Location 101: A Comparison of Grounds for Divorce in Washington, D.C., Maryland, and Virginia

Lerch, Early & Brewer

Lerch, Early & Brewer

When it comes to getting divorced in Maryland, Virginia, and Washington, D.C. where you live can make a huge difference in what it takes to start a divorce case.

Recently, there have been some significant changes in divorce law in Maryland and D.C. related to grounds for divorce. Virginia, on the other hand, has not made major substantive changes to its grounds for divorce and of the three, is the only jurisdiction where fault based grounds remain as an option to file for divorce.

The Grounds for Divorce by Jurisdiction

Maryland: As of October 1, 2023, the grounds for absolute divorce are 6-month separation if the parties have lived separate and apart for 6 months priorto filing for divorce; irreconcilable differences; and mutual consent if the parties have a written settlement agreement that resolves alimony, distribution of property, and custody, visitation, and child support. Notably, with this recent change of law, Maryland residents are now able to reside under the same roof while still being separated for purposes of getting divorced. Prior to October 1, 2023, Maryland residents had to maintain physically separate residences to “start the clock” for purposes of separation for divorce. Unsurprisingly, especially during the pandemic, the requirement for separate physical residences created a significant bar to couples obtaining a divorce.

Washington, D.C.: The waiting period to file for divorce was eliminated effective January 26, 2024. This is significant in that the new law states that a party seeking a divorce need only assert that they no longer wish to remain married. Prior to this change in law, the grounds for divorce in D.C. were no fault but required mutual and voluntary separation for 6 months or separation for at least 1 year if both parties do not agree to the separation and divorce.

Virginia: Fault-based grounds for divorce remain the policy in Virginia. A party can file for divorce based on adultery; sodomy or buggery committed outside the marriage; subsequent felony conviction of a party where the convicted party is sentenced to more than one year and confined for the felony after conviction and cohabitation has not been resumed after knowledge of confinement; cruelty, reasonably apprehension of bodily hurt or desertion/abandonment after 1 year; and 1 year separation without cohabitation prior to filing for divorce or 6 month separation without cohabitation prior to filing for divorce if the parties have no minor children together and the parties have a written separation agreement.

Finding Common Ground(s)

Now, in D.C., Maryland, and Virginia, parties can establish a separation for purposes of divorce while living under the same roof. However, as Maryland and Virginia still require a period of separation for certain grounds for divorce, parties looking to separate while living under the same roof should be sure not to cohabit as spouses. There are no statutory bright line tests or rules regarding cohabitation however, parties should not share a bed, engage in marital relations, wear wedding rings, go on dates with each other, exchange gifts or celebrate anniversaries etc. This is by no means an exhaustive list but the idea is to be separated, parties cannot act as a married couple.

Interestingly, though fault-based grounds for divorce do not exist in Maryland or Washington, D.C., just like in Virginia, fault still plays a role in divorce cases. All three jurisdictions have statutes that include the facts and circumstances that contributed to the dissolution of the marriage and/or the estrangement of the parties as required considerations for a divorce court when making an equitable distribution award, i.e. dividing marital property and/or making a monetary award. This means that court can still consider adultery, cruelty, mistreatment of a spouse, etc. in fashioning a property distribution award.

If you are considering divorce or in the process of getting divorced, you should consult an experienced family law attorney to help you obtain the best result in your matter.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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