Just When You Thought It Was Over…

Some Outcomes in a Divorce Are Permanent, While Others Are Designed to Change

Chris RobertsChris Roberts, Principal

Everyone has something to protect in a divorce, and I have yet to meet a client who doesn’t feel relief when the process is over. Many of those clients, however, are surprised when an issue they thought they resolved for good resurfaces later.

In Maryland, the reality is that some issues can never be permanently resolved in an initial divorce proceeding, while others are always resolved in the first case. Stilll others are capable of being resolved in the first go-around by agreement, depending on the terms of the deal.

Property Issues are Resolved, Once and for all, at the Time of Divorce

The Court is expressly authorized to resolve disputes regarding marital property at the time of divorce, but has no authority to do so once the divorce case has concluded and the time for appeals has passed. That means that, if marital property issues are not resolved at the time of divorce, they cannot be resolved later.

It bears noting that there is a distinction between the general notion of property and the term “marital property” which is specifically defined by statute.

Orders Related to Children Are Never Permanent

Child custody and/or visitation issues are never permanently resolved.

In Maryland, the Court is guided by one overarching standard related to children, to which all other legal standards speak – the best interest of the child. At the end of the day, judges are tasked with making decisions that serve children’s best interests. That is not only true when a judge signs an order following a contested custody proceeding, but also when a judge memorializes a private agreement between the parties related to children, which is also generally incorporated into a consent order.

Though a child custody order will conclude the current dispute, the Court retains authority to modify such orders should circumstances require it to serve a child’s best interest. Things change in life, and if those changes impact a child negatively, public policy demands that courts be able to intervene for the sake of the child. The same is true for child support. If there is a material change in a parent’s income, or expenses for a child change significantly, the Court always has jurisdiction to modify an existing child support order.

For Alimony, it Depends

Alimony is typically modifiable, both in amount and duration, if circumstances and justice require a change.

If the Court determines alimony initially, the alimony will always be modifiable, as the law does not authorize the Court to make its alimony determination non-modifiable. In a private agreement, however, parties can agree that alimony be non-modifiable, both as to amount and duration. Parties can also be more creative than the Court in negotiating the terms alimony.

As examples, in a private agreement, alimony can be based on a formula that automatically accounts for a fluctuation in income, and can terminate when an alimony recipient cohabitates with another person and/or upon the arrival of a certain date. A Court is not able to craft such solutions. The language of a private agreement is important in securing the non-modifiability of alimony.

Indefinite Alimony Does NOT Mean Permanent Alimony

Case law tells us that alimony is not intended to be a lifetime pension, so there is no such thing as “permanent” alimony.

The statute provide for “indefinite” alimony, which essentially is an open-ended period of alimony. As mentioned previously, court-ordered alimony is modifiable; however, it may also be terminated if either party dies or marries, or “if the court finds that termination is necessary to avoid a harsh and inequitable result.”

What constitutes harsh and inequitable result? That is the proverbial (and in some cases literal) million dollar question, and it is a judge’s job to determine based on the facts of the case. If you are the would-be payor of alimony, this uncertainty places a premium on having an exit strategy for your alimony obligation. This can be achieved via a negotiated resolution and careful language detailing the specific circumstances when alimony will terminate.

My Spouse and I Have a Verbal Agreement. What is the Quickest Way to Obtain a Divorce in Maryland?

AvatarDonna E. Van Scoy, Principal

The short answer is: it depends.

Obtaining a divorce in a short marriage with no children and few, if any, assets is very different than a long marriage with children and assets. Then there are marriages in between the short marriage and the long marriage with combinations of no children or children and a variety of assets.

A logical first step is to contact a lawyer. While you and your spouse have reached a verbal agreement and are working together, a lawyer cannot represent both parties in Maryland. No matter your level of cooperation and intentions, you and your spouse can easily have conflicts of interests in a divorce. So one or both of you should to consult with a lawyer.

