Welcome and thank you for visiting this page. Whether you are looking to hire a lawyer or not, we hope that you will find our Maryland Family Law Library useful in your quest for information about Maryland Family Law. There are many well written law books in Maryland that contain this information, and more, but we have done our best to boil the information down, in plain english, for people like to you use however you see fit. You should not consider this information as “legal advice.” Hopefully, however, it will answer some of your questions and help with what whatever situation you find yourself in. If you have any questions or are looking to hire a Maryland family law, divorce, custody or support lawyer, call us today or fill out one of our contact form and we will help you with whatever you need.
Most of the laws in Maryland that pertain to Family Law, Divorce, Custody, Child Support, Protective Orders, Agreements, etc., are contained in the Maryland Family Law Article of the Maryland Annotated Code. If you google Maryland Annotated Code Family Law, you will find a few sites that provide completely free access to the code. What follows, however, is a description of what we see the most in every day practice of family law and divorce in Maryland.
Remember that all of this information on this website applies to Maryland, not other states. All states have different laws regarding divorce and family law, so if you are seeking information about any state other than Maryland, the information on this site will not be helpful.
Generally, you have to be a resident of the state of Maryland for at least one (1) year before you can file for an absolute divorce.
A divorce decree is called a Judgement of Absolute Divorce. A Judgement of Absolute Divorce is a final divorce. Once you obtain a Judgement of Absolute Divorce, all issues are resolved and, except for custody, visitation, child support and in some cases alimony, nothing can be modified. Once you receive a Judgement of Absolute Divorce, you are permitted to marry again. You are permitted to return to the use of your maiden name only upon a Judgement of Absolute Divorce. The actual date of a Judgement of Absolute Divorce is not the date that the Judge signs the order, it is the date that the Clerk of the Circuit Court where you obtain your divorce stamps the Judgement of Absolute Divorce. All divorces are filed in the Circuit Court for the county in which you or your spouse reside. If you live in different counties, you can file in either county.
We have seven grounds for obtaining a Judgement of Absolute Divorce. You may not obtain a Judgement of Absolute Divorce without satisfying one of the following grounds. You must file with the Circuit Court and you must have a hearing, it cannot all be done with paperwork alone. At the hearing, you must have a third person witness to testify that the grounds that you are asserting are true.
The most popular ground for divorce in Maryland is a 12-month separation, where it must be proven that the parties have lived separate and apart without cohabitation for 12 months without interruption before filing for the divorce. This is the traditional “no-fault” divorce that Maryland adopted a few years ago. It use to be two years for “separation” and one year for “voluntary” separation. Now you don’t have to prove “voluntary.” An issued that is often discussed is the definition of “separation” for purposes of a 12 month separation for divorce. Does separation mean living in separate bedrooms in the same house? No. Does separation mean spending a few nights out of the house and then returning and repeating that for a year? No. Separation means living in separate houses for a full year without sleeping under the same roof at all and without having sexual relations. Do not let any lawyer tell you otherwise. There is very narrow circumstance that you can filed for what we call a Limited Divorce if you are living in separate bedrooms, but again, it is very rare and narrow and in all likelihood does not apply to you. Before taking that route, call us to discuss it in more detail.
Another ground for divorce is adultery. No period of separation is required to file for adultery which means you can file for divorce on this ground even if you are living in the same home. To prove adultery a third person has to come to court to testify that he or she saw the adulterers displaying come type of public affection with the opportunity to commit the adultery. An admission by your spouse alone is not enough. Dirty e-mails sent back and forth saying “that sex was great last night” is not enough. Sounds crazy, but true. That is not to say that the infidelity is not relevant to an issue of custody, or alimony, or property division, it very well might be. It is just difficult to actually prove adultery. Sometimes it is a good idea to hire a private investigator to follow your spouse and catch him or her in the act. That is the best type of evidence and always holds up in court. Adultery cannot be condoned, which means if you catch your spouse committing adultery and then you sleep with your spouse, you might not be able to go forward on that ground. Again, that doesn’t mean it did not happen and it is not relevant to the issues, it still is.
A third ground for a Judgement of Absolute Divorce is desertion, so long as the desertion has continued for 12 months without interruption, that the desertion is deliberate and there is not hope or expectation of a reconciliation. Desertion can be actual or constructive. Actual desertion is one spouse just simply leaving and not coming back without reason or warning. Constructive desertion happens when the person who leaves files for the divorce claiming that the reason for leaving was because the other spouse made their life so miserable they had no choice but to leave.
Two other grounds for obtaining a Judgement of Absolute Divorce is excessively vicious conduct or cruelty of treatment toward the complaining spouse or a minor child of the complaining spouse, if there is no reasonable expectation of reconciliation. As with other grounds these grounds require proof from a third person. This conduct can be proven with evidence of physical assault or continuous verbal and emotional abuse over an extended period of time. One event of pushing a spouse down would not be grounds for excessively vicious conduct or cruelty of treatment. Years of verbal abuse, that can be proven by a third person, might very well fit these grounds.
Other grounds, all of which are used much more infrequently, are 1) insanity, if the insane person has been confined in a mental institution, hospital or other similar institution for at least 3 years before the filing of the divorce and 2) conviction of a felony or misdemeanor in any state or any court of the United States if before the filing of the application for divorce the Defendant has been sentenced to serve at least 3 years or an indeterminate sentence in prison and has served 12 months of the sentence.
