Maryland Family Law FAQ
Q: I am faced with the possibility of a divorce. What should I do?
A: In addition to getting proper emotional support from a professional or pastoral counselor, it’s best to speak with an attorney as early in the process as possible in order to understand the practical and legal ramifications of separation and divorce. Attorneys act as counselors at law to provide information and advice in this regard, and where necessary, legal representation in negotiations or court proceedings.
Q: Does my divorce have to go to trial and be decided by a judge?
A: While ultimately a judge will have to award the final divorce, the issues that arise in divorce are settled through cooperative negotiations and agreements. Matters of child custody, child support, spousal support or alimony, and property disposition are all capable of resolution by negotiated agreement. These agreements can be the result of negotiations between the parties themselves, attorney negotiations, mediation or collaborative practice.
Q: I have been told that I need a legal separation – what does that mean?
A: Reference to a legal separation usually means a separation formalized by either a written separation agreement or an order of “limited divorce” by a court. The effect is generally the same – to legalize the separation and provide for support where warranted. A final - or “absolute” – divorce is permanent, permits remarriage, and terminates property claims.
Q: I have been told that I have to have grounds to get a divorce. What does that mean?
A: In Maryland, a court must have a legally cognizable basis to award a final, or “absolute,” divorce. The no-fault grounds for divorce in Maryland are a) one year’s uninterrupted separation, without the parties living together or having sexual relations for an entire year; or b) the mutual consent of the parties. The ground of mutual consent requires no waiting period but a written settlement agreement resolving all issues related to alimony, distribution of property, and the care, custody, access and support of minor children.
Q: My spouse and I still live together in the same residence. Can we start the clock ticking for a no-fault divorce?
A: No. There is no no-fault ground for divorce in Maryland that permits spouses to move toward divorce while still living together.
Q: What is a collaborative divorce?
A: A collaborative divorce is a new way to engage more peacefully in finding solutions to divorce, alimony and property division, and matters of child custody. In a collaborative case, specially-trained attorneys are retained to negotiate an agreement in a series of real-time meetings and discussions between the parties, the attorneys, and other collaborative-team members like financial neutrals or child development specialists. It’s a more respectful alternative to litigation with many benefits, including increased satisfaction, greater creativity, and better modeling for future resolutions. As a disincentive to giving up on the negotiations, the parties agree that the collaborative attorneys they use are precluded from representing the parties in litigation. More about collaborative divorce can be found at www.collaborativepractice.com. Brian A. Kane, Esq. has been qualified in collaborative practice since 2007. If you’re interested in a collaborative solution, please call us to schedule a consultation.
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Q: What is the impact of separation and/or divorce on children?
A: Research indicates that children of separation and divorce can fare just as well as children of intact homes; however, the level of conflict between the parents is the foremost indicator of how separation/divorce will affect a child. Separating parents should do everything in their power to resolve conflicts in peaceful and productive ways. By doing so, they create a positive environment for the child’s development and model good methods of communication and dispute resolution.
Q: What is the difference between legal custody and physical custody?
A: Legal custody refers to the right to make joint decisions regarding major issues affecting a child, including those related to education, medical treatment, religious upbringing and general welfare. Physical custody refers to the residence and whereabouts of the child at any given time, and incorporates the concept of “visitation.”
Q: Is joint legal custody a good approach to a custodial arrangement?
A: It is if you and the other parent can communicate well enough to reach shared decisions, or if you can agree how responsibility for certain kinds of decisions should be allocated between you. Neither parent in a joint legal custody arrangement has rights superior to the other. A parent may typically not simply make a decision and then inform the other parent. However, parents may agree to allocate certain categories of decisions to one parent; for example, one parent could be charged with making medical decisions and the other with making educational decisions. Parents have great flexibility in allocating parenting responsibilities and decision-making authority in the context of a written parenting plan agreement.
Q: What is meant by shared physical custody?
A: Shared physical custody typically refers to an arrangement where the child or children spend substantial amounts of time in each parent’s household. It is generally differentiated from “visitation,” where a child spends relatively little time with one parent, say, every other weekend. Shared physical custody can be any schedule up to equal time with each parent. The possible schedules and related arrangements are infinite.
Q: What is a “parenting plan”?
