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Legal Matters: Constructive desertion and the ability to legally separate without leaving the household

Grounds for a divorce based on a mutual separation include a declaration that the parties seeking a divorce have lived in separate housing, without cohabitation or sexual relations, for the one-year period specified by state law.

If husband’s and wife’s financial situations or other circumstances make it impossible for them to maintain two households during the separation, can they separate at home — that is, not share a bedroom nor have sexual relations for one year, but remain in the same house for that time period — and then file for divorce?

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Maryland’s highest court said yes, in a 2006 decision that made clear there are specific conditions spouses must meet if they choose to try to divorce without establishing separate housing.

In the case before the court, the husband filed for divorce on the grounds of constructive desertion, alleging that his wife had forced him out of the bedroom they shared and terminated their marital relations, although they continued to live in the same house with their children. His divorce complaint admitted that he and his wife were still sharing the house, but in separate bedrooms and without sexual relations.

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The wife opposed his claim and countered that the couple did not meet legal requirements for a divorce because they had not separated and were not living apart at the time of filing of the complaint.

State laws spell out the difference between a limited divorce — which grants one spouse the right to live separate and apart from the other, but without dissolving the marriage — and an absolute divorce — which dissolves the marriage and allows either or both to remarry.

Courts have defined constructive desertion as any conduct on the part of either husband or wife that makes the marriage intolerable. But physical desertion was defined in a 1940 case as “separation and intention to abandon” and without both, the court said desertion did not exist.

Constructive desertion as a ground for divorce came along 12 years after the definition of physical desertion, in a case where the court concluded, “...any conduct of the husband that renders the marital relation intolerable and compels the wife to leave him may justify a divorce on the ground of constructive desertion.”

Courts also held that any misconduct so serious that it justified one partner in leaving would mean the partner committing the misconduct was guilty of desertion, not the partner who physically moved out.

The husband who sought a divorce on the grounds of constructive desertion while remaining in the same house with his wife also asked the court to decide custody, visitation rights and support for the couple’s two minor children.

The Circuit Court in the shared-home couple’s case did not make any decisions regarding the children, as it had dismissed the case. When the appeals court reinstated the case, it held that the local court had the authority to decide custody, visitation and child support as part of the ruling on the husband’s claim for divorce.

Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at denglelaw@gmail.com.

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