NOTICE: None of these questions and answers constitute legal advice. To obtain legal advice, consult with an attorney. This is especially important in divorce and family law matters, in which outcomes are often peculiar to the particular facts and circumstances of the case.
In Maryland, whether or not a couple is separated is a question of fact. If a 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 their marital property rights, alimony claims and other issues — but they have not yet obtained a divorce.
If a couple have a written separation agreement, they can get divorced immediately based on the grounds of mutual consent. This ground for divorce applies regardless of whether the parties have minor children or not. 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 twelve months. 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 after separation, 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.
Not exactly. “Irreconcilable differences” is not a ground for divorce in Maryland. However, conduct which many couples describe as “irreconcilable differences” may fit into one of the other grounds for divorce discussed below.
The most common “fault” grounds are: (1) adultery, (2) desertion, (3) constructive desertion, (4) cruelty and (5) excessively vicious conduct.
It is rarely possible to obtain evidence of adultery by the testimony of eyewitnesses. Luckily, circumstantial evidence is sufficient, so there is no need to “catch them in the act.” 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.
No. The 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.
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, may justify an absolute divorce on grounds of cruelty or excessively vicious conduct.
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.
Abandonment and desertion as grounds for divorce contain two elements: (1) ending cohabitation and (2) intent to end the marriage.
Ending cohabitation means ceasing to live in the same residence and ceasing to have sexual relations with one another.
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.
The practice of kinky or abnormal sexual relations by one spouse and the demand that these practices continue may be inconsistent with the health, self-respect, and comfort of the other spouse. One who suffers from such unwanted demands may be justified in leaving on grounds of constructive desertion.
If a spouse, knowing he or she is afflicted with a sexually transmitted disease, continues to maintain sexual relations and infects 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.
Under Maryland law, a spouse can obtain a “no-fault” absolute divorce based on 1) mutual consent – if the parties have a signed separation agreement, or 2) after one year of separation, with no hope or expectation of reconciliation. A “no-fault” absolute divorce can be obtained by either party.
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.
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.
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.
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 with the parent having such custody.
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.
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.
Remember, no list of factors can be complete, because of the unique character of each case. That said, here is a list compiled from 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, can include: (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.
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.
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.
Visitation issues are judged by the same standard as other custody issues: the best interests of the child.
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.
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 their marital property rights, alimony claims, and other issues — but they have not yet obtained a divorce.
In Maryland, spouses may make a valid and enforceable agreement that relates to alimony, support, property rights, or personal rights. Provisions regarding custody and visitation, child support, alimony, debts, pets, cars, household furnishings, health insurance, life insurance, retirement and survivor benefits, business interests, bank accounts and investments, and attorney fees may all be included in a separation agreement.
Yes. Parties often include provisions in separation agreements that are beyond a court’s power to order. However, once included in a separation agreement, such terms can be enforced by court order.
Yes. Separation agreements are generally favored by Maryland courts as a peaceful means of terminating marital strife and discord so long as they are not contrary to public policy.
Terms of a separation agreement, which has been incorporated into a divorce decree, are enforceable either through contempt proceedings or as an independent contract.
A Maryland court may modify any provision of an agreement with respect to the care, custody, education, or support of any minor child of the parties, if the modification would be in the best interests of the child.
In addition, a Maryland court may modify any provision of an agreement with respect to alimony or spousal support executed on or after April 13, 1976, regardless of how the provision is stated, unless there is: (1) An express waiver of alimony or spousal support; or (2) A provision that specifically states that the provisions with respect to alimony or spousal support are not subject to any court modification.
A separation agreement is subject to the same general rules governing all contracts, and particular questions must be resolved by reference to particular language of the agreement. The primary source for determining the intention of the parties is the language of the contract itself. However, a contract is not ambiguous just because the parties to it disagree as to its meaning.
