Blogs from February, 2020

Divorces often don’t happen all at once. The build-up to a divorce can be full of tension, fighting, and in some cases physical danger. You may be tempted to walk out and end the strain, but doing so could affect your Maryland divorce case. Before you start packing, talk to an attorney about whether you can move out without risking abandonment claims in your divorce.

The Delicate Balance of Separation and Abandonment

Maryland divorce law does not make it easy to decide when and how you should move out of an unhealthy relationship. The law requires the person filing for divorce to establish grounds for divorce. Two of those grounds (desertion and voluntary separation) require that parties live separate and apart for a set period of time and the way that you separate can affect your property and custody claims. As much as you might prefer to cut your losses, we recommend that you have a frank conversation with an experienced divorce attorney before you move out.

Abandonment’s Effects on Property Distribution

Generally speaking, Maryland divorce law requires judges to order an equitable distribution of marital property. Equitable distribution can result in each party receiving a percentage of the overall value of marital assets based on a number of factors, including monetary and non-monetary contributions towards the acquisition of assets. However, the Court may also consider the reason for the break-up of the marriage and how one spouse’s conduct caused the divorce, as well as the effects of that conduct (including abandonment) on family assets during the parties’ separation. Your conduct in moving out could shift the percentage of property you receive in divorce, especially if one spouse had to dip into savings or sell assets to make ends meet or pay for an attorney to get the divorce started.

Unlike some other states, in Maryland, moving out does not directly affect whether you will be able to keep ownership of the property when the divorce is over or whether or not you will receive a monetary award for your interest in property. Instead, the Maryland court will decide how all family property is divided. If you moved out without justification (actual desertion), or if your spouse is awarded the home in the judgment of absolute divorce, then the home may still be marital property (if acquired during the marriage), and you would still be entitled to an equitable share of the value. If you have children and left them behind when you moved out, the judge may order that your spouse, and the children remain in the home for up to 3 years after the divorce is finalized. Use and possession is not guaranteed, but dependent upon the court’s evaluation of what would be in the children’s best interests.

Separation and Alimony

If your spouse is able to prove actual desertion, then the amount of alimony (or spousal support) may be impacted.

Maryland law requires some spouses to be physically separated and wait 12 months before filing for an absolute divorce. If you move out with or without a good reason, during the waiting period you may still be required to pay certain expenses related to your marital home and alimony. If you move out, or if your spouse moves out, with or without good reason, it doesn’t prevent you from asking for or being ordered to pay alimony during the waiting period. If your spouse is able to prove actual desertion, then the amount of alimony (or spousal support) may be impacted. If the status quo of your family is that you were the primary financial provider, then an order for alimony can be entered to help the economically dependent spouse pay for his or her living expenses and support the children in the meantime.

Child Custody Abandonment Concerns

Who moved out of the home can also come into play when the court is deciding issues of child custody and parenting time. In deciding how children will divide their time and who will be responsible for decisions regarding their care, a judge will look at several “best interest” factors. Moving out, regardless of whether it is deemed abandonment, may affect several of those factors:

• Primary Caregiver - If you move out and leave your children in your spouse’s care, it will be hard to argue later that you remained actively involved in their day-to-day care.
• Ability to Maintain Family Relationships - If you bring the children with you when you move out and make it difficult for them to stay connected with their other parent or extended family, this may be used against you in the custody determination.
• Length of Separation - The longer you are away from your children, the greater the impact on your claim for custody or additional parenting time.
• Prior Abandonment or Surrender of Custody - If you move out of the marital home and leave your spouse to cope with the children and the responsibility of the home, this would also be considered in a custody determination.

Before moving out, you should speak to a family law attorney to weigh the harm and benefit of leaving your children behind or taking them with you and disrupting their home and school environment. There may also be an option of waiting to move out until you have an agreement as to custody, even if other issues remain undecided. There isn’t always a good answer to this question, but you should know the effect any choice could have on any custody decision later on.

Defenses to Claims of Abandonment and Desertion

Just because you are the one to change your address doesn’t mean you are at risk of defending yourself against a desertion or abandonment claim. Remember, unless you have an agreement that resolves all issues, most divorce grounds require a period of separation. If your spouse does file a complaint for divorce, there are several defenses that you and your divorce attorney can use to shield yourself from the negative implications of an abandonment or desertion claim:

Constructive Desertion

If you were forced to leave because of your spouse’s misconduct or cruelty, you may be able to turn the tables and claim that he or she deserted you. Desertion is defined as leaving the relationship, not the home. If your spouse willfully refuses sex without cause and stops performing his or her marital duties or endangers your life, safety, health, or self-respect, you may be able to use his or her behavior as a defense to desertion claims.

Voluntary Separation

Sometimes a mutual decision to separate can get turned around in court filings. You may find yourself facing desertion and abandonment claims even when you and your spouse had discussed the separation before it happened. If you need help with your divorce or child custody matter, contact us today to schedule a confidential consultation with an attorney.

Sometimes a mutual decision to separate can get turned around in court filings. You may find yourself facing desertion and abandonment claims even when you and your spouse had discussed the separation before it happened. Voluntary separation is still grounds for divorce in Maryland, but by showing that you agreed to separate, live separately without cohabitation or sexual intercourse, and have no hope of reconciliation, a limited or absolute divorce can be entered without issues of fault clouding your property distribution.

