If You’re Facing a Divorce in Howard County, MD… READ THIS!

As a Howard County, MD divorce lawyer for over 30 years, I know how overwhelming the divorce process can be for families. In my Columbia MD family law practice, I often get asked the same questions over and over again. If you are facing separation and divorce in Maryland, below is an overview of what you need to know so that you make the best possible decisions for your family.

Two (2) Types of Divorce in Maryland

In Maryland, a divorce can be “Limited” or “Absolute”. The names can be confusing. Think of an Absolute divorce as a final divorce and a Limited divorce as a court-acknowledged separation. Only an Absolute divorce entitles the parties to remarry.

A. Limited Divorce. Under Maryland law, four (4) distinct “grounds” or legal bases for Limited divorce are recognized:

cruelty of treatment of spouse or child;
excessively vicious conduct toward spouse or child;
desertion of spouse or child; or
voluntary separation

B. Absolute Divorce. Under Maryland law, seven (7) distinct “grounds” for Absolute divorce are recognized:

adultery;
desertion of spouse or child:
- continuous and uninterrupted for 12 months without interruption;
- deliberate and final; and
- no reasonable expectation of reconciliation;
conviction of spouse of felony or misdemeanor:
- spouse sentenced to serve at least 3 years or an indeterminate sentence; and
- spouse has served 12 months of sentence;
12 month separation – continuous and uninterrupted without cohabitation for 12 months;
insanity:
- spouse confined in mental institution, hospital, or other similar institution for at least 3 years;
- court determines that insanity is incurable and no hope of recovery; and
- 1 of the parties has been a resident of this State for at least 2 years;
cruelty of treatment toward spouse or child & no reasonable expectation of reconciliation; or
excessively vicious conduct toward spouse or minor child & no reasonable expectation of reconciliation.

In 2015, the Maryland legislature approved an 8th ground, “Mutual Consent” which may be applicable to many couples without minor children “in common” who have executed a settlement agreement resolving alimony and property distribution. Under this pending law, qualifying couples will be eligible for final divorce immediately after ratifying a settlement. As of April 2015, “Mutual Consent” has not been signed into law by the Governor.

Corroboration

A divorce may not be granted based upon the testimony of a party alone. “Corroborative” evidence establishing or supporting the applicable ground for divorce must be submitted to the court.

Applicable Law

The law applicable to divorce in Maryland is located in the Family Law Article, Annotated Code of Maryland, which provides in relevant part:

§ 7-101. General provisions.

(a) Residence requirement.- If the grounds for the divorce occurred outside of this State, a party may not apply for a divorce unless 1 of the parties has resided in this State for at least 1 year before the application is filed.

(b) Corroboration of testimony required.- A court may not enter a decree of divorce on the uncorroborated testimony of the party who is seeking the divorce.

7-102. Limited divorce.

(a) Grounds for limited divorce.- The court may decree a limited divorce on the following grounds:

(1) cruelty of treatment of the complaining party or of a minor child of the complaining party;

(2) excessively vicious conduct to the complaining party or to a minor child of the complaining party;

(3) desertion; or

(b) Attempts at reconciliation.- As a condition precedent to granting a decree of limited divorce, the court may:

(1) require the parties to participate in good faith in the efforts to achieve reconciliation that the court prescribes; and

(2) assess the costs of any efforts to achieve reconciliation that the court prescribes.

(c) Time during which decree is effective.- The court may decree a divorce under this section for a limited time or for an indefinite time.
(d) Revocation of decree.- The court that granted a decree of limited divorce may revoke the decree at any time on the joint application of the parties.
(e) Decree of limited divorce on prayer for absolute divorce.- If an absolute divorce is prayed and the evidence is sufficient to entitle the parties to a limited divorce, but not to an absolute divorce, the court may decree a limited divorce.

§ 7-103. Absolute divorce.

(a) Grounds for absolute divorce.- The court may decree an absolute divorce on the following grounds:

(1) adultery;

(5) 2-year separation, when the parties have lived separate and apart without cohabitation for 2 years without interruption before the filing of the application for divorce;

(7) cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation; or

Majority of Divorces Granted on Voluntary Separation

In Maryland, the substantial majority of Absolute divorces are granted on the basis of a one (1) year voluntary separation; even if other grounds such as adultery are available; have been plead and/or could be proven. Proof of adultery is expensive and can be humiliating to the guilty spouse and other family members. The legal system permits and encourages spouses to “convert” from an otherwise contentious and protracted Absolute divorce case premised upon adultery, desertion, cruelty of treatment or vicious conduct, to a one (1) year voluntary separation case when both spouses agree and the separation can be proven by corroborative evidence.

Adultery

Many issues arise in a divorce case where one (1) spouse is suspected of engaging in a past or present adulterous relationship. Those issues generally fall into two (2) categories:

1. proof of adultery; and

2. impact of adultery when proven on the substantive issues in the case [alimony; child custody; child visitation; divorce; marital debt; marital property; monetary award].

