Separation & Divorce

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 will influence the entire family, especially the children, for years to come.

For most people, conflict is frightening and stressful. Conflict can, however, result in the productive airing of differences and 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 pain, it is possible for people to negotiate an agreement which balances the interests of each family member.

Before attempting to reach an agreement, however, it is important to have a basic understanding of the law in this area.

Significant changes to Maryland Divorce Law went into effect on October 1, 2023. The new laws repeal the entire section of the Maryland Code that permits an individual to obtain a limited divorce and alters the grounds for absolute divorce.

Uncontested Divorce

Under the new law, couples seeking a divorce in Maryland will no longer have to prove fault or wrongdoing by one party to obtain a divorce. Instead, they will only need to show that their marriage is irretrievably broken and that there is no hope for reconciliation. This means that divorce proceedings will be streamlined and simplified, making it easier and less expensive for couples to end their marriages. The new law expedites the divorce process as it eliminates the need for the parties to separate for a year. In fact, they can be divorced while living in the same house, which previously had been an important economic and practical barrier to divorce.

A no fault divorce can be requested by one or both spouses. Neither of them are required to list a particular reason (or fault) as to why they want a divorce. No fault divorces are absolute. Once the divorce has been granted, the marriage will be effectively terminated. Couples cannot decide to change their mind later. However, they may opt to remarry one another at some point in the future (it happens).

No-fault divorce has been a topic of debate for many years, with advocates arguing that it is a fair and equitable way to dissolve a marriage, while others argue that it undermines the sanctity of marriage and makes it too easy for couples to give up on their relationships. However, the trend towards no-fault divorce has been steadily increasing in the United States, with many states already having adopted it.

Maryland’s decision to become a no-fault divorce state reflects this trend and brings it in line with most states in the country. This new law will provide a more efficient and less contentious divorce process, reducing the need for costly litigation and enabling couples to move on with their lives more quickly.

One of the most significant benefits of no-fault divorce is that it reduces the emotional toll on both parties. Traditional fault-based divorce requires one party to prove that the other party is responsible for the breakdown of the marriage. This can be a painful and humiliating process and can often result in bitterness and resentment between the parties. No-fault divorce eliminates this aspect of the divorce process, allowing couples to focus on the practical aspects of separating their lives.

Another benefit of no-fault divorce is that it is almost always less expensive and time-consuming than traditional fault-based divorce. In a fault-based divorce, both parties may need to hire attorneys, obtain evidence, and attend court hearings to prove their case. This can be a lengthy and expensive process; and costs mount quickly. No-fault divorce simplifies this process, reducing the need for extensive legal proceedings and thus saving both parties time and money. However, it is important to note that no-fault divorce does not mean that fault is completely irrelevant in divorce proceedings. Fault can still be considered in certain situations, such as when determining child custody or spousal support. Additionally, if one party has committed a serious offense such as domestic violence or infidelity, this may still be “considered” by the court.

Overall, Maryland’s decision to become a no-fault divorce state is a positive development that will benefit couples seeking to end their marriages and move on with their lives.

Mutual Consent (Uncontested Divorce)

Mutual consent is one of the most common reasons why people ask for a no-fault divorce. In this situation, both parties agree (or consent) to getting divorced. No waiting period is required for a mutual consent no fault divorce. Partners can be living in the same house and ask for this type of divorce if they want.

Mutual consent is currently a ground for divorce and is perhaps the quickest and least expensive way to divorce.

You’ll need a few things prior to requesting a mutual consent no fault divorce. They are as follows:

1. A child support guidelines worksheet if you have children together. This worksheet should be completed and include a child access schedule. It should also clearly state who will be responsible for paying child support if required, according to the marital settlement agreement.
2. A marital settlement agreement. This agreement should specify child support, the division of marital assets (real estate, vehicles, personal property, etc.) childcare, child access and alimony (if appropriate).

Both parties should agree to the above arrangements before the divorce proceedings begin. Ultimately, at the uncontested hearing the judge will evaluate this information to determine if the agreement(s) are in the best interests of any affected children and to ensure that one spouse does not have an unfair advantage over the other.

What is the residency requirement for a no-fault divorce?

