With home prices down and unemployment up, some people who would like to divorce cannot afford to separate.   As in other divorce topics in the Washington area, the answer to the question “Can I get a divorce if neither I nor my spouse has moved from the marital home?” is, “It depends on the jurisdiction.”

Maryland cases hold that you cannot be divorced on “separate and apart” grounds without moving out because, even if the parties want to divorce and no longer cohabit, that is have sexual relations, they cannot be said to be living separate and apart if they live in the same house.   This has been held to bar the divorce when one spouse moves back in even temporarily for financial or other reasons.  Lillis v. Lillis, 235 Md. 490; 201 A.2d 794 (Md. 1964).

The Maryland Court of Appeals recently allowed a limited divorce to proceed on constructive desertion grounds where the spouses still lived in the same house.  Last year the Maryland legislature considered a law that would have allowed divorces in certain cases on grounds of voluntary separation while the parties still lived together, but it did not pass.  Next we’ll examine how Virginia views divorce without moving out.

Following reconciliation of the house and senate bills, the Maryland Legislature has passed HB 500 – Child Support Guidelines Revision.

The bill has a new matrix for child support, which goes into effect for new cases filed on or after October 1, 2010, and it will increase the amount that most non-custodial parents will have to pay.  The new guidelines will go up to $15,000 in combined income instead of the old cap of $10,000.   However, you cannot petition for an increase in old cases just because the new law has passed.  There would have to be some other change in circumstances.

The legislature did not pass two other proposed bills discussed here:

SB 577 – Family Law – Grounds for Absolute Divorce – Time Requirements.  This bill would have shortened the required separation period from one year (voluntary) and two years (involuntary) for no fault divorces to six months and one year respectively.

SB 578 – Family Law – Grounds for Divorce.   This bill would have allowed people to obtain no fault divorces while separated but living in the same house.

Justice Oliver Wendell Holmes, Jr. said we have a great experiment going on with the laws in the different states in the U.S.  We can see which ones work best.

Arizona is trying to decide whether or not to increase the time of separation in that state from two months to six months.

Meanwhile, Maryland Senator Zirkin  has introduced Senate Bill 577 that would reduce the time from one year to six months for a voluntary separation in Maryland.  The period for involuntary separation would change from two years to one year.  If it passes, the bill would be effective for divorces filed after October 1, 2010.

This would bring Maryland in line with the separation period required in its neighboring jurisdictions, Virginia and DC.

There is opposition today to Delegate Luiz Simmons’ move to modernize Maryland divorce law by adding a new ground for divorce.  The new ground would permit parties living together to get divorced if they have not had sex for a year.  Maryland’s no fault grounds, unlike Virginia and DC, require the parties to live under separate roofs for a year if they both agree or two years if they do not.  Delegate Ben Kramer is co-sponsoring the legislation and Senator Robert Zirkin is introducing a version in the Senate.

But Derek McCoy, president of the Association of Maryland Families is opposed.  “Lowering the divorce requirements — that’s a move in the wrong direction for the state.  We need to make it more challenging for divorces to occur,” McCoy is quoted as saying by Hayley Petersen in today’s Washington Examiner.

Meanwhile, unhappy couples still living together can avail themselves of Maryland’s fault grounds to obtain a divorce.  Cruelty, adultery and desertion for a year can occur while the parties are living together.

“The statutory term ‘desertion,’ as applied to husband and wife, means a cessation of the marital relation. And this doctrine is in accord with the general principles of the divorce law. We have seen that there may be a desertion although the parties live under the same roof. Desertion implies something more than merely ceasing to cohabit or live together; for, as applied to husband and wife, it means the ceasing to live together as husband and wife.” – Maryland Court of Appeals citing Divorce and Separation, by Nelson, in Fleegle v. Fleegle, 136 Md. 630, 634 (Md. 1920).