Requirements and Interpretations for the State of Maryland
(Note: Please remember, these are only interpretative reviews by the Children’s Rights Counsel and are not intended to provide legal advice specific to your circumstance. More about this here.)
A. Kinds of Divorce
1. No Fault
A “No-fault” divorce is an irretrievable breakdown of the marriage. It is most often associated with an incompatibility of temperament such that the parties can no longer live together and any further attempts at reconciliation are impractical or futile, and not in the best interests of the parties. No-fault divorce has the advantage of sparing the spouses the acrimony of the 'fault' processes, and the disadvantage of closing the eyes of the court to any and all improper spousal behavior. This means that the “fault” of one of the parties in destroying the marriage is not an issue in the divorce. An “uncontested divorce” is simply a no-fault dissolution where the spouses agree on the terms of the divorce (child custody, property division, etc.). If the parties agree to "no-fault" grounds but cannot agree on terms, the divorce is considered "contested".
In the State of Maryland, the Court may grant a No-fault divorce if a) the spouses have voluntarily lived separate and apart for a period of not less than one (1) year without interruption or cohabitation and there is no reasonable expectation of reconciliation; or b) the spouses have lived separate and apart without interruption for two (2) or more years. [Annotated Code of Maryland; Family Law, Title 7, Section 7-103].
In the instance a spouse makes a claim for a breakdown of the marriage against the other, a "ground" or reason is necessary for a “limited” or “absolute” divorce. To justify a cause for divorce, a person must demonstrate one or more conditions exist from the following set of recognized judicial reasons, before the State of Maryland may grant a decree of divorce. [Annotated Code of Maryland; Family Law, Title 7, Section 7-103].
? Limited Divorce: A limited divorce legalizes the separation between spouses and provides for spousal or child support. It is not however permanent, and does not permit remarriage nor does it terminate property claims. A limited divorce may be granted on the following grounds:
- Cruelty of treatment to a spouse or minor child;
- Excessively vicious conduct;
- Abandonment/desertion, with no chance for reconciliation, by either spouse for a continuous period of separation not less than one (1) year prior to filing of the complaint;
- Voluntary separation by either spouse for a continuous period of not less than one (1) year prior to filing of the complaint.
? Absolute Divorce: An absolute divorce permanently terminates the marital union and property claims. The State of Maryland does not require spousal consent of a limited divorce before issuing a Decree of Divorce. An absolute divorce may be granted on the following grounds:
- Insanity, confinement to a mental institution for a period of not less than three (3) successive years, and a qualified determination there is no hope of recovery;
- Conviction and imprisonment of a felony or misdemeanor with a sentence of not less than three (3) years, after which a period of at least one (1) year has been served;
- Voluntary separation by either spouse for a continuous period of not less than one (1) year prior to filing of the complaint;
- Separation, with no chance for reconciliation, by either spouse for a continuous period of not less than two (2) years;
- Abandonment/desertion, with no chance for reconciliation, by either spouse for a continuous period of separation not less than one (1) year prior to filing of the complaint.
- Cruelty, with no chance for reconciliation;
- Vicious conduct, with no chance for reconciliation.
Whether a limited or absolute divorce for cause or no-fault judgment, the Court decides all issues on which the parties cannot agree. Normally the judge will also approve agreements between the parties to make sure they are not fundamentally unfair to one party.
3. Summary Divorce
There is no legal provision in Maryland for a summary divorce; generally applicable to divorcing couples who generally have no children and minimal property, assets and debts. Additionally, specific evidential testimony must be presented by the plaintiff spouse at a court hearing to support a default judgment for a divorce case under Maryland civil procedures. . [Annotated Code of Maryland; Courts and Judicial Procedure, Section 3-409 and Maryland Rules; Rules 9-203, 9-206, and 9-207].
B. Residency & Venue Requirements
1. Plaintiff Resident
At least one spouse (Plaintiff) must be a resident of Maryland for not less than one (1) year prior to filing for a divorce within the Maryland Circuit Court system. If both spouses are residents of Maryland, the divorce may be filed in any county where either spouse may reside. If the Plaintiff is filing for divorce on the grounds of insanity, the residency requirement is increased to a minimum of two (2) years.
