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DIVORCE

Residence Requirements

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In order to get a Maryland divorce, at least one spouse must be a legal resident in the state of Maryland

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If the grounds for divorce occurs in Maryland, the spouse needs to be a Maryland resident at the time you file for divorce

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If the grounds for divorce occurs outside of Maryland, one spouse must have resided in Maryland for at least six-months

Difference Between a Limited Divorce and Absolute Divorce

Limited Divorce​​​

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  • Spouses remain married, but live separate and apart

  • Spouse cannot remarry!

  • A limited divorce may be necessary when neither spouse has a ground for an absolute divorce, one spouse needs financial support or parties have not yet reached a settlement.

  • When ordering a limited divorce, the Maryland Circuit Court can address issues concerning, among others, monetary support, child custody, use and possession of primary residence, health insurance.

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Absolute Divorce​​

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  • Immediately dissolves the marriage

  • Spouses can remarry

  • Resolves issues of, but not limited to, alimony, child support, monetary awards, marital property, child custody. However, parties can later seek a modification of some issue like alimony, child support and custody.

Annulment

--The Court judges a marriage should have never existed.

Void Marriages

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  • Bigamy

  • Incest

  • At the time of the marriage, one of the parties were insane or mentally incompetence

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Voidable Marriages

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  • One party incapable of sexual relations

  • One party consented to a marriage by fraud, duress or force marriage was performed by someone who was not authorized

  • One or both parties were under the age of 18, unless At least 16 with parental consent to marry

  • Parental consent or doctor’s certificate of pregnancy

Grounds for a Maryland Absolute Divorce

No-fault 

  • At least a 12-month voluntary separation living apart in different residences

  • No cohabitation or sexual relations during the voluntary separation period

  • No possibility for a marital reconciliation

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Fault—the burden proof is preponderance of evidence Adultery

  • The accusing spouse must prove disposition (public display of affection) and opportunity

  • The accusing spouse cannot condone the adulterous behavior

  • Immediate grounds for divorce with no waiting period

    Actual Destruction

  • Deliberate abandonment

  • No reasonable expectation of success

  • Desertion has continued for 12-months without interruption before filing the Complaint for absolute divorce

    Constructive Destruction

  • There is conduct by one spouse that renders impossible a continuation of the marital cohabitation by the other spouse with safety, health, and self-respect.

  • Physical abuse by one spouse deserves additional and separate consideration.

    Cruelty/Excessively vicious conduct

  • Similar to constructive destruction particularly where the conduct of a spouse affects the safety, health and self-respect of the other spouse.

  • Particularly of use in domestic violence situations

  • No 12-month period before filing the Complaint

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Insanity

  • The insane spouse has been confined in a mental institution, hospital, or other similar institution for at least 3 years before the filing of the Complaint

  • The court determines from the testimony of at least 2 physicians who are competent in psychiatry that the insanity is incurable and there is no hope of recovery

  • One of the parties has been a resident of Maryland for at least 2 years before the filing of Complaint.

  • Only an absolute divorce may be granted on the ground of insanity.

    Imprisonment

  • Conviction of a crime

  • Jail sentence of over three years

  • Imprisonment of at least one-year before filing of Complaint

    Mutual Consent

  • Only for parties seeking an absolute divorce

  • The parties must submit to the court a written statement agreement signed by both parties that resolves all contested issues between the parties including issues relating to:

    • Alimony;

    • Distribution of property

    • If parties have minor children, a child custody agreement written in the best interest of the child standard

    • Child support based on the current child support guidelines

    • Neither part files a pleading to set aside the settlement agreement prior to the divorce hearing required under Maryland Court Rules

    • Both parties appear before the court at the absolute divorce.

Army Soldiers At Parade

Military Divorce

A military divorce is very challenging and a spouse seeking a divorce where at least one party is a service member should contact the Law Office of Robert D. Harlan LLC or another attorney conversant with military divorces.

 

Important questions when contemplating a military divorce:

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(1) How do you plan to serve process on the service member with Complaint and Summons?

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(2) Where is the service member domiciled? What is the 20/20/20 rule? . . . 20 years of creditable military service, 20 years of marriage and 20 years of overlap between the service members military service and years of marriage.

