- What Are The Grounds For
Divorce?
- Can Either Spouse File
For Divorce While Still Living Together?
- What Is A Separation Agreement
And Is One Required In Order To Separate
Or Obtain A Divorce?
- How Is Child Support Determined?
- What Is The Meaning Of
Legal And Residential Custody?
- What Factors Are Considered
In Awarding Custody?
- What Factors Are Considered
In Awarding Use And Possession Of The Family
Home?
- What Is Marital Property
And How Does The Court Award A Monetary
Award To One Spouse?
- What Factors Are Considered
In Awarding Alimony To One Spouse?
- How Do I Find A Good Divorce
Lawyer?
1 - What Are The Grounds For
Divorce?
There are two types of divorce
in Maryland – a limited divorce and an absolute
divorce. A limited divorce is essentially a
legal separation ordered by the Court. An absolute
divorce “absolutely” severs the marriage ties
so that the parties are free to remarry.
The grounds for a limited divorce are as follows:
- Cruelty
of treatment (of a spouse or spouse’s minor
child);
- Excessively
vicious conduct (to a spouse or spouse’s
minor child);
- Desertion;
and
- Voluntary
separation.
The grounds
for an absolute divorce are as follows:
- Cruelty
of treatment (of a spouse or spouse’s minor
child);
- Excessively
vicious conduct (to a spouse or spouse’s
minor child);
- Adultery;
- Desertion
(for twelve months);
- Voluntary
separation (for twelve months);
- Two-year
statutory separation;
- Conviction
of a felony or misdemeanor; and
- Insanity.
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2 - Can Either Spouse File For
Divorce While Still Living Together?
Only under certain circumstances.
A spouse may file for an absolute divorce on
the grounds of adultery, cruelty of treatment,
excessively vicious conduct or constructive
desertion (e.g. based on lack of marital relations
in separate bedrooms) while still living together.
A spouse may file for a limited divorce on the
grounds of cruelty of treatment, excessively
vicious conduct or constructive desertion while
still living together. All other grounds for
divorce require the spouses to live separate
and apart before filing for divorce.
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3 - What Is A Separation Agreement
And Is One Required In Order To Separate Or
Obtain A Divorce?
A Separation Agreement is a contract
negotiated by the parties, each with his or
her own attorney, which addresses and resolves
all of the issues related to the dissolution
of the marriage. Although a Separation Agreement
is recommended, it is not an absolute requisite
to either separating or obtaining a divorce.
A written agreement is strongly recommended
since it may be used to corroborate the voluntariness
of the separation, to settle the division of
property, and to deal with custody, support
and alimony issues.
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4 - How Is Child Support Determined?
Maryland has enacted mandatory
Child Support Guidelines which the Court will
apply in each case to determine the fair and
reasonable amount of child support, unless use
of the Guidelines would result in an unjust
or inappropriate award of child support. Child
support is based upon a mathematical formula
that factors in each parent’s income, the number
of children and the number of overnights per
year that the child spends with each parent.
If the non-custodial parent has more than 35%
of the overnights with the child each year,
then the Court will apply a “shared custody”
child support formula to reduce that parent’s
child support obligation to the custodial parent.
The Guidelines also factor in
any work-related day care expenses, extraordinary
medical expenses or other additional child-related
expenses that the Court deems appropriate, such
as private school tuition or transportation
expenses. The total child support obligation
is allocated between the parties in accordance
with their respective incomes, subject to custody
or shared custody issues.
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5 - What Is The Meaning Of Legal
And Residential Custody?
Legal custody refers to which
parent has the power and authority to make the
decisions affecting welfare of the child, such
as health, education or religion. Residential
custody refers to where the child physically
resides. When deciding both legal and residential
custody, the Court may award one of the following
custody arrangements:
- Sole legal
and residential custody;
- Joint
legal and residential custody; or
- Joint
legal custody and primary residential custody
to one party.
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6 - What Factors Are Considered
In Awarding Custody?
In deciding which parent will
have custody of a child, the Court will assess
the best interest of the child. This assessment
depends entirely on the particular facts of
each case. The Court will consider the total
situation by taking into account the following
factors as determined by the Court with the
primary focus being the best interest of the
child:
- The fitness
of the parents;
- The character
and reputation of the parties;
- The desire
of the natural parents and the content of
any agreement between them;
- The potential
of maintaining natural family relations;
- The child’s
preference, when the child is of sufficient
age and capacity to form a rational judgment;
- Any material
opportunities affecting the future life
of the child;
- The age,
health and sex of the child;
- The suitability
of the residences of the parents and whether
the non-custodial parent will have adequate
opportunities for visitation;
- How long
the child has been separated from a natural
parent who is seeking custody of the child;
and
- The effect
of any prior voluntary abandonment or surrender
of custody of the child.
