Andrews, Bongar, Starkey & Clagett: Southern Maryland Attorneys

Divorce: What You Need to Know

Divorce and child custody are complicated legal matters that will have long term effects on the lives of you and your children. It is important to arm yourself with the information that will enable you to make smart decisions now. This article will present some of the most common questions about divorce and provide answers that make sense. A second article will do the same for issues of child custody.

However, it must be said up front that knowing the answers to these questions is no substitute for having a knowledgeable attorney on your side. With questions of divorce & child custody, the real answers always depend on the specific facts and circumstances of your unique situation. Be sure to read “Our Most Important Advice” on the right side of this page. This article can present general information, and it is important you know and understand it. But only an attorney can guide you through the process and assist you in making the right choices for your particular situation. At the very least, you should get a consultation with an attorney before making any decisions on your own.

What are 'Grounds' For Divorce & Why Do I Need Them?

The term “grounds” essentially means “reasons.” Marriage is not just a religious sacrament. It is a state sanctioned relationship, and is legally viewed as a civil contract between the parties. Marriage is essentially a contract like any other, and you can only get out of the contract if you have the proper grounds to do so.

The state regulates and controls marriage. This is why the state requires you to get a marriage license, and some states make you take a blood test. Just as the state regulates the beginning of marriage, they regulate the end of it. The state of Maryland, like many other states, prescribes the proper grounds for being able to get out of a marriage.

Some states have “no fault” divorce laws (the parties can just agree to divorce), and some recognize “irreconcilable differences” as a ground for divorce. Maryland does not. You must have one of the specific grounds for divorce in order to be granted one.

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What are The Grounds For Divorce In Maryland?

You can get a divorce in Maryland if you have one of the following grounds:

1. Adultery (which is not as easy to prove as you might think. Ask an attorney.)
2. Desertion if deliberate, final and lasting for 12 months. (Note: Desertion can be kind of hard to define. A lot of other issues get placed into this category, like “constructive” desertion, or cruelty of treatment. Ask your attorney.)
3. Conviction of a crime if your spouse was sentenced to serve at least 3 years.
4. Insanity if your spouse was confined to a mental institution for 3 years and their insanity is proved by a doctor’s testimony.
5. Excessively Vicious Conduct.
6. Voluntary Separation for 12 months without cohabitation (which means sleeping under the same roof, not just sleeping together. See below.)
7. Two Year Separation for 2 years without cohabitation.

As you can see, the first 4 grounds require proof of some wrongful act on the part of one spouse. It is less common to see a divorce granted on these grounds. Proof is sometimes difficult. And you will certainly be forcing your spouse to fight you over the allegations (especially if you are claiming adultery). It is much more common to see a divorce granted on the basis of separation, whether voluntary or not. These last two grounds are the only ones not requiring proof of a wrongful act, and are useful if you want to avoid a fight.

To find out if your particular situation meets one of these grounds, you will have to consult your attorney. They are not as simple as they appear. There are exceptions to the rules, and other issues you may think unrelated are covered in one of those grounds.

One special note must be made about voluntary separation. Cohabitation is defined as sleeping under the same roof, even if one of you sleeps on the couch. Doing so during the 12 month period will invalidate your separation and the 12 month clock will start all over again.

One final note must be made about the availability of a Limited Divorce. They are rarely filed and rarely granted. A limited divorce only formalizes the separation. It is not final, not necessary, and does nothing to resolve the legal issues raised by a divorce. Some people talk about a “legal separation.” That is not required. Once one person moves out, you are as legally separated as you can be. Most attorneys never file for a limited divorce. Ask your attorney about it if you think you may need one.

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Can I Get An Annulment?

A divorce is the termination of a marriage relationship. An Annulment means the relationship never legally existed. It is extremely hard to get an annulment in Maryland. It is almost never done. You must essentially prove that your marriage was induced by fraud. That is near impossible. Some people think they can get an annulment within a certain short time period, or if the marriage was never consummated. That is not true in Maryland. Once you say “I do”, you are married and must get formally divorced to end the marriage. If you think you may have grounds for an annulment, you should seek the advice of an attorney.