Alimony

Alimony awards are very fact specific. There are three types of alimony in Maryland: (1) temporary, (2) rehabilitative and (3) indefinite. Each party must submit a long financial form.

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A Summary of Elements of Maryland’s Alimony Statute

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  • Alimony should be awarded based on periodic payment for support and maintenance

  • The purpose of alimony is to make the dependent spouse self-supporting

  • Alimony may include costs for training and education to make the dependent spouse self-supporting

  • Alimony can be awarded from the filing date of the pleading requesting alimony

  • Alimony terminates on the death of either spouse or the remarriage of the recipient

  • Statutory factors must be considered in awarding alimony

  • The ability of the party seeking alimony to be wholly or partly self-supporting

  • The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment

  • The standard of living that the parties established during their marriage

  • The duration of the marriage

  • The contributions, monetary and nonmonetary, of each party to the well-being of the family

  • The circumstances that contributed to the estrangement of the parties

  • The age of each party

  • The physical and mental condition of each party

  • The ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony

  • The financial needs and financial resources of each party

  • Any (pre-nuptial) agreement between the parties

  • The application of the statutory factors determines whether, how much, and how long alimony should be paid

  • No factor is legally more important than another, although one or more factors may be factually most important in a case

  • The law favors rehabilitative alimony over indefinite alimony and 

  • Indefinite (permanent) alimony can only be awarded if additional criteria are met.

Monetary Award

Each party must submit a Md. Rule 9-207 Joint Statement of Marital and Non-Marital Property

The 3 steps in determining a monetary award

    Step 1: Is the property marital?

    Step 2: What is the value of the property?

    Step 3: Application of Statutory Factors

 

Statutory Factors for Determining a Monetary Award

  • The contributions, monetary and nonmonetary, of each party to the well-being of the family.

  • The value of all property interests, both marital and non-marital, of each party.

  • The economic circumstances of each party at the time the award is to be made.

  • The circumstances that contributed to the estrangement of the parties

  • The duration of the marriage

  • The age of each party

  • The physical and mental condition of each party

  • How and when specific marital property or interest in property was acquired, including the effort expended by each party in accumulating the marital property or the interest in property

  • The contribution by either party to the acquisition of real property held by the parties as tenants by the entirety

  • Any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home

  • Any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property.  

Use and Possession

Legislative Policy and the Statues

 

The legislature granted the courts the power to award certain “limited” property rights to one spouse, even though the other spouse may have sole title to the property.

 

Md. Code Ann., Fam. Law §8–206:

The court shall exercise its powers under §§ 8-207 through 8-213 of this subtitle:

(1)   to enable any child of the family to continue to live in the environment and community that are familiar to the child; and

(2)   to provide for the continued occupancy of the family home and possession and use of family use personal property by a party with custody of a child who has a need to live in that home.

 

Family home is property in Maryland that: (i) was used as the principal residence of the parties when they lived together; (ii) is owned or leased by 1 or both of the parties at the time of the proceeding; and (iii) is being used or will be used as a principal residence by 1 or both of the parties and a child.

 

Family use personal property means tangible personal property: (i) acquired during the marriage; (ii) owned by 1 or both of the parties; and (iii) used primarily for family purposes. It includes motor vehicles, furniture, furnishing and household appliances.

 

Md. Code Ann., Fam. Law §8–207:

(a)   In a proceeding for an annulment or a limited or absolute divorce, the court may determine which property is the family home and family use personal property:

(1)   before the court grants an annulment or a limited or absolute divorce; or

(2)   when the court grants an annulment or a limited or absolute divorce.

(b)   A preliminary or pendente lite determination is subject to modification during the pendency of the proceeding.

(c)   If the court determines that there is no need for an order or decree issued under this section regarding the family home or all or any part of family use personal property, the property shall be treated as marital property if it otherwise would have been treated as marital property.

 

Md. Code Ann., Fam. Law §8–208:

(a)    (1)   When the court grants an annulment or a limited or absolute divorce, regardless of how the family home or family use personal property is titled, owned, or leased, the court may:

(i)   decide that 1 of the parties shall have the sole possession and use of that property; or

(ii)   divide the possession and use of the property between the parties.

(2)   The court may exercise these powers pendente lite.

