DIVORCE & SEPARATION
What is a Divorce?The technical definition of a divorce is the legal dissolution of a marriage by a court or other competent body. But for those who have engaged in the process, it is a whole lot more than just the declaration that your marriage is terminated.
Wikipedia defines a divorce as:
[T]he dissolution of marriage, [or] the termination of a marital union, the canceling of the legal duties and responsibilities of marriage and the dissolving of the bonds of matrimony between a married couple. Divorce is unlike annulment which declares the marriage null and void. Divorce laws vary considerably around the world, but in most countries it requires the sanction of a court or other authority in a legal process. The legal process of divorce may also involve issues of alimony (spousal support), child custody, child support, distribution of property, and division of debt… Divorce can be a stressful experience affecting finances, living arrangements, household jobs, schedules and more. If the family includes children, they may be deeply affected.
Our Definition of Divorce
In an action sounding in divorce, the remedy being requested from the Court is called rescission. Rescission is the termination or “unmaking” of a contract as if the contract never existed in the first place. To rescind a contract, a party petitions a court to return that party to the position that they occupied prior to entering into the contract. In a divorce action, one party is requested from that court that their contract of marriage be rescinded. The legal process to obtain a divorce starts with one party filing a complaint for divorce in the appropriate court. In essence, that party is petitioning the court to rescind their marriage contract. Legally, divorce is the remedy known as “equitable rescission”.
What Forms of Divorce are Available in Maryland?
Maryland recognizes two forms of divorce, limited (Md Code Ann FL §7-102) and absolute (Md Code Ann §7-103).
What is a Limited Divorce?
Basically, a Limited Divorce (“a mensa et throro,” latin for “from bed and board”) is little more than a legal separation. In a Limited Divorce, marital property is not divided. The grounds for a Maryland Limited Divorce are: (1) cruelty of treatment of the complaining party or of a minor child of the complaining party; (2) excessively vicious conduct to the complaining party or to a minor child of the complaining party; (3) desertion; or (4) voluntary separation, if: (i) the parties are living separate and apart without cohabitation; and (ii) there is no reasonable expectation of reconciliation.
What is an Absolute Divorce?
Once legally titled “a vincula matrimonii” (from the bond of marriage) an absolute divorce is the legal termination of a marriage (see rescission above). In an absolute divorce, all marital property is equitably divided; and if there are children born to the parties, issues involving the children are also determined by the Court. The grounds for a Maryland Absolute Divorce are: (1) adultery; (2) desertion; (3) conviction of a felony or misdemeanor in any state or in any court of the United States that has resulted in a sentence of three (3) years or longer; (4) one year (12 month) separation; (5) insanity’ (6) cruelty of treatment toward the complaining party or a minor child; (7) excessively vicious conduct.
What is Marital Property?
Under Maryland law, all property acquired during a marriage is deemed to be marital. Pursuant to Md Code Ann FL §8-201(e) et. seq., Marital Property means the property, however titled, acquired by one or both parties during their marriage. Marital property includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement. Marital property does not include property: acquired before the marriage; acquired by inheritance or gift from a third party; excluded by valid agreement (pre-nuptial or anti-nuptial agreements); or property that is directly traceable to any of these sources. Marital property should not to be confused with Family Use Personal Property.
What is Family Use Personal Property?
Pursuant to Md Code Ann FL §8-201(d) et. seq., family use personal property is tangible personal property that was: acquired during the marriage; owned by one or both of the parties; and used primarily for family purposes. Family use personal property includes, but is not limited to: the family car; furniture; furnishings; and household appliances. It may also include clothing, educational needs (like the child’s computer), and similar items of property.
What Do I Need to File for Divorce in Maryland?
Aside from grounds for divorce (see the sections above on limited and absolute divorce), generally you must also meet the following tests to file for divorce: proof that you were married (a copy of your marriage license will work just fine); be over eighteen (18) years of age at the time of filing; you or your spouse must have been a resident of the county that you are filing for divorce for six months or longer; there should not be another divorce action pending in a different court anywhere (there are exceptions, and that is where we can help you); you and your spouse must be separated cannot not be cohabitating, there must be no hope or expectation of you and your spouse reconciling your marriage.
Maryland Residency Requirements to File for Divorce
In order to start the divorce process you must file your Complaint (Petition for Divorce) in the county circuit court where you or your spouse reside. Divorce laws are state specific and apply only to the residents of that state where the proceeds take place. Maryland’s family law statutes require that you or your spouse have been a resident for the statutory required period of time prior to and at the time that you file for a divorce. You do not have to reside in Maryland at the time of your divorce however, but it is preferable that you do.
What is Cohabitation?
Under most circumstances, you cannot obtain a divorce if you cohabit with your spouse. Cohabitation in Maryland is defined as sleeping in the same bed and engaging in marital or sexual (intercourse) relations. Note that Maryland has eased the test for living apart to include sleeping in separate rooms within the same structure or house. Even if your spouse wants a divorce and you do not, it is possible to file for divorce as long as you and your spouse are not cohabitating. For a “one year separation” divorce, you and your spouse cannot engage in marital relations for an entire year. If you engage in marital relations with your spouse at any time during the previous twelve months, you are not eligible for a divorce under Maryland law. Under Maryland’s absolute divorce statute, sex between you and your spouse is strictly forbidden during this one year waiting period. Sex with others while you are married can be a problem too, as technically it is adultery (See Md Code Ann CR §10-501). However, some Maryland Judges do not consider intercourse with a person other than your spouse following your separation to be adultery.