Divorce in Maryland
There are two different basic kinds of divorce in Maryland; a limited divorce and an absolute divorce. Both types of divorce are governed by Maryland state law and are the same from county to county or city to city.
A limited divorce is essentially a legal separation. When you hear the term “legally separated,” this usually means a person is the subject of a limited divorce. In some cases, particularly if you have minor children, it is a required step before you can obtain a final divorce. The legal separation defines the responsibilities and rights each spouse has while they live separate and apart, but it does not end the marriage.
By contrast, an absolute divorce ends the marital relationship permanently. Provided you do not have minor children with your spouse, and both spouses agree to the divorce, you can enter into an absolute divorce right away. An absolute divorce establishes child custody and support, spousal support (if there is any), and divides the marital property debt between the two parties.
There are two ways to meet the residency requirement for divorce in Maryland. Either the basis or reason for the divorce happened in Maryland, or at least one party has lived in Maryland for at least six months before the divorce is filed.
Grounds for Divorce in Maryland
There are 8 grounds for divorce in Maryland. There are two “no-fault” grounds and six fault-based grounds. You can read the law at this link, Md. Code, Family Law § 7–103(a)(8). The two no-fault grounds are:
- Divorce by mutual consent is a more recent addition to Maryland law. Under this ground for divorce, a court can grant an absolute divorce by mutual consent of the couple, without a waiting period, only with a written settlement agreement signed by both parties that deals with:
- Alimony (spousal support);
- distribution of all property;
- care, custody, access, and support of minor or dependent children (if the agreement includes child support, then a completed child support worksheet must be attached to the agreement);
The Court must review the agreement and be satisfied that it is in the best interests of the children.
- Twelve (12) Month continuous separation without cohabitation, which means the divorcing couple must be living in separate homes without sexual relations continuously for a year; however, unlike divorce by consent, both parties do not have to agree on the divorce.
The six fault-based grounds for divorce in Maryland require that one spouse proves to a court that the other spouse committed one or more of certain types of acts, specifically any of; adultery, desertion, imprisonment for a crime, insanity, cruelty of treatment, and/ or excessively vicious conduct.
- Adultery requires proof that one spouse had both the opportunity and disposition for sexual intercourse outside of the marriage, but you do not need to prove actual intercourse. This means things like public displays of affection and evidence of overnight stays, for example. This may be a factor in alimony and in child custody if the Court finds the actions were harmful to the children.
- Desertion is another fault-based ground for divorce in Maryland. A spouse may either “actually” or “constructively” desert the other. Actual desertion requires 12 months of uninterrupted desertion, and that the deserting spouse intended to leave the marriage, and that such leaving was not justified or consented to. Constructive desertion is similar but typically involves a case where the parties still live together-0, but the actions of one have put the other in a situation where there would lose self-respect, or they or the children are in danger of physical harm.
The other four grounds for fault-based divorce are less common and include cruelty of treatment, excessively vicious conduct, insanity, and conviction of a felony or misdemeanor with at least a three-year sentence.
If there is no fault-based ground for divorce, then any couple with minor children between them must live separate and apart for twelve months – often in the form of a limited divorce. If there are fault-based grounds, there is no waiting period.
The Divorce Process in Maryland
An absolute divorce starts with the filing of a complaint and payment of a filing fee to the clerk of the Court, whereupon the clerk will issue a summons and case information sheet, all of which must be served on the Defendant (the other spouse). The Defendant will have either thirty days, if they are a resident of Maryland, or sixty days, if they are not, to file an answer or other responsive pleading. If they do not respond, you can seek an Order of Default from the Court.
If the Defendant files a response, the Court will then set a scheduling conference to determine the timeline and dates for the case for discovery, expert witness, depositions, and trial. In some jurisdictions, such as a divorce in Montgomery County, Maryland, involving minor children, the Court will set a separate trial for child custody and support and one for the couple’s other financial issues.
Issues Determined in Maryland Divorces
Marital property is divided during the divorce process. Marital property includes assets and debts that were acquired during the marriage. This can include the marital home and other real estate, monetary assets like bank accounts, retirement benefits, and personal property such as furniture and cars. It doesn’t matter how property is titled, only that it was acquired during the marriage. Separate property is property owned by either spouse that cannot be divided in a divorce. Common examples are gifts, inheritances, and property owned before the marriage.
Child custody cases decided during a divorce will boil down to two main issues: the legal custody and the physical custody of the child. Legal custody entails the right to make life decisions about a child’s medical care, education, religious upbringing, major purchases, and discipline, and all other major decisions. Physical custody concerns where the child will reside primarily and the schedule each parent will have custody of the children. Maryland law makes clear there is no presumption in favor of either parent in a custody dispute, as both parents are presumed equal in the eyes of the law until the Court decides differently.
Child Support will also be determined during a divorce in cases where there are minor children in the family. Maryland uses a guideline to calculate the amount of child support with a set formula, taking into consideration each parent’s income, the number of overnights that each parent hosts the child, and consideration of other costs and expenses that each parent routinely pays for the child. The Maryland Courts will then use the schedule of child support obligations found at Maryland Code, Family Law § 12-204(e), to determine the basic support amount. Use of the guidelines is mandatory if a family’s income is less than $15,000 per month.