2. Non-Resident Spouse
When the Defendant is a not a resident of Maryland, the Plaintiff (the person who files for divorce) must have been a bona fide resident of Maryland for at least one (1) year prior to filing the divorce action in the county where the Plaintiff currently resides. This residency requirement must be alleged in the Bill for Divorce and proven by the Plaintiff. [Annotated Code of Maryland; Family Law, Title 7, Section 7-103 and Maryland Rules, Rule 9-201].
- Venue: "Venue" refers to which type of court and in what locality the case is filed. In Maryland, proper venue for a divorce action is the Circuit Court of the county in which either the plaintiff or the defendant reside. . [Annotated Code of Maryland; Family Law, Title 7, Section 7-103 and Maryland Rules, Rule 9-201].
C. Terms & Process
- Plaintiff: The spouse who files the summons and complaint of action for divorce with the Circuit Court of the county.
- Defendant: The responding spouse who is party to the action for divorce.
- Divorce Process: The legal process of obtaining a divorce begins by filing a complaint or summons with the appropriate Circuit Court of the county of residency. The document initiating the action for divorce is the “Bill for Divorce”. The title of the action granting the divorce is referred to as the "Decree of Divorce”.
4. Mediation or Counseling Requirements
Maryland law specifically declares that it is in the best interests of children to mediate resolutions of parental disputes regarding custody. In cases where the custody of a child is in dispute, the Court may order the parents to attempt to mediate that issue, unless there is a history of physical or sexual abuse of the child. [Maryland Rules, Rule 9-205].
5. Settlement Agreements
While summary divorces are not permitted in Maryland, marital settlement agreements are specifically authorized by statute and may be used for full corroboration of a plaintiff's testimony that a separation was voluntary if: a) the agreement states that the spouses voluntarily agreed to separate; and b) the agreement was signed under oath before the application for divorce was filed. Additionally, each spouse must file a Financial Statement Affidavit and a Joint Statement of Marital and Non-Marital Property. The financial statement form is contained in Maryland Rules, Rule 9-203. The form for the Joint Property Statement is contained in Maryland Rules, Rule 9-206.
D. Separation & Reconciliation
Legal separation is a court determination of each spouse’s rights and responsibilities based on the circumstances of the marital relationship. While a legal separation often includes a physical separation of households, it is not required; nor does it terminate the marital relationship. In the State of Maryland, the grounds for a legal separation (limited divorce) are: 1) willful desertion; 2) cruel and inhuman treatment; and 3) voluntary separation and living separate and apart without cohabitation. The legal separation may be temporary or permanent.
In granting a legal separation, the Court holds each spouse to make a good-faith effort to reconcile their differences. In the instance of reconciliation between spouses, a legal separation may be revoked at any time by agreement of the parties. However, an agreed order of revocation must be signed by the judge. Once a legal separation has been revoked by the court, the parties would have to repeat the entire process if it was decided to legally separate again. [Annotated Code of Maryland; Family Law, Section 7-102].
Remarriage by the parties to another person is forbidden under Maryland law until after the Court issues a Decree of Divorce.
4. Last Name
Under general common law principles, either spouse's former or birth name may be restored if the purpose is not illegal, fraudulent, or immoral. [Annotated Code of Maryland; Family Law, Section 7-105].
E. Child Custody and Access (Visitation)
1. State Policy
In the State of Maryland, joint or sole custody may be awarded to either or both parents, based on the best interests of the child. There is however, no officially adopted statutory language or other factors for consideration set out in the statute that promote shared parenting. Instead, it is the general position of the court to attempt to allow the child(ren) to live in the environment and community that is familiar to the child(ren) and will usually allow the use and possession of the family home by the person with custody of the child(ren). [Annotated Code of Maryland; Family Law, Sections 5-203, 8-207, 8-208, and 9-101 and Maryland Case Law].
2. Types of Custody
The court may award either "sole legal custody" or "joint physical custody" if it is in the best interest of the child. When the divorce is finalized both physical (residential) and legal custody will be determined.
