce)?’” Ruth said. “We’re trying to get rid of that so there’s not this finger-pointing that’s required.”

Laure Ruth, legal director of the Women’s Law Center of Maryland, says no-fault divorce would benefit couples who cannot reach agreement and thus can’t use the ground of mutual consent to divorce. (Submitted Photo)

Ruth emphasized that while adultery, cruel treatment or other faults would no longer be grounds for divorce under a no-fault regime, such facts could be used at trial to determine custody or alimony.

“Fault-based facts could still come in,” she said.

In written testimony in support of HB 14, the Women’s Law Center said the proposal was especially important in relationships with “an uneven power dynamic, such as cases where there has been intimate partner violence or a power and control dynamic.”

Ruth in particular deplored the current prohibition on filing for divorce while couples are living under the same roof.

“It’s really damaging, especially for the less financially independent spouse, usually a woman,” said Ruth, who called Maryland’s existing divorce laws “arcane.”

Christopher Castellano, of Joseph Greenwald & Laake in Rockville, sees it differently.

“I shudder at the thought of making divorce overall easier and more accessible,” he said.

Castellano said a speeded-up timetable could lead to an increase in custody cases.

“I understand the concept of not wanting to put an economic barrier if the relationship is toxic or unsafe, but so many of these cases involve kids,” he said.

He warned, too, that a compressed court calendar could cause problems.

“Once you change 12 months’ separation for absolute divorce to six months, then you’ve got a situation where (you ask), ‘How can the courts not justify truncating the case standards?’” he said. “Discovery has to happen in a lot shorter time period.”

Moreover, he said, a faster schedule could mean amped-up emotions.

“All of a sudden … there’s no room to breathe to settle a case with cool heads,” he said. “You’re fever pitch right out of the gates.”

Where Laure Ruth sees arcanity, Castellano sees history.

“If the Catholic settlers (of Maryland) knew where we were today, I don’t think they’d be too pleased,” he said.

The proposed legislation would also end the authority of judges to grant a limited divorce, which does not end a marriage but permits a complaining spouse to live wholly apart from the other. The legislation would not affect couples’ ability to get a divorce by mutual consent.






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