If a family’s income is over $15,000 per month, then the appropriate amount of child support will be left to the discretion of the Court. The presiding judge may still consider the guidelines, but the extent to which they incorporate the guideline’s findings into the child support award is fully optional. In such instances, the Court will also consider the parents’ respective financial circumstances, the reasonable expenses of the child, the parents’ place in life and earning capacities, the parents’ ages and physical conditions, and the education expenses of the child. Generally, the payor of a child support obligation will pay a monthly amount to the payee. This monthly amount may be divided into two separate payments, due on the first and fifteenth day of each month. A court may also order a parent to pay for other costs and expenses, such as life or health insurance, childcare costs, or transportation or education fees. Child support can be taken directly from a paying parent’s paycheck. In order to do so, the paying parent’s employer must be served with an Earnings Withholding Order.
Alimony, also called spousal support, is financial support paid by one spouse to the other after a divorce or legal separation. Either spouse may request alimony, which may be awarded on a temporary or indefinite basis. Unlike child support, there is no set guideline or schedule in Maryland to determine alimony. Instead, the Maryland courts assess the appropriate amount of alimony by analyzing factors relating to each party’s ability to work, their earning capacity, and what it will take for each party to undertake the transition to “living apart and separately.” Specifically, the courts look to 12 factors. Maryland’s courts will also consider whether ordering a particular alimony award will cause a spouse to become eligible for medical assistance earlier than expected.
Exclusive Use and Possession of the Marital Home and Property
One of the major issues a spouse needs to be concerned about during a divorce in Maryland is who gets possession of the marital home. During a divorce or annulment proceeding in Maryland, courts have the discretion to grant one of the spouses exclusive use and possession of the “family home” or of any “family use personal property” for a duration of up to three years after a final divorce so long as that party has custody of at least one child other than a stepchild. Maryland courts have the power to award exclusive use and possession of any real or personal property that qualifies as a “family home” or “family use personal property,” regardless of how the subject property may be titled, owned, or leased. The Court may also opt to divide and allocate use and possession of a “family home” or of “family uses personal property” between the parties. This is a major issue in divorce cases and one to pay close attention to.
Before the Court can award exclusive use and possession, it must first determine whether the certain property should qualify as a “family home,” as well as which personal property should be categorized as “family uses the personal property.” The family home is defined as real property that was used by the parties as their principal residence while living together or property owned or leased by one of the parties as of the time of the divorce. Also, at least one of the parties’ minor children must be living in the property to be considered the family home. However, property or residence will not be designated as a family home by a Maryland court if it was inherited or acquired and entirely paid for prior to the marriage—yet, if it was simply acquired before the marriage but was paid for in part during the marriage or paid partially from marital funds, it would remain in consideration as a “family home.”
Maryland’s “Use and Possession” principles similarly apply to “family uses the personal property,” which refers to property that was acquired during the marriage, was owned by one or both of the parties, and was used primarily for family purposes.
In addition to awarding exclusive use and possession of a “family home” or of “family uses the personal property,” a court may order that either or both of the parties will be responsible for paying all or a part of the mortgage or rent on the property; the Court may also assign the cost of maintaining the property, the insurance payments due thereon, the cost of assessments of the property, or any taxes on the property, as well as any other similar expense or indebtedness related to the property.
Marital settlement agreements can be signed at any time before a divorce is final. Usually, these agreements come after the parties have resolved all issues incident to their marriage, including:
- Child custody
- Spousal support and child support
- Division of marital property and debts
- Health insurance for the family
- The sale or one spouse purchasing the other’s interest in the marital home
- Division of retirement plans and pensions
- Tax filings and debts
- How to handle future disputes and proceedings
Once an agreement is signed, the parties need only finalize their divorce formally and do not have to litigate the issues decided by the agreement.
Child Custody Cases in Maryland
When couples separate, one of the most difficult processes is determining what arrangements will be made for the care and custody of the parties’ child or children. The Maryland courts have developed a series of unique principles and case-based factors for the Court to consider when making a custody determination. However, it is first important to determine that the Maryland courts will serve as the appropriate jurisdiction for the custody matter to be adjudicated.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) determines which state maintains jurisdiction over child custody disputes when more than one state plays a role in the children’s lives. The State of Maryland will maintain jurisdiction over a child custody dispute if a Maryland court previously issued a custody decision; Maryland is the home state of the child at the time the child custody proceeding commences; Maryland served as the home state of the child within six months of the proceeding commencing; another state does not have jurisdiction as the home state of the child, or when any other court having jurisdiction has declined to exercise jurisdiction on the grounds that Maryland is the more appropriate forum to determine child custody issues. Family Law § 9.5-201.
Additionally, if the child and at least one of the parents has a significant connection with Maryland, and there is a larger array of records and likely witnesses to provide evidence of the parties’ care, protection, and education of the child, and all UCCJEA considerations are satisfied, the Maryland courts may hear the matter. If a child is physically present in Maryland due to abandonment or protection against threats or acts of abuse or neglect, the State of Maryland may also maintain an interest in the matter, if necessary.
Legal and Physical Custody
Whenever a court in Maryland adjudicates a child custody dispute, it must make or review two determinations: the legal custody and the physical custody of the child. Legal custody entails the right to make life decisions about a child’s medical care, education, religious upbringing, major purchases, and discipline, among other decisions. Physical custody concerns each parent’s rights and obligations to provide housing, caretaking, and oversight of the child, and the schedule by which each parent is permitted to host and receive the child into their house. Maryland law makes clear that no presumption is to favor either parent in legal custody or physical custody dispute, as both parents are presumed to be the joint natural guardians of the child, thus possessing the ability to support and care for the child and to make decisions on the child’s behalf. Maryland Code, Family Law § 5-203. Yet, there are several important distinctions and legal considerations, which bear critical significance to any parent filing or responding to a petition to establish or modify custody of a child in the State of Maryland.
