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FAQ's TOPICS
ABSOLUTE DIVORCE
Adultery
Q: I hired a private investigator who recently caught my husband hugging and kissing his secretary at a nearby park. Can I divorce him on the ground of adultery?
A: Yes. Generally, public displays of kissing and hugging are sufficient to satisfy the disposition element. In addition to this element, however, there must be an opportunity to commit adultery, as well.
Q: A few weekends ago, a private investigator I hired caught my husband spending the weekend at his secretary’s house. Has he committed adultery?
A: Yes. Since your husband and his secretary were alone for a weekend, an opportunity existed to commit adultery. To have a valid claim for divorce on adultery grounds, however, you must also show a disposition to commit adultery.
Desertion
Q: About 11 months ago, my husband permanently moved into another room of the house and refuses to come back to our room. Each night he bolts the door to his room and does not come out until the morning. Despite my continued attempts to enter his room, I have not had any sexual relations with my husband during this period. Do I satisfy the ground for desertion?
A: Most likely yes. Once you have satisfied the 12 month wait period without having any sexual relations, you may be eligible to file for an absolute divorce.
Voluntary Separation
Q: My wife and I live in separate homes and have not spoken in a year and a half. Can I obtain an absolute divorce?
A: Most likely, yes. However, in addition to living separately without any cohabitation for one year, it is also important that you and your spouse have mutually agreed to separate with the intent to terminate the marriage and that there is no hope or expectation of any reconciliation.
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LIMITED DIVORCE
Voluntary Separation
Q: My wife and I agreed to separate a few months ago, but I recently tried to reconcile our differences with her, but she refused to give me a chance. Can I still obtain a limited divorce on grounds of voluntary separation?
A: A critical element to a voluntary separation is that there is no hope of reconciliation. Since you have tried to reconcile with her, the separation is no longer mutual. You can, however, due to her refusal, file of a limited divorce on the ground of desertion.
Desertion
Q: My wife and I are still living in the same home, but neither makes an effort to speak to each other nor have we acted like husband and wife in months. Do I have a claim for divorce based on ground of desertion?
A: Likely not. For a proper limited divorce on the grounds of desertion, there must be a deliberate termination of cohabitation by one party. Since you and your wife are still living under the same roof, your “abandonment” seems more consensual in spite of the fact that there is no cohabitation between the two of you.
Q: My husband refuses to sleep with me no matter how hard I try and regularly sleeps out on the couch voluntarily. Can I divorce him on the grounds of desertion?
A: Likely yes. If your husband deliberately refuses to have sex with you for reasons other than health or other good reasons, then you may have a cause of action for a limited divorce on grounds of desertion. This is true in spite of the fact that you continue to live in the same house.
Q: My husband’s mother has been living with us for a few years, and I cannot bear her constant criticisms and interference into my personal life. Although I have begged my husband to talk to her, he refuses to do so. What should I do?
A: If your current living situation has had a negative effect on your health, you can possibly file for a limited divorce on the ground of constructive desertion.
Q: My husband comes home drunk everyday after work. His alcoholism is affecting our marriage. Do you think I can get a divorce?
A: Without more, such as your husband’s alcoholism causing him to abuse you or your children, simply being an alcoholic is insufficient to file for a limited divorce on ground of constructive desertion.
Cruelty/ Excessively Vicious Conduct toward the Complaining Party or to a Child of That Party
Q: My husband, to whom I have been married 5 years, came home one day drunk last week and gave me a black eye. What are my options for divorce?
A: Unless your husband has a history of abuse, a one-time incident may not be sufficient to file for a limited divorce under the cruelty ground. If you feel, however, that future incidences of abuse will occur or that your husband intends to cause serious bodily harm to you in the future, then you may have a claim under the cruelty ground.
Q: My wife thinks that I am currently having an affair, despite my truthful denial, and has publicly embarrassed me with claims of my supposed affair on numerous occasions. I want to divorce her. Can I do it?
A: Yes. If your wife’s claims of infidelity are unfounded, then you can bring a claim for a limited divorce on the ground of cruelty and possibly desertion.
