STEWART LAW OFFICE, LLC Divorce Attorneys Towson and Baltimore County (410) 205-2421
This website page is for informational purposes only. Reading this material and communicating with the Stewart Law Office, LLC through this website is not legal advice and does not form an attorney/client relationship. The answers to many of the questions below should include legal counsel taking into consideration your unique circumstances. If you have more questions and would like to speak with an attorney call the Stewart Law Office at (410) 205-2421 and set up a consultation
A Limited Divorce is a legal action where a married couple is legally separated. It is not a permanent termination of the marriage. A limited divorce is often used by people who do not yet have grounds for an absolute divorce but need the court to intervene and provide relief in the form of a temporary custody order and/or financial relief in child support, spousal support and/or use and possession of the family home or an automobile.
An Absolute Divorce is a legal action that permanently dissolves the marriage relationship. In order to obtain an absolute divorce you must fulfill certain residency requirements in Maryland and meet a no-fault or fault based ground for divorce.
A divorce is uncontested if your spouse is not disputing your complaint for divorce or any other relief you have requested from the Court (ground for divorce, custody, visitation, child support, alimony, marital property, etc.). Communicating to the Court that a matter is uncontested is usually done by the opposing party filing an answering to the original complaint, admitting to all of the allegations and stating in the Answer that the divorce action is uncontested.
The quickest way to obtain an Absolute Divorce in Maryland is through the new no fault ground of a Mutual Consent divorce. In order to proceed in filing a Mutual Consent Divorce both parties will need to be in total agreement on all issues and sign a Marital Property Settlement Agreement that confirms to the Court that there are no contested issues between the parties when it comes to custody, visitation, child support, marital property, a marital award, alimony and attorney's fees.
Important Things to Keep In Mind
It could matter but not necessarily. If your divorce is a contested case, filing first allows you to go first in any court proceeding and tell your side of the story first. This can be influential to the Court in explaining the reason for the break-up of the marriage. The actions and the misconduct of your spouse can affect property distribution, the awarding of alimony, attorney's fees, and child custody if the misconduct of your spouse affected the well-being of your children.
Filing first, even if only for a limited divorce because you have no grounds for an absolute divorce, gives you the opportunity to seek relief from the Court in the way of a child custody order and the financial relief of child support, spousal support (alimony), and the use and possession of the marital home or an automobile. Once a divorce action is filed, the pleading party can ask for an award of child support and alimony retroactively back to the date that the case was filed.
The answer to this question would depend on the circumstances of your unique case and you should seek legal counsel to make that decision. Generally, even if you did not file first, filing a counter-complaint allows you to be in the position of a moving party. As a moving party you are able to request specific relief from the Court. If you do not file a counter-complaint than you are only arguing from a defensive position of whether or not the relief that your spouse is seeking should be granted or not.
Generally a scheduling conference is the first court proceeding after a complaint for divorce is filed giving the parties the first opportunity to resolve any uncontested issues, request that certain evaluations and services be ordered by the Court and to set the dates for any future hearings and meetings before the Court. The Judge or Family Magistrate conducting your scheduling conference will discuss the services available which he or she may order for your case. The purpose of the scheduling conference is, in part, to determine how the case will proceed. In addition, it allows the court to apply its resources to assist you and your family, and to facilitate settlements.
A settlement conference is a meeting at the Court where the parties and and their attorneys speak to a judge and work to try and resolve contested issues in the divorce case like property division, alimony, child support, custody and visitation. The purpose of the settlement conference is to give the parties and their counsel an opportunity to try and negotiate, reach agreements on matters that are best to be determined by the parties and not by the Court. The parties will give the judge some background information about the case so that they can prepare to help resolve the disputed issues. The judge will meet with the attorneys for each side, who will present their positions. The parties do not always attend this part of the meeting.
In a settlement conference, the judge that speaks to the parties and their counsel is there in the role of listening to the two positions and making a final ruling. After hearing the two sides, the judge will offer their insight and experience to assist the parties and their counsel in resolving the outstanding issues. It is extremely helpful to get the insight and perspective of a judge, most often a retired judge. In this stage of negotiation and compromise, a judge often has a much more objective viewpoint of the circumstances, can offer very helpful ideas, and have a different perspective that can be extremely helpful in settling a case.
A Pendente Lite hearing is a hearing before the final hearing in a case that is held to decide certain issues in a case, temporarily. These issues may include questions of custody, child support, alimony, use and possession of a family home and/or family personal property. Court orders after these hearings are called Pendente Lite Orders and it is understood that these are temporary orders until a final order is determined by the Court regarding a matter.