A Maryland court is required to give effect to an agreement’s “plain meaning,” without regard to what the parties actually thought it meant or intended it to mean. The terms of an agreement are given their usual and ordinary meaning, unless it is clear that the parties assigned a special or technical meaning to certain words. Put another way, the test of what is meant is what a “reasonable person” in the position of the parties would have thought the contract meant.
Contractual language is considered ambiguous when the words used would tend to have more than one meaning to a “reasonable person.” To determine if contractual language is ambiguous, a Maryland court reviews the contract itself; it must also consider the character of the contract, its purpose, and the facts and circumstances of the parties at the time the contract was executed.
Remember, it is not the court’s task to rewrite an agreement to correct an ambiguity, to avoid hardship to a party, or because one party has become dissatisfied with its terms. However, when the court finds an agreement ambiguous, the court may receive evidence to clarify its meaning.
As with other contracts, a separation agreement is voidable, and subject to “recision” (meaning cancellation or annulment), if it can be shown that it was unconscionable or was obtained through fraud, duress, or undue influence. These are usually difficult to prove. For example, to establish duress there must be a wrongful act which strips the individual of the ability to utilize his or her free will.
Usually, a party may not affirm the favorable part of a separation agreement, or accept its benefits, and avoid the unfavorable part.
Maryland law defines “abuse” as one or more of the following acts: (1) Assault (examples: hitting, pushing, pulling, grabbing, biting, and scratching); (2) An act that places the victim in fear of immediate serious bodily harm or actually causes the victim serious bodily harm (examples: throwing an object at the victim, putting a fist through a wall, breaking through a locked or closed door, blocking a victim’s exit from a room); (3) Attempted or actual rape or other sexual offense; (4) Stalking; (5) False imprisonment, such as holding the victim somewhere against the victim’s will; (6) Any act that would be considered child abuse under Maryland law; (7) Revenge Porn.
A protective order is a court order that usually requires an abuser to stay away from a victim, forbids contact with a victim, and forbids more abuse. An interim, temporary, or final protective order can set other limits on the abuser. Read the rest of these FAQs to find out more.
To get a protective order, the victim and accused abuser must have one of the following connections: (1) Current or former spouses; (2) Living together or have lived together in an intimate relationship for at least 90 days during the past year; (3) Related by blood, marriage, or adoption; (4) Parent and child, or stepparent and stepchild, of one another and have lived together for at least 90 days during the past year; (5) Have a child in common; (6) In addition, the caretaker of a child or vulnerable adult victim can file on behalf of the child or vulnerable adult; (7) An individual who has had a sexual relationship with the victim during the past year.
The victim files a petition under oath asking for a protective order.
If the Court is open, the petition is filed in a Maryland state court, either a District Court or a Circuit Court. If the Court is closed (after business hours and on weekends and holidays), the petition is filed with a police commissioner at the local police station.
If the Court is open, the petitioner goes before a judge to get a temporary protective order. If the Court is closed, the police commissioner on duty decides whether to issue an interim order; then, as soon as the Court opens, the petitioner goes before a Judge to get a temporary protective order.
An interim order goes into effect as soon as the abuser is served by a law enforcement officer. The interim order lasts until a judge holds a hearing on whether to issue a temporary protective order.
This is the first hearing in Court before a judge about the request for a protective order. The judge decides whether the claims of abuse by the victim call for a temporary protective order. If a temporary protective order is issued, a final protective order hearing is scheduled.
A temporary protective order lasts for seven days or until the scheduled final protective order hearing.
An interim or temporary protective order can require that the alleged abuser:
(1) Not abuse or threaten to abuse the victim; (2) Not contact, try to contact, or harass the victim; (3) Stay away from home, school, job, or temporary residence of the victim; (4) Stay away from a child’s school, and from the homes of the victim’s family members; (5) Not enter the residence, and the grounds around the residence, of the victim; (6) Leave the residence of the victim if the victim and accused abuser live together; (7) Not have contact or visitation with any children of the victim and the accused; (8) Surrender any firearms the accused abuser has, depending on what abuse was claimed; (9) Not keep possession of a pet.