Q: My husband constantly yells at me and my children, although he has never physically laid a hand on us. He uses foul language in the presence of my minor children and sometimes directs it to them. This relationship has become emotionally draining, and I want to get out of it. What can I do?
A: It does not seem like there is really much you can do under the ground of cruelty since there is no indication that he has physically abused you. In the absence of any actions that endangers your personal security or health, the use of profane language only is insufficient to bring a limited divorce claim under the cruelty ground.
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ALIMONY
Q: Will the alimony payments from my former husband cease once I re-marry, even if he and I agreed as part of the marriage settlement that the payment will continue for 7 years?
A: Yes, assuming there is no specific agreement that alimony will continue after you re-marry. An absolute condition to the continued receipt of alimony payment is to remain unmarried for the duration of the alimony payment term. Therefore, your payments will cease because you have remarried, even if the payments are to continue for a few more years.
Q: Can alimony be awarded to a wife only?
A: No. In accordance with the Equal Rights Amendment, a court can award alimony to either party in a divorce proceeding.
Q: Can my wife obtain alimony payments eventhough she is the one that caused the divorce?
A: Possibly. While the amount and duration of alimony is based on a series of factors, even if your wife did cause the divorce, she will not be barred from obtaining alimony.
Q: Can I obtain alimony without requesting a divorce?
A: While it is unusual that alimony will be sought without requesting a divorce, it can be awarded by filing a complaint for alimony only. The person seeking alimony must allege grounds for a limited or absolute divorce, but there is no requirement that a divorce be granted or that the person seeking alimony prove that he or she could obtain a divorce had he or she desired one. The person seeking alimony without a divorce is only entitled to alimony and no monetary award or use and possession of the marital home.
Factors to determine alimony awards:
Q: My spouse and I have an equal income. Am I still eligible for alimony?
A: You are likely not eligible for any alimony. You are self-supporting and, since you and your spouse’s income levels are the same, a court will likely not award any alimony since it is unlikely that your standard of living, during and after the divorce, will be unconscionably disproportionate to your spouse’s.
Q: I married my husband right out of high school and never went to college because we began having children soon after marriage. I had 3 children with him, and he supported all of us during our marriage. If I wanted to get a college degree, how long will my alimony payments last?
A: Since you have children, and assuming you will be their caretaker while in college, the court may extend your alimony payments until the completion of your education. The amount of alimony you receive also depends on a noncomprehensive list of factors such as your age, the length of your marriage, and the amount of time you have been out of the workforce in determining an appropriate alimony award.
Q: My income is only 8% of my wife’s. She makes $200,000 while I make about $16,000. What are my chances of receiving a favorable alimony award?
A: Your chances are high because of the disparity in your standards of living after your separation. The court, however, would also look at other non-limiting factors such as your ability to obtain further education, your age, and the duration of your marriage.
Q: My wife currently makes $185,000 while I only make $67,000. We jointly own property worth approximately $917,000. Am I still eligible for permanent alimony?
A: You are likely not eligible although the disparity of incomes is wide enough that a court would find you eligible for alimony. The receipt of your share of the joint property, however, may disqualify you from receiving anything. For instance, if you and your spouse receive an equal share of the real property funds, the court is unlikely to grant you alimony. Additionally, whether you receive alimony also depends on your age, the length of your marriage, and whether the court would consider you self-supporting, among other factors.
Q: I am a 61 year old homemaker and my husband was the breadwinner of the family. We want to get a divorce, but I want to know what amount of alimony payments I will receive from him?
A: Due to your age, it is likely that the court will award you alimony but it will also consider your relative income levels and the duration of your marriage, among other factors. In general, the longer you were married, the more likely you will receive a higher alimony payment.
Q: My husband recently resigned from his company as president claiming that he was falling ill. As a consequence, his salary fell from $50,000 to $10,400. What kind of effect will this have on my alimony award?
A: It will have very little effect assuming your husband was actually faking his sickness to avoid alimony payments. If so, then your husband has voluntarily impoverished himself and will be required to pay alimony based on his potential income.
Modification and Extension of Alimony
Q: After my recent divorce from my husband, the economy tanked and it was difficult for me to find a job in my field at the income level projected. My ex-husband’s income, however, continued to rise. Can I have my incoming alimony payments modified?
