Maryland Divorce Lawyer Blog

On October 13, 2010 Consumer Reports.com reported that no-fault divorce has become available in all fifty states, with New York making no fault divorce part of their laws on October 12, 2010. A no-fault divorce is a divorce filing in which no fault based grounds need to be alleged, such as adultery or spousal abuse. As reported in our August 19, 2009 blog Maryland is a what is called a “hybrid state” in that a party filing for divorce may elect to proceed on fault (contested) or no-fault (uncontested) based grounds.

In Maryland, a no-fault (uncontested) divorce is based on the understanding that the marriage is irretrievably broken. Meaning, that the husband and wife mutually and voluntarily separated from one another, there is no hope or expectation of a reconciliation, and they are and have been living separate and apart without cohabitation for a period of at least one year. If the prior conditions are met, either spouse may file for a divorce once they have been separated for 365 consecutive days. If only one spouse believes that the marriage is irretrievably broken, that spouse may file for a no-fault (uncontested) divorce after the parties live separate and apart for 24 months.

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It is not uncommon for clients involved in child support modification cases to ask if their news spouses’ income will be considered in the new child support calculation. For instance, Mr. and Mrs. Smith (first wife) were divorced in 2000 and at that time Mr. Smith was ordered to pay $300 per month in child support. Since that time, Mr. Smith has remarried to Mrs. Smith (second wife) and has also started a job making significantly more money, so Mrs. Smith (first wife) files a Complaint for modification of child support. Does Mrs. Smith’s (second wife) income count as part of Mr. Smith’s income for the purpose or recalculating the child support? The answer should be no. As Moore v. Tseronis, 106 Md. App. 275, 284-85, 664 A.2d 427, 431-32 (Md. Ct. Spec. App. 1995) reports the court should not impute a new spouse’s income to the parent involved in the child support case when calculating child support. Further, the Annotated Code of Maryland, Family Law § 12-201(b) defines income as actual or potential income of a parent, not the parent’s new spouses income. This applies not only in modification cases, but also initial child support calculation cases. For basic information on child support calculations visit our September 9, 2009 blog.

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