Matters Relating to Children

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Legal Separations and Limited Divorces

By Rebekah J.H. Sullivan

I frequently meet with clients who would like to move forward with legal proceedings to separate themselves from their spouses, but who are not yet able to file for divorce under the uncontested grounds available.  In some cases, it may be in a client’s best interest to file a Complaint for more limited relief: what is referred to as a Legal Separation in the District of Columbia and a Limited Divorce in Maryland.

These forms of a divorce that are less than an “absolute” divorce (that is, they separate couples, but do not permit remarriage) have a now almost meaningless history.  When there were strong religious or moral objections to divorce, limited divorces were a way in which the financial consequences of a divorce could be achieved without violating religious doctrine or offending morals.

These forms of limited divorce remain in our statutes and can be used in accordance with this historic intention.  However, today the main benefit is temporal.  It allows parties unable to resolve their issues to get into the legal system before their separation has been for six months in D.C. or one year in Maryland.  That being said, most litigants do not generally proceed to trial seeking a legal separation or limited divorce.  By the time the case is able to be heard, the time is ripe for an Absolute Divorce and one party files an Amended Complaint seeking the Absolute Divorce rather than the legal separation or limited divorce.

A Legal Separation can be obtained in D.C. by showing: (1) a Mutual and Voluntary Separation (of any duration); or (2) Separation for One Year.  Thus, if the separation is mutual and voluntary, a litigant could file a Complaint for Legal Separation immediately upon separating, rather than waiting until the mutual and voluntary separation has been for a period of six months, as required to seek an absolute divorce.  If the separation is not mutual and voluntary, the separation must last for one year, whether one seeks a Legal Separation or an Absolute Divorce.  It should come as no surprise that whether a separation is mutual and voluntary can be a source of disagreement.

In Maryland, one must show (1) cruelty of treatment of the complaining child or a minor child of the complaining party, (2) excessively vicious conduct to the complaining party or to a minor child of the complaining party, (3) desertion, or (4) voluntary separation with no reasonable expectation of reconciliation.  The first two categories, remove the need to show (as required to obtain an Absolute Divorce) no reasonable expectation of reconciliation (which should, but does not always, go hand in hand with cruelty of treatment and excessively vicious conduct).  For desertion, legal separation removes the need to show the desertion has continued for twelve months, is deliberate and final, and, again, that there is no reasonable expectation of reconciliation.  Finally, for an uncontested ground, voluntary separation of any duration is sufficient, whereas to obtain an absolute divorce separation (whether or not voluntary) must be for a year.

In the District of Columbia, the relief available through a legal separation substantially mirrors the relief available through an absolute divorce.  The Court may assign sole and separate property, D.C. Code § 16-910, value and distribute marital property, D.C. Code § 16-910, and even award alimony, D.C. Code § 16-913.  Custody or child support determinations can be included.

In Maryland, the relief available through a Limited Divorce is limited.  The court can grant use and possession of a marital home, Family Law Article § 8-208(a)(1), use and possession of family use personal property located in the marital home, Family Law Article § 8-208(a)(2), resolve disputes related to ownership of personal property Family Law Article § 8-202(a)(1), and award alimony, Family Law Article § 11-101(a)(2)(ii).  Custody or child support determinations can be included.  But the court cannot grant equitable distribution.  That is possible only in conjunction with an absolute divorce.

There are other reasons one might choose to pursue a limited rather than “absolute” divorce.  It is important to discuss the specific facts of your case with an experienced practitioner to determine whether this option is appropriate for you and in your best interest.

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