Separation & Divorce

If the parties agree to be divorced, they should have a written Separation Agreement that provides for the custody and support of the minor children (if applicable) of the marriage and makes a fair and equitable division of property. There are also additional technical requirements, but the Separation Agreement is the essence of an uncontested divorce. As for assessing fault for the marriage breakdown, all that is required is to say that differences have arisen that will prevent the parties from living together as husband and wife, there is no hope of reconciliation and it is the intent of both parties to end the marriage.

A contested divorce is a case in which the parties cannot agree on one or more points (property division, alimony, custody, child support, or attorney’s fees, etc.). Even when parties have lived separate and apart for one year and wish to be divorced but cannot agree to the terms of financial settlement, or custody, it is still a contested divorce.

All divorces require proof of grounds. The grounds for an “absolute” or final divorce in Maryland are as follows:

• One year’s mutual and voluntary separation. Living separate and apart for one year without interruption.
• Adultery.
• Desertion. For one full year without legal cause, actual or constructive (you are forced to leave by the behavior of your spouse).
• Conviction of a felony or misdemeanor. Requires incarceration for one year under a sentence of three or more years.
• Insanity. Confined to a mental institution for at least three years.
• Cruelty.
• Excessively Vicious Conduct.
• Mutual Consent. The parties have mutually agreed to divorce and have settled all matters that pertain to their union (child custody, property divided, etc.) and have submitted a Signed Settlement Agreement to the court.

There are some defenses to these grounds for divorce. Because the law does not wish to force people to stay married when they are incompatible, these defenses are often difficult to prove:

• Defense: Condonation. Knowing what your spouse did wrong but forgiving him or her anyway; this is usually proven by showing that you and your spouse had sexual relations after you found out what your spouse did.
• Defense: Insanity. If the person who is guilty of the grounds for divorce was insane when he or she committed the act.

Residency. Prior to the filing the petition for divorce, you must have resided in Maryland for one year. However, emergency, custody or other matters may be filed in Maryland without regard to this requirement.

Maryland has established a form of legal separation called a “limited divorce.” The grounds for a limited divorce are as follows:

• Voluntary separation. Without reasonable expectation of reconciliation. (No minimum duration).
• Desertion. (no minimum duration.)
• Cruelty.
• Excessively vicious conduct.

A legal separation may have some advantages in certain cases – for example, the spouses can remain on health insurance policies, or reap tax benefits.

In a Contested Divorce, a case is commenced by filing a “Complaint.” (The spouse who files the initial Complaint is the “Plaintiff;” the other spouse is the “Defendant.”) The Complaint states the date and place of marriage, the name and birth dates of any minor children, and a claim of one of the statutory grounds for Divorce. The Defendant is then served either by the Sheriff’s Department, Private Process Server or through Certified Mail. The Defendant then has 30 or 60 days (depending on where they live, i.e. in-state or out-of-state) to file an “Answer” admitting or denying the allegations. The Defendant may also raise any defenses or file Counterclaims.

In an Uncontested Divorce case, the Plaintiff needs to appear in court to testify. A witness may be needed to testify on the grounds for Divorce. A subpoena may also be required for the witness to appear in court to allow them to get off of work and to protect you if they do not appear.

Most likely the next document drawn up in the case will be a proposed Martial Property Settlement Agreement (“MPSA”) or a Marital Separation Agreement (“MSA”). Mediation may be scheduled to assist with settlement. Simply signing the Settlement Agreement does not mean you are Divorced. The Settlement Agreement needs to be submitted to the Court with a Complaint and go through the process of a Divorce with the grounds of Mutual Consent as mentioned above. The Separation Agreement in Maryland typically covers the following issues:

• Court cost and attorney’s fees. Who pays?
• Property. Who gets the house? Who gets the note? How does the equity get divided if it is sold?
• Personal property. Who gets which car, what appliances, and what happens to the sofa in the den?
• Retirement. What happens to any retirement benefits that have accrued?
• Debts. Who pays what? Should the debts be paid off by refinancing?
• Alimony. How much? How long?
• Custody. Who gets which child? Should any aspects of custody be shared? The noncustodial parent may be the one who is a doctor and may be the one who should make medical decisions. Will joint custody work?
• Child support. How much? How long? Who carries health or life insurance on children? Who gets to claim the children as income tax deductions? Private school or college tuition?
• Visitation. Do you want a specific schedule or can you and your spouse work together on it?
• Insurance–Life insurance. Who is insured? Who is the beneficiary? Term or cash value? How much?
• Insurance–Health insurance. Who is covered? In many cases an employee’s spouse can be covered up to thirty-six months after the divorce by the employed spouse’s insurance for an additional premium. Sometimes one parent’s health coverage is cheaper than the other’s and the cost differential can be reimbursed in other ways.
• Other. Security for obligations in the agreement, for Wills, for death, and for taxes.

Uncontested Divorces usually take two to three months, after filing and contested divorces can take up to eighteen months. If you have gone through a Contested Divorce, and if there is no appeal, your Divorce will be final thirty (30) days after the Judge signs the final decree.

The Maryland legislature has set out criteria for alimony, child support, and property division.

• Locate and determine value the property (equity in the house, value of pensions, value of antique furniture).
• Determine whether the particular piece of property is separate property and remains with the person who owned it.
• Separate property is usually acquired before the marriage or outside the marriage, such as by gift or inheritance, or is excluded by a valid agreement.
• Marital property is usually acquired during the marriage. To determine who gets what marital property, the court will consider: length of the marriage, age, health, skills, and abilities of the parties, amount of separate property owned by each spouse, relative ability of the parties to acquire property in the future, financial needs and liabilities of the parties, contribution to the education or to the earning power of the other, contribution to the value of the marital property or the separate property, premarital property and post-marital property, financial conditions of each party, and tax consequences.
• Use and Possession. Allowing the custodian and children to continue to live in the marital home permanently or for a period of time (the Maryland statute permits up to three years following divorce).

• If temporary alimony cannot bring about rehabilitation, then the court can, in proper circumstances, order alimony on a long-term or indefinite basis. Indefinite alimony is granted less often these days. Technically, husbands can get alimony from wives, but it almost never happens. Alimony is based upon the relative needs and resources of the parties.

The legislature set out criteria for the court to consider and they include the following:

• income from salaries, investments, pension profit-sharing and retirement plans, education and ability of the parties as well as opportunities for additional education,
• length of the marriage,
• age,
• physical condition and mental condition of the parties, whether or not one of the parties should stay at home with the child of the parties instead of working,
• separate property a person has, marital property a person has,
• standard of living the parties enjoyed during the marriage,
• tangible and intangible contributions such as contributions of a homemaker and the tangible and intangible contributions of one party to the education, age, or increased earning power of the other party,
• fault of one of the parties (if the court wants to), and tax consequences.

Living with someone after the divorce, regardless of whether you have sex or not, may cause indefinite alimony to be lowered or stopped. Death of one of the persons paying or receiving alimony or marriage of the person receiving alimony will terminate alimony unless the divorce settlement agreement provides otherwise. The court can require a bond or put a lien on property to ensure the payment of alimony or child support.

If you cover your spouse or children on your health insurance, do not drop them from the policy at least until the divorce is final. A federal law allows most employees to cover their spouses for up to thirty-six (36) additional months for a small additional premium. However, the employer must be notified prior to the Final Decree.

The legal standard in deciding who will get custody is what is in the best interest of the children. There are also certain doctrines and presumptions (but not inflexible rules or requirements) which aid the court in determining the best interest of the child.

You should create new will after a divorce. Contact the Law Office of Rhon C. Reid, LLC for additional information.