Divorce is a legal way of terminating a marriage. Although due to its sacred nature marriage is not always viewed as a contract, in a legal sense it is actually a civil contract. Unfortunately, not all marriages are meant to last and divorce may be sought for a variety of reasons. Some may be due to extraordinary situations while others may result from the parties “growing apart” or with mutual consent. Whatever the case, for a legal marriage to come to an end, one or both parties must engage the legal system (not necessarily the same one that established their union). Different states have different rules with many of them being quite similar with nuances. Because contested divorce proceedings can be long, painful and expensive, collaborative divorce is gaining considerable attention. While not purporting to be an exhaustive write-up of the law of divorce in Maryland, this Special Report provides a synoptic overview the main aspects of the law of divorce in Maryland.
There are various grounds for obtaining divorce in Maryland. Divorce in Maryland may also limited or absolute. It may also be fault based or no fault based. Divorce proceedings in Maryland may range from a simple ten minutes uncontested divorce to a complex contested one lasting many days.
A. Absolute Divorce vs. Limited Divorce
- Absolute Divorce
DefinitionAn absolute divorce is a permanent termination of the marriage. If the complaint or petition for divorce is granted after a hearing, the court would enter a final divorce decree.
A party seeking divorce in Maryland must establish legal reasons for doing so. These are called grounds. There are fault based grounds as well as no fault based grounds for seeking and obtaining absolute divorce in Maryland
No Fault based grounds of absolute divorce in Maryland
- 12 months continuous separation by the parties from each other and without any sexual intercourse.
- Since October 1, 2015, there has been another “No Fault” ground of divorce in Maryland. This ground exist when there is no minor child, the parties submit to the Court a signed settlement agreement resolving alimony and property rights and both parties appear at the uncontested divorce hearing.
- Fault based grounds for absolute divorce in Maryland
- Adultery: If a party claims and proves that his or her spouse had voluntary intercourse with another person, the Court will grant a divorce. Generally, it is not easy to prove adultery. Although the party claiming that there was adultery does not have to prove actual intercourse, he or she must prove that the other party had the disposition and opportunity to commit adultery. Even if the party accused of adultery admits the adulterous relationship, the party seeking divorce must still prove it. While adultery may be one factor that the court can consider in determining alimony, it is generally not a factor in determining custody of the children, unless, the children were affected or can be affected by the adultery.This is an immediate ground for divorce in that once the complainant can file for divorce immediately he or she can prove that that adultery has occurred. If this is sufficiently proven in court, divorce will be granted immediately.
- Desertion: An unjustifiable abandonment with the intention of ending the marriage that has continued for 12 months. This desertion may be actual or constructive. Actual desertion occurs when the deserting spouse actually leaves the matrimonial home. Constructive desertion is when the spouse who leaves the matrimonial home provides sufficient justification for doing so, such that he or she is considered the deserted spouse. To prove desertion, the complaining spouse has to show that cohabitation has ended, the spouse who deserted him or her intended to end the marriage, there was no justification for the desertion, the deserted party did not consent to the desertion, and there is no reasonable hope of reconciliation.
- Cruelty of treatment and excessively vicious conduct: Cruel or violent treatment of a spouse or a minor child of the spouse. This is a ground for divorce when the conduct endangers the life or health of the other party or the minor child. This act may be either physical or mental. However, mere marital neglect or the use of abuse language would not suffice to establish this ground. Like adultery, this is an immediate ground for divorce.
- Conviction of crime: The complainant must prove that his or her spouse has been convicted of a crime and sentenced for at least 3 years in jail and has served at least 12 months of the sentence.
- Insanity: The party seeking divorce based on this ground must prove that his or her spouse has been confined in a mental health institution for at least 3 years and at least 2 licensed competent physicians have determined that the insanity is legally insane (permanent and incurable).
- Limited Divorce
DefinitionA limited divorce is a legal separation that does not permanently end the marriage. After a limited divorce, neither party can remarry, even though they must live separate and apart from each other. In reality they remain legally married.
Grounds for limited divorce
A limited divorce can be based on one of three grounds. The first is when the parties have actually been living separate and apart from each other. This separation may also be constructive in situations where while the parties are living together they are having no contact or relationship. Another ground for obtaining a limited divorce is desertion. This is an effective ground when there has been an unjustifiable abandonment with the intention of ending the marriage. This abandonment can also be constructive in a situation where the conduct of one party made it impossible for the petitioning party to live with him or her. Finally, a limited divorce can be granted when the complaining party proves cruel treatment and excessively vicious conduct on the part of the other party. Although a limited divorce does not terminate the marriage, the court order may deal with child custody and support, spousal support as well as the use and possession of property.