Deputy sheriffs deliver the temporary protective order to the alleged abuser together with a notice of when the final protective order hearing will occur. If the alleged abuser shows up unexpectedly somewhere around the victim, any police officer can be called upon to hand the temporary protective order and hearing notice to the alleged abuser.
If the alleged abuser is not served in time, the victim may ask the Court to extend the temporary protective order in order to give the deputy sheriffs or other law enforcement personnel time to deliver the temporary protective order to the accused abuser, but the Court cannot extend the temporary protective order more than six months.
At a final protective order hearing, the victim presents witnesses and evidence about the claimed abuse to the judge, then the alleged abuser presents witnesses and evidence that the claimed abuse did not occur. The victim can also present witnesses and evidence of prior acts of abuse, and the alleged abuser can present witnesses and evidence that such acts did not occur. After hearing all the evidence presented by both sides, the judge decides whether to enter a final protective order.
The victim must prove — by eyewitness testimony, physical evidence, medical records, photos, or statements by the alleged abuser, for example — that it is more likely than not that the alleged abuser did what the victim claimed.
In a Final Protective Order, a judge can order anything that could have been ordered in a temporary protective order (see list above), must order that the abuser surrender all firearms, and can also: (1) Order the abuser temporary visitation with children; (2) Award the victim emergency family financial support; (3) Award the victim use and possession of a jointly titled car; (4) Award the victim use and possession of a home that is the principal residence of the victim and is owned, rented, or leased by the victim or the abuser; (5) Order the abuser into supervised counseling or a domestic violence program; (6) Order the abuser to pay filing fees and court costs.
Yes, the Court can order that the abuser move out of the abuser’s residence.
No. A final protective order must order the abuser to surrender to law enforcement any firearm in his or her possession, and to not possess any firearm for as long as the protective order lasts.
The Court has discretion on how long a final protective order will last. A final protective order cannot last more than one year, except in special circumstances.
Yes. The Court can extend a final protective order, for good cause, but for no more than six months.
Yes. The Court can modify or rescind a protective order upon proper motion to the Court.
Yes. An order for protection issued elsewhere in the United States is valid in Maryland to the extent that what the order requires is permitted under Maryland law.
Mediation is an informal process for problem-solving. A neutral person — a mediator — helps parties to discuss, negotiate and reach an agreement to resolve a conflict or dispute.
Mediation allows parties to control outcomes in ways that courts are unable to do. Mediation provides a calm, reflective setting for settling personal matters. Mediation provides a means for private and confidential exchange of information. Mediation is less costly than litigation, both financially and emotionally. Finally, successful mediation can create positive momentum between parties as they move on with their lives.
In a series of meetings, a mediator helps each party voice his or her own needs and interests, understand the concerns of the other party, and together develop options and alternatives, as the parties move toward an agreement.
The parties make decisions. Unlike an arbitrator or a judge, a mediator has no power to make any decisions. In mediation, the parties control the outcome.
A mediation session is typically scheduled for two or three hours. The number of sessions required to reach an agreement depends on a variety of factors, including the number and complexity of issues to be resolved, and the ability of parties to identify and discuss options for settlement.
Parties are charged for mediation on an hourly basis. Hourly rates vary from mediator to mediator. The parties themselves decide how to divide the costs. Usually, the cost is equally divided to motivate each party to participate in good faith negotiations.
No. The mediator is a neutral person, skilled at helping parties resolve conflict. The mediator does not act as a lawyer for either party — or for both parties. Parties should consult their own attorneys for legal advice.
Sometimes. You can agree to mediate with or without lawyers present. You are encouraged to consult your own attorney about issues being discussed.
No. You can choose to mediate your dispute at any time — before or after litigation is under way. Mediation can be a cost-effective alternative to continued litigation.
Mediation is usually voluntary, but in Maryland a court can order parties to attend mediation and settlement conferences concerning custody, property, and support.
Discussions in mediation are confidential and cannot be used as evidence in any court, arbitration, or administrative hearing. No information obtained during mediation will be given to any outside person unless both parties agree.
