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By Brett D. Smoot, Esq.

During the 2023 legislative session, Maryland made sweeping changes to its divorce laws with the passage of SB 36. Taking effect on October 1, 2023, SB 36 will immediately provide greater access to the family courts for all of Maryland’s residents, particularly those who are low income. By amending the grounds for absolute divorce found in Section 7-103 of the Family Law Article, SB 36 will make absolute divorce (and its associated relief) easier to obtain, while lowering the level of conflict in some cases.

SB 36 expands the availability of absolute divorce in part through reduction. By repealing Section 7-102 of the Family Law Article, SB 36 eliminates limited divorce. Initially, one might think that this restricts the options for parties seeking relief through divorce cases. However, the elimination of limited divorce reflects its new redundancy. SB 36 does not stop there, as it also removes the traditional fault grounds for absolute divorce. No longer will spouses have to prove inherently contentious grounds like cruelty or adultery to be granted a divorce. However, evidence of such conduct by a spouse may still be offered to prove the “estrangement of the parties” factor of both marital property distribution and alimony. These code sections are unaffected by SB 36, which only concerns grounds for divorce.

SB 36’s most impactful changes involve separation and the introduction of irreconcilable differences. Firstly, SB 36 reduces the time required for the ground of separation from 12 months to six months. Secondly, it permits spouses who live under the same roof to file on the ground of six-month separation, as long as they have “pursued separate lives.” The significance of this revision cannot be overstated, as being unable to separate from one’s spouse due to limited financial circumstances will no longer be an impediment to filing for absolute divorce. Thirdly, SB 36 allows one to file for absolute divorce due to “irreconcilable differences based on the reasons stated by the complainant for the permanent termination of the marriage.” Although irreconcilable differences is not a fault-based ground, there is uncertainty as to what evidence the courts will require to prove it. Given the elimination of fault grounds and the revisions for separation, it would seem logical that the strength of evidence required to prove irreconcilable differences would be less than that needed to prove a fault ground like cruelty or adultery.

SB 36 may also impact divorce cases filed before its implementation that have yet to be heard on the merits. If a party has already filed for limited divorce or absolute divorce before October 1, 2023, the party and her spouse can orally amend to a six-month separation at a hearing on the merits that occurs after October 1, 2023. Otherwise, if a party desires to amend her grounds for absolute divorce after SB 36 takes effect, Maryland Rule 2-341 (Amendment of Pleadings) would apply. Notably, Maryland Rule 2-341(c) provides that “amendments shall be freely allowed when justice so permits.” If petitioning for leave of court to file an amended complaint for absolute divorce following October 1, 2023, a party should refer to this portion of Maryland Rule 2-341(c). Permitting an amended complaint for absolute divorce that is based on a recent change in divorce ground law is consistent with the intent of that law change, thereby being in the interest of justice.

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Brett D. Smoot is a Staff Attorney in the Centralized Intake Unit at Maryland Legal Aid.