Diamonds, dresses, flowers, and caterers are what couples typically discuss when they decide to get married; but, let me tell you what the topics turn to when couples decide to get divorced; alimony, marital property, and “equitable” division of assets.

Couples can avoid all of the emotional stress and pomp and circumstance of a formal wedding by simply running off to a Las Vegas and seeking a drive through chapel.  This alternative to a traditional wedding is arguably cheaper, more adventurous, and possibly even more fun.

Like the Vegas alternative to a formal wedding, there is a cheaper, easier, and less traumatic alternative to divorce litigation; a prenuptial agreement.  Everyone thinks that prenuptial agreement is a dirty word, well, two dirty words.  I promise you that there are much dirtier words in the arena of domestic law, including attorneys fees, alimony, dissipation of martial assets, and bankruptcy to name but a few.

A common misconception about prenuptial agreements is that they are only for people who have previously been married and have a lot of assets or professional football players, actors, rock stars, i.e. the very wealthy.  This is simply not correct.  Prenuptial agreements are just as helpful to couples who have minimal pre-marital asset or pre-marital debt obligations going into a marriage because no one can know how long the parties will be married or what the parties may acquire while they are married and if those pre-marital assets or pre-marital debts become comingled with other marital property or marital debt then problems may arise.

A prenuptial agreement can even be helpful to a couple that has no pre-marital assets or debts.  Consider the young soon to be wife who forgoes her education and career to stay home and take care of the household and children?  Should she not be entitled to some percentage of her husband’s annual income for until she can take the necessary steps to become financially independent in the event of divorce?  Most people, though likely not to include her husband, would agree that she is entitled to alimony.  Regardless of anyone’s opinion, alimony is provided for by statute in Maryland.  Rather than take this matter before the court in litigation, the parties could have a prenuptial agreement to state that by agreement of the parties wife will discontinue her graduate school program to be a full-time stay at home mother until the youngest child of the parties is school-aged and if the parties divorce prior to this occurring then in addition to any child support payable to wife, wife shall be entitled to 20% of husband’s gross annual income, averaged over the previous 3 tax years.

Or again for our couple with no pre-marital assets, the agreement could be as simple as the parties hereto have no previously acquired non-martial assets and therefore they agree that all personal property, real property, bank accounts, stocks and retirement funds acquired during their marriage shall be marital property and shall be divided equitably, 50% to each party, in the event the parties should divorce.   I assume that there may be a couple of folks out there, maybe even family law attorneys, who know a little something about the Maryland Marital Property Act who are asking well what good does that do since the law provides for an equitable distribution of marital property anyway?  What the Maryland Marital Property Act actually says is that all property determined to be marital property is subject to equitable division by the court.  Let me assure you that equitable does not mean equal 50/50 shares in the minds of most parties who are going through a divorce.

If you are mature and compatible enough to contemplate entering into marriage then you should be able to have a frank discussion about what is reasonable in the event your marriage ends.  If a couple cannot even discuss the topic of a prenuptial agreement, well, need I say more?

This is the first article in an ongoing series about different types of domestic law agreements. The next article will discuss separation agreements.  As always, we here at Delaney & Keffler, LLC will provide you will practical solutions to real world problems and help you to protect your assets and your legal rights. Contact us today at 410-535-3476 (FIRM) or welcome@delaneykeffler.com for a free consultation.

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.