A: “Parenting plan” is a relatively new term for a comprehensive approach to child custody and co-parenting after separation or divorce. A parenting plan agreement is a written document (an agreement or court order) that sets forth in detail the child’s timesharing arrangement with each parent – weekdays, weekends, summers and holidays – as well as guidelines and principles for the parties in rearing their child. For instance, it may address choice of schools and medical care personnel, child care providers acceptable to the parties, participation in extracurricular activities and how related costs are shared, and any special needs of a child. The plan can go into as much detail as the parties think useful and can, and should, include specifics of how the parties wish to resolve disputes that may arise without the need for turning to the court system.
Q: What’s considered by a court in a child custody case?
The controlling principle is the best interests of the child. Factors to be considered in determining those interests can include but are not limited to:
- the fitness of each parent;
- the character and reputation of the parties;
- the desire of the natural parents and the content of any agreement between them;
- the potentiality of maintaining natural family relations;
- the preference of the child;
- any material opportunities affecting the child;
- the age, health and sex of the child;
- the suitability of the residence(s) of the parents;
- the length of any separation from parents;
- the effect of any prior voluntary abandonment or surrender of custody of the child;
- the capacity of the parents to communicate and reach shared decisions affecting the child's welfare;
- the willingness of each parent to share custody;
- the psychological fitness of each parent;
- the strength of relationship between the child and each parent;
- the potential disruption of child's social life;
- the geographic proximity of parents' homes;
- the demands of parental employment;
- the age and number of children involved;
- the sincerity of a parent's request;
- the financial status of the parents;
- any impact on state or federal assistance;
- the benefit to the parents;
- any other relevant factors.
Q: I think that the Court needs to hear from my child in my custody/visitation case; will the Judge or Family Law Magistrate hear from my child?
A: Calling a child as a witness in a custody or visitation case is typically to be avoided, because it can be traumatizing to the child and is usually a poor legal strategy. If you believe your child has information only he or she can give the Court, then you should talk in depth with your attorney about it. If the two of you agree that there will be distinct value to the Court in hearing from the child, then the request can be made. On occasion, but not routinely, a Judge or Magistrate may agree to hear from a child in court or “in chambers” – meaning in the Judge’s or Magistrate’s office. In this case, have your child available “on call,” within a few minutes, rather than in the courtroom or outside in the hall. Do not talk to your child about the substance of his or her testimony beforehand – doing so can be gravely detrimental to the child and your case; merely tell the child that the Judge is genuinely interested in the child’s well-being and that the child should be honest, forthright and respectful.
Q: I would like to relocate a significant distance or out-of-state with my child, but I’m not sure his other parent will agree. Is this possible?
A: Yes, but relocation with children is a complicated issue. The other party has the right to object to the children’s move. Advance notice to the other parent is sometimes required by law or court order. Assuming the reason for your move is a good-faith one, such as an employment transfer or new employment opportunity, the need to be closer to family support, or another good reason, the focus will be on the best interests of the child. The courts weigh heavily the principles of constancy and consistency for children, all other factors being equal. Factors often considered in relocation cases can include:
- the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the non relocating person, siblings, and other significant persons in the child’s life;
- the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
- the feasibility of preserving the relationship between the non- relocating person and the child through suitable arrangements, considering the logistics and financial circumstances of the parties;
- the child’s preference, taking into consideration the age and maturity of the child;
- whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating person;
- whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to, financial or emotional benefit or educational opportunity;
- the reasons of each person for seeking or opposing the relocation; and
- any other factor affecting the best interest of the child.
Q: I have a custody agreement and court order in place, but I would like to have it modified. Is this possible?
A: Yes, if both parents agree to modify the agreement or order, or if a court orders a modification upon the request of a party. The legal standard for a modification (to which the parties do not agree) is that there must first be a material change of circumstances affecting the child or children. This is a very fact-specific analysis and is best handled by a detailed discussion with an attorney. Often, more commonplace changes may not alone satisfy the standard to achieve a modification, including, for instance, a child’s merely growing older or starting school, or a parent’s remarriage or the introduction of a live-in significant other. First, you should attempt to make any child-related changes by agreement with the other parent, and be willing to compromise in the best interests of the child. If no agreement can be had, and you feel strongly the changes are warranted, discuss it with an attorney before drawing battle lines with the other parent.
Q: My child and I live in Maryland but my custody order was originally entered in another state. Can I enforce or modify the order in Maryland?
A: It depends. Typically, if your child has resided in a state for at least six months, then that is his “home state” and the courts there will have jurisdiction over his or her custody and related matters. There are exceptions, and the analysis is a detailed one. An attorney can assist you in determining the proper place to bring a custody modification or enforcement action if one is needed.
