Divorce

Published on: July 1, 2024

In What County or City Should Your Maryland Divorce Be Filed?

Divorce is a civil proceeding and therefore like all civil proceedings, the action shall be brought in the county or city where the Defendant (opposing spouse) resides, carries on a regular business, is employed, or habitually engages.

However, unlike other civil proceedings, a divorce proceeding may additionally be filed where the Plaintiff (spouse filing for the divorce) resides. In addition, civil actions regarding custody may be filed where the father, alleged father, mother or child resides. Maryland Code, Courts and Judicial Proceedings, 6-202.

Although this may seem like a simple concept, filing in the wrong county/city, may subject your case to removal to another county upon a motion because of “inappropriate venue.” This may, and most likely will, cause a delay to your proceeding and will cause you to incur additional attorney fees. Additionally, you should keep in mind that if the grounds for divorce occur in Maryland, one of the parties must be a domiciliary of Maryland and if the grounds for divorce occur outside of Maryland, one of the parties must have resided in Maryland for at least one year prior to the filing of the action for divorce. Maryland Code, Family Law, 7-101.
Continue reading →

Published on: June 18, 2024

Will a Foreign Divorce be Recognized as a Valid Divorce in the State of Maryland

By Monica Scherer and Joseph S. Stephan

Over the years, we have had many clients ask if a divorce that they obtained in foreign country will be recognized here in Maryland. The answer is yes, the divorce will be recognized in the United States, so long as the divorce was obtained by a Court that had authority to do so and the divorce was granted legally.

In the Maryland case of Wolff v. Wolff, 40 Md. App. 168 (1978), the Appellate Court of Maryland (then called the Court of Special Appeals) determined that an English divorce decree was recognized in Maryland based on comity. The principle of comity allows judgments of courts in foreign countries to be recognized in the United States.

In the Wolff case, the parties were divorced by an English court and Ms. Wolff was awarded alimony by the English divorce decree. A few years later, Ms. Wolff, who was still residing in London, filed a Complaint to Enforce Foreign Decree seeking to enforce the alimony provision of the English divorce decree in the Circuit Court for Montgomery County, where Mr. Wolff resided. Mr. Wolff filed a preliminary objection, seeking to prevent the Maryland court from enforcing the English divorce decree by arguing that the Maryland court lacked jurisdiction. The circuit court agreed with Mr. Wolff and dismissed Ms. Wolff’s complaint. Ms. Wolff appealed, and the Appellate Court reversed the circuit’s court decision.

The Appellate court stated that “a decree of divorce granted in one country by a court having jurisdiction to do so will be given full force and effect in another country by comity, not only as a decree determining status, but also with respect to an award of alimony and child support.” Wolff, 40 Md. App. at 168.

However, there are some limitations to this doctrine. A foreign divorce will not be recognized where:

The divorce was obtained by a procedure which denies due process of law;
the divorce was obtained by fraud;
the divorce offends the public policy of the state in which recognition is sought (examples of divorces which offend public policy include “mail-order divorces” obtained by nonresidents; and laws that allow a husband, but not a wife, to divorce without any sort of judicial process); or
where the foreign court lacked jurisdiction.

The Maryland case of Aleem v. Aleem, 404 Md. 404 (2008) illustrates a situation in which a foreign divorce is not afforded comity. In the Aleem case, Ms. Aleem filed for divorce in the Circuit Court for Montgomery County. Mr. Aleem filed an Answer to Ms. Aleem’s Complaint and did not raise any jurisdictional objections. While the Montgomery County case was pending, Mr. Aleem, a national of Pakistan, performed talaq at the Pakistan Embassy.

Talaq is a principle of Islamic law, adopted as the secular law of Pakistan, giving a husband the ability to divorce his wife by stating “I divorce thee” three times. The Supreme Court of Maryland (then called the Court of Appeals) refused to afford comity to Pakistani law, holding that Pakistani law offends the public policy of Maryland. Specifically, the Court held:

The talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state and we decline to give talaq, as it is presented in this case, any comity. The Pakistani statutes providing that property owned by the parties to a marriage, follows title upon the dissolution of the marriage unless there are agreements otherwise, conflicts with the laws of this State where, in the absence of valid agreements otherwise or in the absence of waiver, marital property is subject to fair and equitable division. Thus the Pakistani statutes are wholly in conflict with the public policy of this State as expressed in our statutes and we shall afford no comity to those Pakistani statutes. Aleem, 404 Md. at 425.