? "Sole custody" means one parent makes all the key or legal decisions such as health, education, general welfare and religion affecting the child(ren), and it means that the child(ren) only live with one parent. This parent awarded custody is referred to as the “custodian” and the other is considered the “non-custodial” parent.
? "Joint custody", often referred to as shared parenting means parents share equal legal custody but not necessarily equal physical custody of the child(ren). Both have an equal right and responsibility to make important decisions regarding issues of health, education, general welfare and religion affecting the child(ren). This arrangement does not always work out to be an exact 50/50 split, but is aided by good cooperation between both parents. In a joint custody award, the Court may further “induce” parental cooperation with the expectation it will review compliance and collaborative efforts, reserving authority to change the order to sole custody in favor of the more cooperative parent.
3. Considerations for Custody Award
Under Maryland law, custody of any child(ren) of the marriage may be granted jointly or to either parent by court decision (order). However, joint custody is not presumed to be in the best interests of the child(ren) under statute in Maryland, although the judge will likely consider joint custody in most every case. Instead, the Court will make custody decisions based upon what is considered to be in the best interests of the children. If both parents request it, joint custody will usually be ordered unless the Court makes a specific finding as to why it should not be so ordered. If physical custody is awarded to one parent, access (visitation) rights will probably be granted to the other parent. To make this determination, the Court exercises certain deliberations to award custody, generally based upon those factors considered to be in the best interest and welfare of the child(ren). There are however some exceptions. One of which is a legal presumption against giving custody to any person who has inflicted any abuse against a child. In abuse cases, the judge is required to consider any history of domestic abuse and may not consider the fact that a parent or spouse has relocated to avoid abuse.
No matter how strongly a parent believes they are the better parent and should have custody of the child(ren), the court may decide otherwise. Each parent should be ready to accept the courts decision and move forward to work with their ex-spouse to raise the child(ren) in a way that is best for them. In making a decision for custody, the court will further consider:
? Safety and well-being of the child(ren);
? Age, health and gender of the child(ren);
? Desire of natural parents, cooperation and any agreements established in proposed parenting plans;
? Fitness, character and reputation of each parent to provide for the emotional, social, moral, material and educational needs of the children;
? Potential for maintaining natural family relations;
? Length of separation of the parents;
? Material opportunities affecting future life of child;
? Preference of each child, if the child is of sufficient age and maturity;
? Respective home environments and geographic proximity of parents to create opportunity for access (visitation);
? If either spouse made a prior voluntary abandonment or surrendered custody of the child(en);
? Preference of the child(ren), when of sufficient age and capacity to form a rational judgment;
? Any other relevant matter the evidence may disclose and other reasonable available alternatives.
4. Parental Access (Visitation)
Where “custody" refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. Access (visitation) addresses the non-custodial parent's rights (when, where, how long, etc.) to spend time with the child(ren). And as in determining custody, judges have broad latitude in providing for access rights as well. The Court also has discretion to provide for access rights, even if both parents had previously agreed to no visitation. It is within the Court’s discretion to determine whether the parents will follow a specific schedule or allow more general conditions for access outside of direct court intervention programs. Parental cooperation and written parenting agreements are very helpful in guiding the Court in making such decisions. When parents cannot agree on child custody and access issues, the Court may order them to participate in programs offered by the Children’s Rights Council and/or other providers. These programs, such as SPEAK and Safe Haven or Gift Exchange access centers help them better cooperate and increase parental awareness of the affect negative behaviors may have on their child(ren).
5. Grandparent and “Other” Access (Visitation)
In the State of Maryland, there is no statutory authority to entitle grandparents custody or award access (visitation) to the child(ren) of either parent. However, grandparents may petition for reasonable access and be awarded such rights if the Court considers such award within the best interests of the child(ren). [Annotated Code of Maryland; Family Law, Title 9, Section 9-102].
Factors favorably considered in the best interest of children may include:
? If one or both parents of the child are no longer living;
? If a parent of the child(ren) has abandoned the minor(s);
? If the child(ren) was born out of wedlock;
? Any other relevant matter the evidence may disclose if no other reasonable available alternative prevails.