Once the parents of a child are separated, the distance and disconnect between the two parties can imperil their ability to efficiently make major decisions on the child’s behalf. Upon a petition by either party, the Court must decide if both parents should continue to make life decisions for the child together, called joint legal custody, or whether one parent should assume primary responsibility for the child’s decision making. Under Family Law § 5-203(d)(1), the Court has the power to award custody of a minor child to either parent living separate and apart from the other or to award joint legal custody. As neither parent is presumed to have a greater right to custody than the other, the Court must assess the suitability and fitness of each parent regarding their ability to continue making life decisions on the child’s behalf. However, Maryland courts emphasize whether it appears feasible that the parents will sufficiently cooperate in order to make joint legal custody a viable reality.
Unlike many other states, Maryland does not have a setlist of statutory factors that Court’s are obligated to analyze, weigh, and assess when making a legal custody determination; rather, the court case of Taylor v. Taylor, 306 Md. 290 (1986) provided a list of factors, listed in order of consequence, which the courts are asked to consider when making a determination of legal custody. In regard to each factor and the Court’s analysis thereof, the best interests of the child remain the paramount consideration. The Twelve Taylor Factors to determine whether joint legal custody may be appropriate are as follows:
- The capacity of the parents to communicate and reach shared decisions affecting the child’s welfare (this being the most important factor);
- The willingness of the parents to share custody;
- Fitness of the parents;
- Relationship between the child and each parent;
- Preference of the child, if of suitable age and discretion;
- Potential disruption of the child’s social and school life;
- The geographic proximity of the parental homes;
- Demands of parental employment;
- Age and number of children;
- The sincerity of the parents’ request;
- The financial status of the parents; and
- Impact on state or federal assistance.
Should the Court initially deem joint legal custody a suitable option, but later find that the parties are encountering extreme difficulty in making a life decision on behalf of their child, the courts have the authority to cast a tie-breaking vote as to which parent will be given ultimate authority to make a final decision in the child’s life; however, the courts may only exert this authority once good faith efforts have been attempted between the parties to cooperate. Santo v. Santo, 448 Md. 620 (2016). Additionally, the Court itself cannot make the specific life decision on behalf of the child—it can only appoint a particular parent to do so, as the decision-making power rests with the parents. Griffin v. Cane, 351 Md. 133 (1998).
Additionally, a Maryland court’s weariness of the parent’s ability to communicate effectively is not an automatic bar to joint legal custody—a court must always keep in mind the best interests of the child, which may bring about a different result. Santo v. Santo, 448 Md. 620 (2016).
When a parent thinks about the right to custody of their child or children, most often, their thoughts may turn to the ability or schedule by which they may visit with their child or that their child may spend time in their home. Just as with legal custody, there is no presumption for or against shared physical custody. As a common theme continued, the Maryland courts place the greatest weight on the best interests of the child when making an initial determination or assessing a requested modification to physical custody. While there are similarly no statutory factors that the Court is required to look to when making a determination of physical custody, a number of cases over the years in Maryland have amassed a list of frequent factors the Court will consider, which include:
- The fitness of each parent, which is a primary consideration;
- The character and reputation of each parent;
- The desire of parents and any agreement between them;
- The ability to maintain natural family relations;
- The preference of the child, if old enough to make a rational choice;
- Material opportunities affecting the child’s future life;
- The age, sex, and health of the child;
- Residences of the parents and opportunity for visitation;
- Impending relocation of a parent;
- The environment and surroundings in which the child will be reared;
- Influences likely to be exerted on the child;
- The physical, spiritual, and moral well-being of the child; and
- The contact and bonding between child and parents.
Boswell v. Boswell, 352 Md. 204 (1998); Viamonte v. Viamonte, 131 Md. App. 151 (2000); Domingues v. Johnson, 323 Md. 486 (1991); Montgomery Co. v. Sanders, 38 Md. App. 406, (1977).
It is important for a parent or their legal counsel to understand these factors and to prepare filings in a manner that enables the Court’s examination of evidence or information corresponding with these factors.
Additionally, the Maryland courts have produced a particular treatment on the question of conditional awards of custody. A court may not award conditional custody to a fit parent, but a court may condition a custody award on that custodial parent’s avoidance of a particular vice, with or without the other parent’s consent. Frase v. Barhardt, 379 Md. 100 (2003); Cohen v. Cohen, 162 Md. App. 599, (2005).
The Impact of De Facto parenthood in Maryland
Up until 2016, the Maryland case of Janice M. v. Margaret K., 404 Md. 661 (2008) had set forth that de facto parents were not afforded formal recognition in the state. However, in 2016, in the case of Conover v. Conover, 450 Md. 51 (2016), the Court of Appeals reconsidered its stance on de facto parent status and found that de facto parenthood formed a “viable means to establish standing to contest custody and visitation.” Conover, 450 Md. At 59. Thus, it is important to understand the rights and responsibilities of a de facto parent in Maryland and what implications arise when an individual is determined to be a de facto parent.
In essence, a de facto parent is a person who has acted as a parent for a child for all practical purposes. In Conover, the Maryland Court of Appeals adopted a Wisconsin-based test to determine whether an individual should be designated as a de facto parent:
(1) That the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
(2) That the petitioner and the child lived together in the same household;
(3) That the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing towards the child’s support, without expectation of financial compensation; and
(4) That the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Conover, 450 Md. At 74 (quoting In re Custody of H.S.H.-K, 533 N.W.2d 419, 435-36 (Wis. 1995).
