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This guide covers the most common questions you will have if faced with a divorce case in Maryland. The answers to some of the questions are a bit more complex. So we tried to give a “short answer” to each question before the longer (and more complete) answer. If the topic is really involved, we link to a separate blog post on our website that explains the issue in greater detail.
You can get the basic information from the short answer, but we do recommend you read the long answer too so you know the details. This stuff isn’t always easy to explain in a few sentences.
Our Best Advice: This guide contains general information about Maryland divorce law as a helpful resource for the public. Simply reading this guide does not create an attorney-client relationship with our law firm.
Reading this guide is no substitute for hiring an attorney. If you have any serious legal issue, you should get personal advice from an attorney who understands the unique facts of your situation.
We hope you will choose us to handle your Maryland divorce case. If not, at least talk to another attorney who knows what they are doing. That is the best advice we can ever give you.
Short answer: Because marriage is a contract, and you need proper legal reasons to get out of a contract.
Longer answer: Marriage is more than a relationship in the eyes of the law. Legally speaking, marriage is a contract, just like any other.
You can only get out of a contract if you have the proper legal grounds to do so. Divorce is the legal end of the marriage contract, so you need the proper legal “grounds” to get a divorce.
The term grounds essentially means “reasons.” You must prove you have a good enough reason (in the eyes of the State of Maryland) to be granted a divorce.
The state of Maryland regulates and controls marriage. You need a license for it.
Just as the state regulates the beginning of marriage, they regulate the end of it. Maryland, like many other states, dictates the proper grounds for being able to get out of a marriage.
Some states have “no fault” divorce laws (which means the parties can just agree to divorce), and some states recognize the very vague “irreconcilable differences” as a ground for divorce. Maryland’s version of this is called Mutual Consent.
In Maryland, you must have one of the specific grounds for divorce in order to be granted one. These grounds are explained below.
There are a lot of things you can do to reduce the negative impact of divorce on the lives of you and your children. Click here to read our post explaining ways you can ease the pain and expense of divorce in Maryland.
Short answer: Probably not.
Longer answer: A divorce is the termination of a marriage relationship. An Annulment means the relationship never legally existed.
It is extremely hard to get an annulment in Maryland. You must essentially prove that your marriage was induced by fraud, or that you literally did not know what you were doing.
Some people think they can get an annulment within a certain short time period, or if the marriage was never consummated. That may be true in other states, but it is not true in Maryland.
Fault Grounds and No-Fault Grounds
You can get a divorce in Maryland if you can prove one of these grounds:
- Adultery (which is not as easy to prove as you might think. See below for the details.)
- Actual Desertion, meaning one party leaves the marriage, if it is deliberate, final, without justification or consent from the other party, and lasting for at least 12 months. There can be no hope of getting back together.
- Constructive Desertion, meaning one party is driven from the marriage by the behavior of the other party. There can be no hope of getting back together. (Note: constructive desertion can be kind of hard to define. A lot of other issues get placed into this category, like cruelty of treatment. Ask your attorney for details.)
- Conviction of a crime, but only if your spouse was sentenced to serve at least 3 years and has already served at least 12 months of the sentence at the time of filing for divorce.
- Insanity, if your spouse was confined to a mental institution for at least 3 years before the filing of the divorce and their insanity is proven by the testimony of 2 doctors. At least one party must have been a resident of Maryland for at least 2 years prior to the filing of divorce.
- Cruelty & Excessively Vicious Conduct. This usually requires a pattern of behavior. It can be physical or mental. Your attorney can tell you if your particular situation fits this definition. There can be no hope of getting back together.
- One Year Separation without interruption, and without cohabitation (which means sleeping under the same roof) and without sleeping together or engaging in other martial relations. (This gets complicated. See below for more details.) This is by far the most commonly used ground for divorce in Maryland).
