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.