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Q: How do I know how much child support will be ordered in my case?
A: The Maryland Child Support Guidelines, which are presumptively applicable in every case, provide a specific formula to determine the amount of support. A calculator is available online at https://mydhrbenefits.dhr.state.md.us/dashboardclient/#/csocDisclaimer. Where the collective incomes of the parties exceed the Guidelines, the amount of support is within the discretion of the court and is typically consistent with or extrapolated from the Guidelines amount.
Q: What income counts for child support?
A: Typically, all before-tax income.
Q: Do I have to hire an attorney to obtain a court order for child support?
No. The Child Support Enforcement Administration and the local Departments of Social Services can help. For more information, see http://dhs.maryland.gov/child-support-services/child-support-resources/.
Q: I pay for health insurance, work-related child care, or extraordinary medical expenses for my children. Need the other parent contribute to those costs?
A: Yes. The Child Support Guidelines provide for those expenses to be shared by the parents in the proportion that each party’s income bears to the combined total of the two. For instance, if the payee parent earns $2,500.00 per month in actual income and the support-paying parent earns $4,000.00 per month, for a combined total of $6,500.00, then the parties would share those expenses 38%/62%, either calculated as part of the child support payment, or in certain circumstances, categorically in addition to support.
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Q: At the time of my divorce, will I get alimony?
A: It depends. The award of alimony, and its amount and duration, are well within the discretion of the court. Alimony is, at the heart of the matter, based on need and the ability to pay. The goal of the law in this area is that all persons achieve self-sufficiency. If you need time to become self-supporting, the court may award rehabilitative alimony, the purpose of which is in the terminology – to provide for a rehabilitative period. The court may award indefinite alimony if you cannot after a reasonable time become self-supporting, for instance, in the case of disability or inability due to age, health, etc. Also, in the rare circumstance where, although both are capable of self-support, the parties’ lifestyles would be “unconscionably disparate” the court can (but need not) award indefinite alimony. Alimony ordered by a court is always modifiable and terminates on the death of either party, the remarriage of the recipient, or upon a further order of termination by the court. Alimony is one of the more complex and unpredictable areas of domestic law and requires a detailed analysis of the facts of your case and the applicable law. Talk with your attorney.
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Property Disposition on Divorce
Q: I heard that all property is divided equally upon divorce. Is this accurate?
A: Not necessarily. The law in Maryland provides that a court, upon divorce, can divide marital property equitably, or fairly, between the parties. “Marital property” is the property, however titled, acquired by one or both of the parties during the marriage. It does not include property acquired before the marriage, property acquired by inheritance or gift from a third party, property excluded by valid agreement, or property directly traceable to these sources. Marital property includes any interest in real estate titled to the parties as “tenants by the entireties.” Note the term “equitably,” meaning “fairly,” is used. “Fair” may mean different things to different people under different circumstances.
Q: But don’t most people agree to divide their marital property equally?
A: Generally, yes. By definition, an agreement is reached only with the assent of both parties. Most people agree under most circumstances that an equal division is fair. The law is built on the “partnership theory of marriage,” in which it is presumed that both parties overall made equal contributions to the marriage, and that monetary contributions (say, from employment) and non-monetary contributions (say, from raising children or keeping a home) are equally valuable.
Q: Are there instances in which there is an unequal division?
A: There are. At times, one party may acknowledge a greater fault in the dissolution of a marriage or that he or she simply did not make contributions equal to those of the other party. These cases are rare. In other cases, a judge, after a trial, may decide that, considering the totality of the circumstances, the contributions of the parties warrant an unequal disposition of marital property. The division of marital property by a court is a complex matter and the ultimate outcome is within the broad discretion of the trial judge. In other words, the outcome of any given trial is speculative. This is why most divorcing parties agree on the outcome of their case without the need for court.
Q: I’d like to avoid going to court. Can I?
A: Yes. A court is there to provide a resolution to any dispute that can’t be provided by negotiation and agreement. However, for most people in most circumstances, a careful study of the facts and circumstances of their case will reveal that an agreement is the most peaceful, least costly (both emotionally and financially) and most lasting way to resolve their case.
Q: But if I need to go to court, will my attorney represent my interests?