6. Shared Parenting Agreement
The purpose of a shared parenting agreement is to reach an understanding on how to jointly raise and care for the child(ren) with both parents sharing in the responsibilities and maintaining involvement in their day to day life. The agreements require a flexibility and dedication of both parents to act in the best interest of their child(ren). Make every attempt to encourage and respect the relationship of your child and the other parent. Don't assume anything and keep an open mind. It is important to remember that the parents are divorcing one another, not their child(ren). A shared parenting agreement fairly negotiated before a judgment of divorce has a far better likelihood of acceptance by the Court, and will help reduce the trauma to the child(ren) after a divorce is finalized. (Link to sample agreement format)
7. Court Order & Modification
After a decision of custody and access is made, an order is signed by the judge and filed with the Clerk of the Court. Both parents are bound by this order and may be found in contempt of the court for failing to honor any part. If in the instance parental access is unjustifiably denied or a court-order interfered with, that parent may bring the issue back before the court by filing a “Petition for Modification.” If it is in the best interest of the child, the judge may decide to modify the access (visitation) order; order makeup visitation for the time missed; order counseling or mediation by one or both parents; assess costs or counsel fees against the parent who unjustifiably denied or interfered with access rights to the child(ren); or other remedy the court may determine best to ensure compliance. If the non-custodial parent should seek to have the custody order changed, that parent must demonstrate a substantial change in circumstances that is in the child’s best interest to make the proposed change. Additionally, the Court may hear a request by a child of at least 16 years in age to change custody from one parent to another, but must equally demonstrate that the change is in their individual best interest. [Annotated Code of Maryland; Family Law, Title 9, Section 9-105].
8. Parental Relocation
Maryland, like many states, has not yet addressed the issue of parental relocation by creating a statute with a presumption of what may be in the best interest of the child(ren).
F. Financial Child Support
1. Responsibility and Emancipation
Financial “child support” commonly refers to the money paid by the non-custodial parent to the custodial parent to assist in meeting the continuing needs of the child(ren). It is often the most contentious aspect of divorce and rarely considered equitable by one or both parents without first working hard to understand the nature, purpose and distribution of financial support. It is important to understand that divorce does not end the legal obligation for support. Although the bond of marriage (or other relationship) has been broken, each parent still retains a legal responsibility to provide adequate support for the child(ren). The paying (non-custodial) parent may not agree with how the funds are being used, but that isn't their decision to make. The use of child support funds is at the discretion of the custodial parent. Even if the custodial parent earns more than the non- custodial parent, child support payments will likely have to be made until each child is emancipated. Emancipation means that the child has come of age and capable of self-support as determined under state law. In Maryland, that generally occurs when a child reaches 18 years of age. Additional circumstances which may consider a minor emancipated include graduation, military service or marriage.
2. Needs and Considerations
In Maryland, each parent is responsible for the support of minor children. The legal duties of financial child support are based upon the needs of the child in conjunction with the abilities of the parents as dictated by income and assets owned. The financial goal is to help families achieve self-sufficiency because non-payment of child support is a key factor contributing to the impoverishment of children. Each are an important part of a combined effort to obtain a fair distribution of financial responsibility so the child(ren) may live in a manner similar to that which existed before the divorce. While every situation is unique, the one common denominator all parents must remember is the Court’s direction to provide for "the best interests of the child." In deliberation of child support issues, the Court will consider many different variables especially as they address the terms of any marital settlement agreement between the parents, including any provisions for payments of marital debts, mortgages, college education expenses, the right to occupy the family home, and any other financial terms, as well as the number of children in the household. Additionally, the family home may be awarded to the parent who has custody of the child(ren) to enable the child to continue to live in the environment and community that is familiar to the child(ren). [Annotated Code of Mary-land; Family Law, Sections 8-206, 12-101, 12-201, 12-202, 12-203, and 12-204 and Maryland Rules; Rule 9-206 (Child Support Guidelines)].
3. Child Support Guidelines
While every state has its own version of the Child Support Guidelines to help calculate an appropriate amount of support, only the individual set of guidelines adopted by the State of Maryland are presumed by the Court to be correct for use by the Maryland system of circuit courts. In Maryland, child support is based on the gross incomes of each parent and how many children the parents are responsible for supporting. And while the Court will generally order either parent to provide for payment based on the Child Support Guidelines, it may also adjust the amount of support payments up or down if appropriate. In determining whether the amount needs adjusting, the Court may further consider:
? Terms of any marital settlement agreement between the parents;
? Presence in the household of either parent of other children that the custodial parent has a duty to support.