In Maryland, whereas third-party seeking custody must demonstrate an unfitness of the natural parent or extraordinary circumstances before a court can award custody on the basis of best interests, no such showing or demonstration is required of an individual found to be a de facto parent. Conover, 450 Md. at 61. Thus, in a reversal of Janice M., a de facto parent, has the standing to seek or contest visitation and custody without showing unfitness of a natural parent. Conover, 450 Md. at 85.
The implications of third-party custody in Maryland
As opposed to a de facto parent, third-party custody is when a non-biological parent, other than a de facto parent, seeks custody of a child. The Maryland Courts have made clear that there is a rebuttable presumption that it is in the best interests of a minor child to remain in the care and custody of its biological parents. In re Rashawn and Tyrese H., 402 Md. 477 (2007); McDermott v. Dougherty, 385 Md. 320 (2005). However, this presumption can be rebutted if the biological parent is found to be unfit to have custody of the child or if exceptional circumstances exist that would render the biological parent’s continued custody of the child contrary to its best interests. Janice M. v. Margaret K., 404 Md. 661 (2008); B.G. v. M.R., 165 Md. App. 532, (2005). A non-exhaustive list of sufficient extraordinary circumstances has been developed by the Maryland courts, namely in the two cases cited immediately above.
Thus, if neither parental unfitness nor exceptional circumstances are proven, custody should be awarded to the biological parents. In re Rashawn and Tyrese H., 402 Md. 477 (2007); McDermott v. Dougherty, 385 Md. 320 (2005).
Modification of a Custody Order
Under the Maryland Code, Family Law § 9.5-202(a), the Court maintains continuing jurisdiction to modify a custody order. However, a party seeking modification must show there has been a material change in circumstances since the entry of the last custody order. The alleged change must impact the well-being of the child in some manner, not just the parents. Wagner v. Wagner, 109 Md. App. 1 (1999); Gillespie v. Gillespie, 206 Md. App. 146, (2012). Ultimately, the modified custody arrangement must serve the best interests of the child or children. Wagner v. Wagner, 109 Md. App. 1 (1999); Gillespie v. Gillespie, 206 Md. App. 146, (2012).
Appointment of Child Counsel
While people may most often think about family law attorneys serving the parties to a custody dispute, the Court may also appoint a “Best Interest Attorney” as counsel for the child. The attorney will be responsible for making an independent assessment as to what path forward will serve the child’s best interests. While the attorney may certainly confer with the child regarding their perspective, they are not bound by the child’s directives. The Best Interest Attorney will then be responsible for letting the Court know their own position and the child’s position. Maryland Rules, Title 9 Appendix, Guidelines for Practice for Court-Appointed Lawyers Representing Children Involving Child Custody or Access.
The Court may see fit to appoint a Child’s Advocate Attorney to serve as an independent voice for the child and to specifically advocate for the child’s preferences. A Child’s Advocate Attorney will most often be appointed in cases of abuse, possible relocation, or when the child is of an age and mind of sufficient maturity to develop interests separate and apart from those of their parents. Md. Rules, Title 9 Appendix, Guidelines for Practice for Court-Appointed Lawyers Representing Children Involving Child Custody or Access.
Lastly, the Court can appoint a Child’s Privilege Attorney to assert or waive any statutory privilege available to the child in a custody dispute. This role can be combined with either the role of a Best Interest Attorney or a Child Advocate Attorney. Md. Rules, Title 9 Appendix, Guidelines for Practice for Court-Appointed Lawyers Representing Children Involving Child Custody or Access; Nagle v. Hooks, 296 Md. 123 (1983).
Pursuant to Maryland Court Rule 9-205.1(b), the Court considers a setlist of factors to determine whether to appoint counsel for a child in a custody dispute or otherwise:
- The request of one or both parties;
- High level of conflict;
- Inappropriate adult influence or manipulation;
- Past or current child abuse or neglect;
- Past or current mental health problems of the child or party;
- Special physical, educational, or mental health needs of the child that require investigation or advocacy;
- Actual or threatened family violence;
- Alcohol or other substance abuse;
- Consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent;
- Relocation that substantially reduces the child’s time with a parent, sibling, or both; or
- Any other factor that the Court considers relevant.
Filing to establish or modify child custody in the State of Maryland can be a complicated process, with an array of legal considerations, procedures, factors, and parties involved. It is important that you ensure that you or your legal advocate pays careful attention to the steps and information required to put you in the best possible position to achieve a good result. As a firm with offices in Maryland, Virginia, Washington, D.C., and Delaware, the law firm of WhitbeckBennett PLLC is here to guide you through this complex process and assist in any way it can.
Child/Spousal Support in Maryland
In Maryland, alimony carries the primary purpose of rehabilitating an economically dependent former spouse by providing them an opportunity to become self-supporting after their marriage’s dissolution. At its core, alimony represents the State of Maryland’s view of married couples as a singular family and financial units, regardless of whether each spouse’s contributions during the marriage arrived in a monetary or non-monetary form. Yet, as spouses separate and begin to live independently, their single financial unit divides into two separate units. Thus, contrary to many other jurisdictions, the main purpose of alimony in Maryland is not to merely create a baseline level of subsistence for the dependent spouse, such that intends to replicate the parties’ lifestyle during the marriage.
Maryland’s preferred method of “rehabilitative alimony” often entails the higher-earning spouse paying a certain monetary amount to the dependent spouse for a specified period, thus allowing the dependent spouse to obtain the education, professional training, credentials, or certifications necessary to become self-supporting in the future. Yet, if the disparity between the former spouses’ incomes and earning capacities is great, the Court may order some level of indefinite alimony, even amidst a dependent spouse’s good faith efforts to become self-supporting. However, indefinite alimony is reserved to instances where the parties’ incomes reaches the level of “unconscionably disparate,” and the State of Maryland much prefers “fixed-term” or “rehabilitative alimony.”