Any issue that can be included in a separation or parenting agreement can be mediated. In Maryland, parents are encouraged to reach agreement concerning custody, visitation, and child support. A husband and wife may make a valid and enforceable agreement that relates to alimony, support, property rights, or personal rights. Provisions regarding debts, pets, cars, household furnishings, health insurance, life insurance, retirement and survivor benefits, business interests, bank accounts and investments, college costs, and attorney fees may also be included in a mediated separation agreement.
Yes. Parties often include provisions in a mediated agreement which are beyond a court’s power to order. However, once included in a mediated agreement, such terms can be enforced by court order.
In mediation, a neutral person — a mediator — helps parties to discuss, negotiate and reach an agreement to resolve a conflict or dispute. In arbitration, parties submit their dispute to a neutral person — an arbitrator — who decides the outcome of the dispute. In mediation, the parties decide the outcome; in arbitration, the arbitrator decides.
When the parties reach agreement, the mediator will produce a list of the terms for review by both parties. Then, if the parties request, the mediator may draft a formal separation and property settlement agreement.
Yes, but the court proceedings are usually brief and uncontested. In Maryland, if an agreement is reached in mediation, a 10-minute uncontested divorce hearing will usually take the place of a two or three-day custody or divorce trial.
You do not have to bring anything with you, except for your willingness to participate. However, parties in mediation often find it helpful to bring financial records or other papers that might help everyone reach an agreement.
Mediation can be used to resolve a variety of ongoing parenting disputes or to assist parents in routine co-parenting decisions.
Alimony is the payment of money for support of a spouse or former spouse at stated periods (monthly or weekly, usually) during the joint lives of the parties so long as they are separated.
Alimony is paid to support a spouse or former spouse. Child support is paid to support minor children.
The court may order retroactive alimony back to the date the complaint or petition seeking alimony was filed.
No, alimony is no longer taxable to the payee or deductible by the payor.
There is no statutory limit, except death or remarriage of the payee. The court can order alimony for a fixed length of time, or for an indefinite period. Even when the court orders alimony for a fixed length of time, the order can be modified to extend alimony for additional time, or for an indefinite period.
Court-ordered alimony terminates upon remarriage of the recipient spouse. Maryland’s highest court has decided that a separation agreement must contain express and clear language reflecting the parties’ intention that alimony will continue after remarriage of the recipient spouse. Otherwise, remarriage terminates the alimony obligation.
The court may award alimony for an indefinite period, if the court finds that: (1) due to age, illness, infirmity or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.
The Maryland Court of Appeals consistently has declined to adopt a hard and fast rule regarding any disparity in income for purposes of awarding indefinite alimony. Each case depends upon its own circumstances. However, gross disparities in income levels frequently have been found unconscionable and have supported the award of indefinite alimony.
Even economic self-sufficiency does not bar an award of indefinite alimony if there nonetheless is an unconscionable economic disparity in the parties’ standards of living after divorce. In short, the determination of unconscionable disparity is made on a case-by-case basis.
Yes. The court can modify an alimony award upon a showing of a substantial change in circumstances justifying a modification.
Yes. Under Maryland law, a court cannot modify alimony if an agreement of the parties specifically states that the provisions with respect to alimony or spousal support are not subject to any court modification.
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.
The court considers the following factors in making an award of alimony: (1) ability of the party seeking alimony to be wholly or partly self-supporting; (2) time needed for education or training; (3) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony; (4) the standard of living of the parties during marriage.
In addition, the court looks at many of the same factors considered in making a monetary award. Here is a list of some of these factors: (1) the duration of the marriage; (2) the contributions, monetary and nonmonetary, of each party to the well-being of the family; (3) the circumstances that contributed to the estrangement of the parties; (4) the age of each party; (5) the physical and mental condition of each party; (6) any agreement between the parties; (7) the financial needs and financial resources of each party, including: (i) all income and assets, including property that does not produce income; (ii) any monetary award or use and possession award; (iii) the nature and amount of the financial obligations of each party; and (iv) the right of each party to receive retirement benefits.
