Divorce Eligibility & Planning

//Divorce Eligibility & Planning
Divorce Eligibility & Planning 2017-07-14T16:54:54+00:00

Usually at least one spouse, if not both, recognize that the marriage is no longer working well in advance of filing for divorce. However, uncertainty about managing the finances of living separately, or shared parenting responsibilities, delays the couple’s separation. Consulting a lawyer specialized in divorce and child custody matters early can assist the couple in moving forward while addressing these concerns responsibly by negotiating an interim Separation Agreement until the divorce is final.

Eligibility For Divorce

Uncontested Divorce

In both Maryland and the District of Columbia, either spouse may sue for divorce after the parties have lived separately for 12 months without marital relations (or by mutual consent after six-months’ separation in the District of Columbia). The separation eliminates the need to prove any of the statutory ‘fault grounds’ (see below), although proof any of these grounds may be a factor in reducing or denying a spouse’s claim for alimony or an award of marital property.

Grounds For Divorce

In Maryland, statutory grounds for an absolute (final) divorce include adultery, desertion, excessively cruel or vicious treatment of the spouse or a minor child, indefinite insanity, or incarceration for a crime for at least 3 years. However, even where these issues arise in a marriage, the basis for the vast majority of divorces in Maryland is “irreconcilable differences” demonstrated by the spouses living separately for 12 months without interruption before filing for divorce. By comparison, the District of Columbia does not recognize these ‘fault grounds’; the only recognized grounds for divorce are uncontested.

Mutual Consent Divorce

A childless couple who have resolved all financial issues between them in a written agreement may jointly apply to the Courts for a ‘Mutual Consent’ divorce, which can be resolved expeditiously (usually within 2 – 3 months). However, both spouses must appear and testify at the divorce hearing.

Limited Divorce

Although uncommon because the parties remain legally married, spouses sometimes apply for a limited divorce which provides for alimony and/or division of marital property while retaining other marital obligations (e.g. medical insurance for a chronically ill spouse requiring indefinite care).

Divorce Planning

Interim Separation Agreement

Parties may seek to formalize their respective financial responsibilities or parenting schedule during the separation by a written Separation Agreement or an interim (pendente lite) Court Order, particularly where there is a disparity in income between a breadwinner and stay-at-home parent, or where the dependent spouse or minor children have special needs. Clients who value stability for their families will consult a lawyer to draft and negotiate a Separation Agreement or a motion for a Pendente Lite Order since divorce proceedings are often not resolved within a year.

Use & Possession of the Family Home

The law provides that a custodial parent may petition the Court for permission to continue living in the family home for up to three years after the divorce for the benefit of children. The Court may apportion the cost of maintaining the home between the parents in addition to child support. Divorcing couples frequently agree that the parent with primary residential custody may remain the family home for a period of years for the children’s benefit until the home can be sold and proceeds divided equitably between the parents.