Frequently Asked Questions about Divorce
Sponsored by the Law Firm of Jordan & Tell, with offices in Columbia and Bethesda, Maryland.
What are the Grounds for Divorce in Maryland?
There are two types of divorce in Maryland, a no-fault divorce based on separation or a divorce due to the fault of one party, such as adultery. Maryland does not recognize a divorce based on so-called irreconcilable differences. Maryland also grants limited divorces which essentially legal separations which allow the court to enter orders for matters such as child and spousal support. A limited divorce does not provide for final division of property (including pension and retirement funds) and does not permit remarriage. An absolute divorce terminates the marriage and determines all rights and obligations of the parties, including final division of property. A limited divorce may be granted on the following grounds:
- Cruelty of treatment of spouse or a minor child
- Excessively vicious conduct. This usually must include physical harm.
- Desertion.
- Husband and wife voluntarily living separate and apart without cohabitation without a reasonable expectation of reconciliation.
An absolute divorce may be granted on the following grounds:
- Adultery
- Separation of the parties under the following circumstances:
- Uninterrupted desertion for at least 12 months, which is deliberate and final and in which there is no reasonable expectation of reconciliation. Living apart in the same residence will not qualify.
- Parties are voluntarily living separate and apart without cohabitation for 12 consecutive months and there is no reasonable expectation of reconciliation.
- Conviction of one of the parties for a felony or misdemeanor in any state or in any court of the United States, where the party has been sentenced to serve at least three years or an indeterminate sentence in a penal institution and 12 months of the sentence have been served.
- Parties have lived separate and apart without cohabitation and without interruption for two years. Living in separate rooms or floors in the same residence does not qualify.
Should I enter into a Voluntary Separation and Property Settlement Agreements?
In many instances, the parties to a marriage voluntarily agree to live separate and apart until they can obtain a divorce. The individuals involved may agree about the division of their property and other questions pertaining to alimony, child support, custody and visitation. The parties enter such an agreement in writing which fixes the rights and responsibilities of the two parties between each other. It is a binding contract between the two parties, which can generally be enforced by appropriate court action. An exception to this exists in matters concerning child custody and child support; the court always retains jurisdiction over these issues. Whether it is in your interests to enter an agreement depends on your particular circumstances. Although you do not necessarily have to retain an attorney to prepare your agreement, this is a legal document and you should seek legal before signing any agreements.
When are Alimony and Child Support Available?
Alimony is payment for support of a spouse. Under the law of Maryland, either party may claim alimony from the other. The fact that the party seeking alimony may be guilty of some ground for divorce does not prevent an award of alimony to that party. Courts are required to consider many factors in determining the award and amount of alimony. These include, in part, the financial needs and resources of the parties, their income and assets, financial obligations, standard of living and the facts and circumstances leading to separation. Alimony can be rehabilitative or indefinite.
Courts have always given the highest priority to the needs of children in divorce proceedings. Each party has a responsibility for the support of a minor child or children. A formula called the child support guidelines is now used by the court to determine the amount of child support. Child support awards are primarily based on the gross incomes of the parties, but each case must be considered on its own facts and circumstances.
If the parties have reached an agreement on the alimony and child support and have placed that agreement in writing, their agreement will govern payment of alimony and child support unless that agreement was obtained by fraud or under duress.
How Will Our Property Be Divided?
The court has the power to deal with marital property. Marital property is defined as all property acquired by either or both parties during their marriage. It does not include property acquired prior to the marriage, property acquired by inheritance or gift from a third party or property excluded by valid agreement or traceable to any of these sources.
Whether or not alimony is awarded, a court may still make a monetary award based on the value of all marital property. In determining the award and amount, the court is required to consider many factors. It is important to bear in mind that the court does not have the power to change the title to property, except for pensions and retirement funds, but may adjust the rights of the parties by giving a monetary award.
What Factors Determine Custody and Visitation?
Maryland courts award custody of the minor children to one or both parties according to what is in the best interest of the children. If the physical custody is awarded to one party, visitation rights will generally be granted to the other party. Decision making power regarding the child or legal custody, may be awarded to either party separately or to the parties jointly.