How is Alimony determined in Maryland?
Unlike child support, there is no set guideline or schedule in Maryland to determine alimony. Instead, the Maryland courts assess the appropriate amount of alimony by analyzing factors relating to each party’s ability to work, their earning capacity, and what it will take for each party to undertake the transition to “living apart and separately.” Specifically, the courts look to Family Law § 11-106(b), wherein 12 factors are listed for the court’s consideration; the Maryland courts have made clear that the factors are to be weighed equally. As would be expected based upon Maryland’s perspective of alimony as a facilitative device, the statutory factors emphasize the ability of each party to be entirely or partially self-supporting, the amount of time and training necessary to find sufficient employment, the standard of living during the marriage and its duration, the contributions of the parties to the marriage, the events that gave rise to the parties’ estrangement, the parties’ ages and mental and physical conditions, the financial needs of the parties, and importantly, any agreement previously reached between the parties. Maryland’s courts will also consider whether ordering a particular alimony award will cause a spouse to become eligible for medical assistance earlier than expected.
Additionally, pursuant to Maryland Court Rule 9-202(e), each party to a case in which alimony is requested must fill out a financial statement as set forth in Court Rule 9-203(a). This statement must be filed along with the party’s pleading initially requesting alimony relief, as well as the opposing party’s response. If a request for alimony or preemptive denial thereof is not invoked until an answer is filed, the opposing party will have 15 days after service of the answer to file their financial statement.
How long will each type of alimony obligation last?
There are a few initial distinctions that are critical to understanding alimony obligations. First, the parties themselves can agree to an amount of alimony that is non-modifiable, whereas the Court can only order alimony which is modifiable in the event of a change of circumstances for the payor or payee. A non-modifiable alimony obligation cannot be changed even if it later results in an unfair situation, usually due to an unexpected change in one of the parties’ financial positions.
A court can also order a pendente lite alimony obligation, which establishes an alimony obligation while the parties’ court case is pending and moving towards a final resolution. As opposed to a final determination of alimony, an award of pendente lite alimony does not require the court to solely consider certain factors but focuses the court’s attention upon the payee’s need to preserve the parties’ financial status quo throughout the pendency of the proceeding, as well as the payor’s ability to pay.
Under the Code of Maryland, Family Law § 11-107, the court may extend a prior award of alimony if “circumstances arise during the period that would lead to a harsh and inequitable result without an extension;” additionally, the party receiving alimony must petition for such an extension within the period that the previous alimony award remains an active obligation of the other party. Similarly, and subject to the considerations of Family Law § 8-103, the court may modify the amount of alimony previously awarded “as circumstances and justice requires.”
In rare cases, namely, those involving a long marriage, the court may order indefinite alimony when, as mentioned, the disparity between the parties’ earning capacities and incomes are vast. Yet, this is not the court’s preference.
Lastly, in narrow circumstances, the Court may reserve on the issue of an award of alimony at the conclusion of the divorce proceedings. In such a scenario, the court may find that alimony is not appropriate at that time or in the immediate future but can foresee a situation arising when one party may appropriately require alimony payments from the other party.
Due to Maryland’s particular treatment of alimony, understanding how to file or respond to a request for alimony can be a daunting task, particularly due to the intricate legal considerations and considerations involved. As a firm with offices in Maryland, Virginia, Washington, D.C., and Delaware, the law firm of WhitbeckBennett PLLC is here to guide you through your divorce and any subsequent proceedings regarding you and your former spouse’s alimony obligations to help you achieve the desired results.
Domestic Violence and Protective Orders in Maryland
Domestic Violence, Peace Orders, and Restraining Orders
Finding oneself in an abusive relationship and attempting to navigate the legal and familial hurdles to receive protection and safety can be one of the most difficult situations that a person may face in their lifetime. If the abuser is a spouse or significant other, the close ties to the abuser and fear of their reaction to seeking out help can leave a person feeling helpless. Thankfully, Maryland maintains a number of statutes and processes by which to ensure that abuse victims receive protection, treatment, and help to free themselves from the confines of abusive relationships.
If I have been abused and fear further abuse, how can I find help?
Pursuant to Maryland Code, Family § 4-502, anyone who alleges to have been a victim of abuse, and believes there is a continuing threat of serious and immediate personal harm, may contact their local law enforcement unit to receive help. The law enforcement officer will protect the victim from harm during the officer’s response to the call and may also accompany the victim to the family home to remove personal items and effects. The responding law enforcement officer will give the victim contact information for local domestic violence programs funded by the Governor’s office of Crime Control and Prevention, as well as notice of their right to request that a district court commissioner in Maryland file a charging document against their abuser. If the victim files an incident report while the law enforcement officer is responding to the call, the victim may request a copy of that report from the law enforcement unit of which the responding officer is a part.
What formal court process do I need to undertake to find justice after suffering abuse?
An abuse victim may file a petition for relief from their abuser in the district or circuit court of their county, as long as the abuse occurred in the state or if the person eligible for relief is a resident of Maryland. The petition must be under oath and include all information known to the abuse victim relating to the events and incidents of the alleged abuse; the petition must also set forth any previous or pending legal actions between the parties, the whereabouts of the alleged abuser, and should the petition also allege child abuse, then the whereabouts of the child with any other relevant identifying information must be included. Addresses may be omitted from the petition seeking relief from abuse if including such addresses would risk incurring further abuse to the person eligible for relief, or if it would reveal the confidential address of a domestic violence shelter.
