Publication : Brochures
Divorce and Separation
This information has been prepared by the Public
Interest Committee of the Delivery of Legal Services Section, Section of
Family and Juvenile Law and the Public Awareness Committee of the Maryland
State Bar Association. It is intended to inform the public and not to serve
as legal advice.
Some of the most frequent questions attorneys
are asked involve divorce and separation. Many members of the public have
either been directly involved in these types of problems or know someone
who has experienced divorce or separation. Often, the parties in these situations
try to resolve their problems without legal proceedings. Before attempting
to reach an agreement, however, it is important to have a basic understanding
of the law in this area.
Grounds for Divorce in Maryland
There are two types of divorce in Maryland: A
limited divorce specifies the rights and obligations of the parties, but
does not provide for final division of property (including pension and retirement
funds) and does not permit remarriage. An absolute divorce terminates the
marriage and determines all rights and obligations of the parties, including
final division of property. A limited divorce may be granted on the following
- Cruelty of treatment of spouse or a minor child
- Excessively vicious conduct
- Parties are voluntarily living separate and
apart without cohabitation and there is no reasonable expectation of reconciliation
An absolute divorce may be granted on the following
- Separation of the parties under the following
- Uninterrupted desertion for at least
12 months, which is deliberate and final and in which there is no
reasonable expectation of reconciliation.
- Parties are voluntarily living separate
and apart without cohabitation for 12 consecutive months and there
is no reasonable expectation of reconciliation.
- Conviction of one of the parties for
a felony or misdemeanor in any state or in any court of the United
States, where the party has been sentenced to serve at least three
years or an indeterminate sentence in a penal institution and 12
months of the sentence have been served.
- Parties have lived separate and apart
without cohabitation and without interruption for two years.
All requirements for each ground must be met before
filing for divorce. There are additional requirements, including residence
in the state, in most circumstances. An attorney can help you determine if
the requirements for any ground for divorce have been met.
The Separation Agreement
In many instances, the parties to a marriage voluntarily
agree to live separate and apart until they can obtain a divorce. The individuals
involved may agree, after negotiation on the parties’ behalf between
their respective lawyers, about the division of their property and other
questions pertaining to alimony, child support, custody and visitation. The
parties enter such an agreement in writing. This document, known as settlement
or separation agreement, fixes the rights and responsibilities of the two
parties between each other. It is a binding contract between the two parties,
which can generally be enforced by appropriate court action. An exception
to this exists in matters concerning child custody and child support; the
court always retains jurisdiction over these issues.
Alimony and Child Support
Alimony is payment for support of a spouse. Under
the law of Maryland, either party may claim alimony from the other. The fact
that the party seeking alimony may be guilty of some ground for divorce does
not prevent an award of alimony to that party. Courts are required to consider
many factors in determining the award and amount of alimony. These include,
in part, the financial needs and resources of the parties, their income and
assets, financial obligations, standard of living and the facts and circumstances
leading to separation.
Courts have always given the highest priority
to the needs of children in divorce proceedings. Each party has a responsibility
for the support of a minor child or children. A formula called the child
support guidelines is now used by the court to determine the amount of child
support. Child support awards are primarily based on the gross incomes of
the parties, but each case must be considered on its own facts and circumstances.
If the parties have reached an agreement on the
alimony and child support and have placed that agreement in writing, their
agreement will govern payment of alimony and child support unless that agreement
was obtained by fraud or under duress.
Marital property is defined as all property acquired
by either or both parties during their marriage. It does not include property
acquired prior to the marriage, property acquired by inheritance or gift
from a third party or property excluded by valid agreement or traceable to
any of these sources.
Whether or not alimony is awarded, a court may
still make a monetary award based on the value of all marital property. In
determining the award and amount, the court is required to consider many
factors. It is important to bear in mind that the court does not have the
power to change the title to property, except for pensions and retirement
funds, but may adjust the rights of the parties by giving a monetary award.
If either party has a pension or retirement fund entitlement, it is essential
that an attorney who is knowledgeable about such matters prepare all necessary
Custody and Visitation
Maryland courts award custody of the minor children
to one or both parties according to what is in the best interest of the children.
If the physical custody is awarded to one party, visitation rights will generally
be granted to the other party. Decision making power regarding the child
or legal custody, may be awarded to either party separately or to the parties
Divorce and separation today is a more complicated
process than ever before. Serious questions arise as to each area discussed
above. Because the law is complex and ever-changing, it is important to seek
legal advice when any questions concerning divorce or separation arise.
Divorce and Separation ©
1986, MSBA, Inc. Revised 1997
All rights reserved. No part of this work may be reproduced in any
form without written permission from the Maryland State Bar Association.