In the previous Family Law blog dated March 8, 2009, this writer discussed the ability to obtain a limited divorce under Maryland law, despite the facts the parties remain in the same home. However, there are certain situations which may arise that one must protect against. One of those dangers was demonstrated in another Maryland case, Wells v. Wells, 168 Md. App. 382 (2006). Opinion by Eyler, D., J.

In this case, the parties resided in the same house with their child at all relevant times until the divorce was granted. When the sheriff advised the wife that she had to vacate the home because a divorce had been granted, the mother was shocked. She alleged in her motion to vacate the divorce decree that her husband had told her the summons was a separation agreement, that she and husband had reconciled and remained together as married persons, that she never saw the notices of hearings or default judgment and that husband had kept such notices from her as he sorted the mail. The trial court denied her motions without a hearing. The Court of Special Appeals, however, cited the authority in this matter, another Maryland case, Flynn v. May, 157 Md. App. 389 (2004) which established that on the question of child custody, “a default judgment cannot substitute for a full evidentiary hearing when a court, in order to determine custody, must first determine the best interest of the child.”

Thus, the finding of the appellate court was that the trial court abused its discretion by denying the wife’s motion to vacate the default divorce judgment as to all issues except the decision to grant the divorce. On the issue of divorce, the trial court abused its discretion by denying the wife’s motion without holding an evidentiary hearing and making a factual finding on the issue of fraud.

All is not fair in love and war. Take heed.

Related posts:

1. Legal Fees, Dissipation of Marital Funds
2. Obtaining A Limited Divorce When No One Will Leave
3. Divorce in Maryland – Generally

In Maryland you can obtain a divorce on the fault grounds of cruelty, adultery or desertion while living in the same house.

The Ricketts case in 2006 allowed a limited divorce to go forward on grounds of constructive desertion when the parties were living in separate bedrooms in the same house.

The Court of Appeals in 2006 found that a complaint for limited divorce alleging constructive desertion based on lack of marital relations may be maintained when both parties continue to live under the same roof, albeit not in the same bedroom, and without cohabitation. Moreover, in such a circumstance, a complaint for custody and visitation of the parties’ children may also be maintained. Ricketts v. Ricketts, 393 Md. 479 (2006). Opinion by Bell, C.J.

A limited divorce grants unto the injured spouse the right to live separate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds.” This is in contrast to an absolute divorce, which effects a complete severance of the marital bond and entitles either of the parties, or both, to remarry.

The Court stated that by the phrase “live under the same roof,” it meant that the parties are technically living together but are not cohabitating, sharing the same bedroom or engaging in marital relations. “Cohabitation,” describes a relationship of living together “as man and wife,” and connotes the mutual assumption of the duties and obligations associated with marriage. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.

But there are dangers in this arrangement, which will be the topic of a follow-up blog in the Family Law category.

Related posts:

1. A Tale of Default Divorce By Deception
2. A Plea to Parents from a Divorce Lawyer: Leave Your Kids Out of It!
3. Legal Fees, Dissipation of Marital Funds