Whether through mediation, while involved in litigation, or through the Collaborative process, you and your spouse can negotiate a separation agreement and be as creative as needed to address all the unique issues related to dissolution of your marriage. What can be, and what should be, included in your separation agreement is best determined on a case-by-case basis. It is important to seek the independent advice of an experienced attorney when considering entering into a separation agreement.
In some cases, it is impossible for the court to divide marital property. For example, if your family has one car, the court cannot equitably divide a car and preserve it as a useful asset for both parties. You can't cut a car in half and still drive it.
A monetary award may be granted in divorce as a way to equalize the value of assets that can't otherwise be divided.
In Maryland, marital property is subject to equitable distribution.
Marital property is any property acquired by you or your spouse during your marriage that is not received by inheritance, gift from a third party, excluded by valid agreement, or directly traceable to any of these sources.
In Maryland divorce, marital property is subject to equitable distribution. This is not the same as a 50-50 division of property, although in many cases 50-50 is an equitable result. If the court is asked to divide your marital property they will evaluate a number of factors to determine what is "equitable" in your case, in no particular order, these factors include:
1. Length of marriage.
2. Age of each party.
3. Health (physical and mental) of each party.
4. How and when marital property was acquired, including the effort each party made towards acquisition.
5. Reasons for the break-up of the marriage.
6. Monetary and non-monetary contributions to the well-being of the family during the marriage.
7. Value of marital property.
8. Alimony award or award of family use personal property or use and possession of a family home.
9. Anything that the court deems necessary or appropriate to consider to arrive at a "fair" monetary award or transfer of property.
In most cases, an engagement ring is a gift purchased by a spouse and gifted to the other prior to marriage. If an engagement ring was purchased and gifted prior to marriage, then it may be non-marital property.
It is important to evaluate the source of funds used to purchase property and the date of acquisition to determine whether or not property is marital.
If the gift was purchased during your marriage with income that was earned while married, then the gift may be marital property.
Property that was acquired during the marriage, even though titled in your own name, may be marital. As with most questions about marital property, this is not something that should be left to guess work. At the Law Office of Shelly M. Ingram, we are familiar with marital property issues and we can help you evaluate what property is marital; how your property may be divided in the event of divorce or separation; and when it is necessary to take additional action to protect your interest in property that is non-marital.
In Maryland, child custody is a blanket term that includes "legal custody," which has to do with decision making for a child, and "physical custody," which has to do with where a child actually lives.
Legal custody has to do with the way parents make decisions about a child's education, religious training, discipline, medical care, and any other important matters that might effect a child's general well-being.
Physical custody is more straightforward and has to do with the physical care of a child; where the child will live and sleep.
The law does not favor mothers over fathers. The court applies the same gender-neutral factors in all child custody cases.
The court applies the "best interests of the child" standard when making custody decisions, and must consider the following factors:
The "fitness" of the parents to have custody.
The character and reputation of the parties.
The desire of the natural parents and any agreements between them.
The ability to maintain natural family relations.
The preference of the child -- when the child is of sufficient age and capacity to form a rational judgment.
Material opportunities affecting the future life of the child.
The age, health, sex of the child.
The suitability of the residences of the parents, and whether the non-custodial parent will have the opportunity to visit.
How long the child has been separated for the parent who is seeking custody.
The effect of any prior voluntary abandonment or surrender of custody of a child.
In joint custody cases, Maryland courts apply the following additional factors to determine if joint custody is in a child's best interest:
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 a child's social and school life.
Geographic proximity of the parents' homes.
Demands of parents employment
Age and number of children involved.
Sincerity (motivation) of parent's requests.
Financial status of parents.
Impact on state or federal assistance.
Benefit to parents.
Other factors, as appropriate on a case-by-case basis.
Child custody can always be modified based upon a change in circumstances and the best interests of the child.
Alimony is financial support that is paid by one spouse or received by another to help maintain the standards of living that were established during the marriage, or to assist a financially dependent spouse in his or her efforts to become self-supporting.
Eligibility for alimony is determined on a case-by-case basis and the court must consider a number of different factors, including:
Do you have the ability to become self-supporting?
How much time is needed for you to complete the education or additional training necessary to be self-supporting?
What standards of living were established during the marriage?
How long was the marriage?
Have you made monetary and non-monetary contributions to the well-being of the family?
Why did the marriage break-up?
How old are you? How old is your spouse?
How is your health (physical and mental)? How is your spouse's health?
Can your spouse afford to pay alimony?
Are there any agreements between you and your spouse?
What are your financial needs and resources? What are your spouse's financial needs and resources?