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What Is The Process Of Divorce?

The first thing you should do is consult with an attorney. This point bears repeating – the right answers for your divorce depend on the specific facts of your unique situation. Only an attorney can guide you here. Most attorneys charge a small fee for a divorce consultation. You should at least get that consultation before doing anything else. It is well worth the cost.

If you intend to get a divorce on one of the grounds requiring a wrongful act by your spouse, evidence must be obtained of that wrongful act. Do not try to do this on your own before consulting an attorney. The rules are complicated, and way beyond the scope of this article.

If you intend to get a divorce on the basis of voluntary separation, then you have a minimum of one year after separating before you can file for the divorce. However, you should not waste this time by just waiting around. Now is the time to try and work out the legal issues raised by a divorce.

Most couples use this year to attempt negotiations which will hopefully result in a formal Separation Agreement (its effect is discussed below). It is best if each person has an attorney, and the attorneys negotiate the terms. You will never know if you are getting a fair deal without an attorney to advise you. Even if you are lucky enough to be on such good terms with your spouse that the two of you can negotiate yourselves, you should see an attorney for advice first.

There are many ways an agreement can be reached. The parties can agree with only the help of their attorneys, or they can enlist the assistance of a trained mediator to reach an agreement. Courts are pushing mediation these days and will often order it even if you object. The mediator, if skilled, can be valuable in reaching an agreement even if one spouse is being unreasonable.

If an agreement is reached in principle, it must be formalized in a Separation Agreement. A Separation Agreement is simply a contract between you and your spouse that covers all the legal issues raised by your divorce. It covers assets and debts, the house, the kids, visitation schedules, etc. It can be as detailed as you like. At the end of the process, the Court will adopt the Separation Agreement into its Order. That gives the terms of the agreement the power of a Court Order, and it can be enforced the same way as any other Court Order.

An attorney is vital if you are going to enter into a separation agreement. This is a legal contract, and it must have certain items in it to be valid and enforceable. You must be sure to cover all the important issues. Your attorney will know which issues should be covered, and will be sure to address them in the agreement. You are playing with fire to try and do this yourself.

Assuming you agree to a Separation Agreement, you still must file a formal legal action in Court. The Court will grant the divorce only after you prove your grounds, usually with testimony. Even in an uncontested case, you will have to give testimony to a hearing examiner, who will type up your testimony for the Court to review. They are usually lawyers appointed by the Court. They charge about $100 to take the testimony. You will also need a witness who can confirm that your testimony is accurate.

Once the Court reviews your case and your testimony, it will pass an Order that includes the terms of the Separation Agreement. Only then are you actually and finally divorced.

If you and your spouse are unable to agree to the terms of an agreement, you will have a trial in Court before either a Judge, or a Master of Domestic Relations. Masters are like Judges but a Judge must approve the decisions they make. Trials before either are a formal Court proceeding like any other. They can last as long as necessary and you can call witnesses and present evidence.

Trials in domestic cases are painful for all concerned, but sometimes it is the only way to resolve your case. At the end of the trial, all the decisions regarding your life will be made by a Judge or Master who has never met you before, and only on the basis of what comes out at trial. Trials are best avoided if you can get a fair resolution in another fashion.

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How are Property, Assets, & Debts Divided?

Contrary to popular belief, assets are not always divided equally, at least in Maryland. The automatic 50/50 division occurs in states that have “community property” laws (meaning once you say “I do”, each spouse owns all the assets of the other spouse). Two of the biggest community property states are New York and California. That is where most high profile celebrity divorces occur, and that is why many people assume the automatic 50/50 division is the law everywhere. It is not that way in Maryland.

Maryland is an “equitable distribution” state and recognizes the concept of “marital property.” Courts will force a fair division (not necessarily an equal division) of all “marital property”. Marital property is all property acquired by one or both parties during the term of the marriage. The term of the marriage is from the moment you say “I do” to the moment the Court grants the divorce. Debts are generally treated the exact same way as assets. (And of course, there are exceptions to this rule so consult an attorney to be sure.)