Moving the Process Forward

  1. Be open to the fact that you and your spouse may not have considered every issue that needs to be addressed in your divorce. It is possible that what you agreed to with your spouse will negatively affect your rights. A lawyer will explain the law, review your agreement, and identify any issues. TIP: Do not sign any agreement with your spouse before reviewing with a lawyer.
  2. Both you and your spouse should each meet with a lawyer. While you have the right to obtain your divorce without the assistance of counsel, in my experience that can result in delay and greater expenses than securing legal advice at the beginning of the process. If your spouse does not want a lawyer, you can be the party that moves the divorce along. However, your lawyer will need to recommend to your spouse (in writing) that they obtain counsel. Your lawyer could provide two or three names of other counsel for you to share with your spouse. Then hopefully your spouse will also seek counsel, or at the very least your spouse could review the final agreement with an attorney.
  3. To assist in the evaluation of your case, come prepared to your initial consult. Write down what you believe is your agreement with your spouse. Bring a list of all your assets including current values and any debt associated with the assets. Bring a copy of your current mortgage statement, your last three years of tax returns, your last three paystubs and, if possible, your spouse’s last three paystubs. If there are children consider how you and your spouse will parent your children and what the children’s schedule will be with each parent.
  4. Once you have all the information necessary to propose a settlement to your spouse, a Separation Agreement will need to be drafted. Your spouse (and counsel) will need to review and approve the agreement. If both of you continue to cooperate with each other in the spirit of divorcing as quickly as possible, the Separation Agreement could be completed and executed as soon as your lawyer can draft the agreement and your spouse can review and approve. While it can be longer or shorter, the average completion of an agreement is 30 to 60 days.
  5. The next step is to file a complaint for an uncontested divorce. Your spouse has to be served and has up to 30 days to file an answer. The fastest ground for the divorce is a Mutual Consent. You and your spouse can speed up the answer time up by working to file the complaint and answer at the same time or together.
  6. The court will then schedule an uncontested hearing. The moving party (the one who files) and their lawyer need to be present. The other party (and their lawyer) can also be present. During COVID19 the hearing is being held remotely. While these are uncertain times, the hearing is normally scheduled in four to eight weeks. The divorced is usually finalized in within 14 days.

The information above depends on a settlement being reached and the parties truly working together. Each case is different. Contested cases can take anywhere from a year or two, or more. Again, involving a lawyer once you start considering a divorce will help you have the information you need to manage your divorce as efficiently as possible.

I’ve Had It! How Soon Can I File for Absolute Divorce in Maryland?

AvatarHeather Collier, Principal

This is one of the most common questions I get from clients. In order to decide how soon you can file for divorce, we have to determine if you are eligible to seek a divorce in Maryland and, if so, on what basis. The basis for the divorce is called the “ground” for divorce. The timing for filing a divorce in Maryland depends on the answers to both questions.

To be eligible to file for divorce in Maryland, one party must live there at the time of filing. If the basis for the divorce, or the “grounds” for divorce occurred outside Maryland, then one party has to have resided in Maryland for at least 6 months before filing for divorce. 

Before the court can enter a Judgment of Absolute Divorce dissolving a couple’s marriage, the residency requirement must be met, one of the parties has to have a viable ground for absolute divorce; and all issues arising out of the parties’ marriage have to be resolved either by agreement of the parties or court order.   

Absolute Divorce Grounds

Maryland recognizes “no-fault” and “fault” grounds for absolute divorce.  Because some grounds for divorce have a waiting period, the ground (or grounds) for divorce you allege may impact when you can file.

No-fault grounds for absolute divorce are:

  • 12-month separation – the parties must live separate and apart, without cohabitation for a period of 12 months prior to filing for divorce, and continuing without interruption through the date the divorce is granted. 

    Translation:  you cannot spend the night under the same roof or have sex with your spouse for 12 months before you file for divorce and it has to stay that way after you file through the divorce.  Spending the night together under the same roof or having sex before the divorce is granted re-starts the separation clock on your 12-month separation period and will delay your ability to file under this ground.
  • Mutual Consent – this ground does not require a period of separation.  If you and your spouse have not yet separated or separated only recently, this ground may be the fastest means of filing for and obtaining a divorce.  In order to file for divorce based on Mutual Consent, you must meet the following requirements:
    • Have a signed, written agreement resolving all issues, including, alimony, property division, and the care, custody and support of any minor child or children;
    • Court approval of any agreement as to custody and support of a minor child as being in that child or children’s best interests; and
    • Neither party has filed to set aside the settlement agreement prior to the divorce hearing.

Fault grounds for divorce, with applicable waiting periods, include:

  • Adultery
  • Desertion, if desertion has continued for 12 continuous months.
  • Conviction of a felony or misdemeanor where the party has been sentenced to serve at least 3 years and has served 12 months of the sentence
  • Insanity if the spouse has been institutionalized for at least 3 years and the insanity is incurable
  • Cruelty of treatment
  • Excessively vicious conduct

Filing starts the divorce process, but the length of time for obtaining the actual Judgment of Absolute Divorce will depend on whether you settle some or all of the issues during the divorce litigation, or if you have a contested trial at the end where a judge will decide the outcome.