Maryland has adopted child support guidelines. The guidelines are computed using each parent’s “actual income,” adjusted for (1) pre-existing child support actually paid and (2) alimony (deducted from payer and added to payee). The outcome is affected by certain expenses that are divided proportionately based on the parties’ incomes: 1) health insurance premiums (if child included), (2) work-related childcare, (3) extraordinary medical expenses and (4) additional expenses (which may include: special or private school, transportation between parents’ homes).
Usually, the obligation to support a child ends when the first of these milestones is reached: 1) the child reaches age 18 after graduating or withdrawing from high school, 2) the child graduates or withdraws from high school after reaching age 18, 3) the child reaches age 19, 4) the child or the parent paying child support dies.
However, if child support is owed for more than one child, as the obligation ends for each individual child the total amount due will not change unless a court order is obtained. In addition, child support can be extended if a child is a “destitute adult child,” meaning the child (1) has no means of subsistence and (2) cannot be self-supporting, due to mental or physical infirmity.
“Actual income,” which is what counts for computing child support, means income from any source. “Actual income” includes: (i) Salaries; (ii) Wages; (iii) Commissions;(iv) Bonuses; (v) Dividend income; (vi) Pension income; (vii) interest income; (viii) Trust income; (ix) Annuity income; (x) Social Security benefits; (xi) Workers’ compensation benefits; (xii) Unemployment insurance benefits; (xiii) Disability insurance benefits; and (xiv) Alimony or maintenance received. “Actual income” is not limited to these categories. Read more FAQs about expense reimbursements or in-kind payments, self-employment income, overtime, and other categories.
Money earned by working overtime as a regular part of a parent’s employment constitutes “actual income” for purposes of determining child support payments, but this additional income cannot be speculative or uncertain.
Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business to the extent the reimbursements or payments reduce the parent’s personal living expenses is included in “actual income.”
For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “actual income” means gross receipts minus ordinary and necessary expenses required to produce income.
Based on the circumstances of the case, the court may consider the following items as actual income: (i) Severance pay; (ii) Capital gains; (iii) Gifts; or (iv) Prizes. For example, in one case where a parent had received regular subsidies from his mother for a long period of time, these subsidies were included in his “actual income.” However, in another case, where a mother’s live-in boyfriend paid toward bills for rent, electricity, cable, telephone service and trash removal, the payments were not included in her “actual income.”
Childcare expenses are determined based on actual family experience, unless the court finds that the actual family experience is not in the child’s best interest. If there is no actual family experience, or the court finds that the actual family experience is not in the child’s best interest, then childcare expenses are set at the lesser of what it would cost to provide quality care from a licensed source, or the actual cost of care chosen by the custodial parent.
Yes. If a child spends more than 25 percent of overnights (92 overnights per year) with each parent, special guidelines are used to compute child support.
When the parents’ combined adjusted income is less than $15,000 per month (for cases filed before October 1, 2022) or less than $30,000 per month (for cases filed after October 1, 2022), the result obtained by applying the guidelines is presumed to be correct and the use of the guidelines is usually required. Child support guidelines do not apply when the parents have a combined adjusted income of more than $15,000 per month (for cases filed before October 1, 2022) or more than $30,000 per month (for cases filed after October 1, 2022.) Departure from results obtained using the child support guidelines is permitted only when application of the guidelines would be unjust or inappropriate.
For example, the court may depart from the child support guidelines to cover the costs of reasonable and necessary educational programs for an academically challenged or gifted student who requires remedial tutoring or advanced programming to meet his or her particular educational needs.
A parent who chooses a life of poverty — for example, by taking a lower paying job — and makes a deliberate choice not to alter that status is “voluntarily impoverished.” Whether the parent decides to reduce his or her income in order to avoid paying child support or the parent chooses a frugal lifestyle for another reason doesn’t affect that parent’s obligation to the child. A parent must support his or her child, if the parent has, or reasonably could obtain, the means to do so. The law requires a parent who is able to do so to alter his or her chosen lifestyle if necessary to enable the parent to meet his or her support obligation.