One of the spouses must be a resident of the state of Maryland at the time of the request. Both parties can live in Maryland if they so choose. If the reason or grounds for divorce happened in Maryland, then the person asking for the divorce is the only person who needs to be a current Maryland resident. If the grounds happened outside of Maryland, one or both parties must have been living in the state of Maryland for at least 6 months before the divorce request was made.

What do I need to prove for a no-fault divorce?

You’ll need to verify that you and your former partner have either been voluntarily separated for at least 12 consecutive months or involuntarily separated for a minimum of 2 years. Each person will need to live in a separate residence. They are not allowed to engage in sexual intimacy with one another during that time.

How long do I need to wait before asking for a no-fault divorce?

If a couple wants to file for an absolute no-fault divorce, they will be required to have been separated from one another for at least a year before making that request. There cannot be any interruptions during that time. Partners are not allowed to live with or engage in sexual conduct with one another before asking for a divorce.

Will my divorce request be approved?

The judge presiding over the case will use all information that is presented in deciding. Some judges have been known to rule in favor of the plaintiff if the defendant does not appear for the proceedings or has no issues with the information that is presented by the plaintiff’s side. A judge may be more likely to grant a divorce if both parties have mutually consented to seek a divorce and have no objections to the testimony that the other side has presented in court.

What’s in it for you and what’s in it for me and why I joined the Amicable Divorce Network as soon as I learned about it.

It is a fact of life that some people are more difficult than others to deal with; lawyers can be worse. Nothing can drive up fees and costs, delay results, and make life miserable for all concerned than opposing counsel who is known as…

The methods utilized are civilized, transparent, and a cost-effective alternative to adversarial divorce litigation. Members are vetted to ensure that they are leading, solution-oriented experts, committed to an amicable approach to divorce. If you are a jerk, you will not be permitted to join the network. This ensures that the solution oriented and cost-effective deck will be stacked in your favor.

Your selection of an Amicable Divorce lawyer provides you with expert advice and guidance without traditional, destructive, and costly litigation. The Amicable Divorce structured approach empowers reasonable people to reach an informed settlement while preserving privacy, sanity, money, and hard-earned assets.

Contested Divorce Actions

Litigation:

Basically, this is the “see you in court” stance and is the most expensive, time consuming and unpredictable way to do it. This position generally causes the most damage, especially when there are children involved. There is often this ill-fated notion that a judge will listen to your side of the story, and you will be happy ever after. It just does not work that way. By the way, how long does it take to get before a judge? What will life be like in the interim? Typically, parents who did not get along before court get along even worse after court.

What are grounds for divorce?

Grounds for divorce are the reasons a person is seeking the end of their marriage. One or more reasons may be supplied by one or both parties. A reason is not necessary unless the petitioner is seeking an absolute divorce (which will terminate a marriage).

What are the common grounds for divorce and how can they be proven?

The primary contested reasons (or grounds) that people used to give when filing for divorce are listed below, along with the elements of proof that were used in the past during divorce proceedings:

1. OLD LAW [REPEALED] Adultery. Adultery occurs when one spouse engages in a relationship with another person or other sexual activity with another person while still being married. An individual who claims that their partner committed adultery doesn’t need to prove that sexual intercourse happened with someone else. They just need to prove that their spouse had the opportunity and a high possibility of committing adultery with one or more people outside of the marriage. This is usually easier said than done. There must be enough witness testimony and/or evidence to support the adultery claim.
2. OLD LAW [REPEALED] Cruelty or excessively vicious conduct with a spouse or minor child living in the home. Vicious or cruel conduct toward a child or parent cannot be a one-time event. Isolated incidents may also be difficult to prove. A repeated pattern of behavior should be shown if this reason is given for seeking a divorce. Hospital records, 911 call transcripts and photos of any visible bruises, scars or other injuries that were suffered at the hands of the spouse in question may be necessary to confirm that the person’s actions or behaviors were enough to put their child or spouse in fear of harm to themselves or others that they know.
3. OLD LAW [REPEALED] Conviction of a misdemeanor or felony. Felony or misdemeanor convictions are easier to verify in a court of law because those convictions are considered public records. Anyone in the state of Maryland can view that information online if they so choose. The Maryland Public Information Act makes that data available, unless certain laws restrict the dissemination of those details. The nature, severity and type of crime that was committed can affect the outcome of the divorce case.
4. OLD LAW [REPEALED] Desertion. Desertion can be used as grounds for divorce if the petitioner was deserted for a year or more. The desertion must have been intentional and may have happened without advance warning or notice. Partners are not allowed to engage in sexual intercourse with one another or live together during desertion. Desertion must have been for 12 uninterrupted months or more before it can be used as a valid divorce reason. The person who was abandoned can’t claim desertion if their partner returned to the marital home after a few weeks or months.
5. OLD LAW [REPEALED] Insanity. Insanity can be proven if the spouse that divorce was filed against was committed to a mental hospital or other similar institution for at least three years or more before the petition was filed. A doctor or physician may be called to verify this diagnosis or testify on the plaintiff’s behalf in those instances. The judge will listen to their information and may ask them if that person can understand the terms of the marriage agreement or if they are capable of working and providing for any children they may have had during the marriage.
6. Involuntary separation. A partner may have been involuntarily separated from their spouse. Their partner may have decided to move out because of irreconcilable differences, a need to move closer to their job or family members or for other reasons. In those instances, the plaintiff must confirm that they did not consent to the separation in any way. Spouses must be separated for a minimum of OLD LAW [REPEALED] 12 consecutive months before separation can be considered as grounds for a divorce.
7. Voluntary separation. There may be occasions in which both partners decide that separating from each other is the best course of action. One or both people may leave the marital home if they want. The best interests of any minor children that the couple may have had are usually taken into consideration in those situations. In any separation, partners cannot live in the same home or continue to have sexual intercourse with each other.

New: The above grounds for absolute divorce have been superseded and replaced with the following:

• 6-month separation if the parties have lived separate and apart for 6 months without interruption before the filing of the application for divorce even if the parties are living under the same roof or if separation is in accordance with a court order;
• Irreconcilable difference based on the reasons stated by the complainant for the permanent termination of the marriage. Parties who have pursued separate lives must be deemed to have lived separate and apart for purposes of the ground of six-month separation even if the parties reside under the same roof or the separation is in accordance with a court order; or
• In permanent legal incapacity of a party who permanently lacks the capacity to make decisions.
• Mutual Consent remains from prior law and is still a viable cause of action under Maryland’s divorce laws, if there is a signed settlement agreement resolving all issues.

New: CHILD ABDUCTION LAW

Under this new law, child abduction has been redefined as the “wrongful retention of a child.” A wrongful removal or wrongful retention occurs when the taking or retention of a child breaches another’s custody or visitation rights. The court will have the authority to order child abduction prevention measures if it finds there is a credible risk of abduction of the child, including allowing a prosecutor to seek a warrant to take physical custody of a child. The law specifies factors the court must consider in deciding whether a child’s risk of abduction is credible. If the court passes an abduction prevention order, the order can include travel restrictions to the offending party, prohibiting the party from removing the child from school or daycare, and placing the child’s name in the U.S. Department of State’s child passport issuance alert program, among other remedies.

This law is a huge step forward toward the safety of Maryland’s children. However, anyone who files a petition under this law in bad faith will be subject to the other party’s legal fees.

Annotated Code of Maryland, Family Law Article Section 9.5-101

New: CHILD RELOCATION

While not quite an abduction, the threat of one parent relocating a child is still anxiety-inducing to the other parent. This law requires the court to schedule an expedited hearing if a parent proposes relocating a child that would “significantly interfere” with the other parent’s predetermined parenting time schedule. Prior to this new law, a parent had to rely on an emergency filing (alleging threat of harm to the child) to obtain an expedited hearing, which is a high bar to clear, and those petitions were often denied. Now, a proposed relocation will get a quick hearing to get the matter addressed. This will be a very helpful law for parents who are concerned that the other side will pick up and move the children without any recourse.

Annotated Code of Maryland, Family Law Article Section 9-106

Because the law is so complex and ever changing, it is important to seek legal advice immediately when any questions about separation, divorce or child access issues arise. Although Maryland’s new Divorce Laws have been simplified in letter and spirit, they will undoubtedly create a myriad of issues for both clients, attorneys, and judges. Many of these challenges will be foreseeable by the legal profession and many will come to light in practice and procedure.