Therefore, assets or debts you bring into a marriage remain yours alone after the divorce. Personal belongings acquired before the marriage remain yours alone. Gifts or inheritances given to you alone also remain yours despite the divorce. All property directly traceable to these types of property remain yours alone despite the divorce.

The real trick to analyzing marital property is figuring out what is what. Once people get married, they tend to combine their assets and debts. There is always growth in the value of assets during the term of the marriage. It becomes difficult to figure out what is marital property and what is not. In fact, it can be extremely complicated, and that is why you really need an attorney to figure this out. To make things worse, the Court will not order most types of property transferred. They can only give one spouse a monetary award, which is enforced like any other judgment.

Rather than going through this exercise, most people negotiate one asset or debt for another so they don’t have to be divided at all. This makes more sense, if you can do it in a fair manner. Yet it is still complicated, no matter how you do it.

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Are Retirement Accounts Subject to Being Divided? How?

Yes. Retirement accounts that qualify as “marital property” are subject to being divided. Again, the trick is to figure out how much is marital property and how much is not. Also, many of these accounts cannot legally be divided now, at least not without incurring huge tax penalties. In these situations an attorney can put together a complicated document called a Qualified Domestic Relations Order (QDRO, often called a “quadro”) which instructs the holder of the retirement account how to disburse it when the time comes to do so.

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What About The House? Do We Have to Sell It Now?

Not necessarily. The Court has the power to award “use & possession” of the house to one party for up to three years, before a sale can be forced. Use and possession of a family home is often given to the custodial parent of minor children, so the children can remain in the house. But eventually, unless the parties agree otherwise, the house will be sold and the proceeds divided.

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When Will One Spouse Get Alimony?

Maryland Courts do not favor alimony. Contrary to popular belief, alimony is not just ordered because one spouse makes more and both should be equal. Nor is alimony payable for life. That is the way it was under older laws, and many people think that is still the case.

Now, alimony is used for “rehabilitative” purposes in Maryland. This means that alimony is usually paid only for a limited time to enable a spouse to become economically self sufficient. The law essentially wants both parties to be, or soon become, financially independent. Alimony will only last as long as that should reasonably take. The Court will not usually order indefinite alimony to make things fair. It will only do so if one spouse cannot become self supporting, or if there is an unconscionable disparity in incomes. If you are a non-wage earning spouse, you will likely have to get a job at some point after separating. As with other laws, this general statement is subject to exceptions, so ask your attorney to be sure.

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How a Lawyer Can Help

You may have guessed from reading these answers that an attorney is vital if you are going through a divorce or deciding child custody. The real answers to these questions depend on the specific facts of the situation. It is impossible to tell you in some article how these general rules will affect you personally. One must know your particular situation. That is just the way it is with domestic relations laws. And there are always exceptions to these rules, and we cannot possibly cover every issue in this article.

You are going to be more emotional during this time, and it helps to have someone advising you of the best course of action for the long term. An attorney has seen these cases before, and his or her experience with other cases will help guide decisions in your case. An attorney will also know what the local Judge will do in your situation, and you can decide to go to trial or settle accordingly.

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I Want a Lawyer But Just Cannot Afford One

We would never advise anyone to try and handle their divorce or child custody case on their own. It isn’t smart, and too much is at stake. Whether you choose us or another attorney, be sure to get some legal assistance. At the very least, get a consultation for advice. Most attorneys charge a small consultation fee for a half hour of their time. That is well worth the money.

If you cannot hire an attorney after the consultation, there are forms you can fill out to get a divorce. We do not advise this if you can afford an attorney by any other means, but you can do it yourself if you really don’t have the money. The Clerk of the Circuit Court will have the forms for you but cannot give you legal advice. You must seek the advice from an attorney.

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Conclusion

We hope this article demystifies some of the complexities of divorce. We hope your own situation is as painless as possible, and that you quickly get to the point where you can resolve your issues and look to the future.

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