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RobertJDFL, Attorney
Category: Legal
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Experience:  Experienced in multiple areas of the law.
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I havent had sex with my spouse for 3 yrs, does this constitute

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I haven't had sex with my spouse for 3 yrs, does this constitute a legal separation?
Thank you for your question.

Not exactly, no.

You do not need to file papers in Maryland in order to be “legally separated.” In order to establish that you are separated for the purposes of obtaining a divorce, you must:

Not reside under the same roof, and
Not engage in sexual intercourse with your spouse for the entire period of the separation through the date the divorce is granted.

The length of time you must be separated in order to file for divorce depends on the grounds for divorce:
If you are filing for divorce on the basis of desertion, constructive desertion, conviction of a felony or voluntary separation, the length of the separation must be at least 12 months.

If you are filing for divorce on the basis of adultery, cruelty of treatment or excessively vicious conduct the divorce may be filed at any time after separation.

If you are filing based on a two-year separation, you must be separated for two years.

If you are filing on the basis of insanity, the insane spouse must have been committed to a mental institution for at least three years, and one of the spouses must have been a resident of Maryland for two years.

In other words, you aren't merely separated due to the fact you have not had sexual intercourse. You can live separate and apart for one another and abstain for sex for at least 12 months and then file for divorce on the grounds of voluntary separation, however.
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Customer: replied 4 years ago.

Could you explain cruelty of treatment? Could I file under neglect?


Is there any situation where we can live under the same roof until papers are served for divorce?

Thank you for your reply.

Cruelty of treatment/vicious conduct grounds generally require a condition that is closer to routine and deliberate mental or physical torture by one spouse against the other or against a minor child of the complaining party. So, even regular arguments, isolation, fighting--even an incident of domestic violence likely wouldn't be enough to meet the standard.

Neglect isn't one of the grounds for divorce in Maryland, so therefore that wouldn't be an option.

While I have heard of some cases where parties lived in the same house and were able to successfully argue that they were separated, I believe that to be rare. The idea of a separation is just that -you are living separate and apart from one another, as if you were single, basically. One way I could MAYBE see it happening --if you had a home where one spouse could live in a basement apartment and had a separate entrance and had no contact with the other spouse, and you separated all of your financial documents (checking, savings, etc).

If you want to file for divorce on grounds of voluntary separation, I suggest just making a clean break and one party moving out of the home completely.