- Mutual Consent – This is a newer no-fault grounds. It is only available to parties who have a signed separation agreement in place regarding the issues of property, debts and alimony, as well as custody and child support if you have minor children together. Only one party is required to appear in court to testify for the divorce, and you do not need a witness to corroborate your testimony. If this describes you, there is no need to separate, no waiting period, and no need to accuse your spouse of any bad behavior. For more details, see the section on this law below.
As you can see, the first 6 grounds require proof of some wrongful act.
It is less common to see a divorce in Maryland granted on these grounds. Proof is sometimes difficult. And you may be forcing your spouse to fight you over the allegations (especially if you are claiming adultery, which is technically a crime in Maryland).
Separation for one year is the most commonly used ground for getting a divorce. It does not require proof of a wrongful act, and is useful if you want to avoid a bitter fight.
Most couples start the divorce process with a separation.
These definitions can get complicated. Ask a Maryland divorce attorney if you think you have a ground for divorce other than 1 year separation.
Maryland has a “limited” divorce option, which sounds strange but is actually very useful in certain situations.
A limited divorce formalizes the separation, and gives it the power of a court order.
Some people may call this a “legal separation.” You are still technically married even if you get a limited divorce. You will not really be “divorced” until the final Order of Divorce is signed.
The court may only address a limited number of issues in a limited divorce. These issues are:
- Child Custody;
- Child Support;
- Alimony; and
- Use and possession of the marital home.
In some cases, you cannot wait a year to deal with these issues. To read more details about limited divorce in Maryland, read our detailed post on it here.
If you think you may need a limited divorce in Maryland, consult an attorney sooner rather than later.
Short answer: Yes, but it is not easy.
Longer answer: Adultery is not easy to prove in Maryland.
It requires proof of: (a) Opportunity to commit it, and (b) Inclination to commit it. It requires a corroborating witness.
Maryland courts have placed a rather high bar on proving these two circumstances. The courts make this difficult to prove on purpose. They don’t want to hear contested adultery claims if they can avoid it.
Disputes over adultery are typically messy and bitter. If you are in this situation, you should ask a Maryland divorce attorney for advice.
Short answer: It will invalidate your one–year separation.
Longer answer: If you are filing for divorce based on a one–year separation, you cannot cohabitate or engage in marital relations during that one year. The one-year separation must be completely uninterrupted.
If you and your spouse cohabitate, even for a night, the clock is reset and you need to wait another year.
Cohabitation is defined as sleeping under the same roof – even if one of you sleeps on the couch.
The courts in Maryland do not want to get into your bedroom when deciding your divorce case. That is why sleeping under the same roof, even if you don’t sleep together, is enough to invalidate the separation.
This rule can cause inconvenience, but you must be sure to abide by it. It is one of those small issues that can seriously delay your Maryland divorce case if you are not aware of it.
Keep in mind that sleeping together (in a physical intimate sense) will also invalidate your one–year separation, even if you don’t stay overnight. So, acts of physical intimacy and/or sleeping under the same roof without physical intimacy will invalidate your one–year separation.
And even if you are filing for divorce on one of the grounds that do not require separation (like mutual consent), it is still always a good idea to separate. Just because emotions are so high now, it is best not to be living under the same roof while you resolve these issues.
This is not so much a legal requirement. It’s just good advice generally.
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.
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.
Step 4: File Your Lawsuit
In Maryland, divorce is a cause of action that requires a 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.
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.
Believe it or not, there are some pretty serious things the court cannot do in a family law case. Read our detailed post explaining what some of these things are by clicking here.
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.
In 2015, Maryland passed a new statute creating a new “ground” for divorce, but it has seen many changes since its inception in 2015. It is limited to certain circumstances, so it is not available for everyone.
If it is available to you, it can eliminate the need to separate, dramatically reduce the waiting time for your divorce, and reduce the opportunity for ugly fights.
