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Family Law March 2019 Newsletter

Family law is an intricate and complex legal area – often made more so because it frequently involves personal difficulties and intense emotions. Family law issues are broad, yet often deeply interrelated. Preparing for a separation, and ultimately divorce, from a person’s spouse involves much more than simply securing alternate living arrangements. Separation and divorce implicate many other issues, depending on the particular circumstances of the divorcing couple. There may be real and personal property to sell or divide. There may be retirement accounts in which both parties have an interest. The couple may have debt. If the parties have children, issues involving custody and child support will be raised. Based upon the consideration of many different factors, one spouse might be obligated to provide spousal support to the other spouse. Preparing for and dealing with separation and/or divorce can implicate any combination (or all) of these issues.

One of the first questions usually asked is “what is a legal separation?”  In fact, a separation in Maryland is no more or less “legal” because it is memorialized in writing. Rather, a separation is just what it sounds like—the cessation of cohabitation between married spouses.  But, what is the significance of a legal separation?

Before a Court may grant an absolute divorce to a married couple, the Court must find “grounds,” or certain statutory pre-requisites, upon which to grant the dissolution of a marriage. An “absolute divorce” is permanent, meaning that after it has been granted, the parties are permitted to remarry (each other or other people). When a party files for an absolute divorce, and the Court finds grounds exist for granting an absolute divorce, the Court is permitted to address all property claims of the parties. Under current Maryland law, one of those grounds involves a separation that has continued for 12 months without cohabitation.  “Without cohabitation” means that the parties have resided separate and apart and that they have not resumed marital relations—not even on a single occasion.

Beginning in 2017, Maryland adopted as an alternate “ground” for divorce known as “Mutual Consent” which negated the requirement of any separation period.  Originally, the statute stated that parties with minor children could not proceed on the grounds of Mutual Consent; however, the law was changed to state that, to be eligible for an absolute divorce on this ground: (a) the parties must have entered into a written settlement agreement signed by both parties that resolves all issues relating to alimony, property, and custody, care, access, and support of the minor children (including child support guidelines if the agreement provides for payment of child support); (b) there must also be a finding by the Court that neither party has filed a pleading to set aside the settlement agreement prior to the divorce hearing; and (c) the Court must be satisfied that any terms of the agreement relating to the minor children are in the best interests of those children.

If there is not Mutual Consent or a separation that has continued for 12 uninterrupted months, the parties can still be eligible for an absolute divorce in Maryland based upon one or more of the following additional grounds: adultery, desertion, felony or misdemeanor, insanity, cruelty, or excessively vicious conduct towards complaining party or minor child.

In the absence of grounds for an absolute divorce, a party may seek what is referred to as a “limited divorce.” A limited divorce is often unnecessary, because the parties can seek pendente lite (i.e. temporary) relief during the course of an absolute divorce proceeding; however, a limited divorce proceeding may be utilized to formalize the parties’ separation and to provide for orders regarding spousal support, child support, as well as the right to use, possess and/or occupy both real and personal property of the family.  Parties who have been granted a limited divorce are not permitted to remarry and the Court is not permitted to determinate property claims between them. The following are grounds for a limited divorce: cruelty or excessively vicious conduct towards complaining party or minor child, desertion, or separation.

If you are contemplating separation or divorce, the decision as to whether, when, and how to proceed is intensely personal. While you may be acquainted with one or more individuals who have traveled the path of separation and divorce, it is important to take steps to ensure that your path is individualized to identify and address your needs and your priorities.