There are no standardized alimony guidelines in Maryland. If you are eligible for alimony, the amount you will get (both how much and for how long) will be determined by evaluating the same eligibility factors outlined above.
Many clients are interested in obtaining a "legal separation." In Maryland, you cannot petition the court for a legal separation. You and your spouse can sign a contractual document or separation agreement that states that the two of you have agreed that you can live as though you are unmarried, which would be the equivalent of a contractual separation.
The court will consider you to be married until they have granted you a divorce.
For the purposes of divorce, you are physically separated from your spouse when you stop sleeping under the same roof and stop having sex.
Depending upon the circumstances of your case, you may need to be physically separated for up to 12 months before you obtain a final divorce. During this time, while living apart, a separation agreement can act as a legally binding document that directs the course of your financial conduct, both during separation and afterwards. Financially, a separation agreement can apportion marital assets and preserve assets that are non-marital. If you and your spouse own real property, a separation agreement can provide for the sale of a marital home and payment of the mortgage and other household expenses while the property is listed for sale.
In cases involving children, a separation agreement can define your parental rights, clarify holiday access schedules, and set forth guidelines for important parental decision-making.
In Maryland, there are several available grounds for divorce. Each of these grounds has specific factual requirements that must be met, and the grounds that you choose may impact other aspects of your case. It is important to speak with an attorney before filing suit so that you have a clear understanding of how the available grounds for divorce may affect your individual claims. The most common grounds for divorce in Maryland are:
2. 12-Month Separation
4. Cruelty of Treatment (towards a spouse or minor child)
5. Excessively Vicious Conduct (toward a spouse or minor child)
How long it takes to get a divorce depends on a number of things, including:
1. Your grounds for divorce.
2. Where you live, where your spouse lives or works, and where you file suit.
3. The number of disputed issues in your case.
If you have a contested case, with no custody issues, on average it takes a minimum of twelve months from the date you first filed to obtain an absolute divorce.
A limited divorce is generally for people who do not have grounds for absolute divorce, but want their claims heard by the court. Limited divorce is a useful way to address time sensitive issues that arise during separation, namely: custody, child support, alimony, health insurance, and use and possession of a family home or family use personal property. If you and your spouse are able to resolve your differences through mediation or negotiation, a limited divorce may not be required.
Child support is a financial obligation, shared by both parents, to contribute towards the financial support a minor child until the child reaches age 18, or until the child reaches age 19, if the child is still enrolled in high school.
In Maryland, if your combined household income (before taxes) is less than $15,000 per month, then child support is calculated pursuant to the Maryland Child Support Guidelines. The Maryland Child Support Guidelines take into consideration each parent's actual income, the cost of work-related child care expenses, extraordinary medical expenses, health insurance, school and transportation costs, and the amount of time a child spends in the care of each parent.
Child support can always be modified based upon changed financial circumstances and the best interests of the child.
Domestic violence is any pattern of abusive behavior that is used to gain control over an intimate partner or family member. Domestic violence can be physical, sexual, emotional, or economic abuse suffered at the hands of a spouse, a former spouse, or person with whom you have had a sexual relationship, if that person has lived with you for at least 90 days out of the last year.
Just like people may not realize they are victims of domestic violence, people often don't recognize abuse. Abuse is any physical act that causes bodily harm, assault in any degree, rape or sexual offenses, false imprisonment, and stalking, but abuse is also any act or threat of action that causes a person to fear that they are in imminent danger of bodily harm. You do not have to be physically abused to be a victim of domestic violence.
Domestic violence does not discriminate. You do not need to live in fear. When the Courts are closed or you are unable to speak with a lawyer, you can still file for a protective order or a peace order with the District Court Commissioner. A District Court Commissioner is available 24 hours a day, seven days a week.
A protective order is a civil order that protects a person from abuse and domestic violence. Your eligibility to ask the court to issue a protective order is determined by your relationship to the alleged abuser. Protective orders typically apply to people in intimate relationships, people who are related, and people that have a child in common.
Like a protective order, a peace order is a civil order that protects a person from abuse and domestic violence. Your eligibility to ask the court to issue a protective order is determined by your relationship to the alleged abuser. Peace orders typically apply to people who have casual, non-family relationship, for example: co-workers, neighbors, dating, and strangers.
Mediation is another form of dispute resolution, whereby a neutral third-party (the mediator), assists parties in negotiating a settlement.
Mediation can be a cost-effective alternative to litigation. With meditation, the details of your case do not become a public record, and it is easier for you to manage the disclosure of confidential financial information, as well as the underlying causes for the breakdown of your marriage. Mediation allows you to take control over the outcomes in your case.
