June 7th, 2021
When it’s Time, it’s Time. You Don’t Have to Wait to File for Divorce
Author: Monica Garcia Harms, Christopher B. Kaczmarek
Many spouses ready to file for divorce believe that they must wait for a year before they can start the process. This common misconception is nothing more than that – a misconception. Although the one-year separation period is ultimately required for many spouses to get their divorces finalized, spouses can waste precious time if they unnecessarily wait a year from their separation to file the requisite divorce paperwork with the Circuit Court.
One possible source for the common misconception that spouses have to wait a year before filing for divorce is that the ground for divorce of “separation” requires that the separation be at least one year. That is, for a divorce to be granted on the ground of separation, that separation must be continuous for at least one year. It is important to note that the separation requirement is for the divorce to be finalized, not filed. Realistically, a spouse seeking a divorce can likely file their Complaint for Divorce with the Circuit Court, and thereby start the divorce process, as soon as they move into a different residence from their spouse. In cases involving cruelty of treatment, adultery, or other “fault-based” grounds, the wronged spouse can file for absolute divorce prior to their physical separation from their partner. It is extremely common for the contested divorce process to take over a year from start to finish, so it is wise to file for divorce and get the legal process started as soon as possible after the physical separation.
If spouses have a settlement agreement that resolves all issues arising out of their marriage (custody, support, division of property, etc.), they can “fast track” their divorce by requesting an “uncontested divorce” from the Circuit Court. Another possible source for the misconception regarding the existence of a waiting period stems from an old rule that spouses could not get an uncontested divorce before the yearlong separation term if they had minor children. This is no longer the case. Pursuant to current Maryland law, even spouses with minor children can obtain a finalized uncontested divorce from the court if the following conditions have been met:
- You have a signed settlement agreement that resolves all issues of custody, child support, alimony, and property;
- Either you or your spouse has lived in Maryland for more than six months prior to filing for divorce; and
- Neither you nor your spouse has filed to set aside or rescind the settlement agreement.
Once a settlement agreement has been signed by all parties and they request an uncontested divorce from the court, they can expect the court to finalize their divorce in a matter of weeks rather than the matter of months for a contested divorce to be finalized. The uncontested divorce process allows divorcing spouses to move forward in the next chapter of their lives much more quickly, not to mention does not require the headache of going through contested litigation.
In the COVID-recovery world, it is even more important to file for divorce as soon as you know you are ready. Even though the court has returned to full staffing as of March 2021, family court is still suffering an extreme backlog of cases. If nothing else, filing for divorce allows you to secure your place in the courthouse queue. Waiting longer than necessary runs the serious risk of being legally shackled to your spouse for much longer than necessary, and poses serious delays to the divorcing spouse moving on with his or her new life.
Whether your divorce requires serious litigation or is uncontested, it is wise to file with the court as soon as you know you are ready to receive a divorce and move on with your life. Regardless of whether you have been separated for a matter of years or days, the advice and counsel of a skilled divorce attorney can ensure that your one-year separation doesn’t feel like ten years.