A: Without question, yes. The attorney-client relationship in a family law case is a unique one. Make sure you are comfortable with your attorney. You should have good communication with, and trust for your, attorney. Remember, your attorney’s job is to counsel you with information and advice, and to represent you with loyalty and integrity. Listen to your attorney’s counsel and work together with her or him to make informed decisions about your case.
Q: My spouse and I have a pet we’ve had since we were married. What happens to him or her?
A: While pets are technically personal property, many people work out post-divorce timesharing and cost-sharing arrangements for pets by agreement. A change in household makeup can be stressful for a pet, and devastating for a pet owner.
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The Cost of Divorce and Working with Lawyers
Q: How do I manage the legal costs of my divorce?
A: Legal costs can quickly become exorbitant if care is not taken. We have a few suggestions that can help.
- Anger, loss, and resentment are common emotions and to be expected in divorce. However, a divorce case is at heart a financial matter. Anger and aggression are usually counter-productive and can lead to unnecessary, expensive litigation. If your anger or resentment is too great for you to engage in discussion or to consider compromise, or if you are too distraught to make sound decisions, you should seek professional counseling.
- The fault that lies with your spouse, or with yourself, for the breakup of your marriage may not be a significant factor in the outcome of your alimony or property case. Even where fault appears distinctly one-sided, it is difficult for courts to quantify and may not have any discernible effect on the financial outcome.
- With Maryland’s no-fault grounds for divorce, there is often little benefit to pursuing fault grounds for divorce, and doing so can engender counterproductive antagonism from your spouse.
- Custody decisions and parenting plans can be exceedingly expensive. With your attorney’s help, consider your child’s needs first and foremost and decide on reasonable goals. For instance, is a knock-down, drag-out fight for sole legal custody necessary or likely to be successful? Consider using mediation or a consulting child specialist to help develop a parenting plan.
- Furniture and furnishings are best divided by you and your spouse to your mutual satisfaction upon initial separation. You can quickly spend in attorney’s fees much more than the value of these items, which often have little economic value in a divorce case.
- Gather the financial information your attorney requests of you quickly and organize it as well as you can. This information is necessary to your attorney’s advice and representation, and the law generally requires that it be shared with your spouse and his or her attorney. Producing poorly organized financial information or resisting the production in general will rapidly and unnecessarily increase costs.
- Assist your attorney in resolving your case. Be truthful and forthright with your attorney. Don’t take positions that you know the other side will reject out of hand.
- Remember that you are likely compensating your attorney based on a time-billing basis– take the time necessary to get the answers you need, but be mindful that you are on the clock.
- Don’t fight on principle. Make well-considered, financially-based decisions. Agreements are reached when both sides compromise. Litigation should be a last resort.
- Understand that there IS life after divorce. Don’t prolong the process unnecessarily. Expedient finality and closure are valid goals for consideration.
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Q: Will I have to divide my retirement funds with my spouse on divorce?
A: It depends. Pension, retirement, profit sharing or deferred compensation plans can be marital property, in part or whole, to the extent acquired during the marriage. Different plan types are dealt with in different ways – defined benefit plans are different that defined contribution plans, and qualified plans are different that non-qualified plans. Obtain copies of your most recent retirement plan account or benefit estimate statements, and those of your spouse, to share with your attorney. He or she can advise you in detail about how to approach the disposition.
Q: What is a Qualified Domestic Relations Order (QDRO)?
A: A QDRO is a specific, complex type of court order that is used to divide an ERISA-qualified retirement account. There are similar types of orders that divide interests in non-qualified plans like federal, state and local government retirement plans, and military retired pay. The order is drafted by your attorney or, increasingly, an attorney who specializes in such orders. The orders are complex and require careful attention.
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Q: My fiancé has asked me to sign a prenuptial agreement. Should I?
A: Prenuptial agreements are used to set out the rights and responsibilities of parties in the event of a divorce, annulment or death. Sometimes called antenuptial or premarital agreements, they can also be used to protect the rights of children of prior relationships, or in situations where one party has substantially greater income or assets that the other. It is crucial in considering a prenuptial agreement to ensure that there is a full, frank and fair disclosure of the financial resources of each party, and that each party understands the meaning and legal and practical effect of the agreement. Key to this understanding is having ample opportunity to read the agreement and understand its terms and the financial disclosure, to consider it fully well in advance of any wedding date, and to obtain the detailed advice of an independent attorney. Expect a formal signing ceremony, perhaps in the presence of a court reporter whose job it is to transcribe the parties’ declarations that these important prerequisites exist.
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