? Quality of lifestyle the child(ren) would have most likely experienced had the divorce not occurred;
? Financial resources of each parent and that of the child's;
? Age and health of each parent;
? Present and future income and earning capabilities of each parent;
? Willingness both parents demonstrate to allow access (visitation);
? Affect on the non-custodial parent to maintain two households.
? Child(ren)'s educational needs, including the potential for higher education;
? Age and health of the child(ren);
? Desire on the part of each parent to have sole or joint custody.
4. Negotiating Financial Child Support
As in the issue of custody, the court will have the final say in all matters of child support. However child support, like many other elements in divorce, does not have to be decided only by the judge. In the event an amount may be demonstrated manifestly unjust or inequitable under Child Support Guidelines for the particular circumstances of a case, a written agreement between the parents for a different amount with a reasonable explanation for the deviation from the guidelines may be allowed.
The best measure to ensure the intentions of both parents are met, and guard against unexpected findings, is to mutually prepare a parenting agreement. It is each parent's responsibility to clearly explain any and all special conditions or unique circumstances to the Court. A written agreement between the parents for a different amount with a reasonable explanation for the deviation from the guidelines is not uncommon. And an agreement reached prior to trial is almost always a more successful one, as long as it is in writing and not obtained by fraud or under duress, because it is the parents who best understand the specific needs and capabilities of the family members, as well as, demonstrating a collaborative effort to ensure the best interests of their child(ren).
If parents ignore the opportunity to present a shared parenting agreement, or are unwilling to resolve disagreements (with or without the help of other professionals); the Court will typically refer to the standardized Maryland Child Support Guidelines to determine the amount of financial support. In all instances, the judge will make the final decision on child support, as well as custody. In this way, the Court assumes full responsibility for the order to permanently safeguard the best interests of the child(ren), and guard them against acute or chronic feelings of guilt.
5. Determination of Payment
Child support is one of the few things in divorce that is relatively certain. In making a determination of payment, the Court generally focuses on income after taxes. Moreover, financial support is not considered the sole responsibility of the non-custodial parent, because it is understood that the premiere job of the custodial parent is to provide a sufficient household. For the majority of divorces involving minor children, financial child support is a straightforward application of a formula that is entirely a result of statute. (Refer to Maryland link)
6. Modification of Child Support Payment
In Maryland, either parent may request a child support order to be recalculated at any time, although this kind of modification usually follows a substantial change in circumstances, such as a significant increase or decrease in either parent’s income; a child reaching the legal age of majority; graduation from high school, or other major change to the familial status. The parent requesting a modification of the order for child support must submit a formal motion to the Court that demonstrate a material change in facts from when the payment amount was last ordered. Some of the factors generally considered for modification include:
? Parental incomes and earning capacities;
? Available assets for support;
? Employee benefits of each parent;
? Income of a new spouse or cohabitant;
? New family responsibilities of each parent;
? Increase in the cost of living;
? Special changes in cost of rearing the child(ren); and
? Heath conditions of parents and child(ren).
G. Spousal Support/Alimony
1. Obligation Under Law
It is an obligation established by law based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated. After a Bill for Divorce is filed with the Court to terminate the marriage, the spouses may enter into a “limited divorce” in the absence of an “absolute divorce”. When a limited divorce is granted, either spouse may then ask for post-marital maintenance (also known as alimony or spousal support). It is not a guaranteed right to receive this kind of monetary support, but may be granted depending on the amount and terms varying with the circumstances.
