DIVORCE
Sometimes, despite all good intentions, a relationship breaks down. The objective in a divorce is not be about the other person. You should not be looking at how to hurt the other person, but what to do to give yourself the best possible chance at starting over, continuing your life, and puting the hurt behind you. We will try to help you get there with the least amount of pain and most of your clothes. When you have children together, you must realize that it is likely that you will have contact with your future x-spouse for many years to come. Here are some common questions regarding divorce in Maryland.
Q. What is a "legal separation"?
A. In Maryland, whether or not a couple is separated is a question of fact. If
husband and wife are not having sexual relations and are not sleeping under the
same roof (in the same residence), then they are separated. People usually use
the phrase "legal separation" to mean that they have signed a contract, called a
separation agreement, which settles all of their marital property rights, alimony
claims and other issues — but they have not yet obtained a divorce.
Q. Is there a waiting period for a divorce in Maryland?
A. Starting in October 2015, if a couple have no minor children and a written
separation agreement, they can get divorced immediately. Otherwise, in order to
obtain an absolute divorce (which is the legal term for a "real divorce") in Maryland,
unless the divorce is based on adultery or cruelty, the parties must have been
separated for at least one year. However, no one should wait a year after
separating to file for a divorce because court dockets are clogged and it will take
most of that time to get a court date. In order to "get in line" for a court date, many
parties file for a "limited divorce," a holdover from yesteryear which today serves
two functions: getting temporary support and getting in line for an absolute divorce.
Q. Are "irreconcilable differences" grounds for divorce?
A. Not exactly. Maryland law nowhere lists "irreconcilable differences" as grounds
for divorce. However, conduct which many couples describe as "irreconcilable
differences" may fit into one of the other grounds for divorce discussed below.
Q. What are the most common "fault" grounds for divorce?
A. The most common "fault" grounds are: (1) adultery, (2) desertion, (3)
constructive desertion, (4) cruelty and (5) excessively vicious conduct.
Q. What evidence is needed to prove adultery?
A. It is rarely possible to obtain evidence of adultery by the testimony of
eyewitnesses. But there is no need to "catch them in the act." Circumstantial
evidence is sufficient. There must be evidence that (1) the alleged adulterer and
paramour were inclined to commit adultery when there was an opportunity to do
so, and (2) they were together at a time and place and under circumstances which
provided them with an opportunity to engage in sexual intercourse.
Q. Does adultery include an extramarital same-sex relationship?
A. No Maryland appellate court has tackled this question in a reported decision.
So far, “adultery" as used in Maryland's divorce law has meant voluntary sexual
intercourse between a married person and a partner other than the married
person's spouse. Intercourse, which means penetration of the vagina by the
penis, does not occur between same-sex partners. Thus, same-sex intimate
conduct may not be classified as adultery. However, such conduct may amount to
constructive desertion, discussed below.
Q. What kind of conduct constitutes cruelty or excessively vicious conduct?
A. Cruelty encompasses mental as well as physical abuse. Verbal and physical
abuse may have been tolerated in another era, but today evidence of controlling
behavior, isolation from friends or family, taunting, violence and threats of
violence, or other misconduct which is calculated to seriously impair the health or
permanently destroy the happiness of the other spouse, will justify an absolute
divorce on grounds of cruelty or excessively vicious conduct.
Q. Is one act of violence grounds for divorce?
A. A single act of violence, in order to constitute cruelty, must indicate the intent of
the offending spouse to do serious bodily harm or be of such nature as to
threaten or place the victim in serious danger in the future.
Q. What acts constitute abandonment or desertion?
A. Abandonment and desertion as grounds for divorce contain two elements: (1)
ending cohabitation and (2) intent to end the marriage.
Q. What does "ending cohabitation" mean?
A. Ending cohabitation means ceasing to live in the same residence and ceasing
to have sexual relations with one another.
Q. When is someone legally justified in leaving?
A. Someone is legally justified in leaving when a spouse's conduct presents such
a threat to a person's safety, physical health or self-respect that continuation of the
marital relationship has been made impossible. This is what Maryland law calls
"constructive desertion" by the offending spouse.
Q. Are requests for "abnormal" or "demeaning" sex grounds for divorce?
A. The practice of kinky or abnormal sexual relations by one spouse and the
demand that these practices continue is inconsistent with the health, self-respect
and comfort of the other spouse. One who suffers from such demands may be
justified in leaving on grounds of constructive desertion.
Q. Is infecting a spouse with a sexually transmitted disease grounds for
divorce?
A. If a spouse, knowing he or she is afflicted with a sexually transmitted disease,
continues to maintain sexual relations and communicates the disease to the
other spouse, such action constitutes extreme cruelty justifying divorce. However,
to establish cruelty as the result of communication of a sexually transmitted
disease, the diseased spouse must have known of the condition and the other
spouse must have not known about it.
Q. Is a "no-fault" divorce possible?
A. Under Maryland law, after one year of separation, with no hope or expectation of
reconciliation, either party can obtain an absolute divorce. Even a philandering
and abusive spouse who stays away for one year is entitled to a divorce.
