Each state has its own laws regarding marriage and divorce. If you are considering filing for divorce in Maryland, or you have been served with a Complaint for Absolute Divorce, you should be aware that the divorce laws in Maryland are more complicated compared to other states. The waiting periods are also longer in comparison to many states.
In order to make wise decisions during the divorce process, it would be a wise idea to be informed regarding the law, your rights and your responsibilities.
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- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
If a couple has been voluntarily living apart for one year and does not expect or hope to reconcile, they can mutually choose the no-fault divorce option. Otherwise, there must be grounds for divorce. In Maryland the grounds for divorce are:
- Actual desertion (one spouse left the marriage and home)
- Constructive desertion (one spouse left the marriage and home due to the other party’s cruel and vicious behavior)
- Criminal conviction of a felony or misdemeanor involving at least three years in jail
- Cruelty/excessively vicious conduct against the spouse or a minor child
- Insanity (requiring confinement in a mental institution)
Divorce Waiting Periods
The residency and waiting periods for divorce in Maryland will depend upon whether or not the divorce is no-fault, fault or fault with grounds of insanity.
- No-fault divorce requires that one spouse is a resident, and the couple has been living apart for one year.
- Fault divorce requires that the grounds for divorce must occur in Maryland or there is a one-year residency waiting period.
- Grounds for divorce with reason of insanity require residency and a two-year waiting period.
Alternative Dispute Resolution (ADR)
If a couple desires a respectful post-divorce relationship on behalf of their children, or they have reached an impasse on a dispute, they may choose an Alternative Dispute Resolution (ADR) method to reach an agreement. Maryland allows two forms of ADR.
- Mediation: A neutral third party acts as a mediator or conduit between the spouses to help them communicate in a productive way. The goal is to reach an agreement. The mediator does not represent either spouse, and instead helps them communicate to reach a “win-win” agreement. The couple makes the end decision and not the mediator.
- Arbitration: An arbitrator is also a neutral third party who can work with the couple to reach an agreement. The difference is that the arbitrator will make a decision after hearing both sides of a disagreement. Arbitration can be either binding (legal and permanent) or nonbinding (a decision without the legal mandate). You may think of binding arbitration as a slightly quicker trial.
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There are four ways to end a marriage in Maryland and the method a couple, or a single spouse, chooses will depend upon their past behavior, their current circumstances and their future goals. Divorce can be either fault or no fault. Divorce can also be total, or incomplete, or somewhere between the two. The ways to end a marriage in Maryland include:
- Absolute divorce
- Limited divorce
- Legal separation
When most people think of divorce, they may be thinking of what Maryland calls Absolute Divorce. In this type of divorce the couple is completely and permanently separated. They have made the necessary decisions regarding child custody, visitation, and division of property, child support and alimony. If the couple was unable to make any of these decisions, the court has made the decision on their behalf. The couple is free to remarry.
Limited Divorce is for couples who are committed to divorcing, but may have a contested area or the couple has not yet met the grounds for divorce that are needed for an Absolute Divorce. The couple may still have disagreements in some of the divorce terms.
Think of a Limited Divorce as a halfway point. A Limited Divorce provides financial relief for the spouse who may be a stay-at-home spouse and who is not yet able to be self sufficient. A Limited Divorce would provide some temporary spousal support or child support in that case. A Limited Divorce would also cover those couples who have not yet made the time living apart standard. The couple is not free to remarry.
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Legal Separation can be thought of as a trial divorce. Like an Absolute Divorce, the couple has reached an agreement regarding child custody, visitation, and division of property and support payments. They are living apart as though they are divorced, although they are not divorced and are not free to remarry. The couple may continue on toward divorce, or they could reconcile.
An annulment is a way of ending a marriage by saying that it was never legal in the first place. There is no alimony because there was no marriage. There could still be child support payments and child custody issues to decide, however. Being unmarried, or in this case illegally married, does not change the responsibilities of parenthood in this instance. Grounds for annulment in Maryland are similar to those in other states and include:
- Bigamy (already married to someone else)
- Underage (not yet 18, age 16 or 17 but lacking parental permission, or 15 and pregnant but lacking parental consent)
- Close relatives (more closely related than first cousins)
- Lacking the ability to consent (mentally incapable, intoxicated or under the influence of drugs)
- Fraud or duress (one party was tricked or pressured into marriage)
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Child Custody Determinations
In one significant way, child custody in Maryland is very similar to child custody in other states. Child custody determinations in Maryland are made according to the best interests of the child or children. If the parents can’t reach a decision, the court will make the determination.
In general the court prefers joint custody and is not in favor of split custody. The different types of custody are:
- Split custody in which the children are split up and live in different homes, so the boy may live with his dad and the girl with her mother. The court does not like to see siblings split up.
- Joint custody in which both parents share equally in the responsibility.
- Sole custody in which one parent has full responsibility.
- Legal custody is the ability to make decisions regarding the religious upbringing, education and medical care.
- Physical custody is where the child is living and receiving room and board.
The parents are required to determine a schedule that outlines where the child will be during specific time periods. If one parent has sole physical custody, then the parenting plan would include the visitation times with the noncustodial parent. If parents have joint physical custody, then the parenting plan outlines when the child is with each parent and how the transfers from home to home will be made.