Generally, when there is an uncontested divorce hearing, only the party who filed the case needs to be present at the final hearing. If you have a contested hearing, meaning that both parties are not in agreement about everything both parties will need to be present at the hearing to argue their position.
Moving Through the Court Process
You and Your Children Are The Most Important Thing
Physical Custody designates with what parent a minor child resides. There can be sole physical custody, meaning that the minor child primarily resides with one parent. There also is shared physical custody meaning that the child shares spending substantial time with both parents. Joint physical custody means that the parents share 50/50 physical custody with the child.
Legal Custody refers to the ability of one or both of the parents to make long-term plans and decisions regarding the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning a minor child's welfare.
Legal custody can be granted to one party solely, where that party has the authority to make all of these major decisions. However the prerogative of the Court is to grant joint legal custody so that the parties have to work together to reach shared decisions for their child. If the parties can not communicate and have a history of not being able to make shared decisions together regarding the welfare of their children the Court will grant sole legal custody.
In Maryland a Parenting Plan is a written document mandated by the court in a divorce case when a party seeks the Court to grant or modify custody. A Parenting Plan outlines how parties will raise a child. It covers how parties will make major decisions about a child, who the child will primarily reside with and when the child spends time with each party. The goal of a Parenting Plan is to provide predictability and structure for a divorced couple when the parties are attempting to co-parent and do not live together. The hope is that a Parenting Plan will assist the divorced couple in navigate conflict together without needing to go back to Court to resolve any issues. There is a court form that can be used by the parties and their counsel in a divorce case to create a Parenting Plan.
Before a complaint for divorce is filed a parent of a child can contact their local child support office and file for child support. Once a divorce case is filed the court action is going to take preference and if a parent has not received a child support award yet from the child support office the child support office is going to defer to the Circuit Court to establish child support.
To establish child support in a divorce case a party needs to request that the court grant to them child support in their initial pleading. The party will also need to include a financial statement with the initial pleading and other financial documents requested by their counsel and the court through the divorce proceedings.
Important Things to Remember
All property obtained during the course of the marriage is marital property, regardless of who paid for it. The exception to this general rule is property received by one spouse as a gift, inheritance from a third party, or excluded by a valid agreement. Marital property can include real estate, bank accounts, stock, furniture, pensions and retirement assets, cars and other personal property.
If you and your spouse lived together prior to the marriage any property acquired by the two of you is not considered marital property.
Non-Marital Property is any property obtained by one spouse prior to the marriage. Non-Marital Property can also be any property received by a spouse during their marriage by gift or inheritance from a third party. Both of these examples of Non-Marital Property will be the sole possession of the one spouse unless this property is gifted or titled to the other spouse during the marriage.
A house that was purchased before the marriage is not marital property. However, when you and/or your spouse use marital funds to pay the mortgage, the house then becomes part marital and part non-marital. Real property that is held by “tenants by the entireties” is considered marital property unless you have a valid agreement to exclude it.
If the parties cannot agree on their own how to divide marital property the Court will use it's discretion to make an equitable distribution of the property and assign a value to the property. In assigning a value to the marital property the Court will look at the marital debts of the parties. The Court will then determine each spouse’s share of the property.
In making an equitable distribution of the marital property the Court uses the factors listed in the Maryland Marital Property Act. These factors are:
(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in factor (2) was acquired, including the effort expended by each party in accumulating the marital property or the interest in the property or both;
(9) the contribution by either party in the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property.
Not necessarily. The only part of someone's pension, 401K and other retirement benefits that is considered marital property is the portion that was accumulated during the marriage. If you've been married 10 years but have been accumulating retirement benefits for 30 years only the benefits acquired during those 10 years is considered martial property. Once the portion of the benefits that is considered martial property is decided than the court will make an equitable distribution of the benefits using the factors in the Maryland Marital Property Act described above. Even though the presumption may be that your spouse is entitled to 50% of your benefits that are considered marital property many of the factors the court considers in making a property distribution (reason for the divorce and the monetary and non-monetary contributions of your spouse towards your marriage) could cause your spouse to receive less than 50% of your retirement benefits that are considered marital property.
A Marital Award is a monetary award a court orders for one spouse to pay money to the other. A court might order a monetary award to make sure that what each spouse takes from the marriage is fair under all the circumstances of the case. In Maryland the court cannot transfer property titled in one spouse's name to the other. Instead, the court will give the spouse without title a monetary award to cover their share of the property.
The Court awarding alimony is a lot different than a party receiving child support. Child support is calculated simply by using the income of the parties in conjunction with some expenses paid by the parents for the child (child care, insurance, etc.). In awarding alimony the Court considers multiple factors similar to factors the court uses in making an equitable distribution of marital property. The factors the Court uses in making a determination regarding alimony include:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
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