The Aleem Court was also concerned with due process and took issue with the fact that talaq permitted the husband to terminate the marriage and deprive the wife of her rights to marital property without proper notice to the wife.

The Aleem case represents a rare example of a foreign divorce decree not being afforded comity. Generally, foreign divorce decrees will be recognized in Maryland, provided that the foreign court had proper jurisdiction, the foreign divorce decree was supported by due process, and the foreign divorce does not offend the public policy of Maryland.

For more information on foreign divorce in Maryland, or divorce in general, contact the Family Law Group at Silverman Thompson.

Monica L. Scherer, Esq.

mscherer@silvermanthompson.com

(410) 385-2225

Joseph S. Stephan, Esq.

jstephan@silvermanthompson.com

(410) 385-2225

Erin D. Brooks, Esq.

ebrooks@silvermanthompson.com

(410) 385-2225

Continue reading →

Published on: June 18, 2024

Annulment Instead of Divorce in Maryland

By Monica Scherer and Joseph S. Stephan

A common belief is that a spouse may obtain a quick annulment of a marriage versus an actual divorce if they have been married for less than six months. While that may be the case elsewhere, it is not the case in the State of Maryland.

In Maryland, an annulment can only be granted when a marriage is invalid because it is void or voidable; never due to the length of time, or lack thereof, that the parties resided together as husband and wife. The grounds for an annulment, making the marriage void or voidable, arise before the date of the actual marriage ceremony.

A void marriage is never valid, and a party cannot waive the grounds that make the marriage void because these grounds implicate public policy concerns. Not only can a party to the marriage file for an annulment of this marriage, but so can a third party.

A marriage is void if, at the time of the marriage ceremony:

Either party was legally married to someone else; or
The partners are related by birth or marriage within an impermissible degree of relationship. In Maryland, you may not marry your grandparent, parent, child, sibling, grandchild, grandparent’s spouse, spouse’s grandparent, parent’s sibling, stepparent, spouse’s parent, spouse’s child, child’s spouse, grandchild’s spouse, spouse’s grandchild, or sibling’s child.

The primary distinction between void and voidable marriages is whether the parties could have established a valid marriage with proper consent by both parties. A marriage is void if, even with legally effective consent by both parties, the parties could not have established a lawful marriage. A marriage is voidable if the parties could have established a lawful marriage had their consent to the marriage been legally effective. See Morris v. Goodwin, 230 Md. App. 395, 404 (2016).

A voidable marriage is valid until declared invalid by a court. Unlike a void marriage, the grounds that make the marriage voidable are waivable and can only be raised by a party to the marriage.

A marriage is voidable if, at the time of the marriage ceremony:

One of the parties lacked the capacity to marry. This could be due to a mental illness, temporary lack of capacity, or one of the parties not being of legal age to marry; or
A party’s consent to the marriage was improperly obtained, such as by fraud, duress, or undue influence.

Recently, we had a case where we obtained an annulment for a client because her husband was still married to his first wife. She thought her “husband” was divorced and in fact, so did he, believing that he had obtained a divorce in another country over ten years ago. Needless to say, her “husband” was served with a Complaint for Absolute Divorce from his first wife, after being “married” to his second wife (our client) for four years. Ultimately, the Mexican divorce he thought he had been granted over ten years ago was not obtained in accordance with the Laws of the State of Maryland and he was still legally married to his first wife. In that situation, our client’s marriage was annulled because the marriage was never valid from the beginning—it was void.

In Maryland, if the court does grant an annulment, the court can award spousal support and child support, as well as divide property (see Section 8-202 of the Family Law Article, Annotated Code of Maryland) and decide custody of the children, as the court could in a divorce proceeding.

In practice, an annulment can be hard to achieve, and if the Judge denies your request, then a divorce proceeding is your next option. An experienced family law attorney will be able to assist you in deciding the best avenue to pursue.

