By: Rhian McGrath
Lerch, Early & Brewer's Legal Update
In less than 30 minutes, you can drive over the borders of Washington, D.C., Maryland and Virginia. Although close in proximity, the laws in each jurisdiction concerning the consummation and dissolution of marriage are very different. If you are contemplating marriage or divorce, you need to consider the jurisdiction and how it could affect you.
Marriage: Beware of the Procedural Pitfalls
Having found your soul mate and prepared for the prospect of walking down the aisle, you must satisfy certain procedural requirements before being legally married. Imagine proceeding with a religious ceremony, but failing to obtain a valid marriage license and subsequently finding out that your marriage is not legally recognized! By satisfying the state's statutory requirements, you can avoid this pitfall.
All three jurisdictions require an individual to obtain a license before entering into a marriage. The District of Columbia requires a blood test prior to a license being approved. Maryland and Virginia have waiting periods of two to three days respectively after obtaining your license to get married. Once you obtain your license, all three jurisdictions require a civil or religious ceremony for a marriage to be recognized by the state.
There is one exception. If you live together and hold yourselves out in public as a married couple, the District of Columbia may recognize it as common law marriage. Maryland and Virginia do not recognize common law marriages except in the case of a couple moving from a jurisdiction where it was valid and recognized. Virginia also requires that the marriage not be forbidden under Virginia law.
Divorce: The Complicated Question of Where and for How Long?
All three jurisdictions differ with respect to the grounds and procedural aspects for divorce.
To obtain a divorce, one must satisfy the residency requirements of the state. This issue of residency can be a key consideration in obtaining a divorce. As an example, Robert and Sue decide to separate. Sue remains in the marital home in Maryland, but Robert moves to the District of Columbia in order to be closer to work. Six months pass and Robert decides to proceed with a divorce. Robert must decide where to file his divorce action.
In Washington, D.C., in order for a party to obtain a divorce, one of the parties is required to be a resident for at least six months prior to filing. Similarly, Virginia requires that at least one of the parties be domiciled and be an actual bona fide resident of the state for at least six months preceding the filing of the divorce action. Unlike the District of Columbia and Virginia, Maryland requires that one of the parties be a resident for a minimum of one year preceding the filing.
Corroboration is another factor where the jurisdictions differ. Neither the District of Columbia nor Virginia requires third party corroboration. Maryland, however, requires an independent third party verify the grounds for divorce.
All three jurisdictions have widely varying requirements for obtaining an absolute divorce. The District of Columbia allows an absolute divorce based on no fault when the parties evidence a mutual and voluntary separation, and live separate and apart for a period of six months. The same is true in Virginia as long as there were no children born to the marriage and a separation agreement exists. Otherwise, a Virginia resident is required to wait for a year. Maryland requires the separation to be mutual and voluntary for a year before allowing for a no fault divorce. Interestingly, if the separation was not mutual and voluntary, but the parties have lived separate and apart uninterrupted, Maryland will allow for an absolute divorce, but the waiting period is two years. In similar instances in Virginia and D.C., only a one year waiting period is required.
Virginia and Maryland also provide for an absolute divorce based upon the fault of one of the parties. A party may seek a divorce on the grounds of adultery, cruelty, desertion, or imprisonment for a period of one year. Virginia also allows for divorce based upon the grounds of sodomy or buggery committed outside the marriage. Maryland allows a divorce for insanity if the spouse was confined for a period of three years. As stated above, the District of Columbia does not require any grounds to be proven in obtaining a divorce except for the time requirement for a divorce based upon a mutual and voluntary separation.
Notwithstanding the procedural requirements for each jurisdiction, it is also imperative to consider the substantive law in proceeding with a divorce action. If the choice of jurisdiction is an option, filing in one jurisdiction may place the individual in a better strategic position than filing elsewhere. For instance, there are differing laws with respect to emancipation of a child for child support purposes, differing statutory amounts for required child support, and varying presumptions in determining physical and legal custody of children in all three jurisdictions. The choice of jurisdiction may,also affect the division of marital assets and alimony.
Remember to Play It Safe
Although the laws of the District of Columbia, Maryland and Virginia appear to be similar, there are numerous nuances that could affect you. It is important that you consider the various options and requirements before deciding to many or divorce.
Rhian McGrath practices in the firm's Family Law Group. For more information about how location might affect your marriage or divorce, contact her at (301)907-2804 or rmcgrath@lerchearly.com.