Reconciliation or Cohabitation

For desertion to be grounds for an absolute divorce, it must be complete. By definition, abandonment or desertion must:

• Last 12 months without interruption (even one night together can negate desertion claims)
• Be willful and malicious
• Go beyond any reasonable expectation of reconciliation

If you took a break by moving out of the family home, but then returned and asked for another chance, that good faith effort at reconciliation may be a defense against the claim of desertion. If your spouse refuses your request to move back home, he or she could even become the deserter, but then the waiting period will start over, so that will delay the entry of your absolute divorce.

The decision to move out or stay in a home when you know divorce is coming is hard. The emotional cost of remaining in a broken home can be exceptionally high. In some cases, it can even be dangerous for you and your children to stay. The fear of desertion and abandonment claims shouldn’t automatically keep you from moving out. But, it is important to have a thorough discussion with your attorney before you move, so you can understand the risks and make an informed decision.

At the Law Office of Shelly M. Ingram, our divorce lawyers understand the legal and emotional costs of moving out or remaining in a family home. We can help you weigh your options and can advocate for you once the decision is made and the divorce complaint is filed. If you need help with your divorce or child custody matter, contact us today to schedule a confidential consultation with an attorney.

In child custody matters, it is often best if parents who are separated or in the process of separating are able to work together amicably to discuss and decide on a plan as to the parenting of their children. As a parent, you have known your children their entire lives, but a judge will only get a snapshot of your relationship with them at a trial and have to make a decision on that basis. While there have previously been tools in place through the court system to assist parents, including court-ordered mediation and co-parenting classes, Maryland recently enacted new requirements for parents involved in custody litigation.

The Plan

As of January 1, 2020, if you are a party in contested custody litigation, you and your child’s other parent will be required to complete a Parenting Plan. Maryland Rule 9-204.1. The Parenting Plan is a comprehensive document that addresses issues related to the custody and care of your children, including whom shall have decision-making authority, how communication about your children will be facilitated, and the actual physical access schedules. At your initial scheduling conference with the court, you will be provided with instructions for completing the Plan. You may work on this document directly with your child’s other parent, with the aid of a mediator, or with your attorney. When you are discussing and working on completing the Parenting Plan, you should think about durability and keep the best interest of your children in mind.

The Goal

While the goal of the new Parenting Plan rule is to help you and your co-parent complete and agree on matters related to the care and custody of your children, that won’t always be possible. If you are not able to agree on the Parenting Plan, then you will need to complete a different form, the Joint Statement of the Parties Concerning Decision-Making Authority and Parenting Time. Maryland Rule 9-204.2. The purpose of the Joint Statement is to indicate to the court the specific places where you and your co-parent agree or disagree about the decision-making, communication, and access issues that are to be addressed in the Parenting Plan and to serve as a guide for the Court.

The Requirements

The date by which the Joint Statement must be filed will be set by the court, but at least thirty (30) days before the Joint Statement is due to be filed, each party must send their completed statement to the other party. At least fifteen (15) days before the Joint Statement is due to be filed, the plaintiff (the party who initiated the custody action by filing), will sign a Joint Statement that they believe accurately reflects each parties’ positions, and send to the defendant for their review. The defendant must then sign and file the Joint Statement if they are in agreement, or file it with a written statement identifying their points of disagreement.

If you have questions about completing the Parenting Plan, the Joint Statement of Parties Concerning Decision-Making Authority and Parenting Time, or about your custody rights, an attorney will be able to address your questions, help you understand the nuances of the various forms, and guide you through the process of litigation and/or settlement. Contact Law Office of Shelly M. Ingram, LLC today.

Separation and divorce matters can be affected by adultery in many ways. Adultery is hurtful to a spouse that has been cheated on and may cause a lack of trust, a breakdown in communication, and resentments that can be hard to overcome. Frequently, a spouse that is involved in an extramarital affair did not plan for the infidelity and may experience grief, guilt, and also resentments. In either case, at the Law Office of Shelly M. Ingram, our attorneys and mediators have a goal to listen to you and help you to understand the choices you have moving forward.

Is adultery the cause of a failed marriage or the symptom of a marriage that is already failed? In Maryland, to prove adultery you need to show that your spouse has had the opportunity and inclination to have sex with someone else, you don’t need to show that actual intercourse has occurred.

The Cheater

If you are a spouse that cheated, we understand that you are going to have many questions. Should you admit to the adultery or deny it? How will the adultery affect child custody and child support? Will I have to pay more financially? Each case is different. Our attorneys will help you find answers to these and other difficult questions. Even if you are uncertain whether or not you want your marriage to end, our attorneys can help you understand your legal options and help you decide the best way to protect your interests as you move forward.

The Cheated

If you are the spouse that was cheated on, you may wonder if you have enough proof.

If you are the spouse that was cheated on, you may wonder if you have enough proof. Do you need to confront your spouse? Do you need to hire a private investigator? Your questions may be similar to a cheating spouse – will the adultery affect your legal rights? What happens if you divorce? What happens if you forgive your spouse and decide to continue in the marriage? How do you protect your interests? You may be uncertain how you would like to proceed, but want to understand more about your legal rights.

What's Next?

Our goal is to educate you about the law as it applies to your specific circumstances and help you make an informed decision about the best way to proceed – be it separation or reconciliation.

We understand that no two clients and no two circumstances are the same. You are not required to divorce if you consult with an attorney. You can consult with an attorney to be educated about the law and the best way to protect your legal rights when adultery is an issue in your relationship. Our attorneys offer in-person and virtual consultations using Zoom, Skype, Facetime, and telephone. Contact us today to schedule a consultation with one of our attorneys if you have additional questions or would like to discuss options for your future.