UPDATE: On October 1, 2023, Maryland will eliminate all fault grounds for divorce, including adultery, desertion, and cruel and vicious conduct. There will now be only three no-fault grounds for divorce in Maryland: (a) 6 month separation; (b) irreconcilable differences; and (c) mutual divorce. Spouses can obtain a divorce on irreconcilable differences grounds if they are living in the same house, but living separate lives.
Stewart A. Sutton recently represented a client whose spouse was adamant in obtaining a divorce on the grounds of constructive desertion. The parties’ pre-nuptial agreement provided that the spouse would receive highly favorable alimony benefits if a divorce was granted on fault grounds. At mediation, the parties reached an agreement to obtain a divorce on the grounds of a 1-year separation and that the spouse would not receive any alimony.
A. CONSTRUCTIVE DESERTION
Family Law § 7-103(a)(2) provides that desertion is a grounds for divorce, if:
(i) the desertion has continued for 12 months without interruption before the filing of the application for divorce;
(ii) the desertion is deliberate and final; and
(iii) there is no reasonable expectation of reconciliation.
Desertion and constructive desertion are now infrequently used as a grounds for divorce, because Family Law § 7-103(a)(4) provides that a 12 month separation by itself is a grounds for divorce. In fact, the decline of the use of these grounds for divorce started more than 30-years ago. Lemley v. Lemley 102 Md.App. 266, 281 (1994) (noting that constructive desertion as a grounds for divorce is rarely used due to the introduction of no-fault divorces of a voluntarily 1-year separation and involuntary 2-year separation in 1983).
Actual desertion occurs when a spouse leaves the home without justifiable cause. The defense to actual desertion is constructive desertion. Unless the separation was or becomes a mutual decision, the remaining spouse’s grounds for divorce is actual desertion or the leaving spouse’s grounds for divorce is constructive desertion. Flanagan v. Flanagan 181 Md.App. 492, fn. 9 (2008) (holding that if the wife’s departure from the family home did not constitute constructive desertion, the court could have found that she committed actual desertion).
Constructive desertion occurs when a spouse’s conduct compels the other to leave the marital home. The “central issue is whether the offending conduct is so intolerable that the complaining spouse was justified in leaving”. Lemley v. Lemley 102 Md. App. 266, 282 (1994). Constructive desertion occurs when there is a pattern of gross misconduct that renders the continuation of the marriage impossible.
Constructive desertion has always been a difficult grounds to prove; and the spouse seeking a divorce on this grounds of constructive desertion faces a heavy burden. The party must show a pattern of misconduct, not just an isolated incident, which “renders impossible a continuation of the marital cohabitation with safety health, and self-respect”). Sharp v. Sharp 58 Md.App. 386 (1984) (quoting Ches v. Ches 22 Md.App. 475, 482-83 (1974)); Murphy v. Murphy 248 Md. 455, 460 (1968); (holding that there must be a “pattern of persistent conduct which is detrimental to the safety or health of the complaining spouse, or so demeaning to his or her self-respect as to be intolerable”); Stewart v. Stewart 256 Md. 272 (1969).
“This behavior must generally amount to a pattern of persistent conduct”. Sharp v. Sharp 58 Md.App. 386, 393 (1984). As such, “a single act of direct violence may not be sufficient to constitute a basis for a divorce”. Lemley v. Lemley 102 Md. App. 266, 282 (1994).
Marital disagreements, demeaning comments, and expressions that the marriage is over are not sufficient grounds to constitute constructive desertion:”Where the conduct of one spouse demonstrates “mere marital indifference or lack of demonstrated love, or rudeness, or express desire to end the marital relationship, that indifference will not legally justify the other spouse’s departure from the marital household however intolerable such might appear to the demeaned spouse”. Sharp v. Sharp 58 Md.App. 386, 393 (1984) (quoting Bryan v. Bryant 16 Md.App. 186, 191 (1972)); Moran v. Moran 219 Md. 399 (1959) (holding that nagging and jealously are insufficient).
The extreme difficulty of obtaining a divorce based upon constructive desertion was graphically illustrated in Bryan v. Bryan 16 Md.App. 186 (1972). The Court of Appeals found that the husband’s pattern of misconduct was not sufficient to support the wife’s claim of constructive desertion:“That her husband was indifferent and sarcastic towards her, told her that he ceased loving her, wanted her to leave and get a divorce, threatened to (but did not) stop paying the rent, packed her clothes on one occasion, may have been sufficient reasons in the eyes of the wife to justify her leaving but such conduct on the part of the husband . . . was not, in law, so demeaning as to leave her self-respect “shattered beyond repair, which is the legal measure of intolerableness””. Bryan v. Bryan 16 Md.App. 186, 192 (1972) (quoting Murphy v. Murphy 248 Md. 455, 460 (1968)).
In Neff v. Neff 13 Md.App. 128 (1971), the even more egregious misconduct by the husband did not support the wife’s constructive desertion grounds for divorce:“[T]he husband told his wife he did not love her; struck her and knocked her to the floor on one occasion; was intoxicated and used vile language form time to time; his attitude towards her was cool and indifferent; he told her that he didn’t love her, never loved her and could not bring himself to kiss her. This Court held that such conduct did not justify the wife’s leaving the husband and affirmed the decree of the chancellor below denying her a divorce.” Bryan v. Bryan 16 Md.App. 186, 191 (1972). It is no wonder that constructive desertion as a grounds for divorce has fallen out of favor.
B. CRUELTY OF TREATMENT
As strange as it may sound, the same conduct that historically has been insufficient to obtain a divorce on the grounds of constructive desertion entitles a spouse to a divorce on the grounds of cruelty of treatment. To obtain a divorce on the grounds of cruelty of treatment, the abuse can either be the threat of physical violence, actual physical violence, or verbal and psychological abuse that “is calculated to seriously impair the health or permanently destroy the happiness of the other”. Das v. Das, 133 Md.App. 1, 33 (2000). The recent decision of Frazelle-Foster v. Foster, ___, Md.App. ___ (2021) held that cruelty of treatment as a grounds for divorce does not require a long term pattern of abuse or that the abusive conduct been recent.
The trend in Maryland is to recognize modern societal norms of what constitutes proper interactions between spouses. Abuse in any form should not be tolerated. Going forward, significant threats of violence, actual violence, and pervasive verbal and mental abuse constitute grounds for divorce in Maryland.
