WHAT ARE THE GROUNDS FOR ABSOLUTE DIVORCE?
The grounds for absolute divorce in Maryland are as follows:
- Desertion that is continued for at least 12 months without interruption.
- A 12 month separation, when the spouse has lived separate apart without cohabitation or interruption.
- Cruelty of treatment against the complaining spouse or against the minor child of the complaining spouse.
- Excessively vicious conduct towards the complaining spouse or the minor child of the complaining spouse.
- Mutual consent if:
- The parties do not have any minor children in common.
- The parties have signed a written settlement agreement that solves all issues related to alimony and property division.
- Neither party files a pleading to set aside the settlement agreement prior to the divorce hearing.
- Both parties appear before the court at the absolute divorce hearing.
- 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.
- 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.
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.
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.