BLOG: Filing for Divorce Without Being Separated

No way!  This is not real.  You cant do that! Everyone knows that you absolutely must be separated from your spouse for a full year before filing for divorce, right?  Not so much.  In very limited circumstances, you may actually file for a “legal separation” or “limited divorce” under the Maryland fault base of “Constructive Desertion”. 

Constructive Desertion occurs when your spouse’s behavior is so egregious such that what they’re doing drives you away.  They’ve stopped taking interest in their family and marital duties, you are no longer having marital relations, you no longer sleep in the same bedroom, they engage in behavior that places you and/or your family in danger, and they no longer are interested in being married to you and show it in every way. If you want to claim this cause of action without the mandate of living under different roofs for purposes of filing for divorce, technically, you must be living “separate and a part”, even if you’re living under the same roof.  Custody and child support may also be decided within your limited divorce.

Should you decide to file for Constructive Desertion and you are the custodial parent of your children, you could ask the court to order Family Use and Possession of the family home.  If it is granted to you the other spouse will be ordered to leave the home.

So if you are living in a home where you’ve been constructively deserted, you may be able to file for a divorce even if you do not live under a different roof than that of your spouse.

If you're in this situation please consult an attorney that practices family law. At Smith Legal Services, LLC., our Bowie Attorneys provide legal representation in Bankruptcy, Family Law, and Estate Planning.  Contact Us at 240-245-0015.