Family Law FAQ’s 2016-12-13T09:13:20+00:00

Family Law FAQ’s

Pre-Nuptial Agreements

A Pre-Nuptial Agreement is a contract negotiated and signed by a couple prior to their marriage. It is recommended that a couple have a Pre-Nuptial Agreement in situations where one or both have children from prior marriages and/or one party has substantially more assets than the other.

Pre-Nuptial Agreements usually address what happens in the event of a divorce (such as alimony, division of retirement benefits and other assets and liabilities), as well as what happens in the event of death (how the decedent’s estate will be divided, life insurance, and payment of certain expenses for the surviving spouse).

When negotiating Pre-Nuptial Agreements, it is essential that a full and truthful disclosure of assets and liabilities be made by each party; that the Agreement be entered into voluntarily; and that each party have independent legal counsel during negotiation of the Agreement.

Divorce

In Maryland, there are 8 grounds for an absolute divorce (to terminate the marriage): adultery; desertion for 12 continuous months; voluntary separation for 12 continuous months; two-year separation; conviction of a felony or misdemeanor with incarceration for at least 1 year under a sentence of 3 or more years; insanity, with the spouse institutionalized for at least 3 years and the insanity is incurable; cruelty of treatment; or excessively vicious conduct.

To be “separated”, spouses must live in separate residences. With limited exception, the separation is interrupted if spouses have sexual relations with one another, resume living together, or even spend one night together under the same roof, regardless of whether or not they sleep in separate bedrooms. The Maryland Court of Appeals in Ricketts v. Ricketts has carved out an exception to the separation requirement to allow for divorce on grounds of constructive desertion with cessation of marital relations when spouses reside under the same roof in separate bedrooms.

Your divorce case is uncontested if you and your spouse agree to divorce and all issues related to the marriage have been resolved. A contested divorce is where the grounds for divorce and/or any issues related to the marriage are in dispute, such as child custody, child support, spousal support, and property disposition.

If you have a contested divorce, you may need to seek relief from the Court, either from a Judge or a Family Division Master. This process can be very complicated, lengthy and expensive.

If you and your spouse agree on the grounds for divorce and all issues incident to the dissolution of the marriage, it may be advisable to negotiate and enter into a Voluntary Separation and Property Settlement Agreement. Once all issues are settled, the divorce becomes uncontested and obtaining a final divorce can be expedited.

A “no fault” divorce is where neither spouse is considered responsible for the breakup of the marriage.

Technically, Maryland does not have a no fault divorce. The closest thing to a no fault divorce in Maryland is when spouses are divorced on grounds of a two-year separation.

Under this ground, if you and your spouse have lived separate and apart in separate residences without interruption and without sexual relations for two years, you can obtain an absolute divorce.

It is not necessary to show that the separation was voluntary. Nor is it necessary to show that either spouse deserted the other or was otherwise at “fault” for the dissolution of the marriage.

To obtain a divorce on the grounds of adultery in Maryland, you must prove that your spouse had the “opportunity” and “disposition” to commit adultery. Proof of sexual intercourse is not required.

“Opportunity” may be shown by your spouse spending time alone with a member of the opposite sex in a residence or hotel. “Disposition” may be shown by some public display of affection or intimate correspondence.

There are 2 defenses to adultery which are not an absolute bar to granting the divorce: condonation (forgiveness) or recrimination (adultery by the claiming spouse).

Adultery is a misdemeanor crime in Maryland. Therefore, a spouse has the right to plead the 5th Amendment and refuse to answer questions about adultery. In such event, the Court may infer that the adultery occurred.

Unlike other grounds for divorce, adultery allows for an immediate divorce, without any minimum period of separation required.

A Separation Agreement is a permanent contract between spouses, generally negotiated with assistance of independent counsel, which resolves all issues related to the dissolution of the marriage.

Provisions of a Separation Agreement may include the date of separation, child custody, visitation, child support, alimony, college contributions, use and possession of the family home, disposition of the family home, division of assets and liabilities, health insurance, life insurance, waiver of inheritance rights, attorney’s fees and costs.

It is important to consider the tax consequences of a proposed Separation Agreement, such as the after-tax effect of alimony and child support, and to seek legal advice prior to signing a Separation Agreement.

A limited divorce is a divorce from bed and board. It grants spouses the right to live separate and apart from one another, although they remain as husband and wife and cannot remarry.

A limited divorce may be sought for religious purposes when spouses do not have grounds for an absolute divorce (which terminates the marriage). Filing for a limited divorce will allow the Court to decide custody, support, use and possession of the home and personal property, to resolve disputes regarding ownership of personal property or order the sale of jointly owned personal property.

However, under a limited divorce, the Court cannot equitably divide the parties’ marital property or order the sale of jointly owned real property, such as the family home.

Although spouses cannot remarry under a limited divorce, for tax purposes, spouses granted a limited divorce may file as single taxpayers.

Under certain limited circumstances, you can file for divorce while still living with your spouse.

A spouse can file for an absolute divorce on grounds of adultery by the other spouse while still living together. A spouse can file for a limited or absolute divorce on grounds of abuse by the other spouse (known as “excessively vicious conduct” or “cruelty of treatment”) while still living together. Under Ricketts v. Ricketts, spouses can now file for a limited or absolute divorce based on constructive desertion (e.g., refusal of marital relations) while still living together under the same roof in separate bedrooms.

