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.
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.
Mutual Consent Divorce
In Maryland couples may obtain an expeditious, final divorce by jointly filing a comprehensive agreement resolving all issues regarding the disposition of marital property and alimony, if any. Parents of minor children must also file a parenting plan addressing legal and physical custody. In Montgomery County the Court may schedule a divorce hearing within 60 days of filing, and only one spouse is required to appear in court at the hearing. (By comparison, the District of Columbia requires a six-month separation period for an uncontested divorce, without regard to adultery, desertion, excessive cruelty or other traditional ‘fault grounds’.)
Although unrepresented parties without significant property interests may obtain a verbal order of divorce in open court on the simplest terms, parties with more substantial property interests (real property, investment and retirement assets) and children benefit considerably from comprehensive agreements negotiated with the assistance of attorneys. Although judges may question the parties at the divorce hearing to confirm their understanding of the terms of their property settlement and parenting plan, courts will generally adopt such agreements so that a trial will be unnecessary. This is the least costly and most amicable means to address the many issues that may arise following the divorce.
If the parties cannot agree to divorce on mutually agreed terms, 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. In Maryland, ‘fault grounds’ including adultery, desertion, excessively cruel or vicious treatment of the spouse or a minor child, insanity, or incarceration may also provide a more expeditious means of initiating divorce proceedings. The separation eliminates the need to prove any of the statutory ‘fault grounds’, 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. (By comparison, the District of Columbia does not recognize these ‘fault grounds’; the only recognized grounds for divorce are uncontested.)
Interim Separation Agreements
Cooperative divorcing couples may seek to formalize their respective financial responsibilities or co‑parenting schedule during the separation period by a written Separation Agreement or an interim (pendente lite) Court Order. Such agreements can be particularly useful in defining the parties’ rights and obligations where there is a disparity in income between the party with higher earnings and a stay-at-home parent, or where the dependent spouse or minor children have special needs. The parties may agree that the partner with significantly higher earnings will provide financial support and perhaps use and possession of the family home and automobiles to the parent with whom children primarily reside and/or financially dependent spouse. Such an agreement may be informal, and need not be entered as a court order, but it is prudent for the parties to enter into a comprehensive, enforceable written agreement drafted by a family attorney to ensure financial stability and to restrict dissipation of marital property.
Use & Possession of the Family Home
Maryland 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.