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7 - What Factors Are Considered
In Awarding Use And Possession Of The Family
Home?
The Court has the authority to
award use and possession of the family home
and family use personal property to the custodial
parent for up to three years from the date of
divorce. In awarding use and possession of the
family home and family use personal property,
the Court must consider the following factors:
- The best
interest of any child;
- The interest
of each party in continuing to live in the
home as a residence or using the home for
the production of income; and
- Any hardship
imposed on the party whose interest in the
family home or family use personal property
would be infringed by a use and possession
order.
In connection with a use and possession order,
the Court may also order either one or both
of the parties to pay all or part of any mortgage
payments or rent, any indebtedness that is related
to the property, the cost of maintenance, insurance,
assessments, and taxes, or any similar expense
in connection with the property.
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8 - What Is Marital Property
And How Does The Court Award A Monetary Award
To One Spouse?
“Marital property” refers to
that property, however titled, which is acquired
by one or both of the parties during the marriage.
“Marital property” does not include property
which is: a) acquired before the marriage; b)
acquired by inheritance or gift from a third
party; c) excluded by valid agreement; or d)
directly traceable to any of these sources.
After the Court determines which property is
marital property, it then determines the value
of the marital property. After taking these
steps, the Court may adjust the equities and
rights of the parties with respect to the marital
property by ordering a monetary award from one
party to be paid to the other.
The Court determines the amount and method of
payment of a monetary award by looking at the
totality of the circumstances and after considering
each of the following factors:
- The contributions,
monetary and non-monetary, of each party
to the well being of the family;
- The value
of all property interests of each party;
- The economic
circumstances of each party at the time
the award is to be made;
- The circumstances
that contributed to the estrangement of
the parties;
- The duration
of the marriage;
- The age
of each party;
- The physical
and mental condition of each party;
- How and
when specific marital property or interest
in the pension, retirement, profit sharing,
or deferred compensation plan, was acquired,
including the effort expended by each party
in accumulating the marital property or
the interest in the pension, retirement,
profit sharing, or deferred compensation
plan, or both;
- The contribution
by either party of non-marital funds to
the acquisition of real property held by
the parties as tenants by the entirety;
- Any award
of alimony and any award or other provision
that the Court has made with respect to
family use personal property or the family
home; and
- Any other
factor that the Court considers necessary
or appropriate to consider in order to arrive
at a fair and equitable monetary award or
transfer of an interest in the pension,
retirement, profit sharing, or deferred
compensation plan, or both.
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9 - What Factors Are Considered
In Awarding Alimony To One Spouse?
Alimony is not automatically
awarded. The law in Maryland provides that in
making an award of alimony, the Court must consider
the following:
- The ability
of the party seeking alimony to be wholly
or partly self-supporting;
- The time
necessary for the party seeking alimony
to gain sufficient education or training
to enable that party to find suitable employment;
- The standard
of living that the parties established during
their marriage;
- The duration
of the marriage;
- The contributions,
monetary and non-monetary, of each party
to the well being of the family;
- The circumstances
that contributed to the estrangement of
the parties;
- The age
of each party;
- The physical
and mental condition of each party;
- 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;
- Any agreement
between the parties;
- The financial
needs and resources of each party, including:
1) all income and assets, including property
that does not produce income, 2) any monetary
award to one party, 3) the nature and amount
of any financial obligations of each party;
and 4) the right of each party to receive
retirement benefits; and
- Whether
the award would cause a spouse from whom
alimony is sought to become eligible for
medical assistance earlier than would otherwise
occur.
- Due to
age, illness, infirmity, or disability,
the party seeking alimony cannot reasonably
be expected to make substantial progress
toward becoming self-supporting or, 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.
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10 - How Do I Find A Good Divorce
Lawyer?
There are numerous resources
available to assist in locating a good attorney.
Ask for personal recommendations from friends
or relatives who are separated or divorced.
Many lawyers advertise in the telephone directory.
The local bar association provides a Lawyer
Referral Service. You should look for an attorney
who devotes a large percentage of his or her
practice to family law and who regularly attends
Continuing Legal Education courses in the area
of family law. It is important that you feel
comfortable with your attorney and have confidence
in his or her ability.
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