In custody cases, mediation can be especially helpful, because it creates positive momentum between parents as they continue to cooperate with one another for the benefit of their children.
The number of mediation sessions required to reach an agreement depends on a number of factors. These include your ability to listen and communicate, as well as to follow the direction of your mediator. Each mediation session is typically scheduled for two hours, with the first session dedicated to explaining the process, setting ground rules, and gathering information. In our experience, if everyone commits to the mediation process, most cases will settle in five sessions or fewer.
There are a number of differences between absolute divorce and limited divorce, most notably a limited divorce will not permit you to remarry and does not provide for the final distribution of marital property. A final dissolution of marriage and all property rights related to marriage can only be obtained through absolute divorce. You should speak with an experienced family law attorney to determine what type of divorce filing is best for you.
Collaborative is alternative dispute process that can be used to resolve family matters out of court and with the assistance of a professional team. As part of the collaborative process, both parties retain their own attorneys. Both parties and their counsel sign a collaborative participation agreement that requires a commitment to transparency and to resolve matters out of court.
The Collaborative process typically starts when one or both parties consult with a collaboratively trained attorney. With the help of their attorneys, the parties may select additional professionals to be party of a collaborative team. Additional professionals include Financial Neutrals, Divorce Coaches, and Child Specialists. Each member of the Collaborative team must sign a Collaborative participation agreement, which requires 100% disclosure of all material facts, mutual respect, sharing of experts and information, and most importantly, a pledge to keep the matter out of court. The end-goal of Collaborative is to reach an amicable and mutually acceptable solution.
While there is no set timeline for a traditional or a Collaborative divorce, there is a tendency for Collaborative to take less time. While each family situation is different, Collaborative provides a forward-looking, problem-solving approach, as opposed to litigation which often requires focusing on the past and assigning blame.
Divorce is difficult on children no matter the process. collaborative divorce can help ease the burden. Because it’s a very client-centered process, the needs of children are emphasized and prioritized in Collaborative. Many times the Collaborative team includes a child specialist, which is a licensed mental health professional trained to help parents and professionals focus on the developmental needs and feelings of children and develop a co-parenting plan designed to meet those needs.
The mediator is completely neutral in the mediation in process. The mediator’s role is to help resolve disputes by guiding the decision-making process without advocating for either side. Mediators are required toadhere to the Maryland Standard of Conduct for Mediators.
The mediator cannot make decisions for the parties, nor can the mediator give any legal, financial, or any other specialized advice. The mediator assists the parties in making decisions by guiding discussions in a neutral manner.
All mediations are confidential and the mediator cannot be called as a witness in any administrative or judicial proceedings. Maryland law allows for disclosures under certain circumstances, including when it isnecessary to prevent bodily harm or death.
Any type of conflict can be resolved in mediation. Mediators can help resolve a variety of family law matters from premarital issues to custody and child support, alimony, and even the division of marital property and debt.
While it is not required that you have a premarital agreement, many people with premarital assets or children from a prior relationship, consider a prenup to avoid the legal and financial uncertainty that a death or divorce may cause in the future.
Not necessarily. While it is common for one party to enlist the services of an attorney to draft a prenuptial agreement, the content may not be acceptable to both. In many cases, a draft prenuptial agreement is nothing more than a starting point for communication. The contents of a prenuptial agreement are fact specific and should be tailored to meet the future needs of both parties to an agreement. Many couples participate in premarital mediation, negotiation, or collaboration to agree upon terms to be incorporated in a prenuptial agreement. If you are presented with a prenuptial agreement, it is important to have the agreement reviewed by an experienced attorney, who can explain your legal rights.
Absolutely. There are many ways that couples can work cooperatively to create a prenuptial agreement. During premarital mediation with the guidance of a neutral mediator, engaged couples can discuss a variety of marital issues that may cause difficulties in the future. For example, premarital mediation can be used to reach agreements regarding the expectation for financial support, saving and spending styles, and even property division in the event of divorce or death.
Prenuptial agreements are fact and asset specific, so they vary on a case-by-case basis. Prenuptial agreements may include provisions for the disposition of assets acquired before and during marriage, including: real property, bank accounts, automobiles, valuable personal property and retirement assets. The ability to be self-supporting and the availability or need for alimony may also be addressed in a prenup. While there are some things that cannot be included in a valid prenuptial agreement, the list of things that can be included is quite extensive.
No. While a prenuptial agreement is designed to be protection from the legal consequences of divorce or death, there are certain things that cannot be predetermined. A prenuptial agreement cannot contract for the custody of children, especially children that have not yet been born. It is also impossible for a prenup to prearrange how much a parent will pay for child support.