Pursuant to Family Law § 4-504.1, a petition may also be filed with a commissioner if neither the clerk of the corresponding circuit court nor the clerk of the district court is open for business and available to receive the petition. A commissioner still has the power to issue an interim protective order which orders the abuser to refrain from abuse or threats of abuse, refrain from contacting or attempting to contact the abuse victim, or refrain from entering the residence or other frequented location of the abuse victim. If the parties live together, an interim protective order can order the abuser to vacate the marital home immediately. Child custody may also be awarded via interim protective order, if appropriate, to ensure that no further abuse is suffered by any child of the parties. Temporary possession of a pet belonging to the parties may also be awarded.
If a commissioner awards temporary child custody under this statutory section, that commissioner may also order law enforcement to use “all reasonably and necessary force” to retrieve the minor child from the custody of the abuser and place them in the custody of the custodial parent.
What happens after an interim protective order is filed?
The abuser must give the court written notice of their address and any changes of address after the entry of the interim protective order; if the respondent fails to appear at the temporary protective order hearing, a judge may issue a temporary protective order in their absence. Violation of an interim protective order is also a crime for which the abuser can be arrested, with or without a warrant, if probable cause exists. Interim protective orders, once entered, are to be served upon the respondent immediately, and the Maryland Department of Safety and Correctional Services is to be notified once the alleged abuser is served. The interim protective order will remain effective until a temporary protective order hearing is able to take place, or the end of the second business day after the issuance of an interim protective order.
What type of restraining order am I eligible for?
In Maryland, there are two primary types of restraining orders: protective orders and peace orders. An abuse victim is eligible to file a petition for a protective order if they are a current or former spouse of the alleged abuser, if they are a cohabitant who has either engaged with the abuser in a sexual relationship or has lived with the abuser for at least 90 days within the year prior to filing, if they are a vulnerable adult, if they are a person who has a child with the abuser, or if the abuse victim alleges that the abuser has committed rape or sexual assault within the six months prior to their filing.
Alternatively, a “peace order” provides protection to individuals who are not eligible for protective orders based upon their relationship with their abuser. While a petition for a protective order may be filed by one who has suffered acts concerning serious bodily harm or imminent fear thereof, assault, rape or sexual assault, false imprisonment, stalking, revenge porn, or mental injury to a minor child, an individual may file a “peace order” if they have suffered from any of the above acts as well as harassment, trespass, malicious destruction of property, misuse of telephone equipment and electronic communications, or impermissible visual surveillance.
The act giving rise to a peace order must have occurred within 30 days prior to the filing of the abuse victim’s petition, and the petitioner must also show that the act is likely to occur again. A protective order may be filed anytime after the underlying act occurs, without any such requirement to demonstrate that the act is likely to occur again.
What are the stages and standards of proof for a protective order?
After an interim protective order is entered, a temporary protective order will be granted upon a hearing if there are “reasonable grounds to believe that the respondent has abused a person eligible for relief.” A judge also has the authority to extend a temporary protective order’s duration from 30 days to six months in order to effectuate service of the order upon the respondent or provide continued protection.
A final protective order may last up to one year, with the court having an additional option to extend the order for another six months. If an abuser has been convicted and incarcerated, the court may enter a permanent protective order if the prison term for underlying acts of abuse amount to five years. This protective order will last without termination.
What types of relief can I receive via protective order?
An abuse victim who has filed a protective order may receive the reliefs listed above, as well as use and possession of the marital home or a jointly titled car, emergency family maintenance and support, establishment of a temporary visitation schedule regarding the children of the parties, or an order for the alleged abuser to surrender all firearms and pay court costs. However, a protective order will only be issued if a petition is filed that satisfies all requirements, and sets forth necessary information. Any stay away order can include the yard and common areas surrounding an abuse victim’s residence, as well as a stay away order can be applied to an abuse victim’s employment, school, or temporary residence.
What are the stages and standards for peace orders?
Much like protective orders, an interim peace order remain active until a hearing is held to determine whether a temporary peace order is appropriate. A temporary peace order will be issued at a subsequent hearing, if the court finds “reasonable grounds to believe that the respondent has abused a person eligible for relief.” A final peace order can issue upon a finding that the alleged abuser committed the abuse by a standard of a preponderance of the evidence, meaning more likely than not, with such final peace order remaining in place for up to six months.
What else should I know about peace orders?
Peace orders, unlike protective orders, carry the constraint that the court must only order the relief minimally necessary to protect the filing party. Additionally, if both parties file for a peace order, and the court finds that each party has committed, and is likely to again commit, an act of abuse under the law, then the court may enter mutual peace orders against each of the parties.
What should I know if a protective order has been filed against me?
If you have been the respondent in a protective order case, and a protective order was filed against you, you will likely appear in the Maryland Judiciary Case Search database in the context of your domestic violence case. Additionally, you may be at risk for disqualification from employment requiring security clearances, as well as you may be impacted when attempting to obtain a lease or a line of credit. Your custody and visitation rights to any children may also be impacted, as well as your ability to lawfully own and possess a firearm.
Reaching out and using the Maryland court system to ensure protection and support after a domestic violence incident can be a daunting process. With an array of filings, appearances, and steps related to advancing a petition for a protective order or a peace order, it can be helpful to have a legal advocate at your side fighting for your interests. With offices in Maryland, Virginia, Washington, D.C., and Delaware, the law firm of WhitbeckBennett PLLC stands ready and willing to assist you through the legal process to ensure that your protective order case receives the utmost care and consideration it deserves.