A: Yes. This is a change that is significant enough to warrant a modification in alimony payments
Q: My wife was expected to improve from a psychiatric problem she has been suffering, but her condition does not seem to be improving. She has filed for a modification of alimony from definite to indefinite. Is this possible?
A: Yes. The change in prognosis for her recovery is a significant change in circumstance that would require a modification in alimony
Q: I recently divorced my husband and am still unemployed. His income level, however, continues to rise. Can I ask for a modification in alimony?
A: Your request for a modification will likely be unsuccessful without showing a more significant change in circumstances. If the only change is that your husband has acquired more money, this will not alone allow for an increase in alimony payments
Q: After my divorce from my wife, I have become an alcoholic and cannot seem to keep a job. Can I ask for an alimony modification?
A: Under these facts, a modification will be difficult.
Q: Can I have alimony modifications retroactively applied?
A: In general, yes, it is possible although it is in the discretion of the court and assuming modifications are not barred by prior agreement. An alimony award retroactively applied will then commence on a date preceding the filing of a motion of modification.
Pendente Lite Alimony
Q: My husband used to pay me about $1100 per year regularly prior to our divorce. Will he be required to pay at least that much in alimony?
A: Most likely yes. His ability to pay this amount in the past will be a factor, among others, the court will look at in determining the alimony award. It may require him to continue to pay at least that amount.
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CHILD SUPPORT
Q: What are the child support consequences to me if my 15 year old daughter just had a baby but has no money to take care of him?
A: As a grandparent, you can be held responsible for the support of the child if neither parent has any income and are minors. Therefore, your support of your daughter will be expanded to the extent that your daughter, and the baby’s father, have insufficient money to fulfill their child support obligations.
Guidelines
Q: What is not considered actual income?
A: It does not include benefits received from public assistance programs, including temporary cash assistance, Supplemental Security Income, food stamps, and transitional emergency, medical, and housing assitance
Q: What expenses are generally included in determining child support payments?
A: Your children’s expenses can be broken down into two categories: discretionary and basic obligations. Discretionary expenses are recreational activities such as karate classes while basic obligations, which are split between the parents, include day care and braces. Discretionary expenses are not included in calculating each parent’s support obligations.
Q: For the past year, I have been paying $400 in child support per month, when I was only required to pay $300. Can I get the $1200 of overpayment back?
A: No. The court will not order the money to be returned for something that was your fault
Q: My son’s father is very wealthy, but I am not at all. I want to obtain child support payments for my son who has always lived with me. How much support am I entitled to receive?
A: You are likely entitled to an amount equal to the standard of living your son would have enjoyed if you and your son’s father would have remained together. In terms of finances, the law does not distinguish between children whose parents were married and those whose were not. Therefore, if your son would have enjoyed a better standard of living if you had remained with his father, then your son is entitled to that same amount of support.
Voluntary Impoverishment
Q: I recently moved to a rural area with my second wife where the level of income is significantly lower than where I previously lived. I cannot afford to make the regular child support payments which I am required to make. Will I be considered to have voluntarily impoverished myself?
A: Whether your move will be problematic depends on various factors including whether you continued in the same occupation after your move and how long after your divorce you moved. Most likely, your move will not be a problem since a court cannot control where you will live (i.e., living in the highest wage earning area) and would not want to use the child support payments as a restriction on your mobility.
Q: My ex-husband has been, and wants to be, a student his entire life. He was a student before we married and before we had any children. He has never worked and has been supported by family and friends his whole life. Will the court consider him to have voluntarily impoverished himself, eventhough he has no income to reduce?
A: The answer depends on whether your ex-husband chose to remain a student and unemployed his entire life. If so, it is likely that he will be found to have voluntarily impoverished himself. On the other hand, if your ex-husband made efforts to alter his life after the birth of your children by finding steady income while studying, then it is possible he will not be considered to have voluntarily impoverished himself. Generally, however, a parent who decides to live in poverty cannot preclude his or her child from enjoying the necessities of life and, instead, must try and change their lifestyle to meet their support obligation.
Q: I want to quit my high-salaried job and pursue the job that has been my dream since I was a child. The new job pays about minimum wage. How will this affect my child support obligations?