Custody and Access
Custody and Access deal with (1) Legal Decision making for the child and (2) the physical location and access to the child. You may also hear the terms Legal Custody, Physical Custody, Visitation, all addressing the same issues:
1. Who can make what decisions for the child and when, and
2. Who gets the child and when.
Here are some common questions about Custody and Access:
Q. Before there is a court order, who has custody?
A. Both parents are the joint natural guardians of their child under 18 years of age
and are jointly and severally charged with the child's support, care, nurture,
welfare and education. They have equal powers and duties, and neither parent
has any right superior to the right of the other concerning the child's custody.
Q. What is legal custody?
A. Embraced within the meaning of "custody" are the concepts of "legal" and
"physical" custody. Legal custody carries with it the right and obligation to make
long-range decisions involving education, religious training, discipline, medical
care and other matters of major significance concerning a child's life and welfare.
Q. What is "joint" legal custody?
A. Joint legal custody means that both parents have an equal voice in making
legal custody decisions, and neither parent's rights are superior to the other.
Q. What is physical custody?
A. Physical custody means the right and obligation to provide a home for the child
and to make the day-to-day decisions required during the time the child is actually
with the parent having such custody.
Q. What is joint or shared physical custody?
A. Joint physical custody is in reality "shared" or "divided" custody. Shared physical
custody may, but need not, be on a 50-50 basis, and in fact most commonly will
involve custody by one parent during the school year and by the other during
summer vacation months, or division between weekdays and weekends, or
between days and nights. Note: This is NOT the definition of "shared custody"
used in computing child support.
Q. What standard does a court apply in making a custody decision?
A. In any child custody case, the paramount concern is the best interest of the
child. Formula solutions in child custody matters are impossible because of the
unique character of each case, and the subjective nature of the evaluations and
decisions that must be made. The best interest of the child is therefore not
considered as one of many factors, but as the objective to which virtually all other
factors speak.
Q. What factors are considered in determining the best interests of the child?
A. Remember, no list of factors can be complete, because of the unique character
of each case. That said, here is a list from previous Maryland cases: (1) Fitness of
parents. (2) Character and reputation of parties. (3) Desire of parents and
agreements between parties. (4) Potentiality of maintaining natural family
relations. (5) Preference of the child. (6) Material opportunities affecting the future
life of the child. (7) Age, health and sex of the child. (8) Residences of the parents
and opportunities for visitation; or geographic proximity of parental homes. (9)
Length of child's separation from parent. (10) Prior voluntary abandonment or
surrender.
More factors, especially important when considering joint custody: (1) Capacity of
parents to communicate and reach shared decisions affecting child's welfare. (2)
Willingness of parents to share custody. (3) Relationship between child and each
parent. (4) Potential disruption of child's social and school life. (5) Demands of
parental employment. (6) Sincerity of parent's request. (7) Financial status of
parents. (8) Benefit to parents.
Q. How important is the ability of parents to communicate with one another?
A. Clearly the most important factor in deciding joint legal custody is the capacity of
the parents to communicate and to reach shared decisions affecting the child's
welfare. Indeed, joint custody should not be awarded in the absence of a record of
mature conduct on the part of the parents evidencing an ability to effectively
communicate with each other concerning the best interest of the child, and then
only when it is possible to make a finding of a strong potential for such conduct in
the future.
Q. To have joint custody must the parents agree about everything?
A. No. The parents need not agree on every aspect of parenting, but their views
should not be so widely divergent or so inflexibly maintained as to forecast the
probability of continuing disagreement on important matters.
Q. What standard does a court apply in making a visitation schedule?
A. Visitation issues are judged by the same standard as other custody issues: the
best interests of the child.
Q. Do mothers have an advantage in custody proceedings?
A. An honest answer to this question must separate what Maryland courts and law
aspire to from what really happens. In Maryland, the legal preference for awarding
custody to mothers was abolished by the courts and by the state ERA many years
ago. Still, mothers are awarded custody much more often than fathers. This could
be because the maternal preference still survives in the hearts and minds of
some judges, or it could be because primary caretakers are more often mothers
than fathers.
Property Division
Divorce often forces folks to divide and separate property that they have accumulated as a "unit" or jointly. How do you divide the lamp that the person special to both spouses gave as a gift? How much benefit should the other spouse give or get from the education, licensing, companies, homes, all property that was accumulated over the course of the marriage? We will help you come up with reasoned demands and expections, and as we said previously, walk away with most of your clothes. Sometimes, there are clear lines of ownership, and sometimes it is a complex mess. We have the resources and experience to help you get on solid financial ground post-divorce. Here are some commonly asked questions about Property Division:
Q. Is each spouse entitled to half of their property?
A. Equal division is not required, although that is the outcome in many cases.
Q. Is Maryland a "community property" state?
A. No. Maryland is not a "community property" state. Maryland has an "equitable
distribution" statute. Labels are not important.
Q. Can one spouse be forced to pay the debts of the other? Can one spouse be
forced to pay joint debts of the parties?