We also have what is called a Limited Divorce here in Maryland. It is very confusing and is often misunderstood by litigants, lawyers and even judges. It is likely going to be repealed by our legislature within the next 10 years so it is not worth discussing in detail. It is not a divorce and does not allow you to get remarried. It is simply a vehicle to use in order to get into court before the one year separation is up that is usually necessary in order file for an Absolute Divorce. If you have been separated for less than a year but need immediate relief from the court in the form of custody, alimony or use and possession of a home, you might want to consider filing for a Limited Divorce. Before filing on your own you should call us to discuss it further, it really can get very confusion and often times people waste a lot of time and money pursuing a Limited Divorce when there are other, better alternatives.
The law says this. In granting a decree of Absolute Divorce, the court shall change the name of a party to either the name given to the party at birth or any other former name the party wishes to use if 1) the party took the new name on marriage and no longer wishes to use it and 2) the purpose of the party is not illegal, fraudulent or immoral. It is free and easy to get your maiden name back at the time the Judgement of Absolute Divorce is granted. It is expensive and sometimes difficult to get your name changed back at any other time. So if you are considering it, do it at the time of divorce.
At any point in a divorce proceeding, the court may order either party to pay the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding. Before ordering the payment of such expenses, the court shall consider the financial resources and financial needs of both parties and whether or not there was substantial justification for prosecuting or defending the proceeding. Upon a finding by a Judge that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the Judge of good cause to the contrary, the court SHALL award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding.
There are two types of “custody” in Maryland. There is “legal” custody and there is “physical” custody. They are completely different and often misunderstood by parents who are going through custody battles. People are often more concerned with the label of “full custody” or “joint custody” or “sole custody” when those are just words. They do not mean what people usually think they mean. I will do my best to explain, in a nutshell, what all of these terms mean and how they are handled on a day to day basis in the Court system in Maryland.
First of all, all custody cases, like divorce cases, are filed in the Circuit Court for the county in which you live. Temporary Custody is sometimes addressed in Protective Order cases, which can be filed in the District Court, but that does not happen too often. If there is no issue of domestic violence or abuse, you must either hire a lawyer or go to the clerk’s office at the Circuit Court. Each Circuit Court has forms that you can fill out on your own and some have lawyers/clerks who will help you fill out the paperwork. You will have to pay a filing fee when you file unless you apply for a waiver due to financial considerations.
The overriding concern for any court, anywhere, is what is in the best interests of a child, but the meanings of legal and physical custody are very different.
Legal custody involves the right to make major decisions on behalf of the child. “Major” decisions are, for the most part, those involving medical decisions, educational decisions and religious decisions. If the parents can agree on those issues, there is no reason why they should not have joint legal custody. When parents have joint legal custody they are required and charged with making the important decisions together. That means they notify each other immediately when an important issue comes up and they attempt to reach an agreement. If they cannot reach an agreement on an important issue than they can agree to let a mediator decide or take the matter to court. Rarely do parents disagree on truly major issues in a child’s life. Does the child need an IEP? Should the child take a certain type of medicine? Should the child be raised Catholic or Jewish? If parents cannot agree on those types of issues on a regular basis they should not have joint legal custody. If they can, or think they can once the divorce is final, they should agree on joint legal custody. If the issue of joint legal custody has to go to court, the court will usually decide with the parent who has more time with the child. However, if the court finds that one parent will absolutely not communicate with the other parent they will give legal custody to the other parent. All judges will tell you that communication between parents is essential to a child’s happiness. The better the parents communicate and get along, the happier the child.
Physical custody is clearly the most litigated issue in family law. There are many things that it can be called and often times parents get caught up on the “label” of physical custody rather than concentrating on what is actually best for a child. Please call me every day and they say “I want joint custody.” And I say “what do you mean by that.” And they say “I don’t really know.”
Physical custody can be called primary physical custody or primary residential custody or sole physical custody. They all mean the same thing. They mean that the child spends more time at one parents house than the other, and the parent that has the child more has “primary” or “residential” or “sole” physical custody. Joint physical custody is a 50/50 arrangement, where the child spends equal time at both parents house. That can be week-on, week-off, which is probably the most common form of joint physical custody, or another version of it, what we sometimes call 2-2-5-5, which is usually a “Monday and Tuesday with one parent, Wednesday and Thursday with the other, and the long weekend (Friday through Monday morning) alternates each week.
The best term to use when discussing physical is “access” or in the “in the care of.” The legislature is considering changing the actual terms that we use as many states have so that we can avoid confusion. The question is actually very simple. What schedule is best for the child? When should the child be with one parent and when should the child be with other? It does matter what it is called, it is what it is, and less people fight about labels, the better. When considering what access schedule is in the best interests of a child the Court in Maryland has many factors to consider. It must consider the fitness of the parents, the character of the parents, the relationship between the parent and the child, the preference of the child (to be discussed in more detail below), the age of the child, the distance between the parents houses, the special needs, if any of the child, and any other factor a Judge might consider relevant. It is complicated and simple all at the same time.
The preference of a child is ONE factor for a Judge to deciding a custody case. There is no set age in Maryland that a child has to be in order to express his or her preference, and the Judge is not bound by anything that a child might express. If a very mature 12 year old comes to court and tells the judge his preference and it is based on sound reasoning the judge can go along with if he or she wants to. On the other hand, if a very immature 16 year old comes to court and says she wants to live with one parent because “she gets away with whatever she wants there” then the judge can ignore her. So there are no clear cut answers, which is the way it should be because every child and every family dynamic is different.
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