If you have a signed separation agreement in place that resolves all marital issues, including the issues of property, debts and alimony, as well as custody and child support if you have minor children together, then you can get a divorce in Maryland with no waiting time for separation.
There will always be the waiting time that comes with the court process, however, but you won’t have to go through the one-year voluntary separation period before you even file with the court.
And you won’t have to make allegations of bad behavior to fit in one of the other “grounds” for divorce.
Both parties are NOT required to be present in court for your final divorce hearing, and you do not need a witness to testify on your behalf.
This new Maryland law should motivate more couples to reach that amicable separation agreement we push for. It is a requirement that you have all the financial details worked out and agreed to before you file for divorce by mutual consent.
Short answer: Equitably, not just 50/50.
Longer answer: Contrary to popular belief, assets are not always divided equally at the end of your divorce case – at least in Maryland. That happens in states that have “community property” laws (meaning once you say “I do”, each spouse owns all the assets of the other spouse).
Two of the biggest community property states are New York and California, which is where most high profile celebrity divorces occur. People read about those divorces in the news, and many people assume the automatic 50/50 division is the law everywhere.
Maryland is an “equitable distribution” state when it comes to divorce. Maryland divorce law recognizes the concept of “marital property.”
Maryland divorce courts will force a fair division (not necessarily an equal division) of all “marital property”.
Marital property is all property acquired by one or both parties during the term of the marriage. The term of the marriage is from the moment you are officially married to the moment the court grants the divorce. Debts are generally treated the same way as assets. Debts acquired during the term of the marriage will be equitably divided – at least those acquired for the benefit of both spouses.
And of course, there are exceptions to this general rule. Ask your attorney.
Therefore, assets or debts you bring into a marriage remain yours alone after the divorce, under Maryland law. Personal belongings acquired before the marriage remain yours alone. Gifts or inheritances given to you alone also remain yours despite the divorce. All property directly traceable to these types of property (if you used your inheritance to buy a boat, for example) remain yours alone despite the divorce.
However, there are exceptions to this general rule, so ask a Maryland divorce attorney if you have this issue.
The real trick to analyzing marital property is figuring out what is what. Once people get married, they tend to combine their assets and debts. There is always growth in the value of assets during the term of the marriage. It becomes difficult to figure out what is marital property and what is not.
In fact, it can be extremely complicated, and that is why you really need the assistance of a Maryland family law attorney to figure this out.
To make things worse, a divorce court in Maryland will not usually order property transferred. They will usually give one spouse a monetary award, which is enforced like any other monetary judgment given by the court. That may require garnishing property, wages, etc. It can be very messy (and expensive).
Rather than going through this exercise, most people going through a divorce in Maryland negotiate one asset or debt for another so they don’t have to be divided at all.
This makes more sense, if you can do it in a fair manner. Yet it is still a complicated process, no matter how you do it.
Retirement accounts that qualify as marital property are subject to being divided in a Maryland divorce proceeding just like any other property. The trick is to figure out how much is marital property and how much is not.
Retirement accounts have a special problem.
Most cannot legally be divided now, at least not without incurring huge tax penalties. In these situations an attorney can put together a complicated document called a Qualified Domestic Relations Order (QDRO, often called a “quadro”), which instructs the holder of the retirement account how to disburse it when the time comes to do so.
We usually ask a specialist attorney to do QDRO’s in our cases, since they involve complex tax law. This assures the QDRO is done right and is enforceable when the time comes – which may be years from now.
Contrary to popular belief, you may not be forced to sell your house, at least not at first. One spouse can take it over and refinance it in their name alone.
In Maryland, the divorce court also has the power to award “use & possession” of the house to one party for up to three years from the date of the divorce.
Use and possession of a family home is often given to the custodial parent of minor children, so the children can remain in the house.
But eventually the house will be sold and the proceeds will be divided, unless you and your Ex can agree otherwise. However, be aware that divorce may make refinancing your house significantly more difficult.