Child support guidelines do not apply when the parents have a combined adjusted income of more than $15,000 per month (for cases filed before October 1, 2022). This amount will be increased to $30,000 per month, for cases filed after October 1, 2022. In this situation, factors that should be considered when setting child support include the financial circumstances of the parties, their station in life, their age and physical condition, and expenses of raising the children.
A child born out of wedlock is entitled to the same level of support as would be afforded to a child who is the product of a marriage.
The Maryland Department of Human Resources provides an online child support worksheet. However, this worksheet is not a substitute for the advice of an attorney, who can help apply to a particular case the legal definitions of sole custody or shared custody, actual income, adjusted actual income, work-related childcare expenses, extraordinary medical expenses, and other terms used in computing child support.
Equal division is not required, although that is the outcome in many cases.
No. Maryland is not a “community property” state. Maryland has an “equitable distribution” statute. Labels are not important. Read more FAQs to find out how Maryland courts handle property.
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 to 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.
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.
Maryland courts have defined the term “acquired” as the ongoing process of making payment for property. Under this definition, characterization of property as non-marital 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 and subject to a mortgage prior to a marriage, is initially wholly non-marital property; as mortgage payments are made out of marital funds during the marriage, the property becomes partially marital.
“Directly traceable” is not synonymous with “attributable.” When marital and non-marital funds are commingled, no specific sum of money used to acquire property or reduce indebtedness on any property can be directly traced to any source. This inability to trace property acquired during the marriage directly to a non-marital source simply means that all property so acquired is marital property.
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.
Characterization as marital or non-marital 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.
Can one spouse be forced to sell or transfer a house or other property to the other?
Yes. A Maryland court may transfer ownership of an interest in a jointly owned house that was used as the principal residence of the parties from one party to the other, subject to the terms of any lien, or authorize one party to purchase the residence from the other on court-ordered terms. In addition, a Maryland court may order transfer of a vehicle, that was acquired during the marriage, is owned by one of the parties, and was used primarily for family purposes, as well as other family use personal property from one or both spouses to one spouse, subject to the consent of any lien holders.
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.
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.
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 were acquired, and efforts expended by each in accumulating marital property; (9) alimony award and use and possession award; (10) non-marital contribution to real property held as tenants by the entirety; (11) any other factor deemed necessary or appropriate.
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.
Nothing, usually. The owner of non-marital property keeps it. However, in considering a monetary award, and in deciding on alimony, a Maryland court must consider all the financial circumstances and resources of each of the parties, including any non-marital property. If a judgment is entered against someone for a monetary award, nothing prohibits the party entitled to the judgment from going after non-marital property to collect it.
A “marital debt” is a debt that is directly traceable to the acquisition of marital property.
A spouse with custody of a minor child of the parties can be awarded use and possession of a family home, car, 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.
Use and possession must terminate no later than three years after a divorce is granted.
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.
Any pension, retirement, profit sharing, or deferred compensation plan or account is at issue. Retirement assets include IRA, 401(k), 403(b), TSP, profit sharing, money purchase, pension, stock option, annuity, and any other deferred compensation accounts or plans; military, FERS, CSRS, state, county, municipal, union, and private defined benefit plans and defined contribution plans; and survivor benefits.
Any pension, retirement, profit sharing, or deferred compensation plan or account acquired during marriage is marital property. So, for example, the right to receive retirement benefits under a private or public employee pension plan, whether or not vested, matured, or contributory, is property which, if acquired during marriage, constitutes marital property.
Any pension, retirement, profit sharing, or deferred compensation plan or account acquired before marriage, by inheritance or gift from a third party, excluded by valid agreement, or traceable to any of these sources is non-marital property. So, for example, payments made toward a 401(k) prior to marriage are non-marital property. So, too, the increase in 401(k)’s value during marriage, which is “directly traceable” to the portion acquired prior to marriage, is non-marital property.