For more information regarding annulments and divorce in Maryland, contact the Family Law Group at Silverman Thompson.

Monica L. Scherer, Esq.

mscherer@silvermanthompson.com

(410) 385-2225

Joseph S. Stephan, Esq.

jstephan@silvermanthompson.com

(410) 385-2225

Erin D. Brooks, Esq.

ebrooks@silvermanthompson.com

(410) 385-2225

Continue reading →

Published on: April 16, 2024

Application of Constructive Civil Contempt in a Recent Child Custody Case: Part 3 of 3

By Monica Scherer

This article discusses the application of constructive civil contempt in a recent child custody case. It is Part 3 of a three-part series. Part 1 provides an overview of the law of contempt in Maryland. Part 2 includes a summary and analysis of Breona C. v. Rodney D., 253 Md. App. 67 (2021), which clarified the law of civil contempt in child custody cases.

**Lessons from the Breona C. Case**

As discussed in Part 2, the opinion issued by the Appellate Court of Maryland in Breona C. v. Rodney D., 253 Md. App. 67 (2021) set forth important lessons regarding the application of constructive civil contempt in child custody cases:

An order finding a person in constructive civil contempt must include a valid sanction that is distinct from the purge provision and the requirement the Court seeks to enforce.
An order finding a person in constructive civil contempt must include a valid purge provision that allows the alleged contemnor to avoid the sanction by taking some defined, specific action.
An order finding a person in constructive civil contempt must be designed to compel present or future compliance with a court order, not to punish past noncompliance.

Constructive Civil Contempt in a Recent Child Custody Case

When parents share custody of their children, the parents must cooperate and communicate with each other to follow their custody order and co-parent effectively. Terms in a court order related to minor children (e.g., custody and child support) are modifiable by a court after applying a two-prong analysis. First, a court must find a material/substantial change in circumstance has occurred and then make a determination of the best interests of the children. When parents do not cooperate and communicate with each other to co-parent effectively, this frequently results in attempts to modify custody and petitions for contempt.

Our team was contacted by a prior client who had been served with a Petition for Contempt filed against him by his child’s mother. In our previous representation of the client, we reached a Consent Order, which established a custody schedule for each parent with their child. During the specific week at issue in the Petition for Contempt, the mother was scheduled to have the parties’ child in her care for a specific period of time pursuant to the terms of the Consent Order. During this particular week, the parties’ child had agreed upon organized extracurricular activities near our client’s home, which would also take the child out of the state for his participation.

My client and the child’s other parent agreed that my client would take their child to the activity on the first evening of the other parent’s scheduled access, then the other parent would pick their child from the activity and take the child from the remainder of their scheduled access and take the child to the activities, which would be out of state. The other parent did not pick the child up from the scheduled activity as arranged, so my client kept their child that night and asked the other parent to pick up their child to start their weekend the following morning. The other parent did not pick up their child the following day or the morning of the out-of-state travel. When faced with \the child missing the activity or taking the child himself, my client took their child to the out-of-state activity so the child would not miss it.

When my client returned home the following evening after the conclusion of the out-of-state activity, the child’s other parent picked up the child from my client. Two days later, the other parent filed a Petition for Contempt against my client, which alleged that my client violated the Consent Order by failing to make their child available to her during her scheduled parenting time.

**Applying the Lessons from the Breona C. Case to Serve Our Client**

Our approach to defend our client against the allegation that he violated the Consent Order was two-fold: (1) our client did not prevent the other parent from spending her scheduled weekend with their child, it was the other parent who failed to exercise parenting time; and (2) even if our client violated the Consent Order, that violation was cured when the other parent finally retrieved their child, and therefore our client could not be found in constructive civil contempt because there was no ongoing noncompliance to correct through the contempt process.

Relying on the lessons from Breona C., we argued that the purpose of constructive civil contempt is to compel present or future compliance with a court order, not to punish past noncompliance; and in this case, our client remained in compliance with the Consent Order (or at a very minimum, was in compliance with the Consent Order by Sunday evening). The judge agreed with our position and denied the parent’s Petition for Contempt.

