Divorces in Maryland can be "contested", which requires adversarial proof, or they can be "uncontested" (which are usually based on a mutual and voluntary separation of one year).
All divorces require proof of grounds. If you are filing for divorce, you need to have your grounds before you file. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for the award of legal fees to your spouse. Pending the final divorce you should not do anything to give your spouse any grounds for divorce because it can probably be used against you. In Maryland you cannot be living separate and apart under the same roof. The grounds for an "absolute" or final divorce in Maryland are as follows:
There some defenses to these grounds for divorce. Because the law does not wish to force people to stay married when they’re incompatible, these defenses are often difficult to prove:
Residency. Prior to filing your petition for divorce, you must have resided in Maryland for one year. However, emergency, custody or other matters may be filed in Maryland without regard to this requirement.
Maryland has established a form of legal separation called a "limited divorce. The grounds for a limited divorce are as follows:
A legal separation may have some advantages in certain cases – for example, the spouses can remain on health insurance policies, or reap tax benefits.
In a contested divorce, a case is commenced by filing a "complaint." (The spouse who files is the "plaintiff;" the other spouse is the "defendant.") The complaint states that the plaintiff has lived in Maryland for twelve months immediately prior to the filing of the complaint, as well as stating the date and place of marriage, the name and birth dates of any minor children, and a claim of one of the statutory grounds for divorce. The plaintiff serves (deliver the papers to) the defendant. If a plaintiff can’t personally sere the papers, a court order may be granted to publish the service of process in a newspaper. The defendant files an "answer" admitting or denying the allegations. The defendant may also raise any defenses or file counterclaims.
In an uncontested divorce case, the plaintiff needs to appear in court to testify. The defendant need only appear if it is what he or she wants to do so. You will need to bring a witness with you to testify on your grounds for divorce. You may want us to issue a subpoena to require your witnesses to appear in court. The subpoena helps your witnesses get off work and protects you if they do not appear.
Most likely the next document drawn up in your case will be a proposed Voluntary Separation and Property Settlement Agreement. Divorces usually settle early on in the legal dispute. The separation agreement in Maryland covers the following issues:
If you try to work something out with your spouse yourself, the following are some useful pointers to remember:
If you and your spouse work out something and you make notes, do not sign the notes. This could be considered to be an agreement. If it is not in the correct legal language, you may be bound by something other than what you thought you agreed to.
If you suspect your spouse may have been exposed to the AIDS virus, you must be tested.
Uncontested divorces usually take two to three months, after filing in our experience, and contested divorces can take up to eighteen months. D If you have gone through a contested divorce, and if there is no appeal, your divorce will be final thirty days after the judge signs the final decree.
The Maryland legislature has set out criteria for alimony, child support, and property division.
If temporary alimony cannot bring about rehabilitation, then the court can, in proper circumstances, order alimony on a long-term or indefinite basis. Indefinite alimony is granted less often these days. Technically, husbands can get alimony from wives, but it almost never happens. Alimony is based upon the relative needs and resources of the parties. The legislature set out criteria for the court to consider and they include the following: income from salaries, investments, etc, pension profit-sharing, and retirement plans, education and ability of the parties. as well as opportunities for additional education, length of the marriage, age, physical condition, and mental condition of the two parties, whether or not one of the parties should stay at home with the child of the parties instead of working, separate property a person has, marital property a person has, standard of living the parties enjoyed during the marriage, tangible and intangible contributions such as contributions of a homemaker and the tangible and intangible contributions of one party to the education, age, or increased earning power of the other party, fault of one of the parties (if the court wants to), and tax consequences. If you do not get alimony at the time of the divorce, you cannot get alimony later on. Living with someone after the divorce, regardless of whether you have sex or not, may cause indefinite alimony to be lowered or stopped. Death of one of the persons paying or receiving alimony or marriage of the person receiving alimony will terminate alimony unless the divorce settlement agreement provides otherwise. The court can require a bond or put a lien on property to ensure the payment of alimony or child support.
If you cover your spouse or children on your insurance, do not drop them from the policy at least until the divorce is final. A federal law allows most employees to cover their spouses for up to thirty-six months for a small additional premium. However, the employer must be notified prior to the Final Decree.
The legal standard in deciding who will get custody is what is in the best interest of the children. There are also certain doctrines and presumptions (but not inflexible rules or requirements) which aid the court in determining the best interest of the child:
If there is custody litigation, you must be able to show the judge that the child is better off with you.
In arriving at a fair amount of child support, the court will look at the needs of the children; and the financial assets, earnings, and needs of each parent. Maryland has enacted child support guidelines. These are based on the relative and combined income of the parties, the number of children, and the time spent with the children. You probably will not have to pay more than half of your net income in combined alimony and child support. Net income is total income less taxes and other child support payments. The guidelines provide for an adjustment for health insurance and day care for the children and assume that the non-custodial parent pays for the children during normal visitation. If there are any extraordinary expenses (medical, educational, etc.) then the support could be higher than the guidelines.
Visitation. If the mother and father can agree on visitation, the court will usually approve the plan. A typical pattern is alternating weekends, a few weeks in the summer, and alternating holidays. If the parties are far apart, this pattern will not work. The pattern then calls for fewer but longer visitation periods. If the parties live very far apart, you must deal with who will provide or pay for transportation. The courts encourage visitation (and we do, too) except in very extraordinary circumstances.
You should create new will after a divorce. Even though you are separated, if you were to die your spouse would still inherit unless you have executed a new will providing otherwise. If you have given your spouse a power of attorney, cancel it as soon as possible. Until you do, your spouse has control over your property and can sell it or give it away.