Tough economic times are causing couples to be more creative when considering divorce.   Whether the decision to separate and possibly divorce is mutual for both parties or not, the reality is that if either party has to establish another residence to move out of the marital home, this creates a financial burden for the entire family.   Maryland law requires that in order to file for divorce, one of the parties to the divorce must have grounds to assert against the other party.  Grounds for an Absolute Divorce include by way of example and not limitation:

Adultery – Is defined as the act of a married individual having sexual intercourse with a person other than that individual’s spouse.  A Complaint for Divorce may be filed on adultery grounds as soon as the party discovers the adultery.  To obtain a divorce on the grounds of adultery, the complaining party must prove at a minimum a) a public show of affection and b) the opportunity to commit the act.

Cruelty of Treatment – Is defined as a course of conduct that is calculated to seriously impair the health and/or happiness of the other party or a child of the party with no hope of reconciliation.

Excessively Vicious Conduct – Is defined as cruel and excessively viscous actions toward the party or a minor child of the party with no hope of reconciliation.

Insanity – To file for divorce on the grounds of insanity one party must be confined to a mental institution for at least 3 years before a Complaint may be filed and two physicians must certify that the insanity is incurable.

Conviction of a Crime - To file for divorce on this ground one party must be convicted of a felony or misdemeanor, sentenced to serve at least 3 years in prison, and have already served at least 12 months of their sentence.

In order for the court to grant an Absolute Divorce based on one of the grounds above, specific factors must be met Even though a party might believe that one of the specific grounds above exists, that party must prove that ground through evidence submitted to the court.  For example, you may believe that your spouse is cheating, but unless you have sufficient evidence to submit to the court to prove it, you will not be able to proceed on the ground of adultery.

If a party is unable to prove the factors required for one of the grounds above, if none of the grounds above exists, or if a party prefers not to go through the emotional and financial burdens that sometimes accompany the open court trial to prove certain grounds, then a  one year separation period is required by law.

This mandatory one year separation period must be complete prior to filing the Complaint for Absolute Divorce, even if both parties agree and want to divorce.  As with any other ground for divorce, the devil is in the details or facts so to speak, and what constitutes living separate and apart is where couples are getting creative.

An opinion by the Court Special Appeals in the case of Rickets v. Rickets, 380 Md. 230, 844 A.2d 427 (2004) http://www.courts.state.md.us/opinions/coa/2006/136a03.pdf opened the door in some respects to the concept of living separate and apart under the same roof for the purposes of filing for a Limited Divorce.    How far the courts will go to stretch this concept for couples trying to achieve an Absolute Divorce under the same or similar circumstances remains to be seen.   However, as more couples face the reality of not being able to afford the expenses associated with two residences in order  to meet the criteria for living separate and apart, people are getting very creative about dividing the space that exists in their homes.   More and more judges and Domestic Relations Masters are being asked to determine if creative ways of living separate and apart, such as sleeping in separate bed rooms, one party living in a finished basement, one party living on a mother-in-law suite above the garage, or sleeping in a sleeper camper placed on the marital property are sufficient to meet the mandatory one year separation period prior to filing a Complaint for Absolute Divorce.

If you want to know how your idea to live separate and apart may fare in court, or to discuss any other questions you may have regarding divorce or separation, call us to schedule your free consultation.

1. I cannot get alimony if I committed adultery – There are many factors that the court must consider before making a determination regarding alimony such as the age of the parties, their ability to be self-supporting, their education and wage earning capacity, and health.  What led to the end of the marriage, and this is where adultery may be a factor, is only one of the factors that the court must consider along with many others.

2. I will be required to pay alimony if I committed adultery – See above, there is not one factor that carries such weight that it would automatically entitle someone to pay or receive alimony.  However one factor that carries a lot a weight on the issue of alimony issue is income.

3. I should waive child support to keep my spouse from fighting for custody – Your child is entitled to the support, both financial and emotional, of both parents.  This is your child’s right to waive, not yours.  Even if the other parent does not provide emotional support, does not exercise visitation, or is an absentee parent by all accounts, the court will still order that parent to pay child support pursuant to the Maryland Child Support Guidelines.   Although the type of custody or amount of visitation may have an impact on the actual amount of child support ordered, child custody and visitation have no bearing on whether a child should be financially supported by both parents.  Whether a parent is exercising visitation or not a child still needs food, shelter, clothing, and medical care.

4. If I move out of my marital home then I have given up my rights to it – If you are on the Deed to your home then you still own it no matter where you live; this is the case for married and non-married people alike.    If you are married, then even if you are not on the Deed to the home, you likely still have a marital property interest in the home.   There are many factors that go into determining what your actual property interest may be, however, moving out of your house does not change the nature of your ownership interest.