When the right to receive retirement benefits is acquired during marriage, it is marital property subject to equitable distribution.
No. The Maryland statute governing disposition of marital property gives the court discretion to transfer interests in retirement, pension and deferred compensation plans in divorce proceedings, but does not require the court to do so.
The court has much discretion in determining the best way to allocate marital assets between parties and awarding retirement funds is only one of its options. If the court decides to award part of a retirement plan or similar account, it has considerable flexibility in determining how and when payments will be received. However, flexibility and discretion do not equate to a mandate that every divorce litigant with a retirement account must share it with an ex-spouse.
The retirement account or pension plan is often, next to the family home, a divorcing party’s largest asset, so it may become necessary for the court to consider dividing it. However, for example, where the retirement account represents only a fraction of the total marital property, some of the retirement asset was acquired before marriage, and other funds are available for a monetary award, the court may decide to let the retirement asset remain untouched.
For purposes of divorce in Maryland, a court has broad discretion in evaluating pensions and retirement benefits. In a Maryland divorce action, pension or retirement benefits can be valued (1) as equal to an employee’s contributions to the pension plus accrued interest or market experience thereon, (2) as the “present value” of future benefits expected to be received by the employee after retirement, or (3) through determination of a percentage to be paid to the nonemployee spouse from any future retirement payments received by an employee spouse, payable “as, if, and when” received. The method used for valuing a spouse’s pension or retirement benefits in dividing marital property upon divorce will depend upon the facts and circumstances of the particular case.
Under this approach, benefits payable in the future have to be discounted for interest earned in the future, for mortality, and for vesting (if not fully vested at the time of divorce). The benefits then have to be calculated with respect to the employee-spouse’s life expectancy as a retiree. This calculation involves considerable uncertainty, and the amount yielded changes as different assumptions are used with respect to mortality, job turnover and other factors. It has been recognized that this kind of calculation can be very difficult and that, where it becomes too speculative, the trial court should use a different method of valuation.
Under either the “contributions plus” method or the “present value” method, the court has discretion to order payment to the nonemployee spouse in either a lump sum or in installments, depending primarily on other assets and relative financial positions of the parties.
The court need not determine the value of a pension, retirement, profit sharing or deferred compensation plan, unless a party in a divorce proceeding has given notice that the party objects to a distribution of retirement benefits on an “if, as, and when” basis. If timely notice is not given, any objection to a distribution on an “if, as, and when” basis shall be deemed to be waived unless good cause is shown.
The third method, which has been referred to as the “if, as, and when” method, recognizes that the value of a pension at the time of divorce cannot be ascertained with certainty until the employee spouse retires.
This third method, which has been used widely, uses a formula for computing the nonemployee spouse’s share of any future payments the employee spouse receives under the plan, payable to the nonemployee spouse as, if, and when paid to the employee spouse. Under this approach, of course, it is unnecessary to determine the value of the pension. The court needs to do no more than just state the formula to be used to determine the percentage to which the nonemployee spouse will be entitled.
The formula used in an “if, as and when” award of pension benefits, sometimes referred to as the “Bangs” formula, calculates the value of the pension to which the nonemployee spouse is entitled as a percentage, usually 50 percent (but at the court’s discretion), multiplied by a fraction, the numerator of which is the number of months and years of employment during the marriage, and the denominator of which is the total number of months and years of employment at the time of retirement.
Maryland’s appellate courts have disapproved of attempts to freeze the nonemployee spouse’s share of the employee spouse’s pension to its then current fixed value at the time of divorce. They have observed that an employee spouse’s increases in salary after divorce would be based in part on work performance during the marriage.
Moreover, any future adjustments by management might well relate to the length of the employee spouse’s total service, including the period of the marriage.
The court may transfer ownership of an interest in a pension, retirement, profit sharing or deferred compensation plan, from one party to either or both parties as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.