2. Definition and Intent
Spousal support (sometimes called spousal maintenance or alimony) is money paid by one spouse to the other due to the payee spouse's loss of the benefit of the payor spouse's income due to the divorce. It's designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support in an effort to maintain the standard of living that both parties were accustomed to during the marriage. It can only be ordered by the court, but may be awarded to either spouse. But unlike child support, it is not determined by simple mathematical calculations in an official set of guidelines. Instead, judges have enormous discretion when awarding spousal support, if they would at all. This of course, creates a great deal of uncertainty for litigation, encouraging each spouse to negotiate a fair agreement on their own behalf to settle their case instead of taking their chances with the Court. Unless reasons are compelling to the contrary, such as an agreement obtained by fraud or made under duress, the Court is generally disposed to accepting an existing agreement between each spouse. However, if the parties cannot agree on the terms of their divorce in a binding written instrument, the Court will make what it considers a fair determination based on the legal argument and the testimony submitted by both parties.
3. Types of Spousal Support/Alimony
Spouse support may be awarded as a set lump sum (alimony in gross) or as periodic payments that terminate under certain circumstances.
? Lump Sum: This type of support is made in one payment instead of periodic (usually weekly or monthly) payments. Lump sum alimony is not modifiable in the amount after an award is made and paid. Lump sum alimony, just like all other form of spousal support is taxable as income. It is recommended that a person receiving or making a lump sum should first consult with an experienced tax professional to determine the tax liabilities of this type of payment.
? Permanent: This type of support is awarded until either the death of the payor or the remarriage of the recipient. Some agreements may include a "cohabitation" clause that states spousal support is terminated if the recipient cohabits with another person in the avoidance of marriage. Permanent alimony, as with the other periodic types of support may be modified by the Court if the party seeking the modification can show a material change in circumstances.
? Temporary: This type of support lasts for a short, specific period of time, usually not more than one (1) to two (2) years. Temporary support may be awarded when the persons involved are on almost equal ground but due to certain circumstances one person may need immediate financial assistance in order to restore their ability to set up a household and return to the workplace.
? Rehabilitative: This type of support is the most commonly awarded alimony, especially after shorter marriages. It is a solution the Court may apply in a situation where the recipient is usually younger or more easily able to enter or return to the workforce and become financially self supporting. Rehabilitative support may also include payments for education if determined necessary to enable the recipient to become self supporting.
4. Considerations for Award
The Court has full discretion to award an allowance for maintenance to either spouse, if the recipient spouse has insufficient resources to provide for their own maintenance. This award may be made out of the property belonging to the other spouse, unless it is separate property (acquired by gift or inheritance, or acquired prior to the marriage) and was never used for the common benefit of the marriage. Again, there is no formula for setting the amount of spousal support, and generally granted only on by a demonstration of need by one party together with the requisite ability to pay by the other. To make this determination, the judge will consider the following factors when deciding how much spousal support to award – if it will be ordered at all. [Annotated Code of Maryland; Family Law, Section 11-106].
? Relative Income of the Parties: If the Court should recognize a “right” of the spouses to live “according to the means they have become accustomed”, the judge may attempt to adjust the incomes of each spouse, as best as possible, in a way that approximates their prior lifestyle. This action tends to strongly equalize post-divorce income, however often heavily penalizing the higher-earning spouse.
? Independent Capacity to Support: The ability of the spouse from whom support is sought to independently meet their own needs while meeting those of the spouse seeking support, in relation to the financial resources of the spouse seeking alimony, including marital property apportioned to both spouses. A spouse with the better future earning potential and financial prospect, (including inheritances) is likely to have to pay higher spousal maintenance (if awarded) than one who is not.
? Earning Capacities of the Parties: The time and investment necessary to acquire sufficient education and training to enable either spouse to find appropriate employment to become self-supporting.
? Alternative Sources of Income: Medical, insurance, retirement or other benefits up to 50% may be used for spousal support if accumulated during the marriage.
? Age of the Parties: At the time of divorce, it is generally accepted more youthful spouses are considered to exercise greater ability to productively progress with their lives, and therefore thought to require shorter periods of spousal support if determined necessary.
? Health of the Parties: Poor health goes towards need, and potentially an inability to support for oneself. The courts do not want to leave one party financial isolated due to illness or injury that may likely leave the person indigent.
? Length of the Marriage: Generally the longer the marriage lasted the greater the period for spousal support if so ordered. It is not uncommon for the judge to make an award for permanent support if the marriage lasted a long period of time, especially where one spouse has been economically dependent on the other spouse for most of the marriage.
