DIVORCE & FAMILY LITIGATION
- Divorce
- Child Custody
- Child Support
- Visitation
- Alimony
- Marital Property and Monetary Award
- Use and Possession of Real and Personal Property
Most domestic cases are resolved by the parties' lawyers, after negotiation, by a document typically known as a Separation and Settlement Agreement. Before attempting to reach a settlement agreement, however, it is important to have a basic understanding of the law in this area. Because the law is complex, it is important to seek legal advice regarding the process and issues which arise concerning divorce and separation.
DIVORCE
There are two types of divorce in Maryland: absolute divorce and limited divorce. An absolute divorce completely terminates the marriage, permits remarriage and determines all final support obligations and resolves all property rights between spouses. A limited divorce does not terminate the marriage, does not permit remarriage, and does not determine all final support and property rights; it serves to legalize the separation of the spouses rather than to dissolve the marriage, and to provide support and maintenance. A court may grant an absolute divorce on the following grounds:
- Twelve consecutive month mutual and voluntary separation without cohabitation and there is no reasonable expectation of reconciliation.
- Two consecutive years separation without cohabitation. The voluntariness of the separation is irrelevant.
- Adultery.
- Twelve consecutive month desertion which is deliberate and final and there is no reasonable expectation of reconciliation.
- Conviction of a spouse of a felony or misdemeanor who is serving certain sentences.
- Insanity of one of the spouses with certain provisions.
A court may grant a limited divorce on the following grounds:
- Mutual and voluntary separation without cohabitation and there is no reasonable expectation of reconciliation.
- Cruelty of treatment of a spouse or of a minor child.
- Excessively vicious conduct of a spouse or of a minor child.
- Desertion or constructive desertion.
CHILD CUSTODY
Courts have extremely broad discretion in matters involving child custody and visitation. An award of custody of a minor child by a court to one or both parents is based upon what is in the best interest of the child. In determining child custody matters, a court considers and weighs numerous factors including, the mental and physical health of each parent, the fitness and character of each parent, the willingness of each parent to foster a relationship between the child and the other parent; the relationship between the child and each parent; the motivation (sincerity) of each parent's custody requests; and the parental preference of the child when the child is of sufficient age to form a rational judgment.
There are two types of child custody in Maryland: sole custody and joint/shared custody. Both types of custody have a legal component and physical (residence) component.
Legal custody relates to a parent's right to make decisions and long range plans regarding the child's education, religious training, medical care and other matters of major significance concerning the child's life and welfare.
Sole legal custody means that one parent alone has the right to make decisions and long range plans regarding the child without regard to the other parent's wishes.
Joint legal custody means that both parents have an equal voice in making decisions and long range decisions, and that neither parent's decision making rights are superior to the other. Joint custody does not control where the child lives. It only means decisions are jointly made.
Physical custody relates to where the child lives.
Sole physical custody means that the child lives with one parent. The other parent has the child on a schedule called visitation.
The place the child lives and how much time the other parent has the child varies greatly with joint physical custody. Usually one parent has "primary residence" and the other has the child on an agreed schedule.
CHILD SUPPORT
A parent has an obligation to support his or her minor child, with certain exceptions, until the child reaches age 18 (19 if the child remains enrolled in secondary school). Absent an agreement between the parties, a court can order child support. A court can also order a parent to include a minor child on his or her health insurance policy if that parent is covered by such a policy and the child can be included at a reasonable cost. Since 1990, child support and modifications to child support in Maryland, are based upon child support guidelines. The guidelines are based upon the gross incomes of each parent. Use of the guidelines is mandatory in every support case, except upon a court finding that application of the guidelines would be unjust or inappropriate.
In general, a court may modify an existing child support award upon a showing of a material change in circumstances since the time of the initial support award. Additionally, regarding pre-1990 child support awards, if use of the child support guidelines results in a 25% increase or decrease in the amount of child support currently paid, the guidelines themselves may serve as a basis for an allegation of a material change in circumstances for re-addressing and modifying the initial child support award.
