I do not know whether Reader’s Digest still fills in space after articles with oddities and jokes, but I recall that the magazine sometimes published laws that were found on the books of States, Cities and Counties that no longer had any purpose, but did amuse its readers. Lost in the mists of time were the reasons for keeping flogging on the books as a punishment; or laws allowing hunting of raccoons, but no other animals, on Sunday; or regulations making it an offense to throw bales of hay from a second story window within the city limits of Baltimore; or to take a lion to the movies.
Family law is no exception to this kind of silliness. This is highlighted by a Bill introduced in the House and Senate in the State of Maryland. As my colleague, Rebekah Sullivan, has noted in a recent blog, we can applaud the content of the bill. It would allow two adults to obtain a divorce by mutual consent provided they have settled all questions of spousal and child support, child custody and access, and property rights. This seems very sensible, and it is a long way from the time when the only grounds for divorce in Anglo-American law were fault, specifically, adultery and desertion. In time, cruelty and other grounds were added. As times changed, the grounds for divorce continued to evolve. California abolished divorce in favor of “dissolution” of the marriage, and fault grounds disappeared. In October 2011, Maryland enacted a provision that allowed either party to obtain a divorce after one year of living apart without engaging in marital relations. Nearly all other states and the District of Columbia have enacted similar grounds although the waiting times can vary.
Here is the silly part: the Maryland legislature is looking at shortening the period of time from one year if the two parties can settle their differences and mutually agree to a divorce. At the same time, this Bill would reenact all of the other grounds for divorce currently on the books, including one year separation. What is silly, you ask? How about continuing on the books that someone can get a divorce on the ground of the “insanity” of his or her spouse, where insanity is defined as requiring three years in an institution. One can also get a divorce in Maryland on the ground of commission of a felony by one’s spouse, provided the spouse is sentenced to three years and serves at least two. “Cruelty” remains on the books, provided there is “no hope of reconciliation.”
I have been practicing in Maryland for over thirty-five years and have never had a divorce case where insanity, or commission of a felony were the grounds for divorce. That encompasses a fair amount of time when one could not get a divorce on the basis of mere separation, much less for just a year. If the legislators of Maryland in their collective wisdom enact a mutual consent divorce, it certainly seems a step in the right direction, encouraging people to resolve their differences without using the courts, and not artificially extending a dead marriage. However, it will not eliminate the strong emotions that sometime prevent otherwise reasonable people from quietly negotiating divorce. And it does not remove from the Code of Maryland, archaic definitions of insanity and grounds for divorce which serve no purpose.
And I never take a lion to the movies. That should be a ground for at least a divorce.