In many ways, the facts of this case were very similar to the facts of the Breona C. case. However, there was one critical difference. In Breona C., Breona was actively violating the operative custody order when the Petition for Contempt was filed against her, but Breona began complying with the custody order before the Contempt Hearing. In our case, there was no allegation that our client was actively violating the Consent Order at the time the Petition for Contempt was filed against him. This may seem like an insignificant distinction, but this fact turned out to have a major impact for our client.

You may recall that the Breona C. case instructs that the purpose of constructive civil contempt is to coerce or compel compliance with a court order, not to punish completed noncompliance. Because the other parent filed the Petition for Contempt against our client at a time when our client was undisputably complying with the Consent Order, we argued that the other parent’s Petition for Contempt was filed without substantial justification and filed a motion requesting that the other parent be ordered to pay our client’s attorneys’ fees pursuant to Maryland Rule 1-341. In most cases, the general rule is that each party must pay their own attorneys’ fees. There are some exceptions to this general rule, including Maryland Rule 1-341, which is “an extraordinary remedy” and allows a court to order one party to pay the other party’s attorneys’ fees if an action is maintained without substantial justification. We argued that, even accepting all of the other parent’s allegations as true, our client could not possibly have been found in constructive civil contempt because our client was undisputably complying with the Consent Order when the Petition for Contempt was filed, and therefore the other parent lacked substantial justification for filing the Petition for Contempt. The judge agreed with our position and ordered other parent to pay a portion of our client’s attorneys’ fees.

This case illustrates the importance of understanding and properly applying lessons from caselaw and the Maryland Rules to the real-life situations our clients face. Obtaining an order for attorneys’ fees pursuant to Maryland Rule 1-341 is very rare. Our client would not have achieved such a favorable result without our thorough research, clear writing, and persuasive arguments.

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

Continue reading →

Published on: April 16, 2024

Breona C. v. Rodney D. and Constructive Civil Contempt in Child Custody Cases: Part 2 of 3

By Monica Scherer

This article includes a summary and analysis of Breona C. v. Rodney D., 253 Md. App. 67 (2021), which clarified the law of civil contempt in child custody cases. It is Part 2 of a three-part series. Part 1 provides an overview of the law of contempt in Maryland. Part 3 addresses the application of Breona C. and constructive civil contempt in a recent case.

Constructive civil contempt in child custody cases

In 2021, the Appellate Court of Maryland (formerly known as the Court of Special Appeals), issued a landmark opinion clarifying the application of constructive civil contempt in child custody and access matters. See Breona C. v. Rodney D., 253 Md. App. 67 (2021). In the wake of the Breona C. opinion, many family law attorneys remarked that the decision may result in contempt ceasing to be a useful mechanism to enforce child custody orders. Although the Breona C. opinion limits the application of constructive civil contempt, contempt remains a viable means to compel compliance with custody orders in the right circumstances.

**What happened in the Breona C. v. Rodney D. case?**

In Breona C., the operative custody order granted Rodney D. primary physical custody of the parties’ six-year-old child and granted Breona C. parenting time with the child every weekend. Id. at 71. At the end of one of Breona’s weekends with the child, Breona refused to return the child to Rodney as required by the custody order due to concerns about the child’s health and safety. Id. Rodney filed an emergency petition to hold Breona in contempt for violating the custody order. Id. at 72. The next day, Breona sought and was granted a Temporary Protective Order, which awarded her temporary custody of the child. Id. A few weeks later at the Final Protective Order hearing, Breona’s request for a Final Protective Order was denied. Id. Therefore, the custody order which awarded Rodney primary physical custody was restored.

However, Breona refused to return the child to Rodney as required by the operative custody order. Id. In response, Rodney filed an emergency motion for custody, and the court ordered Breona to return the child to Rodney. Id. Breona then returned the child the Rodney as ordered by the court, and Mother remained in compliance with the court order from that point forward. Id.

A few months later, the court held a hearing on Rodney’s petition for contempt. The court held Breona in contempt for violating the custody order by not returning the child to Rodney immediately after the Final Protective Order requested by Breona was denied. Id. The contempt order did not include a sanction, but stated that Breona may purge her contempt with strict compliance to the operative custody order. Id.

