- What is the process for filing for divorce?
- What are the alternatives to litigation for a divorce?
- What factors does the court consider when dividing marital property?
- What factors does the court consider when determining the amount and duration of child support?
- What steps do I take if I am granted a share of my spouse's retirement in a divorce proceeding?
Child support, custody and visitation
- What factors does the court consider when determining child custody?
- What are the circumstances that can change the amount paid in child support?
Divorce and property division
A divorce begins with a divorce petition. The petition is prepared by one spouse, called the plaintiff. A summons is issued by the court. The other spouse is referred to as the defendant. Once served, the defendant has 30 days to respond if he or she is in the state of Maryland, or 60 days to respond if he or she is out of state.
Typically, the court sets in a scheduling conference for any contested matter to determine what services need to be provided to the parties and to set future dates for how things will proceed. The court may order the parties to mediation, to parenting classes if custody is an issue, and in cases where there may be serious concerns for the safety of the children, the court may order a custody evaluation. If the case is uncontested, a hearing date would be scheduled.
If the defendant fails to file an answer to the plaintiff's complaint, a default process would be initiated.
In most contested matters, both spouses will engage in a discovery process where both spouses would be asked to disclose information regarding their assets, liabilities, income and expenses.
If the parties have no minor children and a fully notarized property settlement agreement resolving all issues that arose out of the marriage and both parties appear at the final hearing, the matter may proceed by mutual consent. In this case, an actual separation is not required to obtain a divorce.
Parties can expect a contested divorce case to take one year depending on the issues involved in their particular case and the calendar of the jurisdiction the divorce is filed in.
The alternatives to litigation that can be used during a divorce process are:
- Mediation — A third party neutral works with both spouses to help settle disputes. Each party's attorney may or may not be present during this process.
- Collaborative law — Both spouses and a team of professionals, which may include a financial neutral, a child's expert and a coach or coaches for the parties, agree to resolve differences concerning any issues pertaining to their divorce or child custody without using the courts. If the collaborative process fails both spouses must hire new attorneys. If it works, it can result in a very successful agreement resolving the spouses' dispute.
- Four-way settlement — Parties and their attorneys sit down together to discuss and negotiate the issues involved in the dissolution of their marriage or custody dispute and attempt to reach an agreement regarding how these issues will be resolved.
Regardless of whether an agreement is reached through the mediation process, collaborative process or four-way settlement negotiations, it would be incorporated, but not merged into a final divorce.
To determine how marital property is divided the court is required to consider:
- Length of the marriage
- Age, health, skills and abilities of the parties
- Amount of separate property owned by each spouse
- Relative ability of the parties to acquire property in the future
- Financial needs and liabilities of the parties
- Contribution to the education or to the earning power of the other
- Contribution to the value of the marital property or the separate property
- Premarital property and postmarital property
- Financial conditions of each party
- Tax consequences
- Use and possession
- Allowing the custodian and children to continue to live in the home permanently or for a period of time (the Maryland statute permits up to three years following divorce)
- Other factors that the court considers appropriate
If you and your spouse can agree on how things will be divided and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property, provided you can prove one of the grounds to divorce.
The court determines the amount of and the period for an award of alimony that begins from the filing of the pleading that requests alimony. The court considers all of the factors necessary for a fair and equitable award that includes:
- The ability of the party seeking alimony to be wholly or partly self-supporting
- The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment
- The standard of living that the parties established during their marriage
- The duration of the marriage
- The contributions, monetary and nonmonetary, of each party to the well-being of the family
- The circumstances that contributed to the estrangement of the parties
- The age of each party
- The physical and mental condition of each party
- 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
- Any agreement between the parties
- The financial needs and financial resources of each party, including:
- All income and assets, including property that does not produce income
- Any award made under §§ 8-205 and 8-208
- The nature and amount of financial obligations of each party
- The right of each party to receive retirement benefits
- Whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health – General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur
- The court awards alimony for an indefinite period according to the following factors:
- Age, illness, infirmity or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting
- The wording in the Judgment of Absolute Divorce is typically not enough to receive a transfer of retirement benefits. Most plans require some type of Pension Order sometimes called a Qualified Domestic Relations Order (QDRO) or Court Order Acceptable for Processing to transfer benefits tax free between former spouses pursuant to divorce from the Employee or Plan Participant to the Employee's Spouse or Alternate Payee. It is important that these documents be drafted and submitted before, or as soon as possible after, a divorce is granted. Many private plans (the Federal government does not pre-approve proposed Orders) will pre-approve this proposed Court Order if submitted in advance. All Plans have different requirements. Benefits can be lost, especially with military orders due to very strict rules, if Orders are not timely submitted.
- Sometimes IRA funds can be transferred to another spouses IRA without an Order and with a Signature Guaranteed letter of Instruction and/or the completion of other forms.
- If you represent yourself, be familiar with the precise name of the Plan, the Plan requirements and who the Plan administrator is and get all Plan information, as well as a form document if they have one. It is best to seek counsel to have retirement transfer orders prepared to ensure they are done properly.
Child custody, support and visitation
The court considers what is in the best interest of the child and these factors include:
- Willingness of each parent to share custody
- Psychological and physical fitness of each parent
- Strength of relationship of child to each parent
- Potential disruption of shared physical custody upon child's social and school life
- The character and reputation of the parties
- The desire of the natural parents and the content of any agreement between them
- Age, health and sex of each child and the number of children involved
- The potentiality of maintaining natural family relations
- Sincerity (motivation) of parents' requests
- The preference of the child, at least when the child is of sufficient age and capacity to form a rational judgment
- Any material opportunities affecting the future life of the child
- The suitability of the residences of the parents, and whether the non-custodial parent will have adequate opportunities for visitation
- Geographic proximity of parents' homes
- How long the child has been separated from a natural parent who is seeking custody
- The effect of any prior voluntary abandonment or surrender of custody of the child
- Demands of parental employment
- Financial status of parents
- Impact on state or federal assistance
- Benefit to parents
The circumstances that can change the amount paid in child support involve a substantial change in circumstances in the amount of support which can result from a change in any of the following:
- a change in either parent's income
- Change in health insurance or healthcare expenses, including extraordinary medical or dental expenses
- Change in work-related daycare expenses, including summer camp
- Relocation of a parent requiring substantial transportation expenses to have child access