VISITATION
Visitation is considered to be a basic right of natural parents, but not necessarily an absolute right. A parent is ordinarily awarded visitation with his or her child unless visitation would endanger the welfare of a child as and where the parent is abusive or neglectful. Ordinarily, even under those circumstances, a court will nonetheless award visitation with restrictive conditions such as supervised visitation or a requirement that visitation be contingent upon counseling, therapy, or drug or alcohol treatment participation and completion.
It is impermissible to deny parental visitation for non-payment of child support.
Grandparents have independent visitation rights which may be enforced over the objection of either or both parents.
ALIMONY
Alimony is the periodic payment for the support and maintenance of a spouse and may be awarded upon a limited or absolute divorce. Alimony may be awarded to either party and is awarded for a definite or indefinite period of time. Alimony for a definite period of time is commonly referred to as "rehabilitative alimony"; alimony for an indefinite period of time is commonly referred to as "permanent alimony". An award of alimony is not an automatic entitlement but is determined on a case-by-case basis upon its own set of facts. Alimony as a lifetime pension which enables a spouse to maintain an accustomed standard of living has generally been replaced by the concept that a spouse should be required, through rehabilitation, to become self-supporting, even if the result is a reduced standard of living.
A court is required to consider many factors in determining whether to award alimony and, if awarded, the amount and duration. Some of these factors include the financial needs and resources of each party; the age, physical and mental condition of each party; the ability of the party seeking alimony to be self-supporting; and, the facts and circumstances that contributed to separation.
Alimony pendente lite is a temporary award of alimony by a court for the support of a spouse while a limited or absolute divorce is still pending. An award of alimony pendente lite is based solely on the recipient spouse's immediate support need, independent of marital fault, until a divorce is granted. The purpose of alimony pendente lite is to maintain the status quo between the parties so that a dependent spouse will not suffer financial hardship during the divorce litigation.
MARITAL PROPERTY AND MONETARY AWARD
One primary issue in most divorces is the identification and valuation of marital property. Marital property is defined as all property acquired by one or both parties during the marriage, regardless of title. It does not include property acquired prior to the marriage; property acquired by inheritance or gift from a third party; property excluded by valid agreement between the parties; or property directly traceable to any of these above sources.
Whether property is marital or non-marital, or partly marital and partly non-marital depends not upon how the property is titled, but upon the source of payments used to acquire the property.
Almost every divorce involves items of real and personal property such as homes, furniture, automobiles, financial accounts and pensions, acquired both before and during the marriage. In most instances, it is relatively simple to determine which items are marital or non-marital. Where, however, a marriage is one of many years with substantial assets acquired through loans, gifts or inheritances "mixed" in an account with marital funds, identifying the marital or non marital nature of the property becomes a difficult and substantial task, but a necessary one.
A court must resolve ownership rights to property according to title only. It does not have the power to transfer ownership of real or personal property from one spouse to the other. A court, however, does have the power to order jointly titled property sold and the discretion to award a monetary award concerning the sale proceeds in favor of one spouse against the other. All marital property must be identified and valued. The sole purpose of identifying and valuing marital property is to form a basis upon which a monetary award may be granted. A monetary award is a lump sum payment from one spouse to the other designed to accomplish an equitable division of property where actual distribution of property or its proceeds in accordance with title would be unfair and inequitable. For example, if a home is titled in both spouses names but one spouse has made substantial pre/non marital payments towards the purchase of the home, a court may award a monetary award in favor of the spouse who made such contributions to be paid by the other spouse.
A court may award only one monetary award and any award is limited the total value of marital property.
USE AND POSSESSION OF REAL AND PERSONAL PROPERTY
A court may award use and possession of the family home and use of family personal property to a spouse who has been awarded custody of a minor child of the parties. (Step children are not included). Three prerequisites must be satisfied before such use and possession may be awarded: (i) one spouse must have grounds for divorce, either absolute or limited; (ii) an award of custody of a minor child of the parties is granted to that spouse; and (iii) a demonstrated need for the minor child to continue to live in the family home is established. The purpose of such use and possession of the home and personal property is to permit a minor child to continue to reside in the community in which he or she is familiar. A court may also order that either or both parties pay any mortgage payments or rent; insurance and taxes or similar expenses of the family home during the use and possession occupancy.
