Abramson & Rand, LLC
There are many issues that arise along with a divorce. Divorce is a very complicated legal issue that involves many laws and nuances. This website is designed to provide you with a basic understanding of these issues. For a deeper understanding of divorce and how it relates to your specific case, we encourage you to schedule a consultation to meet with one of our experienced attorneys.
Before diving into the more complicated issues of divorce, it is important to understand that there are two types of divorce: Absolute Divorce and Limited Divorce. In order to obtain either type of Divorce, you must prove legal grounds for divorce. An Absolute Divorce is the form of divorce that you typically hear about, it is the legal termination of the marital relationship. A limited divorce is different. A limited divorce is similar to a legal separation. Parties can be afforded certain forms of relief through a limited divorce (for example, child support) but a limited divorce does not allow the court to make plenary property distributions or other important final financial awards. For this reason, it is usually the goal to obtain an absolute divorce. One of the most important questions people have when they are contemplating a divorce is, “what will my life look like after this divorce?” Will I have custody of my children? What will my finances be like? Can I still live in my home? Although it is impossible to answer these questions definitively at the beginning of a divorce process, it is helpful to know what relief is available within a divorce. The relief available within a divorce appears below:
Property Distribution/Monetary Award
Property Distribution/Monetary Award
A common misconception in divorce cases is that TITLE determines OWNERSHIP. This is not the case. All property acquired or earned during the marriage (with certain limited exceptions) is marital property subject to equitable distribution by way of a Monetary Award.
What is marital property?
- Marital Property is all property acquired during the marriage regardless of how it is titled.
What are the exceptions to whether something acquired during the marriage is marital property?
There are certain limited exceptions to the general rule regarding marital property. Property is NOT considered marital property in the following situations:
- The asset was a gift to one spouse from a third party
- The asset was inherited by one spouse from a third party
- The asset was purchased and/or acquired using non-marital funds
- The property is excluded by valid agreement (ie a prenuptial agreement)
- Certain assets have the characteristic of both marital ( e,g purchased during the marriage ) and non-marital. Some examples include a painting that was inherited but improved during the marriage and monies that were gifted or inherited and then jointly invested by the parties. The amount of effort a spouse contributes to raising the value of asset during the marriage is critical in determining whether that asset will be considered marital or non-marital.
How is property distributed in the event of a divorce?
- Maryland is an Equitable Distribution State. This means that a Court in Maryland has discretion in deciding how to fairly and equitably distribute marital property by awarding a Monetary Award in cases where the Court finds disparity in the assets or the application of equitable principles. Equitable distribution doesn’t necessary mean equal distribution; however, you will often see courts order an equal division of marital property between marriages of long duration or cases where one spouse stayed at home raising the children allowing the other to work and accumulate assets.
If all property acquired during the marriage is marital property, does it matter how something is titled?
- Yes, title does matter. The Court does not have the ability to transfer title of an asset from one spouse to another, with two exceptions: (1) the Court can transfer deferred compensation accounts ( IRA,401- K) from one spouse to another through a Qualified Domestic Relations Order and (2) under certain circumstances , the Court can transfer the marital home to one spouse. Other than these two instances the Court cannot transfer any asset from one spouse to another and the Monetary Award is the tool that the court uses to equitably distribute the assets.
If the court cannot transfer title, what happens if property is only titled in one spouse’s name?
- This is where the issue of a Monetary Award comes in. A Monetary Award is a lump payment of monies often reduced to a judgment, from one spouse to another spouse. A monetary award is designed to accomplish an equitable division of marital property.
What does a Court consider when deciding whether the grant a Monetary Award?
The Court must consider eleven factors when deciding the issue of monetary award. These issues are:
- Contributions, monetary or nonmonetary of each party to the wellbeing of the family
- The value of all property interest of each party
- The economic circumstances of each party at the time the award is to be made
- The circumstances that contributed to the estrangement of the parties
- The duration of the marriage
- The age of each party
- The physical and mental condition of each party
- Who did what to acquire the property
- Any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
- The contribution by either party of jointly owned property
- Other factors as the Court deems necessary
This website provides a basic understanding of the laws regarding divorce, and how those laws play out in the Maryland Court System. However, it is always possible that the issues incident to your divorce can be resolved outside of the legal system. It is preferable and less costly if the spouses resolve their differences by way of an agreement; commonly called a Separation Agreement. If you and your spouse are able to resolve the issues relating to their marriage (either on your own or through the assistance of your attorneys) then the terms of that resolution can be written into a Separation Agreement. An attorney cannot represent both parties in preparing a Separation Agreement and it is wise for each spouse to retain his/her own attorney to represent and negotiate the various terms within the agreement. A Separation Agreement is treated as a contract. If someone fails to abide by the terms of the contract, then the Courts can hold that person accountable.
In order to aid the spouses in coming to an amicable resolution and entering into a Separation Agreement, an impartial mediator is often hired or the parties may enter into a collaborative process where trained attorneys attempt to resolve their client’s differences outside the court arena. Both of these avenues have become popular and less costly than a court resolve provided that the spouses are willing to be open and fair with one another. In the case of mediation (where often an attorney is not present aiding its client) it is important that the client enter into this process with an understanding of his or hers rights and responsibilities under the law. For some clients this face to face format may not be appropriate as it initiates some of the personalities and issues which caused the demise of the marriage. An experienced attorney will be able to advise clients as to the appropriateness of these alternative formats. Under no circumstances should a spouse finalize an agreement during mediation or collaboration without a thorough review by an attorney of the contemplated Agreement.
