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Did they spend the night together? Bill would end need for divorce court witness

To get a divorce in Maryland, people often must swear in court that they have not spent the night with their spouse in the past year — and a witness needs to corroborate that.

A bill being considered by the General Assembly would end what some lawmakers call an arcane and ridiculous requirement.

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It is one that A.E. Curry of Towson wishes were already off the books. When Curry went to Circuit Court in Towson to finalize her uncontested divorce after 36 years of marriage, she had her disabled sister fly in from California to spare her children from testifying.

Then, when a magistrate found fault with the sister's testimony, Curry had to wait for a new hearing and ask her 24-year-old son to tell the court that his parents had not lived together for a year.

"I was upset," Curry said. "I wanted my children to stay out of the proceedings. I wanted them to be neutral parties."

Del. Kathleen Dumais, the sponsor of the bill, called current law "incredibly silly" and "pretty archaic."

The Montgomery County Democrat and vice chairman of the House Judiciary Committee told the panel that 16 states require such corroboration for an uncontested divorce. In Maryland, only the spouse who is seeking the divorce has to appear at the hearing if there is a settlement agreement and the couple has lived apart for a year.

Dumais, a family lawyer with 27 years of experience, said that under current law, the wife or husband comes to court and drags along a mother, father, sibling or best friend to testify that the couple has not stayed under the same roof — even in separate bedrooms — over that time.

Each year, thousands of Maryland couples go through this exercise. But Dumais and other family lawyers say it is a charade and that everybody in court knows it.

"We coach these witnesses to begin with anyway," said Craig Little, chairman of the family law division of the Maryland State Bar Association.

Even if a wife and her spouse did have sex, Dumais said, "you know that she's going to have her mother come in and lie for her."

Dumais said this is the first year that she has brought the proposal before the legislature. State Sen. Robert A. Zirkin, chairman of the Judicial Proceedings Committee, has filed a similar bill in the Senate.

Matthew A. Clark, a spokesman for Republican Gov. Larry Hogan, said the governor would take no position on the legislation unless it is passed by the Assembly.

During a hearing last week in the House of Delegates, the bill drew no opposition witnesses, but support from others who practice family law.

Laure Ruth, legal director of the Women's Law Center of Maryland, told the committee she sometimes gets "the giggles" as she explains the law's requirements when answering calls for a legal hot line. But she said it can put a burden on litigants and witnesses, many of whom have to take off work to help a friend.

"Sometimes trying to come up with a witness who will dance this silly little dance is very, very difficult for clients," Ruth said.

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A couple must live apart for 12 months before obtaining an uncontested divorce in Maryland. Dumais said the witness requirement is designed to prevent people from evading the 12-month rule. The rule was eased last year for couples without children, but Dumais said some county courts still insist on a corroborating witness in those cases.

Some lawmakers have concerns about eliminating the witness requirement.

"What we're doing is making it a lot easier for somebody to scam somebody," said Del. Susan K. McComas, a Harford County Republican.

Ruth said the corroborating witnesses do not do anything to prevent such deception, but McComas expressed skepticism about removing a hurdle to divorce. "There's a trend to make things really, really easy," she said.

The measure also ran into some resistance from Del. Joseph Vallario, chairman of the Judiciary Committee. Vallario, a Prince George's County Democrat, said he wasn't concerned so much about mutually agreed divorces, but about those based on other grounds, such as adultery.

Some family lawyers also doubt the bill would be a change for the better.

Columbia lawyer Amos Whitney said lining up a corroborating witness' testimony is "a pain in the butt" for most of his clients, but he worries that without that requirement, a dominant spouse could railroad a quick divorce settlement through the court, without protections for the partner.

"It's a check and balance," he said.

Zirkin, a Baltimore County Democrat, said there is a good chance a version of the bill will pass this year. He said he has personal experience with such cases, including one in which he had to put a woman's father on the stand to testify about whether she had had relations with her estranged husband. Zirkin said the situation made the father feel awful.

"He made a joke about it, but the question is, 'What's the value of that?'" Zirkin said. "In order to actually know that, you'd have to actually be with one of them 24/7."

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