If my spouse has committed fault in the marriage, can I get a divorce based on irreconcilable differences?
Yes, but you need not prove fault on his part and neither will he need to prove fault on your part. ‘Irreconcilable differences’ is a new divorce ground in Maryland and the courts are still developing precedent on what constitutes irreconcilable differences. However, it is safe to say that generally, irreconcilable differences constitutes inability of the parties in a marriage to agree on most things or on important things or that an individual and their spouse cannot get along with one another enough to keep the marriage.
2. What factors does the court consider in custody cases?
There are two aspects to custody: Legal Custody and Physical Custody
Legal custody involves the right to make long-term plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child’s welfare.
Physical custody involves spending time with the child and making decisions about the child’s everyday needs. Physical custody can sometimes be referred to as “parenting time.”
In deciding on the issue of custody, the some of the factors a court considers include;
- Primary Care Giver – Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?
- Fitness – What are the psychological and physical capacities of the parties seeking custody? The court may also consider evidence of abuse by a party against the other parent, the party’s spouse, or any child residing within the party’s household (including another child).
- Character and Reputation of the parties
- Agreements – Is there a custody agreement already in place?
- Ability to Maintain Family Relationships – Who will be best able to help the child keep family relationships? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any bad action on the part of the other parent?
- Child Preference – The judge may choose to interview the child outside the presence of the parents. Though it is rare, the court will hear from a child under 7 years, and a child as young as 5 or 6 years of age may be heard. The child’s maturity, and whether the child can tell the truth from fiction will guide the decision whether a child may be heard. A child of at least 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. Additionally, the court has the power to appoint an attorney for the child in contested cases.
- Material Opportunity – Which parent has the financial resources to give the child a better life?
- Age, Health and Gender of Child
- Residences of Parents and Opportunity for Visitation – How close do the parents live to each other? How close do they live to members of the child’s extended family? Which parent lives closest to the child’s school and social circle?
- Length of Separation – How long has the parent been separated from the child?
- Any Prior Abandonment or Surrender of Custody – Is there a history of one parent walking out and leaving the other parent to cope with the child and the home? Which parent left when you last broke up?
- Religious Views – These will be important in the court’s decision only if you can show that religious views affect the physical or emotional well-being of the child.
- Disability – A party’s disability is only relevant to a custody decision if the disability affects the best interest of the child.
Other Factors
- Willingness to share custody;
- Fitness of parents;
- Child’s relationships with each parent;
- Child’s preference;
- Ability to stabilize child’s school and social life;
- Closeness to parent’s homes (primarily a factor during the school year);
- Employment considerations (e.g. long hours, extensive travel, etc.);
- Age and number of children;
- Financial status; and
- Benefit to parent.
Source: https://www.peoples-law.org/child-custody-maryland
3. What factors does the court consider when awarding alimony?
Types of Alimony;
Rehabilitative alimony – This is the type of alimony most likely to be awarded. Usually it is associated with a time-limited goal such as going back to school.
Indefinite alimony – This is a relatively rare type of alimony awarded with no specific end point. You may receive indefinite alimony if (because of your age, an illness, or a disability) you cannot (1) make reasonable progress toward supporting yourself or (2) even if you can make reasonable progress; your ex-spouse’s standard of living is “unconscionably disparate” from yours. “Unconscionably disparate” means that there is a very large and unfair difference between your living standards. Alimony awards may be modified, extended, or changed or ended in the future. This may happen if one of the ex-spouses asks the court to consider the alimony amount in the future and circumstances have changed.
Factors the court will consider include;
- Length of your marriage;
- Your financial situation during the marriage, now and in the future;
- Your age, physical and mental health; AND
- The reasons for the divorce.
Additional factors include but are not limited to;
- The ability of the parties seeking alimony to be wholly or partly self-supporting;
- The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
- The standard of living that the parties established during their marriage;
- The duration of the marriage;
- The contributions, monetary and nonmonetary, of each of the party to the well-being of the family;
- The circumstances that contributed to the estrangement of the parties;
- The age of each party;
- The physical and mental condition of each party;
- The ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
- Any agreement between the parties;
- The financial needs and financial resources of each party, including:
- All income and assets, including all property that does not produce income;
- Any monetary award concerning property and award of possession and use of the family property;
- The nature and amount of the financial obligations of each party;
- The right of each party to receive retirement benefits; and
- Whether the award would cause a paying spouse or a spouse who is a resident of a care facility with more than two patients to become eligible for medical assistance earlier than would otherwise occur.
SOURCE: https://www.peoples-law.org/alimony-maryland
4. Will my spouse and I get each 50% of the property when we divorce?
Maryland is an equitable distribution state which means that upon divorce, the court will not automatically divide marital property on a 50-50 basis but will consider a number of factors in order to decide how the property will be divided. Some of these factors include;
Agreement of the Parties – The parties may agree on the division of any property held by them without the assistance of the court.
Equitable Distribution by the Court
- When the court makes an equitable distribution of the property, the court first determines what property belonging to the couple is marital property. It then determines the value of that property.
- Finally, the court determines who is entitled to what share of the valued, marital property, taking into account the following factors:
§ The contributions, monetary and non-monetary, of each party to the well-being of the family;
§ The value of all of the property interests of each spouse;
§ The economic circumstances of each spouse at the time the award is to be made;
§ The circumstances and facts which contributed to the estrangement of the parties;
§ The duration of the marriage;
§ The age and physical and mental condition of the parties;
§ How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property;
§ Any award or other provision which the court has made with respect to family use personal property or the family home, and any award of alimony;
§ Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award; and
§ The contribution of either party to the acquisition of the property is also considered.
This area of the law is very complex. If there are property interests, advice from an attorney is essential.
SOURCE: https://www.peoples-law.org/marital-and-non-marital-property-maryland
5. I am divorcing my husband and cannot afford to move out. How does the law protect me?
The new law in Maryland that came into effect on October 1, 2023 allows couples living together to obtain a divorce based on six months separation even when the couple still lives under the same roof as long as the party filing for divorce is able to show that they have been leading separate lives.
6. I am getting a divorce in Maryland. Can relocate with the children?
Matters relating to minor children are decided by the court in consideration of the child’s best interest. Often, if the parties are able to agree on relocation and the court is satisfied that such agreement is in the child’s best interest, the court will not disturb the agreement. If the parties are not able to agree, the party seeking to relocate has to demonstrate to the court that the relocation is in the best interest of the child because the non-relocating parent will still be able to spend sufficient time with the child. This may be achieved for instance by the non-relocating parent having access during the entire or majority of the school summer break and during the holidays. It is much easier for a court to allow relocation when there are compelling reasons for the relocation and that the relocation is ultimately for the best interest of the child.
7. I want to file for divorce but I don’t know where my spouse lives. Can I get a divorce if I cannot him served?
When a party is unable to serve the opposing party despite reasonable efforts to locate the other party ( due diligence). The party requesting alternative service has to show by affidavit that the whereabouts of the opposing party are unknown and that reasonable efforts have been made in good faith to locate that party. The alternative service that may be permitted include; mailing a notice to the opposing party’s last known address and by posting the notice by the sheriff at the courthouse door or on a bulletin board within its immediate vicinity and/or that the notice be published at least once a week for three weeks in one or more newspapers circulated in the county where the action is pending.