Yes, divorce does affect your taxes and it is something you should consider when resolving your divorce case.
Click here to read our post explaining some of the tax issues you will encounter in a divorce case. Also, remember that child custody also affects taxes, and which spouse will get the tax deductions for the children. Read our post here explaining the details of that issue.
Short answer: Yes, but only in certain circumstances.
Longer answer: Under Maryland law, alimony is a payment from one spouse to the other spouse in order to help the second spouse become self-supporting.
Alimony can be awarded during or after a divorce in Maryland. It is not legally appropriate in every divorce case, however.
Whether or not you get alimony is going to depend on the specific and unique facts of your case. Each situation is different.
The court really looks at alimony requests on a case by case basis. An attorney familiar with your local courts can tell you if alimony is likely to be awarded in your case.
Short answer: No.
Longer answer: Palimony is not actually a legal term of art (like alimony). It is a term coined in the media. It means Alimony that is paid to a pal, or girlfriend or boyfriend.
The situation is this:
The parties are not married, but are living together in a marriage-like relationship. This is called a common law marriage.
Maryland does not recognize common law marriage, nor does it recognize a non-married couple’s right to alimony upon a break-up of the relationship. You must have been married to receive alimony in Maryland.
An attorney is vital if you are going through a divorce in Maryland. We are not just saying that to drum up business.
The best advice for you depends on the specific facts of your unique situation.
The process of divorce in Maryland can be a complex maze, and you may need a guide. It is impossible to tell you in some article how these general rules will affect you personally.
That is just the way it is with Maryland domestic relations laws. We have to know your particular situation. And there are always exceptions to these rules. We cannot possibly cover every issue in this guide.
Also, keep in mind that you are going to be more emotional during this time. It helps to have someone who is more objective advising you of the best course of action for the long term.
An attorney is an objective counselor who is on your side. He or she has been through this before, and their experience will help guide decisions in your Maryland divorce case.
An attorney will also know what the local Judge will most often do in your situation, and you can decide to go to trial or settle accordingly. Knowing what a Judge or Master is likely to do in a divorce case like yours is an important consideration affecting the advice you will receive.
We would never advise anyone to try and handle their Maryland family law case on their own. Too much is at stake.
However, you may not be able to afford a lawyer. If you cannot afford to hire a Maryland divorce lawyer, you should still get a consultation for advice. Most divorce attorneys charge a reasonable consultation fee for an hour of their time. That is well worth the money.
If you cannot hire an attorney after the consultation, there are forms you can fill out to get a divorce in Maryland. We do not advise this if you can afford a divorce attorney by any other means, but you can do it yourself if you really don’t have the money.
The Clerk of the Circuit court will have the forms for you but cannot give you legal advice. These forms are also available online at Maryland Court Forms. For more informations see the Maryland People’s Law Library on Divorce.
Another option is the free family law clinic at the courthouse. This is sponsored by the local bar association. A local attorney with experience in family law will be at the courthouse and willing to meet with people to give some free advice. You should call the courthouse and ask them about the next available date.
While we cannot quote an exact fee until we meet with you and assess your situation, we can promise you some measure of certainty in your legal costs.
We follow a task based billing model, which is a completely different model than other family law attorneys use.
Most lawyers charge by the hour for their legal work on family law cases. We believe the old-fashioned billable hour is inefficient, uncertain, and focused on the needs of the attorney instead of the client.
We believe in charging fees based on the task completed, not merely the time it takes to complete that task.
Billing by time rewards inefficiency, sloth, and excessive litigation.
Billing by the task rewards efficiency and results. It gives you some certainty and predictability in the ultimate cost of your case. That means you have some control over costs.
It also forces your attorney to share in the risks of the legal process, which puts you and your attorney on the same side during the course of your case – in a partnership.
We have a ton of other resources for our clients about divorce law & the legal process. Click this link to our Client Resources page for an in depth explanation of everything you need to know.
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