5. I do not need an attorney if my spouse and I reach an agreement on all of our property and custody issues – Although it is always best to try and come to an agreement on as many issues as possible to avoid the expense of litigation even if the parties reach an agreement on all issues it is still better to have an attorney at least draft the agreement.  People often ask me, do I need a lawyer?  I give them this analogy; I do not need a plumber to replace my hot water heater.  I can do it myself, and did, but because I only knew the basics when I failed to use the correct fittings and sealant and everything started leaking, I called the plumber to fix it.  Unfortunately for divorce there are certain issues that if overlooked or not properly addressed at the time of divorce cannot be “fixed”.   People come in weekly and ask me if there is anything I can do to “fix” their separation agreement or to “fix” a particular issue regarding alimony, health insurance, mortgage interest deductions, financial liability on a loan, transfer of pensions or other retirement, and so on.   Unfortunately about 8 times out of 10 there is absolutely nothing I or anyone else will be able to do to “fix” their problem.

Many people wonder about the effect of a divorce on their will. Will your former spouse still be entitled to your grandmother’s fine china? Will your estate still be bound to donate $10,000 a year to your ex’s favorite charity?

Under Maryland law, a divorce automatically revokes all provisions in a will that relate to the former spouse. Following divorce, any benefits originally intended for the spouse will instead go to residuary beneficiaries. The law is a bit less clear about what will happen to any provisions in a will that benefit those related to a former spouse, or those that are listed as beneficiaries at the request of a former spouse.

In Friedman v. Hannan, 412 Md. 328, 987 A.2d 60 (2010), the highest court in Maryland affirmed a circuit court decision revoking provisions in a will that left all of a husband’s assets to his former wife and her family. The court held that under Maryland law, a divorce automatically revokes all provisions in a will that directly benefit a spouse, and may also revoke any provisions that are motivated by the marriage and relationships incident to the marriage. However, it is important to note that the court did not set forth any specific test or guidelines to determine whether a particular provision included in a will because of a former spouse’s relationship, or at the request of the ex-spouse, would automatically be revoked upon divorce. In such situations, a trial court would make a decision about the revocation of  a provision based on facts presented to the court at the time the will goes into effect.

If you get divorced, you have two options -

1. Make no changes to your will and hope for the best—There is no law requiring you to make any changes to your will following a divorce. Without revising your will, provisions leaving anything to your former spouse will automatically be revoked upon your divorce. Yet, if you decide not to change your will, it is possible that your estate will be bound to carry out the desires of your former spouse, as contained in your will. In the absence of revisions, your will may be challenged, and a trustee would have to present your wishes in a trial court, with the final determination in the hands of a judge.

2. Revise your will to ensure the proper beneficiaries—Following your divorce, you may wish to remove all references to your spouse in your will, as well as any provisions that benefit your former spouse’s family or interests. Even if you have residuary, or fallback, beneficiaries included in your original will, some simple revisions will clarify your wishes. Keep in mind that if you would like your former spouse to remain a beneficiary, you may need to revise your will so the provisions related to your ex-spouse are not automatically revoke

It is a good idea to consult with an attorney following a divorce, or any significant change in personal status, to determine whether you need to make changes to your will or any other beneficiary forms including (but not limited to) insurance policies and IRAs. We here at Delaney & Keffler, LLC will take the time to fully explain and discuss your options and so that you can feel confident that your wishes will be carried out by your will. Contact us today at 410-535-3476  (FIRM) or welcome@delaneykeffler.com for a free consultation.

A Bill that would tremendously change the waiting period for obtaining an absolute divorce in Maryland has been passed by both the House (House Bill 402) and Senate (Senate Bill 139) and is well on its way to becoming new law.

This bill amends the Maryland Family Law Article, Section 7-103 (a) and (c) to reduce from two years to 12 months, the period of time required for parties seeking an absolute divorce to live apart without cohabitation and without interruption before filing a Complaint for Absolute Divorce based on the grounds of involuntary separation.

Basically, the section underlined below will be eliminated from the current law and other provisions of Family Law 7-103 modified accordingly to allow for, in a sense, a one year separation, whether involuntary or voluntary.
If you think this isn’t big news, just ask someone who has had to wait two years to even file and start the process of obtaining a divorce!

Currently in Maryland a court may grant an absolute divorce on the following grounds:
• adultery;
• desertion, if the desertion is deliberate and final, has continued for 12 months without interruption, and there is no reasonable expectation of reconciliation;
• voluntary separation, if the parties have voluntarily lived separate and apart without cohabitation for 12 months without interruption and there is no reasonable expectation of reconciliation;
• conviction of a felony or misdemeanor in any state or federal court, if the defendant has been sentenced to serve at least three years, or an indeterminate sentence, and has served 12 months of the sentence;
• two-year separation, when the parties have lived separate and apart without cohabitation for two years without interruption before the filing of the divorce application;
• insanity, as specified; or
• cruelty of treatment or excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.
The full text of the bill and how it changes the current law can be viewed at the following link: http://mlis.state.md.us/2011rs/bills/sb/sb0139t.pdf
As always, we here at Delaney & Keffler, LLC will take the time to fully explain the process and laws associated with Divorce and assist you in every way we can to make the process less painful. Contact us today at 410-535-3476 (FIRM) or welcome@delaneykeffler.com for a free consultation.