FREQUENTLY ASKED QUESTIONS

FAMILY LAW

What are the grounds for absolute divorce?

The grounds for absolute divorce in Maryland are as follows:

  1. Adultery.
  2. Desertion that is continued for at least 12 months without interruption.
  3. A 12 month separation, when the spouse has lived separate apart without cohabitation or interruption.
  4. Cruelty of treatment against the complaining spouse or against the minor child of the complaining spouse.
  5. Excessively vicious conduct towards the complaining spouse or the minor child of the complaining spouse.
  6. Mutual consent if:
    a.) The parties do not have any minor children in common.
    b.) The parties have signed a written settlement agreement that solves all issues related to alimony and property division.
    c.) Neither party files a pleading to set aside the settlement agreement prior to the divorce hearing.
    d.) Both parties appear before the court at the absolute divorce hearing.
  7. Conviction of a felony or misdemeanor if the defendant has been sentenced to at least 3 years or an indeterminate sentence in a penal institution; and the defendant has served 12 months of the sentence.
  8. Insanity resulting at least 3 years of confinement in a mental institution, hospital, or similar institution.

What is the difference between an uncontested divorce and a contested divorce?

A contested divorce occurs when both parties are not in agreement as to any issue regarding the grounds for divorce, custody, visitation, child support, alimony, division of marital assets, and attorney’s fees. In an uncontested divorce the parties are in complete agreement. There is no legal dispute on any issue regarding the divorce.

How is child support in Maryland determined?

Child support in Maryland is based on the Maryland child support guidelines which are found in Family Law Article Section 12-204. The child support law requires that both parties monthly income be determined. When this is done then whatever expenses that are paid regarding the children such as extraordinary medical expenses, daycare, after-school and extracurricular activities, and a variety of other approved expenses are factors into the child support calculation. Pre-existing child support obligations are subtracted as well as alimony payments that have been made.

The application of the guidelines will render a child support amount for the noncustodial parent. This process is mandatory in all child custody cases. However, if the parties believe it is in the best interest, the amount determined based on the child support guidelines can be deviated from. Ultimately, the circuit court will be the final decision-maker on whether or not the guidelines will be adhered to. Maryland circuit courts tend to do what is in the best interest of the minor child regardless of if the parties agree or not. However, if there is an agreement between the parties, the courts will generally adhere to that agreement.

What is the difference between joint legal custody and joint physical custody?

Both are legal terms used to describe distinct situations. Joint legal custody is when both parties are required to work together in the major decision making processes of the upbringing of the minor child. That would include religious preferences, education, health, and extracurricular activities. In this agreement both parties stand on equal footing under the law and have equal rights to be involved in the daily and overall aspects of the child’s life.

Joint physical custody means that both parties will share equal access of the minor child. Generally there is a primary physical custodial parent who will have the child most of the time. But, the parties are free to work out various parental access plans. The courts will act in the best interest of the minor child when deciding who shall act as the primary custodian. When the parties cannot agree on a parental access plan, the court will reflect on how the parties have split time previously which can be continued if it is working in the best interest of the child.

How do the courts determine a parent’s visitation access?

First and foremost, if you are a noncustodial parent, the courts will look to make sure you are fit and proper to have access to your child. Generally speaking, the courts would award a joint custody arrangement if both parents are fit and proper and have a good working relationship. However, they will look to see who the primary physical custodian is. If you turn out to be the noncustodial physical parent, the courts tend to award as much visitation as possible without interrupting the child’s daily life activities. If you and your spouse have been using an access plan that has been working well, courts tend to take that plan and include it into their orders. Courts will, when examining visitation arrangements, take into the account of the availability of the parents given work schedules as well as the schedules of the child. Ultimately the court is free to make any determination. So long as it is in the child’s best interest.

How long do I have to be a resident of the State of Maryland to file for a divorce?

Maryland requires that you be a resident for at least one year prior to filing for the complaint.

What is a Magistrate? What is the difference between a Magistrate and a Judge?

A Magistrate is a lawyer who has been selected by the Circuit Court to handle domestic relations matters which will include divorce, child custody, child support, and other domestic related matters. The Magistrate is not necessarily a Judge and is not a member of the judiciary. They do sit with some authority in court to make recommendation to the Circuit Court Judge. It is the Judge that has to ratify the recommendations of the Magistrate.