However, in Maryland, before parties are granted a divorce, the Court does not have jurisdiction to grant child custody, support or use and possession of the family home while the parties reside together. Therefore, if a spouse needs to obtain custody, support or use and possession relief before the divorce, the parties must live in separate residences.

If the home is jointly titled or leased, you cannot “force” your spouse to leave the home (e.g. by changing the locks and precluding access). Each spouse has an equal right to stay and live in a jointly owned or leased home.

Under circumstances of domestic violence, the Court can order one spouse to vacate the home for a period of time in order to protect the safety of the other spouse and/or child of the parties.

When a Court decides residential custody of a minor child, the Court can also award use and possession of the family home to the custodial parent. The other spouse is then required to vacate the home during the use and possession period.

At the time of divorce, the Court can either order the sale of the home, transfer the home to one spouse (as of October 1, 2006), or award the custodial parent use and possession of the home for up to 3 years. Upon termination of a use and possession order, the home will be sold or transferred.

“Pendente lite” is Latin for “pending litigation” and refers to temporary relief the Court can award to spouses while their divorce litigation is pending.

A pendente lite hearing is typically scheduled within 3-4 months of the filing of the initial Complaint. At the hearing, the Court can award temporary relief to either party, including visitation, child support, alimony, attorney’s fees, litigation costs, maintenance of health insurance and use and possession of the family home (if residential custody is not disputed).

In Montgomery County, a pendente lite hearing is heard before a Family Division Master in the Circuit Court, who makes recommendations to a Judge. Either party may file exceptions if they object or disagree with the recommendations. The exceptions are then ruled upon by a Judge.

Once a pendente lite order is issued by a Judge, it will stay in effect until the parties’ custody trial and/or divorce trial.

Common-law marriages may occur in some states when individuals agree to reside together as husband and wife and publicly hold themselves out as husband and wife without a marriage ceremony and certificate.

Couples in a common-law marriage have the same rights as other married couples, including the right to divorce.

Maryland law requires a religious or civil ceremony to create a valid marriage. Couples cannot live together in Maryland to create a valid marriage.

However, if a common-law marriage is established in a foreign jurisdiction which accepts such marriages as valid, such as the District of Columbia, Maryland will recognize that marriage as a valid marriage.

For example, if a valid common-law marriage exists in the District of Columbia and the couple later resides in Maryland, the foreign common-law marriage will be recognized as a valid marriage under the laws of Maryland.

Your divorce can be settled (e.g. resolving custody, support, property division, etc.) in 4 ways.

First, “litigation” involves legal decisions made for a couple by a Judge after lengthy and often costly adversarial process, including discovery, motions, evaluations, mediation, pre-trials, trial and any appeals.

Second, “negotiation” involves couples negotiating an agreement directly with each other or with assistance of counsel. Agreement terms are reduced to writing and filed with the Court upon divorce.

Third, “mediation” involves couples negotiating an agreement with a neutral mediator who meets with them alone or with counsel present. The mediator prepares the agreement for couples to review with their respective counsel before execution.

Fourth, “collaboration” (the newest way) involves spouses using a team approach to reach an agreement out of court, enlisting legal, mental health and financial specialists trained in Collaborative Law to address the unique needs of their family. Spouses are committed to cooperating to achieve the best resolutions for their family and agree in writing not to litigate the divorce.

For more information about Collaborative Law, go to the Collaborative Divorce Association website.

Filing Requirements

You can file for divorce in Maryland if you or your spouse have resided in Maryland for at least one year prior to the filing of the Complaint for divorce or if the grounds for divorce occurred in Maryland.

For example, if adultery is your grounds for divorce and the adultery occurred in Maryland, neither you nor your spouse need to be a Maryland resident for one year prior to filing for divorce.

However, at least one spouse must be a “bona fide” resident of Maryland when the Complaint for divorce is filed. Thereafter, either spouse may change residences and still maintain the divorce action in Maryland.

Whether someone is a “bona fide” resident is determined by the person’s intent, best shown by where they live and vote.

Maryland divorce actions in Montgomery County are filed in the Circuit Court for Montgomery County, 50 Maryland Avenue, Rockville, Maryland 20850.

Generally, a custody action should be filed in the “home state” of the child.

The “home state” of a child is where the child has resided with a parent or guardian for at least 6 consecutive months immediately before filing the custody action.

For example, assume the child resided in Maryland with one parent for more than 6 months before the other parent moved the child to Virginia. The custody action may still be filed in Maryland as the child’s “home state” (where the child most recently resided for 6 consecutive months). After the child resides in Virginia for 6 consecutive months without a custody action filed in Maryland, Virginia would become the child’s “home state.”

The rationale for “home state” jurisdiction in custody cases is to prevent forum shopping and to allow the custody case to be heard where there are significant connections and evidence of the present and future care, protection and welfare of the child.

If both parties are Maryland residents, the Plaintiff (person seeking support) may file for child support or alimony in the county where the Defendant (intended payor of support) resides, carries on business, is employed or habitually engages in business.

In addition, in a divorce action, the Plaintiff may file for support in the county where the Plaintiff resides or, in a custody action, the Plaintiff may file for support in the county where either parent or child resides.

If the Defendant is not a Maryland resident, the Plaintiff can seek support in Maryland if:

1) The Defendant is personally served with suit papers;

2) The Plaintiff resides in Maryland when suit is filed; and

3) Maryland was either the matrimonial domicile of the parties immediately before their separation or the obligation to pay support arose under the laws of Maryland or under an Agreement executed by one of the parties in Maryland.

 

AWARDS & MEMBERSHIPS