My husband and I are separated, living in Maryland, and I want to file for divorce. He is not contesting it and it is amicable. I wanted to just file the paperwork myself but the guidelines that come anywhere near our situation is the guideline that states, "One-Year Voluntary Separation ("No-Fault Grounds"): We, by mutual and voluntary agreement, have lived separate and apart in separate residences, without interruption, without sexual intercourse, for more than 12 months with the express purpose and intent of ending our marriage, and there is no reasonable expectation that we will reconcile." The issue here is that we were living in the same residence up until July of this year; however, we have not had sexual relations is over four years and even while living here he had a separate room that he slept in and worked a lot of nights. The other guidelines don't really apply to this situation. So my question is, even though we were living together until July of this year can I still file under this guideline due to the rest of the guideline applying to us except for the time living in separate households?
1 Answer from Attorneys
The courts have only addressed this issue in the context of a divorce based upon constructive desertion, which is defined as a spouse leaving the marital residence because the conduct of the other made staying together intolerable. In that case, the court held that even though they remained under the same roof, since none of the other indicia of marriage/cohabitation existed (sharing finances, meals, etc), they met the criteria. Under current law, if you are actually separated for one year, you don't have to prove the separation was mutual and voluntary. What you could do is file for a limited divorce based upon separation, and get the hearing postponed until after your 1 yr anniversary date, then amend the complaint to an absolute divorce. If you have any custody, support or property division issues, you really ought to seek the assistance of an experienced family attorney to resolve those issues.