A: It would depend on the significance of the change in salary, which in this case seems quite dramatic, and/or your history of making child support payments on time. By changing jobs, if you cause your income to drop, for example, from $80,000 per year to $20,000 per year and/or if you have a history of avoiding support payments in the past, a court may be forced to order you to pay child support based on a potential income, i.e., the court will impute income to you as though you were continuing in the high salaried job.
Modification of Child Support
Q: I and my wife agreed in our divorce that I would pay $100 per month of child support until each child of ours reached the age of 21. The eldest child just turned 18 and, at the same time, we agreed to increase support payments to $350. What is the effect of his turning 18?
A: The primary effect will be that the modification will be void as applied to your eldest. Since the age of majority in Maryland is 18, the modification of child support of $350 will only apply to your other children. As to your eldest, the payments will continue to be $100 per month.
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CHILD CUSTODY
Best Interest of the Child
Q: My husband currently has custody of our three children, but he is suffering from a mental disease which I think is negatively affecting them. Can I obtain physical custody of my three children?
A: In deciding whether you can obtain physical custody, the court will look at a series of factors, none of which are controlling. While your husband’s mental condition is a factor, the court will also look at your children’s best interests. For example, in a case with similar facts, a four year old was separated from his siblings because the court felt that the parent’s mental disease would be more detrimental to him than to the siblings who were older and could understand what was wrong with their parent who had the mental disease.
Q: My wife and I made an agreement over two years ago that each of our two sons would live with one of us. Will a court require them to both live in one household?
A: It depends on which “best interest” factors the courts will place emphasis. Courts have upheld the separation where it did not cause any physical, mental, or emotional adverse effects.
Q: My husband and I have been at each other’s throats for the past two years. We do not get along like a married couple should. The only thing we have in common now is our children whom we both dearly love. When we divorce, who is going to get custody of our children?
A: In determining whether you and your husband can obtain joint physical or legal custody, the court will look at what is in the best interests of your children based on a series of factors such as your ability to get along, the geographic distance between you and your spouse, and your financial status, among others. As to the lack of communication between you and your husband, if the tension between you seems more permanent in nature, the court may award sole physical custody to only one of you, although visitation rights will be granted to the other. If you and your husband want to share physical and legal custody, then it is better for you both to begin to communicate with each other.
Q: What will happen to my custody rights if I prevent my ex-spouse from seeing our children or move to Canada with them without telling my ex-spouse?
A: The court will look at the best interests of the child in its totality in determining the fair outcome. For example, if you decide to move to Canada with your children without informing your spouse, the court may see you as denying a “natural and legal right” to visitation and therefore not acting in the “best interests of the child.” As a result, you may lose custody of your children. Similarly, it could likely be the same outcome if you purposefully exclude your spouse from seeing your children.
Modification of Child Custody Orders
Q: When would a lifestyle change generally threaten or harm a child?
A: Every case is different and what a judge would consider a change in circumstance depends on his or her viewpoint. Generally though, where a custodial parent begins to work late at night, leaving his or her minor child at home alone, the non-custodial parent may have a right to request a custody modification. Alternatively, where a non-custodial parent begins to drink heavily, the custodial parent may request a modification of the visitation order allowing the child to visit only when the non-custodial parent is sober.
Visitation
Q: My husband received custody of our children after we divorced because I cheated on him. Will my cheating have any effect on my visitation rights?
A: The court will look at the best interests of the child in determining your visitation rights. Nevertheless, your visitation rights should not be denied solely on the ground of your marital misconduct. The only way it may be denied is if there are exceptional circumstances that may be injurious to your children’s welfare.
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DIVISION OF PROPERTY/MONETARY AWARDS
Q: My wife and I jointly purchased a home three weeks before we got married and lived in it together after marriage. Is the house marital property?
A: Since the property was acquired before you were married, the court will hold the house to be nonmarital property.
Q: I filed a workers’ compensation claim many years prior to getting married. I have heard that when I divorce my husband, he is entitled to some of my compensation. If it is true, how much will he get?