Yes. Awarding a nonemployee spouse a portion of an employee spouse’s pension benefits on an “as, if, and when” basis, rather than as a lump sum, is permissible, despite the employee spouse’s preference for a lump sum award. Likewise, awarding a nonemployee spouse a portion of an employee spouse’s pension benefits on an “as, if, and when” basis, rather than as a lump sum, is permissible, despite the nonemployee spouse’s preference for a lump sum award.
Survivor benefits attached to a pension are property separate and apart from the pension itself. Although survivor benefits are like a pension, they have been treated as marital or non-marital property, depending on when and how the survivor benefits were acquired.
A spouse seeking to recover an interest in the survivor benefit attached to the other spouse’s pension must request the survivor benefit in addition to any request for the pension benefit itself.
A divorced party with a retirement cannot reduce a former spouse’s share of pension benefits by electing survivor benefits for someone other than the ex-spouse. Although an employee spouse is free to elect survivor benefits for someone other than the nonemployee former spouse, the nonemployee spouse’s pension benefits should not be less than they would have been if such an election had not been made.
Done properly, transfers between spouses incident to a divorce or separation instrument are not taxable events for either the transferor or the transferee. Consult a tax advisor with experience in transfers incident to divorce for guidance on how to transfer retirement assets properly.
Of course, previously tax-deferred income will be taxable to the transferee spouse upon withdrawal from a retirement account. However, under certain circumstances, the transferee spouse may avoid withdrawal penalties. Consult a tax advisor for guidance on how to do so.
A Qualified Domestic Relations Order, or QDRO (pronounced “quadro”), is one type of order that is issued by a court to transfer retirement assets. Although the term has a technical meaning, referring to employer-sponsored plans subject to ERISA, it has come to be used to refer to just about any order to transfer retirement assets. A QDRO must be approved by the administrator of the retirement plan as well as the court before it is carried out.
Pension plan benefits payable to an employee spouse under an ERISA plan can be redirected to an alternate payee non-employee spouse only through the mechanism of a Qualified Domestic Relations Order or QDRO. Absent such a qualified order, not only will the pension plan administrator refuse to implement the court’s decision, but there is at least a reasonable argument that a nonqualified order may be invalid even as between the parties.
An order will not be “qualified” if it grants any type or form of benefit, or any option, not otherwise provided under the plan, or results in a plan having to pay increased benefits.
These are terms used in QDROs and other retirement orders. “Participant” refers to the spouse who is an employee or former employee of the plan sponsor, and “alternate payee” refers to a nonemployee spouse.
Under ERISA, an alternate payee is “any spouse, former spouse, child or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under the plan with respect to such participant.” An alternate payee, under a QDRO, is treated as a plan beneficiary.
One spouse’s creation of an individual retirement account or IRA solely in the other spouse’s name but primarily with the contributor spouse’s non-marital funds may indicate the contributor spouse’s intent to make a gift to the recipient spouse, and to relinquish equitable interest in the funds. The contributor spouse’s conduct may support classification of the IRA as the recipient spouse’s non-marital property upon divorce.
If a divorce occurs after at least 10 years of marriage, you can collect retirement benefits based on your former spouse’s Social Security earnings record if you are at least age 62 and if your former spouse is entitled to or receiving benefits. If you remarry, you generally cannot collect benefits on your former spouse’s earnings record unless your later marriage ends (whether by death, divorce or annulment).
Get more information at www.socialsecurity.gov.
If your divorced spouse dies, you can receive benefits as a widow/widower if the marriage lasted 10 years or more. Benefits paid to a surviving divorced spouse who is 60 or older will not affect the benefit rates for other survivors receiving benefits.
In general, you cannot receive survivors benefits if you remarry before the age of 60 unless the later marriage ends, whether by death, divorce, or annulment.
If you remarry after age 60 (50 if disabled), you can still collect benefits on your former spouse’s record. When you reach age 62 or older, you may get retirement benefit on the record of your new spouse if they are higher. Your remarriage would have no effect on the benefits being paid to your children.