Whether the physical custody is joint or sole, the parenting plan schedule will need to have a plan for vacation time and important holidays, including birthdays. A parenting plan will also include other details of the parent/child and parent/parent relationships including:
- How routine doctor and dentist visits will be handled (who drives and who pays)
- Responsibility for transportation to and payment for extracurricular activities
- A communication plan (email, text, phone, voicemail or in person, for example)
- A plan to resolve differences
- Contingency plans (what to do if one parent wants to move out of state, for example)
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Child support is considered the responsibility of both parents, and each will be required to pay in proportion to how much income the individual earns. Like most states, Maryland has a court-determine guideline that sets out the basic guidelines and amounts of child support.
Since 2008 Maryland’s child support formula has been based on each parent’s net pay, rather than gross pay. The formula is built upon the Income Shares Model which calculates the amount of child support that would have been available for the child or children, had there been no divorce. The amount is divided proportionally to each parent’s net income.
The percentage also changes as the income increases. For example, a noncustodial parent earning a net of $3,000 per month (no income by the custodial parent) would owe $561 in child support for one child. If the noncustodial parent earned a net of $6,000 (no income by the custodial parent) then the child support payment would be $976. If each parent earned half of the net amount, the child support payments for the noncustodial parent would be $280.50 and $488, respectively.
Child Support Enforcement
Once a child support amount has been determined, it must be paid. If the paying parent is purposefully unemployed in order to avoid child support payments, the court will assign a payment amount according to what the payee (obligor) could be paying.
The person receiving the child support is not allowed to withhold visitation as a consequence of nonpayment. Likewise, the person ordered to pay child support is not allowed to withhold child support payments as a consequence of visitation problems.
There are a few reasons why someone would want to establish paternity. The most common reasons are for the custodial parent or mother to obtain child support payments from the father, or for a man who suspects he is the father to obtain visitation privileges. Occasionally the court will want to determine paternity if the child will be placed into foster care, or is in need of public assistance of some type.
Paternity may be established in a few ways including:
- If a couple is married when a child is born, paternity is assumed (even though the husband may not be the biological father).
- The court may request a DNA test (typically a cheek swab).
- A man and woman, who are unmarried, can sign a form in which they both voluntarily acknowledge paternity.
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When a couple gets married, their assets and debts from that point on belong to both of them. Property they owned prior to marriage can remain separate or individual property provided that it is kept separate and is not mingled with marital property. Likewise, inherited property can remain separate provided it is not commingled.
When a couple divorces, their assets and debts are divided in Maryland in a way that is equitable. It is important to understand that equitable is not the same as equal. Depending upon the grounds for divorce, the offending spouse could be awarded less than 50 percent of the assets, or more than 50 percent of the debts.
The assets that are divided include:
- All cash, savings, stocks, bonds and investments
- All motor vehicles
- Any valuable collections such as artwork, coins or guns
- Boats or other recreational equipment
- Credit card debt and other unsecured debt
- Household furnishings and clothing
- Real estate assets including the family home
- Retirement savings such as IRAs, Keoghs, 401(k)s
In Maryland alimony is called spousal maintenance. It may or may not be awarded to one of the spouses after the divorce. Spousal maintenance can be temporary and short-term, as well as long-term or permanent. The court will award spousal maintenance based on a number of factors including:
- Ability of each spouse to earn an income or be self-supporting
- Age, health and mental condition of each spouse
- Each spouse’s contribution to the marriage
- Standard of living when married
- Years of marriage
Prenuptial And Postnuptial Agreements
In second or subsequent marriages, and in marriages where one or both parties have significant assets, a prenuptial agreement is sometimes used to clarify any potential issues that could arise should the couple divorce at a later date. Increasingly women as well as men are requesting prenuptial agreements. The agreement essentially covers all of the issues which would be covered during a divorce, such as division of property, spousal maintenance, child custody and child support.
A postnuptial agreement covers the same issues and is created or signed after the marriage. It is sometimes used as a safety measure during times when a couple is having problems.
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When a couple with children divorces and one parent dies, the remaining parent is sometimes reluctant to allow visitation by the ex-spouses’ surviving parents. This is just one example of a time during which the grandparents could go to the court and request visitation privileges. The court always acts in the best interest of the child or children. In this case the court would also consider the pre-existing relationship of the grandparents with the grandchildren as an important factor.
Domestic violence includes everything from sexual abuse to battering to verbal threats of violence. If someone is experiencing domestic violence, safety is a primary concern. In Maryland a spouse can obtain a Protective Order if the victim has experienced any of the following:
- Assault of any degree
- False imprisonment
- Fear of imminent serious bodily harm
- Rape or attempted rape
- Serious bodily harm
The other standard which could have been met is abuse of a child from the marriage or relationship. If any of these situations apply, it is recommended that the domestic violence victim seek help and the legal advice of an attorney.
In some instances a spouse is wrongfully accused of domestic violence. In those instances, consulting with an experienced divorce attorney and domestic violence defense lawyer can help protect parenting rights.
Maryland is one of the states which allows same-sex divorce, which has actually been allowed in the state longer than has same-sex marriage. Same-sex divorce has been legal in the state since a May 2012 ruling by Maryland’s Court of Appeals. Same-sex marriage has been permitted in Maryland since the Civil Marriage Protection Act took effect on January 1, 2013.
In nearly all ways, a same-sex divorce is just like any other divorce. The same-sex couple will need to make decisions regarding child custody, child support, parenting time, division of property and potential alimony. As in any divorce, the more a couple can come to an agreement, the less chance there is that a judge will need to make a decision that neither party may like.
There is one exception to this, however. If one or both parties are an employee or a retiree of the federal government, the government retirement plans may not be able to be split. Same-sex marriage and divorce laws are in flux at both the state and federal level. For the most up-to-date information regarding same-sex divorce and how it could impact your divorce, it would be wise to consult with an attorney.
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