Keep in mind that laws differ dramatically by state. Maryland has a specific set of statutes that govern the process for separation and divorce. Navigating these waters on your own can be costly, and we’re not just talking about money. We take great care in assisting our clients in returning to a sense of normalcy as quickly as possible and in a manner that takes the importance of quality of life into account and one’s desire to move forward in a productive and positive fashion. While money is important, wouldn’t you agree that peace of mind is often priceless? We can help.

Family law issues are highly emotional and often we see otherwise good people at their very worst. Mike Mastracci has personally lived through such times and really knows how you feel. Being a superior Family law lawyer is about far more than providing good legal advice; practical experience and knowledge of suitable resources can also go a long way in helping you during these difficult times.

Especially when children are involved, it’s imperative that you know your rights and the rights of your spouse. During our initial consultation Family Law attorney, Mike Mastracci, will walk through the process with you so you’ll know what to expect moving forward. You should never make any life-changing decisions before first consulting and securing a lawyer.

Collaborative Family Law

For the best explanation go to www.collaborativepractice.com. In short, each party hires a collaboratively trained-attorney and everyone signs a collaborative participation agreement and pledges to attempt to settle the case without going to court. They engage in ongoing scheduled meetings to resolve issues. If the process should break down, neither collaborative attorney can continue to represent his or her client in court. Learn why this is a good thing and the linchpin of the collaborative process. See the collaborative law page on this website for more information.

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. All the initial time and effort should be place in reaching a complete and comprehensive settlement agreement with parenting provisions if there are minor children.

Contrary to popular opinion there is no such thing as “a legal separation” in Maryland. There is no “filing for” a legal separation in Maryland. If, however you are separated from your spouse, it is most advantageous to reach a written marital property and settlement agreement containing applicable provisions for child custody, visitation, and child support. If you can reach an agreement on all issues after you have been mutually and voluntarily separated for one year, you can file for an uncontested divorce and simply have your separation agreement incorporated into your divorce decree.

If for any reason either party alleges that it is not a mutual or voluntary separation, after two years, either party can file for divorce over the objection of the other party. There are other grounds for divorce that have different time limits such as adultery, desertion, and cruelty of treatment. This is a relatively recent change in the law, from two years to one year. You should consult your attorney about the time limits, rights, and responsibilities under these various forms of separation.

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
• 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.

We can help with questions about enforcement as well. We work with the Maryland Child Support Enforcement Program to ensure that both parties are living up to their collective bargains.

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.

Do I need to get divorced if I’m separated from my spouse?

Legal separation is not currently recognized in the state of Maryland as of this writing. You may separate from your partner by living somewhere else. If both people live in different homes and do not engage in sexual conduct with one another for an extended period, they may be separated. Separation may be used as a ground for divorce later.

Annulment is requested when there are reasons for one or both parties to believe that the marriage never should have existed in the first place. There may have been reasons why the marriage may be invalid. Some of the typical grounds for annulments are:

• One spouse was already married to someone else at the time.
• A person was under duress or coerced to marry the other. The coercion in question must have existed at the time of the marriage ceremony.
• At least one person in the marriage was not mentally able to understand or enter a marriage.
• The parties are related to each other on greater than a first cousin basis.
• A person was defrauded by the other in efforts to get married to one another. The fraud must be directly related to the marriage. If fraud was detected, the person who was conned cannot keep living with the other person after the fraud was identified. Continuing to live with that person after that detection will effectively waive the fraud ground.
• At least one spouse is under 18 years old. Exceptions to this rule are if the underage person had parental consent, is pregnant and 15 years old or if parental consent was granted to the underage person who is 16 or 17 years old.

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 decide calmly and rationally 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 a snapshot “performance” by 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 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 people do not understand.

In the vast majority of cases, when people turn to the courts to decide child custody visitation rights 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.

Here at the Law Offices of Michael Mastracci, we work with you and your partner to first attempt to settle all matters out of court, to come to an amiable agreement that both side can live with and is in the best interest of the child(ren).

Child Custody and Visitation (Child Access)

Custody and visitation litigation should generally be an absolute last resort. People are often disappointed when reality sets in and they realize that it will never 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 get along even worse after the initial judicial decision. Matters often escalate because of the win-lose settings that litigation creates and fosters.