This message provides an overview of Maryland law applicable to proof of adultery. The impact of adultery once proven is beyond the scope of this message.

Throughout this message, references will be made to relevant portions of the Maryland Annotated Code and/or Maryland Rules of Civil Procedure. A complete discussion of applicable Maryland Code law and Rules is beyond the scope of this message. The Reader is encouraged to do both of the following:

1. view the Code law and Rules at this link: Maryland Annotated Code; and

2. discuss the law and Rules applicable to their situation with their attorney.

Maryland Law on Proof of Adultery

In Maryland, when proven by competent evidence, adultery constitutes legal grounds for divorce.

The Maryland law applicable to adultery was reviewed by the Maryland Court of Special Appeals in the case of Kramer v. Levitt, 79 Md.App. 575, 558 A.2d 760 (1989).

Upon request, your Assigned Paralegal will provide you with a copy of this important case for your review.

1. How is Adultery Proven?

Direct Evidence of Adultery. Although rare, occasionally, a spouse carries on an adulterous relationship during the marriage openly and in the presence of other unrelated – potentially unbiased individuals who can serve as “eye-witnesses” in court. In these rare situations, observations are made by these “unprofessional” witnesses of behavior strongly suggesting the existence of a sexual relationship between the spouse and “paramour”. Other examples of “Direct Proof” of adultery include photographs or video tape of the spouse and paramour “engaged in the act”. Although sensationalized on television and in the movies; due to the secret manner in which most adulterous relationships are engaged, photographs and video tape are rarely available.
Circumstantial Evidence of Adultery. Under Maryland law, adultery may be proved by circumstantial evidence. In Kramer, the Court observed, “Direct proof, that is, the evidence of eye-witnesses, is not required, for such the nature of the offense and the secret and clandestine manner in which it is committed, that proof of this kind is in most cases unattainable; yet where it is sought to be inferred from circumstances, the latter must lead to the conclusion of guilt by fair inference, as a necessary conclusion.”

2. What Circumstantial Evidence Will Sufficiently Prove Adultery?

Under Maryland law, circumstantial evidence of adultery must clearly establish:

Disposition. A disposition on the part of the defendant and the paramour to commit adultery; and
Opportunity. An opportunity to commit the offense.

3. What is the Burden of Proof Applicable to Proof of Adultery by Circumstantial Evidence of Disposition and Opportunity?

After considering these and all other facts and circumstances in the case, the court then determines whether the evidence would convince an unprejudiced and cautious person of the guilt of the defendant.’

4. How is Circumstantial Evidence of Adultery Obtained and Presented to the Court?

Private Detective Testimony; and
Inferences Arising from Assertions of Privilege Against Incrimination

5. Does Adultery Prevent The “Guilty Spouse” From Receiving Alimony?

Under applicable Maryland law, the Court can award adulterous spouse alimony.

At one time, adultery served as a compete bar to an award of alimony.

The Maryland law changed on JULY 1ST, 1980 when the Maryland Legislature removed “fault” as an automatic bar to spousal support and enacted §11-103 of the Family Law Article which provides:

§ 11-103. Award — Existence of ground for divorce

The existence of a ground for divorce against the party seeking alimony is not an automatic bar to the court awarding alimony to that party.

6. Adultery is a Crime in Maryland

Under Maryland law, adultery is misdemeanor crime carrying a penalty of a $10.00 fine. The criminality of adultery provides certain constitutional protections to a guilty spouse in a civil divorce case.

§10-501 of the Criminal Law Article, Annotated Code of Maryland provides:

§ 10-501. Adultery.

(a) Prohibited.- A person may not commit adultery.

(b) Penalty.- A person who violates this section is guilty of a misdemeanor and on conviction shall be fined $10.

Maryland Law on Alimony

In Maryland, the court’s ability to award alimony or “spousal support” is controlled by law set forth in Title 11 of the Family Law Article of the Annotated Code of Maryland which provides in part:

§ 11-101. Award — In general

(a) Where available. — The court may award alimony:

on a bill of complaint for alimony; or
as a part of a decree that grants:

(b) Award to either party. — The court may award alimony to either party.
(c) Effect of agreement. — If a final disposition as to alimony has been made in an agreement
between the parties, the court is bound by that agreement as the agreement relates to alimony.
(d) Spouse a resident in related institution. — Notwithstanding the provisions of subsections (a), (b), and (c) of this section, the court may not award alimony on a bill of complaint for alimony to the spouse of a resident in a related institution as defined in § 19-301 of the Health – General Article, if the petitioner attempts to satisfy the separation grounds for divorce under §§ 7-102 and 7-103 of this article based on the spouse’s residence in the related institution.

§ 11-102. Award — Alimony pendente lite

(a) In general. — Except as provided in subsection (b) of this section, in a proceeding for divorce, alimony, or annulment of marriage, the court may award alimony pendente lite to either party.

