- Divorce Process
- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
The Separation Agreement
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, after negotiation on the parties’ behalf between their respective lawyers, 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.
This document, known as a settlement or separation agreement, 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. Generally, once an agreement between the parties is validly executed, it cannot be modified. An exception to this exists in matters concerning child custody and child support; the court always retains jurisdiction over these issues and can modify an agreement or prior court order if circumstances have changed and modification is in the child’s best interest.
It is important to make sure that before filing for divorce, that you qualify under the state residency requirements. In Maryland if the grounds for divorce occurred outside of Maryland, one of the spouses must have lived in Maryland for at least one year prior to filing for divorce. Either spouse may file for divorce in Maryland. The divorce may be filed for in a county where either spouse resides, or where the spouse being sued works.
Grounds for Divorce
There are two types of divorce in Maryland: A limited divorce and an absolute divorce. A limited divorce specifies certain rights and obligations of the parties, but does not provide for final division of property, including such things as 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 toward a spouse or a minor child,
- Excessively vicious conduct,
- Parties are voluntarily living separate and apart without cohabitation and there is no reasonable expectation of reconciliation.
An absolute divorce may be granted on the following grounds:
- Desertion continuing for twelve months without interruption, which is a final and deliberate act with no reasonable expectation of a reconciliation,
- Parties are voluntarily living separate and apart without cohabitation for 12 consecutive months and there is no reasonable expectation of reconciliation,
- Parties have lived separate and apart without cohabitation and without interruption for two years,
- Cruelty of treatment toward a spouse or a minor child of the complaining party if there is no reasonable expectation of reconciliation,
- Excessively vicious conduct toward a spouse or a minor child of the complaining party if 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,
- Insanity when a spouse has been confined for at least three years before filing complaint, proof of incurable insanity from testimony of two psychiatrists, and one of the parties has been a resident of Maryland for at least two years before filing the complaint.
All requirements for each ground must be met before filing for divorce. There are additional requirements, including residence in the state, in most circumstances. An attorney can help you determine if the requirements for any ground for divorce have been met.
Division of 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 property traceable to any of these sources. Real estate titled in both names is marital property no matter who owned it before the marriage. Whether or not alimony is awarded, a court may still rule on the distribution of marital property.
It is important to bear in mind that the court does not have the power to change the title to property, except for the marital home, pensions and retirement funds, but may adjust the rights of the parties by giving a monetary award. In determining the award and amount, the court is required to consider many factors. The Court first determines which property is marital property and determines the value of all marital property and determines which spouse owns each item or parcel of property.
Next, the Court determines whether to make a monetary award to balance the equities in marital property and, if so, the amount of the award. If either party has a pension or retirement fund entitlement, it is essential that an attorney who is knowledgeable about such matters prepare all necessary documents.
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, age and health, standard of living and the facts and circumstances leading to separation.
If the parties have reached an agreement on alimony and have placed that agreement in writing, their agreement will govern payment of alimony unless that agreement was obtained by fraud, under duress, or by abuse of a confidential relationship, or the Court finds that the terms are so grossly unfair that the agreement shocks the conscience of the Court. This rarely happens.
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. Long term decision making power regarding the child, or legal custody, may be awarded to either party separately or to the parties jointly.
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. Child support guidelines are used by the court to determine the amount of child support. Child support awards are primarily based on the gross incomes of the parties and the overnights that each child spends with a parent in a year.
The Court also considers the reasonable cost of child care and health insurance for the child. If the parties have reached an agreement on child support and have placed that agreement in writing, their agreement will govern payment of child support, unless that agreement was obtained by fraud or under duress, as long as the court finds the child support complies with the guidelines or finds there is a good reason for deviating from them.