Maryland Divorce Lawyer Blog

As stated in the August 15, 2009 blog, Maryland is a hybrid state in that a party filing for an absolute divorce may elect to proceed on fault (contested) or no-fault (uncontested) based grounds. The Maryland Code, Family Law § 7-103 states that there are six fault based grounds for an absolute divorce: adultery, desertion, cruelty of treatment, insanity, incarceration and excessively vicious conduct.

Adultery, or voluntary intercourse between a spouse and an individual other than their spouse who is of the opposite sex, is a fault based ground for divorce that requires no waiting period to file. However, while you do not have to show evidence of the actual intercourse between your spouse and his or her paramour you must be able to prove both the opportunity and disposition for the adulterous intercourse to be proven.

In order to file for an absolute divorce based on desertion the desertion must continue for one year uninterrupted before filing, must have been a final and deliberate act, and there must be no reasonable hope of reconciliation. Desertion can be either actual or constructive. Actual desertion occurs when the spouse leaves the home without cause, and constructive desertion occurs when a spouse's conduct justifies a leaving spouse to do so.

Cruelty of treatment and excessively vicious conduct are both fault based grounds that do not require any waiting period. Both grounds involve acts or a single act of violent conduct. Cruelty of treatment involves conduct that threatens or inflicts bodily harm upon a person or minor child of the parties. Excessively vicious conduct is usually acts of extreme domestic violence and may require a pattern of this violence.

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As I have said before and I will say again, child custody relocation cases are extremely difficult, especially from the perspective of the bench when the 'primary caregiver' is the parent relocating. In this case, the Mother moved to another State for a new job earning approximately, what will net to be about, $20,000.00 more a year. She does not have family there (actually moved further from all of her family), she has not attempted to facilitate any access for the Father, and she disobeyed an existing order of court. On the other hand, all of Father's family lives in Maryland, he owns a home in Maryland, Mother has a sister in Maryland, and Mother did not even attempt to find another position in the state of Maryland (and did I mention she voluntarily left her employment in Maryland, she was not unemployed).

In Maryland, in an establishment case, which this case is with the relocation twist, the Court must determine what is in the best interest of the minor child. Those factors include, but are not limited to, the fitness of the parents, the desires and agreements of the parents, the potential to maintain family relationships, the child’s preference if he or she is at a sufficient age, opportunities affecting the child, the age and health of the child, and the residence of the parents and opportunity for visitation. Montgomery County v. Sanders, 38 Md. App. 406 (1997). Relocation cases tap into additional factors, such as (1) the nature, quality, extent of involvement, and duration of the child's relationship with the parents, siblings and other significant persons in the child's life, (2) the age, developmental stage, needs of child, and most likely impact the relocation will have on the child's physical, mental, and educational development, (3) the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements; (4) whether the relocation of the child will enhance the general quality of life for both the custodial party seeking relocation and the child, including, but not limited to financial or emotional benefit or educational opportunity; (5) the reasons of each person for seeking or opposing the relocation; and (6) any other factors affecting the best interest of the child. In this particular case, among other things, what I thought was of utmost importance to point out to the Court was an additional factor, that the Mother has established a pattern of conduct attempting to thwart the relationship between the child and his Father and if she could not follow an existing Order of Court, why would she follow another Order if the Court grants her custody. In addition, when weighing stability (in my opinion we had a lot of stability factors on our side), there is a lot to be said for the stability of the child remaining in the environment and community in which they live. In the interest of the limited time we had for our closing arguments, I asked the Court to re-read Dominques v. Johnson and Braun v. Headley, in my opinion two of the leading cases on relocation, and to consider Shunk v. Walker and the impact that decision had on 9-105 of the Family Law Article . We are a little over a month out and still no decision, stay tuned for Part Three.

I recently tried what started off as a fairly typical Maryland custody case that turned into a relocation case four months before the scheduled trial date. The decision still has not been rendered by the Court, but nevertheless thought the situation is one in which many folks find themselves and could relate. The basic sets of facts are as follows: parties meet, relationship of some sort ensued (depends on which party you ask) and a child was born. Parties lived together off and on (again, depending on which party you ask) and ultimately began living in their own residences separate from one another. Eventually, the child would generally spend most weekends and extended blocks of time with one parent and weekdays with the other. Although the weekday parent typically controlled when and how frequently the other parent would see the child. Eventually, the weekday parent filed for custody and child support and other parent filed a Counter-Complaint for Custody. The case moved through the litigation process as most cases do, but four months prior to the trial, the weekday parent gives notice through counsel that she will be relocating to another state, approximately 8.5 hours away. As a side note there was a Consent Protective Order in place (I did not represent my client at the time), whereby a child access schedule was put into place where the parties had joint custody and the Father had access three overnights the first week of the month, two overnights the second weekend of the month, and two overnights the third weekend of the month. The Mother had the remainder of the time.

As the Father's attorney, upon notification of Mother's intended move, I filed an Emergency Motion with the Circuit Court where the action was pending to prevent the removal of the minor child from the State. The Motion was denied and the parties were directed to follow the existing Order (the Protective Order). I filed a Motion for Reconsideration, it was again denied, and the parties were directed by the Court that the Protective Order controlled and access should continue in accordance therewith. Needless to say, Mother moved with the minor child and did not follow the Protective Order access schedule and a Petition for Contempt was filed (a hearing has still not been held by the Court). Father went for almost two months without seeing his child in accordance with the Protective Order schedule (with the exception of a few days over the Christmas holiday) when this case went to trial.

PART TWO coming soon

The Maryland House Judiciary Committee has rejected a bill proposed by Delegate Emmett C. Burns, a Democrat from Baltimore County, that would prohibit the state from recognizing same-sex marriages lawfully performed in other states. The proposal "was seen as a pre-emptive strike against a legal opinion that state Attorney General Douglas F. Gansler has been working on since a senator requested it last year." The Attorney General has been known to favor legislation favoring same-sex marriages, but such legislation has not made it out of the committee. Despite attempted efforts to permit gay marriage, Maryland law still prohibits it. Maryland Code, Family Law 2-201 states that, “[o]nly a marriage between a man and a woman is valid in this State.” This issue has possible ramifications in custody and visitation between same-sex partners as explored in our November 27, 2009 blog.

The state of the current economy has left many of my clients trapped in a house with their current spouse, limiting their ability to file for an absolute divorce based on a one year separation (For more information on no fault divorce see our August 15, 2010 blog). The Baltimore Sun has reported that Montgomery County Delegate Luiz Simmons is fighting to change the necessity of actually living under separate roofs for the one year period. He is arguing that instead of having parties live separate and apart for one year, parties should just have to abstain from sex for one year. This would allow for couples in a financial predicament to remain in the same home while seeking a divorce. Many are protesting the proposal as it may make divorces more prominent in the state of Maryland. Delegate Simmon’s proposed bill states that the parties would need to testify that they have not resumed marital relations for one year. Currently, parties seeking a no fault divorce based on a one year separation must bring a witness who can confirm, among other things, that the parties have lived separate and apart for one year.

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