A: It is true that your workers’ compensation benefits are considered marital property and, as a result, your husband is entitled to his share. The court considers the purpose of workers’ compensation – to compensate for lost wages and future earning capacity - rather than the time of its accrual in determining whether it is marital property. Furthermore, payment of medical expenses through marital assets also designates workers compensation as marital property. At this point, it is difficult to determine how much he will get without more facts regarding your workers compensation claim.
Q: I was the sole stockholder of a corporation that was formed before I married my wife. The corporation recently dissolved, and the principal asset of the corporation was deeded to me. Will my wife be able to get any of this as part of our divorce?
A: It is unlikely that the corporate asset will become marital property. Assuming all of the stock of the corporation was acquired prior to your marriage, the corporate asset deeded to you is directly traceable to the stock and, therefore, is nonmarital property.
Q: My wife and I jointly own a house and cannot agree who will own it after the divorce. Neither one of us want to give it up. What will happen to the house?
A: A court must divide jointly held property equally and will not change title to property, except in the case of pensions. If neither of you can decide who keeps the house, then the court will sell the house via a trustee and the proceeds will be divided equally between the two of you.
Q: If the value of my company rises while I am married, will this be considered marital property?
A: It depends on how much of the increase in value was contributed by your spouse. A shared effort between you and your spouse will transform your non-marital asset into a marital one. For example, if your spouse has a full-time career outside of your business and that’s allowed you to reinvest all of the business funds back into the corporation, then the court may consider a portion of the corporate asset marital property.
Q: Are the pensions I receive marital property?
A: Pensions are generally marital property if earned or acquired during the marriage.
Dissipation of Assets
Q: I am having an affair right now and want to buy my girlfriend a car and pay for her rent. Will this be considered dissipating assets?
A: Assuming you are using marital assets, buying a car and paying for your girlfriend’s rent will provide a basis for a finding of dissipation. As a result, the money you spend on her will be added into the total value of marital assets. Furthermore, if you are hiding these expenses as a business expense, you must be aware that doing so can also be considered dissipation.
Q: I recently moved out of the house because my wife wants a divorce. Can I continue using our joint account to pay mortgage on the condominium I just bought and for work related travel?
A: If you continue to use the joint account to pay your mortgage, then it is possible that you will be found to be dissipating assets especially since you are employed and assuming you have sufficient income to afford the mortgage. Your use of the joint account for travel, on the other hand, will not be considered dissipation so long as it is reasonable, necessary, and legitimate. Excessive, inappropriate, or unwarranted travel expenses may be considered dissipation. Also, with regard to travel, the court will see if you have consistently been traveling during the marriage and incurring this type of expense.
Q: I have paid child support and alimony to my former wife on a regular basis but would like to pay for future payments now. What consequences will this incur?
A: Assuming that you are not in “arrears,” that is you do not have payments which you still owe, then payment for “future” child support and/or alimony will be considered dissipation. Therefore, you will be held liable for the amount you have dissipated.
Q: Can I pay for my attorney’s fees with marital assets?
A: Assuming that the attorney’s fees are reasonable such that the payments do not cause a severe depletion of marital assets, using them to pay for it will not be considered dissipation.
Use and Possession
Q: My husband’s parents partly paid for the home that my husband and I lived in with our children before we began divorce proceedings. While I think we’ve agreed to get joint physical and legal custody, I am scared that I am going to lose the home because it was partly paid for by my former in-laws. Am I going to lose the home?
A: Maybe not. The court will look at what is in the best interests of your children in keeping them in the same home. If you and your husband get joint legal and physical custody of your children, there is still a possibility you may be awarded use and possession of the home for up to three years.
Q: My business, which is owned by me and two other partners, includes cars as its assets. If my wife is awarded use and possession of the family use property, will this be included?
A: Likely not, assuming the vehicle is owned by the business and not by you.
Q: I was given the use of the home after I divorced my husband, but the court ordered me to pay all mortgage payments. I recently sold my house and split the proceeds with my former spouse as required by a prior agreement. Is there anyway I can get my spouse to pay for part of the house expense I had to incur during my use?
A: Since your property was jointly held, the court can require your spouse to pay his or her share of expenses while you both owned the property together. Since you were required to pay all of the expenses, you can seek “contribution” from your spouse for additional expenses.
Further Information on Division of Property:
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