Here is a step-by-step guide to the process you will go through in a Maryland divorce case.
Step 1: Consult an Attorney
The first thing you should do is consult with an attorney familiar with Maryland divorce law. This point bears repeating – the right answers for your divorce depend on the specific facts of your unique situation. Those details can make a big difference in the advice your divorce attorney will give you.
If you intend to get a divorce in Maryland on the basis of any ground other than separation, evidence is needed to prove your case. Do not try to do this on your own before consulting an attorney. The rules are complicated, and way beyond the scope of this article. You should not try to handle your own divorce if you can afford even minimal legal assistance. At the very least, get some good advice during a consultation. For more information on what we consider to be the “right” type of divorce attorney to retain, read our post on How to Ease the Pain & Expense of Divorce in Maryland.
Step 2: Separate
Separating is legally necessary to get a divorce based on one year separation in Maryland. It is also a good idea even if you have one of the other grounds for divorce. (Of course, we understand it may be hard to do in certain circumstances, but it is almost always a good idea to separate when going through a divorce process.)
For a Maryland divorce based on one year separation, you must be separated the entire year before you can even file the final divorce action. That one-year clock will not start ticking until one spouse moves out.However, before you move out, consult an attorney about the consequences. It may negatively affect child custody, your ability to keep the marital home, and who retains certain property. You should always consult an attorney before separating, if that is possible.
A year is admittedly a long time to wait for your divorce. However, there is a lot to do in that year. Now is the time to try and work out the legal issues raised by a divorce, so the eventual divorce hearing can be uncontested, or at least go smoothly.
Step 3: Try to Reach a Separation Agreement
Most couples use this year of separation to attempt negotiations, which hopefully lead to a formal Separation Agreement. The Separation Agreement sets out the terms of settlement between you and your spouse. It is a negotiated agreement – not one dictated by the court. Those terms will be adopted by the court when granting the final divorce. That gives the agreement the power of a court order, and it can be enforced the same way as any other court order.
A Separation Agreement is simply a contract between spouses that covers all the legal issues raised by your divorce. It covers assets and debts, the house, the kids, visitation schedules, etc. It can be as detailed as you like.
This process works best if each spouse has their own attorney, and the attorneys negotiate the terms of the separation agreement for you. Most couples cannot go through this process themselves. It is too emotional.An attorney’s advice during this time is priceless.
Even if the two of you can negotiate without help, you should still see a divorce attorney for advice, and to write up the final agreement. You will never know if you are getting a fair deal without good legal advice. If your agreement is defective the court could reject it, or be unable to enforce it later.You really are playing with fire to try this on your own.
There are many ways an agreement can be reached in your Maryland divorce case. The parties can agree with only the help of their attorneys, or they can use a trained mediator to reach an agreement. courts are pushing mediation these days. They may order it in your case. The mediator can sometimes help reach an agreement even if one spouse is being unreasonable. Getting a separation agreement, and using a mediator, of two of the ways we promote in our post How to Ease the Pain & Expense of Divorce in Maryland.
Step 4: File Your Lawsuit
If you are unable to reach a separation agreement with your spouse, you must file suit in the Circuit Court. Your claim will be for divorce, and you will have to go through all of the usual court proceedings on the way to trial. In Maryland, divorce is a cause of action that requires a lawsuit.
However, what many people do not know is that you will have to file suit against your spouse even if you have a Separation Agreement! In order to get the divorce under Maryland law, you must file a formal legal action in court. This is technically a lawsuit against your spouse. The Maryland court will grant the divorce only after you prove your grounds, usually with testimony. However, the process is much faster and easier if you have an agreement and your divorce is uncontested.
Step 5: Give Testimony To Validate Your Grounds
Even in an uncontested case, you must give formal testimony providing proof you have the proper legal grounds for divorce under Maryland law. You will also need a witness who can confirm that your testimony is accurate.
This can be done in court, but it can also be done through a hearing examiner, who is a lawyer appointed by the court to take this testimony. That may be more convenient, but is only available if the divorce is uncontested. The examiner will forward a copy of your testimony to the court for approval of your divorce.
Step 6: If You Cannot get a Separation Agreement – Trial
If you and your spouse are unable to reach an agreement, you will have a trial in court. Your trial may be in front of a Judge, or it may be in front of a Master of Domestic Relations. Masters are like Judges, but a Judge must approve the decisions they make. Trials before either one are a formal court proceeding like any other. They can last as long as necessary and you can call witnesses and present evidence.
Trials in Maryland domestic relations cases are painful for all concerned, but sometimes it is the only way to resolve your case. At the end of the trial, the decisions regarding your life will be made by a Judge or Master who has never met you before, and only on the basis of what comes out at trial.
Trials in Maryland divorce cases are best avoided if you can get a fair resolution without one. It is less messy, less emotional, and can be less expensive. But sometimes that just isn’t possible. You should always be prepared to go to trial, if only to force your spouse to negotiate fairly. The threat of trial, and the knowledge you have a competent attorney who will represent you well at trial, will usually force your spouse to be realistic and reasonable.
Step 7: Get Your Final Order of Divorce
You do need a formal, written document signed by the court to get your divorce. Only after that document is signed by a Judge, and the 30-day time limit in which to file an appeal has run out, are you actually and finally divorced under Maryland law.
If you have a contested trial, the final Order of divorce comes after a hearing, and after the Judge or Master has considered all the evidence and testimony. If you have an uncontested divorce in Maryland, this will come once the court reviews your case and your testimony. The court will pass an Order granting the divorce that includes the terms of the Separation Agreement.