B. Contested vs. Uncontested Divorce
- Contested Divorce
DefinitionA divorce is contested when the two parties do not agree on the terms of the divorce and / or when all the issues (such as child custody, child support property division, alimony) have not when resolved by the parties. When this happens, the case goes to trial before a Judge.
A contested divorce can be quite challenging both emotionally and financially. It is not unusual for a contested divorce to go through a lengthy civil litigation process
In the state of Maryland, divorce matters are heard by the Circuit Courts. Generally, divorce cases move faster than other civil matters. The party seeking a divorce (Plaintiff) files a Complaint for Divorce stating the grounds for divorce and any other issues related thereto. The court will then issue the summons to be served on the other party (Defendant). The Defendant would normally be given 30 days to respond to the complaint by filing an Answer to the Complaint for Divorce. If the summons was properly served and the court is thus apprised, then a Scheduling Conference will be set. The purpose of the scheduling conference is to determine the trajectory of the case and provide timeline for various aspects of the case. All these would be contained in a Scheduling Order. A scheduling order may order mediation, parenting classes, psychological or custody evaluation and more. The court may also enter an order regarding any property in issues.
Some divorce proceedings may require the Court to make decisions while the litigation is still going on. These are temporary orders that are entered after a hearing or hearing that are held before the final hearing. Such a hearing is called a Pendente Lite hearing and an order entered at the hearing are temporary and may involve things like, support, litigation, visitation, alimony, health insurance, use and possession of the family home and many others.
In cases were Mediation is mandated by the court, the parties will appear before a certified and trained mediator. The mediator will try to help the parties narrow the issues and possibly resolve them. Mediation can be quite helpful. Unfortunately, in some very contentious divorce proceedings the parties are unwilling to mediate.
If the parties reach and amicable resolution of all the issues before trial, this can be dealt during a Settlement Conference which is usually presided over by a retired Judge. Thereafter a Settlement Agreement can be prepared by the both parties and presented to the Court during an uncontested hearing.
If the parties do not resolve their issues at the Settlement Conference, then the case moves to trial. At the trial, the Judge will hear both parties, take into consideration all the evidence presented and then enter an Order addressing all the disputed issues.
Any party has the right to appeal the Judge’s decision to a higher court.
- Uncontested Divorce
DefinitionAn uncontested divorce is one that the parties have agreed on all the issues. These issues would usually include but are not limited to, child support and custody, division of marital property and alimony.
There are no special rules for uncontested divorce in Maryland except that they move faster than contested divorces. A valid ground for divorce must be present and the residency requirements must be met just like in the case of a contested divorce case. The Plaintiff will file a complaint, secure the summons and must properly serve the Defendant. The Defendant must answer the summons and if he or she does not contest any aspect of the case, the case will be set as an uncontested case. If a Defendant does not answer the Plaintiff can file a motion, and after proving that the Defendant was properly served (or alternatively served), can move for a default judgement. In the case where a Defendant is evading service, the Plaintiff can secure alternative service by publication or posting.
It is also possible to secure the consent of the Defendant even before filing the Complaint for Divorce. This can be done by having the Defendant Answer the Complaint, and sign a Joint Request for Uncontested Divorce. This can actually expedite the process, and the Defendant does not have to go to Court. However, the Plaintiff must appear in Court for the uncontested divorce hearing which is usually scheduled for 10 minutes. The Plaintiff will need to have a witness who would corroborate the grounds for divorce and residency requirement.
In an uncontested divorce case with many issues that have been resolve, the parties would prepare a settlement agreement that can be used during the uncontested divorce hearing.
Collaborative Divorce as an Alternative to Divorce
Collaborative divorce occurs when both parties agree not to go to court to obtain their divorce and to resolve other issues arising from the divorce. In Maryland, The Uniform Collaborative Act and Uniform Collaborative Law Rule, encourages collaborative practice.
In collaborative practice, each party retains his or her own legal counsel, and agrees to work in a spirit of cooperation to resolves all the disputed issues. The parties may also agree to seek the assistance of other professionals, including but not limited to, financial experts, psychologists, or child specialists.
If the collaborative process does not work, the legal counsels of the parties withdraw their representation. The parties will then need to retain different counsels to proceed with their causes of action.
Collaborative practice have some obvious advantages. It gives the parties control over their divorce process. It also minimizes the impact of the divorce process on children and/or other family members. If done carefully, it can also be less expensive than actually going to court. However, collaborative divorce may not be a good option in certain situations. Where the parties are not honest and willing to resolve their dispute amicably, this process will probably fail. It will not also be beneficial where either party is timid, manipulative or uncompromising.
While the divorce process in Maryland can sometimes be challenging, demanding and painful, knowing what to do and how to do it, can minimize the challenges and assuage the pain.