‘Til Consent Do Us Part

‘TIL CONSENT DO US PART: Maryland’s New Ground for No-Fault Dissolution of Marriage

Avigayil Pearlman*

Marriage is not an institution to be taken lightly; however, divorce is a reality of American life.  Unfortunately, the time and expense required to obtain an absolute divorce can be extremely prohibitive in many states.  In fact, Maryland did not entertain complaints for absolute divorce without some claim of wrongdoing on the part of one spouse or another until 1939; and even then, Maryland required a five-year separation first.  See Denese Ashbaugh Vlosky & Pamela A. Monroe, The Effective Dates of No-Fault Divorce Laws in the 50 States, 51 Fam. Rel. 317, 322 (2002).  While the length of time required for separation gradually decreased over the years, the second-most recent change to Maryland’s grounds for divorce, listed in Md. Code Ann., Fam. Law § 7-103 (the “Statute”), came into effect in 1983, and provided that a no-fault absolute divorce in the state of Maryland required a 12-month separation.  Id.  However, everything changed on October 1, 2015, when an additional ground for no-fault divorce was added to the Statute: mutual consent.

  In recent months, even the Catholic Church seems to have become more aware of the need for expeditious dissolutions of marriages (where appropriate).  In September of this year, Pope Francis announced that annulments sought by mutual consent will be put on the “fast track.”  Martha Neil, Pope Francis Puts Annulments on the Fast Track, Says Bishops can Hear Uncontested Cases, ABA J. (Sept. 9, 2015), http://www.abajournal.com/news/article/ pope_francis_puts_annulments_on_a_fast_ track_says_bishops_can_hear_uncontes/.  In furtherance of this new policy, as of December 8, 2015, “lack of faith” will be added as an available basis for church-based dissolution.  In addition, if a couple consents to an annulment (or one party claims inducement of marriage by violence or concealment of infertility) bishops, as opposed to a three-judge regional panel [or “church tribunal”], may hear the case.  Id.  Even more telling is the fact that appeals of annulment will no longer be automatic; rather, one of the parties must make the request. Id.

Other states currently allow mutual consent as grounds for a no-fault divorce, although in varying ways.  For example, Pennsylvania requires each party to sign an affidavit of consent within 90 days of filing for divorce on mutual consent grounds.  23 Pa. Cons. Stat. § 3301 (1990).  In Mississippi, the court allows for divorce on the grounds of irreconcilable differences, but the courts are able to decide property and other issues upon which the couple cannot agree.  Miss. Code Ann. § 93-5-2(3) (2013); see generally From Contested to Non-Contested, Hattiesburg Divorce Law. (Sept. 22, 2015), http://www.hattiesburgdivorcelawyer.com/from-contested-to-non-contested/?utm_source=feedburner&utm_medium=feed&utm_campaign= Feed%3A+ HattiesburgDivorceLawyer+%28Hattiesburg+Divorce+Lawyer%29 (discussing when and why some Mississippi couples file for divorce under irreconcilable differences, even when basing their complaint on contestable grounds).

As of October 1, 2015, Maryland courts will now grant an absolute divorce with no statutory period of separation required, so long as: (1) the parties do not have any minor children in common, (2) all property and other economic issues are settled and agreed to in a signed separation agreement submitted to the court, and (3) both of the consenting parties appear for the hearing. This latest development in Maryland family law was approved by the Governor on May 12, 2015, and amends Md. Code § 7-103, which lists the available grounds for divorce in the State of Maryland.  Dep’t of Legislative Servs., Md. Gen. Assembly, Fiscal and Policy Note, S. 472 (2015), http://mgaleg.maryland.gov/2015RS/fnotes/bil_0002/sb0472.pdf .

In addition to easing the way and speeding the pace for couples to divorce, mutual consent allows couples to continue living in the same household while dissolving their legal union.  Thus, couples can prepare for their divorce without having to incur a second mortgage or pay (more) rent during the required separation period under the only other no-fault grounds available in the State.  New Ground for Divorce in Maryland – “Mutual Consent,” Dornbrand L. LLC, http://www.dornbrandlaw.com/index.php/new-ground-for-divorce-in-maryland-divorce-by-mutual-consent (last visited Oct. 7, 2015).  In fact, couples filing for divorce on the grounds of mutual consent may even maintain their intimate relationship throughout and after their divorce if they wish to do so (as long as the divorce is not being sought for illegal or fraudulent purposes).

In a place like Baltimore City, where many low-income couples agree to dissolve their marriage, the new ground of mutual consent provides some much needed relief.  The cost of divorce can be prohibitive and the time non-existent to begin an often lengthy and always emotionally exhausting process.  No longer must individuals struggle to live separate lives for at least a year before being able to file for divorce.  Mutual consent saves the court and the parties both time and money by eliminating the need for corroboration and other pesky details frequently overlooked or not understood by pro se clients, often causing unnecessary delays and rescheduled hearings. 

Given the potentially time- and money-saving implications of mutual consent grounds for absolute divorce, if it proves to be successful, one hopes that in the near future even couples with minor children in common will be able to take advantage, so long as custody, visitation, and child support issues are agreed to in writing prior to filing.

Avigayil Pearlman is a second year law student at the University of Baltimore.  Prior to attending law school, she had a 15-year career as a legal administrator and is a former business owner.  Avigayil is passionate about family law and equal rights, and will be participating in the Family Law Clinic during the Spring 2016 semester.