Adoption in Maryland
For families that have sought to grow through the addition of children, or for pre-existing families that seek to formalize their bonds and relationships, adoption can provide a beautiful way in which children find their forever homes. However, if you are considering adopting a child in Maryland, it is important to understand the precise legal process required, as well as a number of other important considerations.
There are generally three types of adoptions: 1) public agency adoptions, which are commenced by the department of social services after parental rights of the natural parents have been terminated; 2) private agency adoptions, in which a private adoption agency identifies a family eager and able to adopt a child that is available for adoption; and 3) independent adoptions, which are filed by a private party. Independent adoptions are most commonly observed in the form of stepparent adoptions, co-parent adoptions, or grandparent or other family member adoptions.
Regardless of the type of adoption sought, a court will not grant an adoption unless it finds that it is in the child’s best interests.
Requirements for Adoptions in Maryland
Several hurdles that any family seeking to adopt a child must clear once they have identified the child they hope to adopt. A Maryland court will only enter an order for adoption if the child’s natural parents consent to the adoption. However, a court may proceed with the adoption if a natural parent fails to timely file notice of objection to the adoption. It is important to remember that in Maryland, a parent who consents to the termination of his or her own parental rights by way of adoption also has thirty (30) days after signing a consent form to revoke their consent to the adoption. A court may not enter an order for adoption until the revocation period has expired.
Under Maryland law, a parent’s consent is only valid if it is given after the prospective adoptee is born, if it is given in a language that the parent understands, and if in a language other than English, it must either be given before a judge on the record or accompanied by an affidavit of a translator verifying the accuracy of the consent form. Maryland Code, Family Law § 5-3B-21. The consent form must also contain an express notice that the parent retains their right to revoke consent at any time within thirty days after the consent form is signed, that they have the right to independent counsel, and that they have the right to receive adoption counseling and guidance.
Additionally, according to Family Law § 5-3B-16, even in cases where the Court has gained the biological parents’ consent to the adoption, the Court may still order any investigation it deems necessary. In instances where consent of the biological parent has been withheld, a court must order an appropriate agency to investigate and submit a report regarding the prospective adopted child’s ties and feelings towards their parents, siblings, and others who may be affected by the adoption, as well as the prospective adoptee’s adjustment to the community, home, and school.
A natural parent must be notified that a petition for adoption regarding their child has been filed, thus affording them a chance to file an objection. However, even if a parent objects to the adoption, the Court can move forward under certain conditions; namely, if the adopting parent has exercised physical care or custody over the prospective adoptee for at least 180 days, and if the Court finds by clear and convincing evidence that the parent has not had custody of the prospective adoptee for over one year, the prospective adoptee has significant emotional ties to the petitioning party. The biological parent has not maintained meaningful contact with or contributed to the prospective adoptee’s care; a nonconsensual adoption can occur.
Additionally, if the biological parent subjected the child to chronic abuse or neglect or was convicted of the abuse of any other of their offspring, the Court need not allow the parent’s objection to forestall the adoption proceeding. However, the Court must make a specific finding as to whether placing the child back in the custody of the biological parent poses an unacceptable risk to the adoptee’s safety. Lastly, if a parent has already lost their parental rights regarding a child’s sibling to be adopted, then there need not be a delay in the adoption proceeding. Family Law § 5-3B-22.
The Adoption Hearing
According to Family Law § 5-3B-17, a court must hold a hearing before entering an order for adoption. When ruling upon the petition for adoption, a court must look to all factors necessary to determine the child’s best interests as well as any reports prepared for the Court; importantly, the Court cannot deny a petition for adoption solely because the petitioner is single or unmarried, or has a disability. Family Law § 5-3B-19. To make its ultimate determination regarding whether it is in the child’s best interests to grant the adoption and terminate parental rights of a biological parent, the Court will consider the child’s health and safety to be adopted and any report prepared by a state agency. Family Law § 5-3B-22.
Open versus closed adoptions
One critical distinction that parties seeking to adopt must consider is whether they want to pursue open or closed adoption. In an open adoption, the parties enter into a written agreement with the child’s parents, whereby the biological parents are allowed to contact the child. While open adoption agreements are legally enforceable in Maryland, the entry of an order of adoption will not be set aside due to a subsequent breach of an Open Adoption Agreement. In a closed adoption, the natural parents’ rights to communicate freely with the child are terminated along with their parental rights.
With many factors, considerations, and filings, the adoption process can feel more daunting than expected, particularly regarding the petition and court hearing. The attorneys of WhitbeckBennett PLLC are here to assist in any way we can, whether it is preparing adoption filings or representation at the ultimate hearing where your family seeks to grow.
Family Law Mediation in Maryland
What is Mediation?
Mediation provides an important opportunity for the parties to a family law dispute to discuss, cooperate, and resolve any disputed issues awaiting trial. By coming to the negotiation table with a trained and experienced mediator, former spouses and co-parents retain the ability to exert more control and input on the ultimate outcome of a family law matter than may be available in a traditional court setting.
There are numerous advantages to mediation; there are also a variety of mediation programs, services, and offerings that are recognized or sponsored by the Maryland courts. After the parties file family law pleadings and schedule a formal court proceeding, a judge may still order the parties to attend mediation to resolve their differences.
What Advantages Does Mediation Offer?
Depending on the case, mediation also provides a number of distinct benefits. First and foremost, the parties have far more involvement in the ultimate outcome. Nobody knows a family law case better than the family members themselves, and mediation provides a channel by which that knowledge, familiarity, and expertise may be more freely shared and considered, without constraints such as the rules of evidence, the court’s allotted time, or determinations unrelated to relevance.
How Does Mediation in Maryland Work?