(b)   In awarding the possession and use of the family home and family use personal property, the court shall consider each of the following factors:

(1)   the best interests of any child;

(2)   the interest of each party in continuing:

(i)   to use the family use personal property or any part of it, or to occupy or use the family home or any part of it as a dwelling place; or

(ii)   to use the family use personal property or any part of it, or to occupy or use the family home or any part of it for the production of income; and

(3)   any hardship imposed on the party whose interest in the family home or family use personal property is infringed on by an order issued under §§ 8-207 through 8-213 of this subtitle.

(c)   The court may order or decree that either or both of the parties pay all or any part of:

(1)   any mortgage payments or rent;

(2)   any indebtedness that is related to the property;

(3)   the cost of maintenance, insurance, assessments, and taxes; or

(4)   any similar expenses in connection with the property.

(d)   An order giving a party the sole possession and use of the family home under subsection (a) of this section does not affect the right of the other party to claim the family home as that party’s principal residence for tax purposes.

 

Md. Code Ann., Fam. Law §8–209:

In a temporary or final order or decree, each provision that concerns the family home or family use personal property is subject, as the circumstances and justice may require, to:

 (1)   the terms and conditions that the court sets;

(2)   the time limits that the court sets, subject to § 8-210 of this subtitle; and

(3)   modification or dissolution by the court.

 

Md. Code Ann., Fam. Law §8–210:

(a)        (1)   In any order or decree, or any modification of an order or decree, a provision that concerns the family home or family use personal property shall terminate no later than 3 years after the date on which the court grants an annulment or a limited or absolute divorce.

(2)   The 3-year limitation set out in paragraph (1) of this subsection applies to a limited divorce notwithstanding the subsequent granting of an absolute divorce.

(b)   Subject to the provisions of subsection (a) of this section, in any order or decree, or any modification of an order or decree, a provision that concerns the family home or family use personal property shall terminate when the party with the possession or use of the property remarries.

(c)   When a provision that concerns the family home or family use personal property terminates, the court shall treat the property as marital property if the property qualifies as marital property, and adjust the equities and rights of the parties concerning the property as set out in § 8-205 of this subtitle.

 

Md. Code Ann., Fam. Law §8–211:

An order, award, or decree under §§ 8-207 through 8-209 of this subtitle may not be considered as evidence of constructive desertion.

 

The first appellate decision dealing with the award of use and possession of marital/family home was Pitzenberger v. Pitzenberg 287 Md. 20 (1980). Because the main purpose of the use and possession statutes is protection of the children’s interest, the children must be permitted to reside in the family home regardless of the existence of probable grounds for a divorce. Because his children have the use of the family home and family use personal property, John is in fact using his property to properly house his children. John therefore has not been deprived of all beneficial use of his property.

Payment during Use and Possession Period

 

8-208 (c) permits the court to allocate the financial responsibilities of the parties when a use and possession award has been made. In addition to any award of child support and/or alimony, the trial court may order the noncustodial spouse to contribute to the mortgage payments on the family home, insurance and taxes. When granting use and possession and ordering a spouse to make the mortgage, tax and insurance payments, the court should not make an award so harsh as to make compliance impossible.

For the Benefit of Children

 

The legislative intent in enacting the use and possession statute was to enable the child or children of the family to live in a community or environment familiar to them. If one spouse is to be temporarily deprive of his or her interest in the family abode this is to occur as a result of an obligation he or she owes to the children of the family, and nothing else.

For Children

 

Strawhorn v. Strawhorn, 49 Md. App. 649 (1981) affirmed the trial court’s award of exclusive use and possession of the family home to the wife, whose minor child from her prior marriage (step-children) resided with her. The cardinal rule of statutory construction is to effectuate the actual legislative intent. Related cases: Bledsoe v. Bledsoe, 294 Md. 183 (1982) & John O v. Jane O., 90 Md. App. 406 (1992).

When an Award is Appropriate

 

Kennedy v. Kennedy, 55 Md. App. 299 (1983). The trial court awarded custody of the parties’ daughter to the wife and custody of their two sons to the husband. Additionally, the wife was granted use and possession for the family home for three years. The statute clearly confers authority for the award to “a spouse with custody of a minor child who has a need to live in that home.” There can be no doubt that the word “who” in the statute refers to the minor child, and not the spouse. 

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