Sometimes clients will come to our office with an idea of a settlement and will ask that we prepare a Separation Agreement on their behalf. We will listen carefully to the terms of an agreement that a client proposes, and ask them questions about how they decided upon those terms. If we have concerns about the agreement and whether or not it protects the client’s best interest, we will express these concerns. We encourage spouses and litigants to resolve their differences outside the courtroom, but only after they are informed of the law. After a client knows his/her rights and liabilities, we will prepare any Separation Agreement that he/she requests.
What types of issues can a Separation Agreement address?
The following are samples of categories which would ordinarily be contained in a Separation Agreement:
- Custody of the child or children
- Child support
- Alimony, including special provisions which would terminate or limit the alimony
- Life insurance
- College obligations
- Payment of outstanding debts
- Payment on the mortgage
- Payment of the car(s) and insurance
- Medical insurance and uncovered medical expenses
- Dependency deductions on federal and state tax returns
- Counsel fees
- Use and possession of the family home and furniture
- The filing of single or joint tax returns
- Revocation of existing wills
- Waiver of the statutory spousal share in event of death
- Social security issues
- The division of retirement, 401k, IRA and other deferred compensation accounts
- The freedom to date and have relationships and the ability of each spouse to live separate and apart from one another without interference or harassment
- Access schedule for the child or children
- The lump sum payment as a result of the equitable division of the property in each spouse’s name
- The credit for existing property that a spouse had or is traceable to assets prior to the marriage, inheritance or gifts from a third party
- The use of one’s maiden name
- The cancellation of joint credit cards
- Guardianship and child support issues of any child who would not otherwise be capable of being independent or legally emancipated
- Any special provision to protect the child during any access schedule, such as not being present with any paramour of the spouse or being in any unsafe environment
- The tax implications of the transferring of assets, alimony and child support
If I enter into a Separation Agreement with my spouse, does that mean we are divorced?
- No— entering into a Separation Agreement does not mean you and your spouse are divorced. In order to get divorced, an attorney must file a pleading after a period of one year separation and appear before a judge or a Master for Domestic Relations. At this hearing, a witness will attest to the one year separation If the Judge or Master grants the divorce, a Judgment of Absolute Divorce will be entered. In some cases, the Court will consider whether the child support contained in the Separation Agreement is consistent with the then child support guidelines.
If my spouse and I enter into a Separation Agreement, will that Agreement be part of our Judgment of Absolute Divorce?
- Yes—if you and your spouse enter into a Separation Agreement, that Agreement can become part of your Judgment of Absolute Divorce. Your attorney will ask the Judge to do this at your actual divorce hearing. At the hearing, your attorney will tell the Judge that you and your spouse have entered into a Separation Agreement, describe the terms of the separation agreement, and ask that the Separation Agreement be incorporated into the Judgment of Absolute Divorce. When this happens, it will become the terms upon which the parties are required to abide and in most cases its breach can be brought before the Court by way of a Petition for Contempt
Alimony is when the Court states that one spouse is required to pay another spouse a certain sum of money each month for a certain period of time. There are two types of alimony, rehabilitative alimony and indefinite alimony. Rehabilitative alimony is the payment of alimony for a pre-determined period of time to enable the receiving spouse to get back on his/her feet and be self-supporting. Indefinite alimony is the payment of alimony indefinitely until the death of either party or marriage of the recipient.
How is an award of alimony decided?
The Court considers specific factors in determining whether alimony should be awarded and, if so, what amount of alimony should be awarded and for how long. The court considers the following factors in making a decision about alimony:
- Ability of the obligee to meet her needs without maintenance
- Standard of living established during the marriage
- Duration of the marriage
- Age and physical and emotional condition of each spouse
- Ability of the obligor to meet reasonable needs while paying maintenance
- Comparative financial resources of the spouses
- Contribution of the spouse seeking maintenance to the earning ability of the other spouse
- Extent to which spouse seeking maintenance reduced his or her income or career opportunities for benefit of the other spouse
Does alimony ever terminate?
- Yes- alimony can terminate in several ways. In cases of rehabilitative alimony, alimony will usually terminate at the end of the rehabilitative period. In all cases of alimony, alimony will also terminate upon the death or remarriage of either party.
Can the amount or duration of alimony ever be modified?
- Yes- Indefinite or permanent alimony by its nature is always subject to modification based upon a substantial change of circumstances of either party. Rehabilitative alimony usually ends at the court ordered period however, in certain circumstances its duration may be modified as circumstances and justice requires.
What is the tax implication of alimony?
- Alimony payments are treated as income. Therefore, the spouse receiving alimony will be taxed on it as income and the spouse paying alimony can use it as a tax deduction.
Use and Possession of Property
Use and Possession of Property
Is it possible that I can remain living in my house after a divorce?
- Yes- it is possible that you can remain living in your house for a period of time after a divorce. If a spouse is awarded physical custody of the minor children, the Court may also order that the spouse with custody of the children can remain living in the marital home for up to three years from the time of the issuance of the divorce judgment(or when the child turns 18, whichever comes first).
- If there are no children involved and a house is titled in both spouse’s names, the Court, if asked, will order that the house be sold at the time of the divorce.
Is it possible that my spouse would be required to pay some or all of my attorney’s fees?
- Yes- a spouse may be required by the court to pay some or all of the other spouse’s attorneys’ fees incident to a divorce proceeding. An award of attorney’s fees is within the complete discretion of the Court and is guided by statutory criteria.
How does the court determine whether or not a spouse shall pay the other spouse’s attorney’s fees?
The Court considers three factors in determining whether or not to award attorney’s fees to the other spouse. These factors are:
- Need of the party seeking attorney’s fees
- Ability of the other spouse to pay the requesting spouse’s attorney’s fees
- Justification for pursuing the action