A. A court may not require one spouse to pay the sole obligation of the other, or to
satisfy joint obligations of the parties such as mortgages and taxes on real
property, or pay the interest on joint promissory notes. However, if one parent gets use and possession of a house or car, for example, the other parent can be forced to contribute to the mortgage or car payment.
Q. What is "marital property"?
A. Marital property is: (a) Real property held as tenants by the entirety, unless excluded by valid agreement. (b) Any property acquired by one or both parties during marriage, and does not include any property (1) acquired before the marriage, (2) acquired by inheritance or gift from a third party, (3) excluded by valid
agreement or (4) directly traceable to any of these sources.
Q. What does "acquired" mean?
A. Maryland courts have defined the term "acquired" as the ongoing process of
making payment for property. Under this definition, characterization of property as
nonmarital or marital depends upon the source of each contribution as payments
are made, rather than the time at which legal or equitable title to or possession of the property is obtained. So, for example, a house that had been acquired by one spouse, subject to a mortgage, prior to a marriage, is initially wholly nonmarital property; as mortgage payments are made out of marital funds during the marriage, the property becomes partially marital.
Q. What does "directly traceable" mean?
A. "Directly traceable" is not synonymous with "attributable." When marital and
nonmarital funds are commingled, no specific sum of money used to acquire property or reduce an indebtedness on any property can be directly traced to any source. This inability to trace property acquired during the marriage directly to a nonmarital source simply means that all property so acquired is marital property.
Q. Do hidden assets or wasted assets count?
A. Dissipation may be found where one spouse uses marital property for his or
her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown. When a court finds that property was dissipated to the point of being a fraud on marital rights, it should consider the dissipated property as extant to be valued with other existing marital property.
Q. Does title ownership affect whether property is marital property?
A. Characterization as marital or nonmarital property disregards title, except real property held as tenants by the entirety, which is deemed marital. The court may order the sale of jointly titled real or personal property, and division of the proceeds. But the court cannot transfer title ownership of property, except for pension, retirement, profit sharing or deferred compensation.
Q. Can one spouse be forced to sell or transfer a house or other property to the other?
A. Yes. A Maryland court may order transfer of ownership of the principal marital residence from one party to the other, or to authorize one party to purchase the residence from the other, on court-ordered terms. In addition, a Maryland court may order transfer of vehicles or other family use personal property from one or both spouses to one spouse, subject to the consent of any lien holders.
Q. What is a "monetary award"?
A. A monetary award is an adjustment of the equities and rights of the parties concerning marital property. In other words, it is what a court orders one spouse to pay the other spouse so that what each takes from the marriage is fair under all the circumstances of the case.
Q. How does a court make a monetary award?
A. Maryland courts apply a three-step process: (1) Determine what property is marital property. (2) Determine the value of all marital property. (3) Make a monetary award as an adjustment of the equities and rights of the parties.
Q. Is there a formula for making a monetary award or dividing property?
A. No.
Q. What factors does a court consider in making a monetary award?
A. Here is a list of some of the factors: (1) contributions, both monetary and
nonmonetary, of each party to the well-being of the family (2) the value of all property interests of each party (3) economic circumstances of each party at time
of award (4) circumstances that contributed to estrangement of parties (5) duration of marriage (6) age of each party (7) physical and mental condition of each party (8) how and when specific assets acquired, and efforts expended by each in accumulating marital property (9) alimony award and use and possession award (10) nonmarital contribution to real property held as tenants by the entirety (11) any other factor deemed necessary or appropriate.
Q. What is the relationship between alimony and a monetary award?
A. Maryland courts have said that alimony and a monetary award are "significantly interrelated and largely inseparable," but that a monetary award is not a "form of nor substitute for" alimony. In other words, the court must consider the two issues together in order to achieve a fair result.
Q. What happens to nonmarital property?
A. Nothing, usually. The owner of nonmarital property keeps it. However, in considering a monetary award, and in deciding on alimony, a Maryland court must consider all of the financial circumstances and resources of each of the parties, including any nonmarital property. If a judgment is entered against someone for a monetary award, nothing prohibits the party entitled to the judgment from going after nonmarital property to collect it.
Q. What is a marital debt?
A. A "marital debt" is a debt that is directly traceable to the acquisition of marital
property.
Q. Can one spouse be awarded the exclusive right to temporary use and possession of property?
A. A spouse with custody of a minor child of the parties can be awarded use and possession of a family home, car, furniture, furnishings and home appliances. In
making an award, the court considers the best interests of the child, the interests
of each party in continued use of the property as a dwelling place or to provide income, and the hardship, if any, on the party whose interest would be infringed.
Q. How long can a use and possession award last?
A. Use and possession must terminate no later than three years after a divorce is
granted.
Q. Can a use and possession award include an order to pay expenses?
A. Yes. The court can allocate financial responsibilities over property, which is the
subject of a use and possession award, including (1) mortgage or rent, (2)
indebtedness related to property, and (3) maintenance and other expenses of
property.
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