The Judge is free to deviate and make other rulings and court orders, as they are not bound by what the Magistrate recommends. In fact, Judges are encouraged to make their own independent judgements on these matters. You can file exceptions to a Magistrate’s findings and recommendations, however if you do not agree with the Judge’s decision you would have to file a more formal appeal. But, generally the Magistrate handles the day to day domestic matters, freeing up the Judge’s availability to handle more serious domestic issues.

If my spouse and I own property together what happens to the property upon divorce?

In the State of Maryland, marital property has been defined as that property which is purchased after the marriage, regardless of how it is titled, unless the spouse who is claiming ownership can prove that the funds that were used to purchase the property came from an inheritance, gift from a third party, or was already purchased prior to the marriage. Otherwise, all property purchased after the marriage is considered martial property. The court must first determine if the property is marital or not, if the parties cannot agree on the disposition of that property, the court has the authority to have it sold. The parties could split the proceeds, or the court could make an equitable distribution based on the equities of each case and a portion more or less to each of the spouses depending upon the circumstances.

How can I get alimony?

If you are seeking alimony, you need to request it. If you are going to proceed on an absolute divorce case and ask for alimony, family law article 11-106 sets up the factors. You would have to prove a need of the party requesting it and there has to be an ability to pay it by the non-requesting spouse. The courts tend to look at the financial arrangements between the parties, financial disparities, age and educational level, employment history of the parties when awarding spousal support. You will need an experienced family law attorney to handle these matters.

In the State of Maryland, alimony can be awarded only before the final ending of the marriage. Failure to make a claim for alimony as part of the divorce means that you can not come back later, after the marriage has ended, and make an alimony claim. You must ask for alimony as part

of your pending divorce. There are different types of alimony. There is a pendente lite alimony award. The court can award this type of alimony between the time you file for divorce and the time the divorce is final. Pendente lite is Latin for temporary. The purpose of this type of alimony is to maintain the status quo during the marriage. It does not necessarily mean that you will be awarded alimony after the divorce.

Rehabilitative alimony is the type of alimony that will most likely be awarded. Usually, it is associated with a time limit goal, such as going back to school. The court may reward you rehabilitative alimony for two years while you go back to school and finish a degree program that will enable you to better support yourself. While results will vary based on your individual circumstances, a good range to use for this estimate is an average of three to seven years rehabilitative alimony.

The final type of alimony is indefinite alimony. This is a rare form of alimony that is awarded with no specific end point. You may receive this due to your age, illness or disability, or if you cannot make reasonable progress towards supporting yourself. Even if you can make reasonable progress towards supporting yourself, your ex spouse’s standard of living is “unconscionably disparate”. “Unconscionably disparate” means that there is a very large and unfair difference between your living standards. Alimony awards may be modified, extended, or changed or ended in the future. This may happen if one of the ex-spouses asks the court to consider the alimony amount in the future and circumstances have changed.

What are the factors considered in awarding alimony?

Family Law article 11-106 lists the factors that the court must consider when awarding final alimony award. They include:

  1. The ability of the parties seeking alimony to be wholly or partly self-supporting;
  2. The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
  3. The standard of living that the parties established during their marriage;
  4. The duration of the marriage;
  5. The contributions, monetary and non monetary, of each of the party to the well-being of the family;
  6. The circumstances that contributed to the estrangement of the parties;
  7. The age of each party;
  8. The physical and mental condition of each party;
  9. 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;
  10. Any agreement between the parties;
  11. The financial needs and financial resources of each party;
  12. Whether the award would cause a spouse who is a resident of a related institution, as defined by §19-301 of the Health General Article, and from whom alimony is sought become eligible for medical assistance earlier than would otherwise occur.

My spouse has a pension. Will I be entitled to a portion of it upon divorce?

Yes. If you and your spouse have been married and either one of you have accrued an interest in a pension during the marriage, the court will consider from the beginning of the marriage to the time of the divorce, that portion of the pension earned as marital property. The courts use the bank formula, among other things, to determine a spouses’ interest in a pension of another spouse. To find out what your rights are to a pension, you need to consult an experienced family law lawyer to discuss your rights.

WHAT ABOUT CHILD SUPPORT, HOW IS THAT DETERMINED?

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