Through mediation, the parties are thus able to meet with a trained mediator with experience in family law, and with the mediator’s help, the parties and their counsel can find solutions and craft a path forward. This method marks a stark contrast with a trial judge who is unfamiliar with the particularities of a family situation deciding the case on their behalf. While a party to a family law matter may think they know how a case will be resolved at trial, there may well be aspects or legal considerations that make that party’s position more or less favorable than they might think.
Maryland is home to court-sponsored mediation programs, a number of private mediators for hire in family law matters, as well as a number of Community Mediation Centers where members of the community are trained to provide local services. In each of these environments, a number of possible advantages exist when compared to formal family law trial proceedings.
Is there any other reason I should consider Mediation to resolve my family law matter?
Utilizing mediation services can help to put building blocks in place for the parties by devising a system and schedule for both parties to follow. Going through a divorce or raising a child with a former partner can feel like a daunting and scary new normal. Any progress made in mediation can provide a roadmap for future cooperation and agreement, while also allowing for both parties to feel as though they were able to provide direct input into the ultimate result.
In addition, if children of the parties are involved, going through any one of Maryland’s mediation programs may be beneficial for the parties’ children. Preservation of the parties’ relationship is a critical consideration for the children’s wellbeing, and making sure that the focus falls upon what is best for the children, rather than fighting to retain more control, can allow both parties to work collaboratively to craft suitable arrangements, with the advice and perspective of a trained professional.
Rather than the adversarial nature of the courtroom, mediation is a conversation. Experienced mediators are trained to guide the parties through a process that maximizes the chance to find middle ground, lessening each party’s anxiety and the need to relive the worst moments of the relationship. The formality of the courtroom can give parties pause, and so the personal nature of mediation can provide a welcome and productive contrast. Instead of focusing on past allegations of misbehavior, mediation narrows the scope to how the parties will work together to resolve their differences, form a path for the future, and move towards the next stage of their lives.
Are There Any resource-related advantages to Mediation?
Another distinct advantage to mediation in Maryland is the relative timetable when compared to trial proceedings. Particularly during the COVID-19 pandemic, but also during times of good public health, the Maryland court dockets can quickly become overloaded, pushing trials and sought-after resolutions months down the road and far into the future. The timetable of mediation is based solely upon the parties’ availability. As noted above, Maryland’s courts, recognizing the disparity in the wait for an outcome in mediation versus trial proceedings, will often send parties to mediation in the meantime.
There is also commonly a distinct cost advantage in favor of mediation as opposed to a formal trial. Before parties to a family law matter even can arrive at the courthouse, there is often a flurry of complaints, answers, motions, discovery, subpoenas, and preparation of trial materials, to include witnesses and exhibits. Court appearances also can be frequently and costly. All of these legal activities can rack up a sizeable legal bill. Though the precise cost of a mediation session will depend upon the private or court-operated status of the mediator and their level of expertise and experience, mediation sessions generally cost $100.00 per hour to $300.00 per hour; however, for parties that opt to hire the most expensive private mediators, a session may cost up to $1,000.00 per hour. Nevertheless, these costs will generally be far lower than a corresponding legal bill for a trial to resolve the parties’ family law disputes.
How exactly does mediation work?
Depending on the mediation program or service retained, the precise progression of the mediation can vary slightly, but will often follow the same basic rhythm: a mediator will interview each party to learn their perspectives and goals, which will inform their orchestration of the mediation sessions. The mediator will then engage in mediation sessions, often between both parties and privately with each, to encourage cooperation and identify any relevant issues for which middle ground can be uncovered.
Critically, mediation sessions are confidential, in most circumstances, according to Maryland Rule of Procedure 17-105. A mediator cannot be called into court, under normal circumstances, to testify as to what offers or suggestions were made by each of the parties in mediation, nor the precise terms of any agreements nearly reached. These features add a layer of confidentiality and candor to mediation sessions, allowing the parties to freely deliberate over the topics requiring resolution without fear of repercussion. If the parties fail to reach an agreement by way of mediation, they can simply continue to prepare for any scheduled upcoming trial dates.
Importantly, mediation focuses on a solutions-oriented process, rather than a blame-oriented process, with the future needs and constraints of the parties and their children receiving the foremost attention. By eliminating the need to rehash or relive painful moments, particularly when going through a family law dispute, the relief and weight lifted from each party’s shoulders may enable them to more freely communicate, cooperate, and coordinate what their lives would and should like into the future.
In sum, mediation also allows the parties to form a voluntarily agreement through their own mutual consent, rather than a judge with less familiarity with the parties making a definitive ruling. Mediation removes a number of variables regarding the court’s constraints and perspectives to allow each party to provide input, assess the facts, and play a role in reaching an outcome satisfactory to each party. Thus, the parties have an opportunity to present and consider information that may not be admissible in court, even though relevant to the issues at hand.
While figuring out how to resolve a family law matter, it can be helpful to speak with an attorney to assess the possible routes and methods to resolve ongoing disputes. The experience and savvy of WhitbeckBennett PLLC’s family law attorneys remain at your disposal, as we would be happy to assist you through your mediation sessions in Maryland. As parties to a matter can be represented in mediation sessions, it can be helpful to have an advocate ready and willing to articulate your position, identify areas ripe for collaboration, and represent your best interests. Should you require attorneys’ services or have further questions, please do not hesitate to contact us today.
With offices in Maryland, Virginia, Washington, D.C., and Delaware, the law firm of WhitbeckBennett PLLC stands ready and willing to assist you through the legal and mediation process to help ensure that your case receives the utmost care and consideration.