? Marital Misconduct: If the divorce is awarded based upon the misconduct of the other spouse, the court may consider that misconduct in making an award of support, but may not consider the separate property of the spouse in determining the amount. Misconduct of either spouse may also be considered in the determination to deny any financial maintenance. However, a spouse that is guilty of some ground for divorce is not prevented from seeking an award of alimony from the other spouse.
? Other Factors: In addition to the above, the Court may consider the facts and circumstances leading to separation as well as any economic circumstances of either party that the judge may determine just or proper including:
- Extent to which a party’s earning power, expense or financial obligations will be affected by serving as the custodian of a minor child(ren);
- Contributions by each spouse to the marriage including services rendered in home-making, childcare, education, career-building or increased earning power of the other party;
- Relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
- Any prior made mutual agreement between the spouses concerning financial or service contributions by one spouse with the expectation of future reciprocation or compensation by the other;
- Property brought into the marriage by either party;
- Relative assets and liabilities of each party;
- Tax consequences to either party;
- Any other factor the court deems just and equitable.
5. Continuation, Modification and Termination of Award
? Continuation: Upon petition, a court may order temporary spousal support (pendente lite) while the divorce is pending. In Maryland, this is provided in the process of a limited divorce. However, upon a Decree of Divorce (absolute divorce) it should not be expected that a previous order to continue support will be automatically sustained. Although a continuance for spousal maintenance may be requested (usually for a specific length of time), the arguments for support during and after the marriage may be different and subject to modification or termination.
? Modification: With the exception of a lump sum payment, an award of spousal support may be modified at any future date based on a reasonable demonstration of a change of circumstances by either party upon petition (proper notice to the other party and application to the court).
? Termination: Upon petition to the court, an award of spousal support may be terminated upon the submission of proof to the Court of a major change in lifestyle or conditions such as the emancipation of the last child; death of either spouse; remarriage of the recipient spouse; or other extenuating circumstance.
6. Financial Considerations
? Child Support: Financial child support is the condition where one parent is required to contribute to the support of child(ren) through the agency of the other parent or guardian. In this manner, regulations under the Internal Revenue Service interpret child support as a normal part of parenting financial responsibilities. Child Support payments are therefore considered a necessity for a parent’s support of their own offspring (after-tax dollars) and not taxable to the person who receives it, nor tax deductible to the person who pays it. (IRS Publication 501, Exemptions, Standard Deduction, and Filing Information)
? Alimony: Again, spousal support is treated very differently and should not be confused with financial child support. With respect to taxation, spousal support (alimony) is a payment to or for a spouse or former spouse under a divorce or separation instrument. It is considered a taxable gross income - treated as income to the receiving spouse, and deducted from the income of the paying spouse (pre-tax dollars). In the event parents have dramatically different incomes, there may be some tax advantages to the non-custodial parent to pay alimony in lieu of child support, even if a judge wouldn't ordinarily award it. It is important to note the IRS does not recognize voluntary spousal payments made under a divorce or separation agreement which has not been approved by the Court. (IRS publication 504, Divorced or Separated Individuals).
? Pendente Lite Maintenance: Like other forms of periodic installments of spousal support, pendente lite maintenance, is taxable to the recipient and deductible by the paying spouse under the rules of the Internal Revenue Service. As a result, a higher earning parent may be financially better off supporting the custodial parent in the form of an alimony payment instead of child support because alimony is paid in pre-tax dollars and child support is paid in after-tax dollars.
? Lump Sum Payment: If an award of spousal support is paid in a lump sum (alimony in gross), there is no tax ramification for either spouse. Instead, this type of payment is considered a distribution of property.
? Retirement Funds: Maryland law allows a Court to divide retirement funds and pensions in a marriage if the funds were accumulated during the course of the marriage. The Court may also consider the distribution of retirement funds as part of an award for spousal support.
? Insurable Benefit: Persons that receive spousal support should be aware that this form of financial maintenance will cease upon death of the payor. Because the recipient has an insurable interest in the person being insured (payor), it is permissible for the recipient to purchase an insurance policy (such as life and/or disability) in an amount sufficient to replace the spousal support in the event of accident, illness or death on the part of the payor.
