Divorce and Separation

Today divorce and separation is a more complicated process than ever before. Serious questions arise as to each area covered herein. Because the law is complex and ever-changing; it is important to seek legal advice when any questions about divorce or separation arise.

Introduction 

Separation and divorce create major changes for families. Plans for the children, division of property and financial arrangements all need to be worked out. It is also a time of great emotional upheaval. These changes and emotions can result in conflicts between family members. How these conflicts are handled can influence the entire family's adjustment, especially children's, for years to come.

For most people, conflict is frightening and stressful. Conflict can, however, result in the productive airing of differences and can lead to creative solutions that address the changing needs of all family members. Too often in the divorce process, family members feel like bystanders while lawyers, judges, and others work out these crucial issues. Even in the face of anger, fear, and hurt, it is possible for people to negotiate an agreement which balances the interests of each family member and benefits everyone in the long run.

It often is a long and difficult process, and fear is heightened by the unknown.

It is no surprise that some of the most frequent and complex questions attorneys are asked involve divorce, separation and child custody issues. Often, the parties in these situations try to resolve their problems without legal proceedings. Before attempting to reach an agreement, however, it is important to have a basic understanding of the law in this area.

Grounds for Divorce In Maryland

There are two types of divorce in Maryland:

1. A limited divorce specifies the rights and obligations of the parties, but does not provide for final division of property (including pension and retirement funds) and does not permit remarriage.
    

2. 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
	Desertion
	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: 

1. Adultery
    

2. Separation of the parties under the following circumstances:

1. Uninterrupted desertion for at least 12 months, which is deliberate and final and which there is no reasonable expectation of reconciliation.
    

2. Parties are voluntarily living separate and apart without cohabitation for 12 consecutive months and there is no reasonable expectation of reconciliation.
    

3. 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.
    

4. Parties have lived separate and apart without cohabitation and without interruption for two years.
    

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 have been met.

The Separation Agreement

In many instances, the parties voluntarily agree to live separate and apart until they can obtain a divorce. The individuals involved may agree among themselves or 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 which can generally be enforced by appropriate court action.

Alimony and Child Support

Alimony is payment for the 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 the divorce does not prevent an award of alimony.

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.

Courts have always given the highest priority to the needs of the 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.

Marital Property

Marital property is defined as all property acquired by either or both parties during their marriage regardless of title. It does not include property acquired prior to the marriage, property acquired by inheritance or a gift form 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 to adjust the rights and equities of the parties in the division of the 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. 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.

Custody and Visitation

Maryland courts award legal and physical custody of the minor children to one or both parties according to what is in the best interest of the children. If 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.

The sad reality is that many people come to the Court to solve their family matters, because they are collectively too immature, angry, bitter, hurt, or otherwise acting out of selfish interests to calmly and rationally decide what is in their children's best interest. All too often, the children become pawns in a vicious tug of war, and the parents essentially turn to a stranger in a black robe who only briefly observes snapshot "performances" of people who are trying to look their best when they are functionally at their worst.

The long and short of it is that without an agreement, the Judge or Master decides the fate of your children. It is his or her best guess as to what will happen in the future, and that guess is based upon very limited knowledge that can be gained in a courtroom setting governed by rules that most lay people do not understand.

In the vast majority of cases, when people turn to the courts to decide child custody and parental access pertaining to their children, there is usually no "winner" and almost always the children are the true losers. It is this author's opinion that much more time, effort and energy should be spent on resolving custody and child access disputes by way of counseling, mediation, or through as many settlement conferences as it may take, with attorneys who are willing to work towards a resolution outside of litigation.

Custody and visitation litigation should generally be an absolute last resort. People are often, sadly, disappointed shortly after the case has ended and the reality sets in that things won't ever be "over," as long as both the parents are alive. Additionally, many studies have shown that often parents that do not get along well before custody litigation, actually get along even worse after the judicial decision and things often escalate because of the win-lose situation that litigation creates and fosters.

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