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.
A party cannot ask the Court in Maryland to award him or her a “legal separation.” However, one of the grounds for divorce in Maryland is 6-month separation, which legally means that the parties have lived separate and apart for 6 months without interruption before filing for divorce. Of important note though, parties who still reside under the same roof can be deemed to have lived separate and apart without interruption so long as they have pursued separate lives.
The current grounds for divorce in Maryland are: 1) 6-month separation; 2) irreconcilable differences; and 3) mutual consent.
If a party seeks a divorce pursuant to 6-month separation, then the parties must live separate and apart for at least 6 months without interruption before filing for divorce. However, if a party seeks divorce pursuant to irreconcilable differences or mutual consent, there is no mandatory waiting period.
Irreconcilable differences is a relatively new divorce ground in Maryland. As such, there are no recent appellate cases providing a concrete definition of irreconcilable differences. However, other jurisdictions have defined irreconcilable differences as when there is an irretrievable breakdown in the marriage. Further, the Supreme Court of Maryland noted that the former grounds for fault-based divorce, such as adultery, may be among the reasons that a petition may cite for irreconcilable differences. See Lloyd v. Niceta, 485 Md. 422 at n.17 (2023).
A party may file for a divorce under the grounds of mutual consent when the parties have reached a written settlement agreement that deals with all issues arising under the marriage including 1) alimony (or the waiver of alimony); 2) property distribution; and 3) the care, custody, access, and support of any minor or dependent children.
As of October 1, 2023, Maryland no longer has fault-grounds for divorce. However, facts that would meet any of the old fault-based grounds may be among the reasons that a petition may cite for irreconcilable differences. See Lloyd v. Niceta, 485 Md. 422 at n.17 (2023). In addition, the Court may take any of the former grounds for fault-based divorce into consideration when deciding the issues of alimony or a monetary award.
Yes, you can get a divorce while living under the same roof as your spouse. The grounds of mutual consent and irreconcilable differences do not require the parties to be separated. Further, under the grounds of 6-month separation, parties who still reside under the same roof can be deemed to have lived separate and apart without interruption so long as they have pursued separate lives.
Yes, a party can get divorced under the grounds of 6-month separation as long as the parties have lived separate and apart for at least 6 months without interruption before filing for divorce, even if the separation was due to a final protective order being entered.
Remember, no list of factors can be complete, because of the unique character of each case. That said, here is a list complied 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 the child’s separation from parent; (10) Prior voluntary abandonment or surrender, (11) If abuse or neglect are likely to occur if custody or visitation rights are granted to a party.
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.
Tie-breaker authority can be granted when the parties are awarded joint legal custody of the minor children. The parties would have joint legal custody of the minor children, however, the party with tie-breaker authority would have the final say on legal decisions regarding the minor children in the event of a dispute between the parties. The Court may award a party general tie-breaker authority, or tie-breaker authority on a specific subject matter such as education or medical decisions. However, the party with tie-breaker authority still has the obligation to discuss legal decisions with the other party before making a decision on behalf of the children.
Yes, a third party can seek custody of a minor child by either (1) proving de facto parenthood status; or (2) proving that the legal parents are unfit or exceptional circumstances exist.
To claim de facto parenthood status, you must meet the following factors:
(1) the legal parent must consent to and foster the relationship between you and the child;
(2) you must have lived with the child;
(3) you must perform parental functions for the child to a significant degree, including contributing financially to the child’s support; and
(4) a parent-child bond must be forged.
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.
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 abuser during the past year; (8) a victim who alleges that the abuser committed rape, attempted rape, or sexual offense during the past 6 months.
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) Not keep possession of a pet.
In addition to the restrictions above, a temporary protective order can require the alleged abuser to: 1) Surrender any firearms the accused abuser has, depending on what abuse was claimed.
Yes, an alleged abuser can consent to a final protective order without a finding of abuse.
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, also known as spousal support, is a court ordered payment from one spouse to the other with the intention of rehabilitating the economically dependent spouse.
It depends. Under the Maryland Family Law Article, alimony does not automatically terminate upon the receiving spouse’s cohabitation with another individual. However, language is commonly included in marital settlement agreements that alimony payments will terminate upon the receiving spouse’s cohabitation.
In Maryland, there are no mandatory alimony guidelines. However, The Kaufman Center for Family produced guidelines using a web-based program known as the “Kaufman Guidelines.” The Kaufman Guidelines rank alimony cases along a continuum ranging from unjustifiable for alimony to justifiable for alimony. This calculation may be be used to argue a duration and amount for alimony in Court, but the Court is not required to consider the calculation.
When the parents’ combined adjusted income is less than $30,000 per month , 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 $30,000 per month . 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.
Parties are not permitted to agree to waive child support. The Court’s guiding principle is the best interest of the child standard. The right to receive child support belongs to the child, rather than to the parent.
The child support guidelines do not apply when the parents have a combined adjusted income of more than $30,000 per month. In this situation, the Court will consider factors when determining the appropriate amount of child support, which include the financial circumstances of the parties, their station in life, their age and physical condition, and expenses of raising children.
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.
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 spouse with at least 50% 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.
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 martial property.