? Bankruptcy: Under the rules of the Federal bankruptcy code, spousal support is a non-dischargable obligation. That is, regardless under which chapter of the code bankruptcy may be filed, a person may not escape their financial requirement to make payments to the Court awarded recipient.
7. Failure to Pay
Under Maryland law, with the exception of filing a petition to have the payor spouse held in contempt of court for failing to pay spousal maintenance, there are few legal remedies available to the party that is owed money. Nor does the State does offer legal representation (free or remunerated) to enforce an order for spousal support. Generally, the recovery of spousal support is left to collection procedures that are available to all other creditors. The procedures for reporting maintenance obligations in arrears are available at each of the major credit reporting agencies.
H. Property Division
1. Equitable Distribution
There is no statutory provision in Maryland for the division of property. Under case law, Maryland is considered an "equitable distribution" state. This means the Court has the authority and full discretion to divide all marital property (assets and debts) in a fair and equitable, but not necessarily equal manner. Moreover, the Court's discretion may not be disturbed on appeal without a showing of clear abuse. The Court may not however divide separate property, regardless of whether the separate property was obtained before or after the marriage.
? Marital Property: Generally, marital property encompasses all jointly-owned real and personal property acquired during the marriage. This may include the main residence, vacation or investment property, automobiles, home furnishings and equipment, furs and jewelry, joint checking and savings accounts, certain pensions and retirement funds, mortgages and revolving loans, credit card debt, and other “co-mingled” assets and liabilities that were purchased or obligated during the course of the union. There is no fixed standard to divide marital property, instead the Court will decide and distribute based on the facts and circumstances of each case. Marital fault may also be considered in determining an equitable distribution of property. However, not all property is considered “marital property”.
? Separate Property: Generally, assets (real or personal) acquired before the marriage; by gift or inheritance from a third party during the marriage; property excluded by a valid agreement; or other property traceable to any of the preceding sources may be excluded from the marital estate. The Court may however, consider if whether the property, or its income, has been used for the common benefit of the both spouses during the marriage to make a determination of separate property.
2. Factors for Consideration of Equitable Distribution
To decide the division of marital property owned by divorcing couples, and whether any property held by one of the parties should be included in the marital estate, the Court will consider several factors for the purpose of making an equitable distribution. ). [Annotated Code of Maryland; Family Law, Sections 8-202, 8-203, and 8-205].
The considerations may include but are not limited to:
? Length of the marriage;
? Age, physical, and mental condition of each spouse,
? Value of the property set apart to each spouse;
? How, and by whom, the property was acquired, including retirement, profit-sharing, or deferred compensation plans;
? Economic circumstances of each spouse at the time the division of property is made effective, including sources of income, medical benefits, retirement, insurance, and other compensation;
? Monetary and non-monetary contributions by each spouse toward the acquisition of marital property, including services of each spouse as a parent, wage earner and/or homemaker;
? Contributions of each spouse to the education, training or increased earning power of the other party;
? Circumstances that contributed to the estrangement of the spouses;
? Opportunity of each spouse to acquire future income and assets in relation to their station, vocational skills, employability, estates, liabilities and needs of each;
? If the property award is instead of, or in addition to, alimony
? Any other factor necessary to do equity and justice between the spouses
3. Authority and Value of Equitable Distribution
Except for pensions and retirement funds, the Court does not hold authority to change the title to property awarded in a divorce. However to adjust the rights of each spouse, the Court does exercise the power to give a monetary award and may order a division of the property by the sale of same and making division of the proceeds as an adjustment for the values awarded. To ensure a more equitable distribution, and reduce time and expense in a property dispute, it is highly recommended that as much independently substantiated information as possible is collected about the marital property prior to distribution, including when it was purchased it, the approximate or appraised value, account numbers and balances, serial numbers and so forth.
J. State Statutes and Related Links
1. Maryland Judiciary Circuit Courts
2. MD Judiciary Department of Family Administration, Administrative Office of the Courtss
3.Maryland Department of Human Resources, Child Support Enforcement Program
4.State Legislatures, State Laws and State Regulations