(b) Spouse a resident in related institution. — The court may not award alimony pendente lite in a proceeding for alimony on a bill of complaint for alimony to the spouse of a resident in a related institution as defined in § 19-301 of the Health – General Article if the petitioner attempts to satisfy the separation grounds for divorce under §§ 7-102 and 7-103 of this article based on the spouse’s residence in a related institution.

§ 11-103. Award — Existence of ground for divorce

The existence of a ground for divorce against the party seeking alimony is not an automatic bar to the court awarding alimony to that party.

§ 11-104. Award — Against nonresident defendant

(a) In general. — In a proceeding for a limited or absolute divorce, the court may award to the plaintiff alimony as a part of a decree granting a divorce or alimony pendente lite, if:

(1) the bill of complaint asks for alimony and says that the defendant owns property in this State; and

(2) the court lacks or is unable to exercise personal jurisdiction over the defendant.

(b) Limit on award. — Any alimony or alimony pendente lite that is awarded under this section is payable only from the property referred to in the bill of complaint or the proceeds of that property. The court may pass any order regarding the property that is necessary to make the award effective.

§ 11-105. Award — Following decree by another jurisdiction

If an annulment or a limited or absolute divorce has been granted by a court in another jurisdiction, a court in this State may award alimony to either party if:

(1) the court in the other jurisdiction lacked or did not exercise personal jurisdiction over the party seeking alimony; and

(2) the party seeking alimony was domiciled in this State at least 1 year before the annulment or divorce was granted.

§ 11-106. Award — Determination of amount and duration

(a) Court to make determination. —

(1) The court shall determine the amount of and the period for an award of alimony.

(2) The court may award alimony for a period beginning from the filing of the pleading that requests alimony.

(3) At the conclusion of the period of the award of alimony, no further alimony shall accrue.

(b) Required considerations. — In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:

(1) the ability of the party seeking alimony to be wholly or partly self-supporting;

(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;

(3) the standard of living that the parties established during their marriage;

(4) the duration of the marriage;

(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;

(6) the circumstances that contributed to the estrangement of the parties;

(7) the age of each party;

(8) the physical and mental condition of each party;

(9) 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;

(10) any agreement between the parties;

(12) 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.

(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or

(2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.

§ 11-107. Extension of period; modification of amount

(a) Extension of period. — Subject to § 8-103 of this article, the court may extend the period for which alimony is awarded, if:

(1) circumstances arise during the period that would lead to a harsh and inequitable result without an extension; and

(2) the recipient petitions for an extension during the period.

(b) Modification of amount. — Subject to § 8-103 of this article and on the petition of either party, the court may modify the amount of alimony awarded as circumstances and justice require.

§ 11-108. Termination of alimony

Unless the parties agree otherwise, alimony terminates:

(1) on the death of either party;

(2) on the marriage of the recipient; or

(3) if the court finds that termination is necessary to avoid a harsh and inequitable result.

The Maryland law applicable to adultery was reviewed by the Maryland Court of Special Appeals in the case of Freedenburg v. Freedenburg, 123 Md.App. 729, 720 A.2d 948 (1998).

Upon request, your Assigned Paralegal will provide you with a copy of this important case for your review.

Wow, I Had No Idea That This Much Is Involved!! – This Sounds so Overwhelming – What Should I Do?

follow your lawyer’s advice !!;
keep your lawyer fully informed at all times and expect the same from your lawyer;
keep the interests of your children in mind at all times;
DO NOT discuss the facts of your life, marriage, separation or pending divorce with anyone other than your lawyer and therapist and their staff members;
DO NOT post any information concerning your life, marriage, separation or pending divorce on any “social media” website [FACEBOOK, LINKEDIN, TWITTER, ETC];
DO NOT communicate with your spouse by e-mail, text message; IPhone “i Message”; Facebook; Instant Message or other form of electronic communication – these messages can be uncovered and used against you in court!!!
prevent access by your spouse to all computers, laptops, tablets, and smart phones that you use – immediately remove the same from any insecure locations;
secure all important records [real estate documents; retirement account statements; tax returns, etc] – immediately remove the same from any insecure locations;
immediately provide your lawyer with copies of all papers served on you or delivered to you;
keep a log of all communications and occurrences on a daily basis and periodically share the same with your lawyer;
work hard to settle your issues;
be reasonable at all times;
don’t give up;
be patient; and
follow your lawyer’s advice !! [OK, ONCE MORE FOR EMPHASIS]

If you’re facing a divorce, you’re undoubtedly feeling confused and overwhelmed. The Coover Law Firm, LLC has been serving Howard County families for over 30 years and is here to help. Contact experienced Howard County divorce attorney Fred L. Coover, Esquire today at (410) 995-1100 to schedule a no-obligation initial consultation in our Columbia, MD office.

Disclaimer: The information in this blog post is provided for general educational & informational purposes only. It is not intended to convey legal advice or serve as a substitute for legal counsel on any subject matter.