Breona appealed the order finding her in contempt, arguing that the contempt order was improper because it punished past conduct and included a “forever purge” provisions that did not allow Breona any opportunity to purge her contempt. Id. at 72–73. The Appellate Court agreed with Breona and reversed the order of contempt. Id. at 73.

**Why is the Breona C. case important?**

The Appellate Court held that “an order holding a person in constructive civil contempt is not valid unless it: (1) imposes a sanction; (2) includes a purge provision that gives the contemnor the opportunity to avoid the sanction by taking a definite, specific action of which the contemnor is reasonably capable; and (3) is designed to coerce the contemnor’s future compliance with a valid legal requirement rather than to punish the contemnor for past, completed conduct.” Id. at 74.

The Appellate Court identified three primary reasons why the order finding Breona in constructive civil contempt was improper. First, the contempt order lacked a valid sanction. Id. at 75. Second, the contempt order lacked a valid purge provision. Id. Third, the contempt order punished “past noncompliance rather than compelling future compliance.” Id. at 76.

What is a valid sanction?

A valid sanction “must be distinct from the purge provision and the valid legal requirement the court seeks to enforce.” Id. at 74. A critical consideration is that the sanction must serve the coercive purpose of civil contempt. A valid sanction must impose a penalty such as a fine, period of incarceration, or other penalty. To be coercive, the penalty must provide for purging to allow the person in contempt to avoid the penalty by engaging in some defined, specific conduct. The Appellate Court noted that if the sanction is not distinct from the purge provision, then fulfilling the purge provision would complete, rather than avoid, the sanction. Id. In other words, it is impossible to purge a contempt if the purge provision is the sanction. The Appellate Court further noted that if the sanction is to abide by the existing court order, then “there is no coercive mechanism at all. Instead, there is just a second order directing compliance with an existing order.” Id. at 74–75.

What is a valid purge provision?

While the sanction and purge provision must be distinct from each other, the two concepts are deeply intertwined. Like a valid sanction, a valid purge provision must serve the coercive purpose of civil contempt.

A valid purge provision must allow the person in contempt to avoid the sanction by taking some defined, specific action. This is how the coercive purpose of civil contempt is served.

In the Breona C. case, the perpetual obligation to comply with the existing custody order was not a valid purge provision because it did not allow Breona to avoid a defined sanction by engaging in specific conduct.

What if a person regularly violates the operative order, but technically starts complying with the order before a Petition for Contempt is filed?

This question was not specifically at issue in the Breona C. case. Breona began complying with the custody order after Rodney filed a Petition for Contempt, but before the contempt hearing occurred. Breona’s compliance with the custody order was delayed, but she was complying with the custody order for months prior to the contempt finding. The contempt order was improper because it did not compel or coerce Breona to comply with the custody order in the present or future; instead, it punished Breona for past, completed noncompliance.

In the Breona C. opinion, the Appellate Court included a significant footnote contemplating a possible situation in which a person regularly violates a court order, and then begins complying with the operative court order by the time of the contempt hearing. “We are not confronted here with a situation in which a party is engaged in a continuing or repetitive pattern of conduct in violation of a court order that, due to its continuing or repetitive nature, could reasonably be found to be ongoing at the time of a contempt hearing even if the putative contemnor is not technically out of compliance with the order at the moment of the hearing. We do not foreclose the possibility that an order of constructive civil contempt could be issued in such a circumstance.” Id. at 76 n.6. In other words, it is possible that a party could be found in constructive civil contempt even if that party is technically complying with the operative order at the time of the contempt hearing. For this to occur, the party’s noncompliance with the court order must be so continuing or repetitive that the noncompliance can be considered ongoing despite that party’s present compliance.

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

Continue reading →

Published on: April 16, 2024

Overview of Contempt in Maryland: Contempt Blog Series Part 1 of 3

By Monica Scherer

This article includes a brief overview of contempt in Maryland. It is Part 1 of a three-part series. Part 2 addresses the landmark case of Breona C. v. Rodney D., which clarified the law of civil contempt in child custody cases. Part 3 addresses the application of Breona C. and constructive civil contempt in a recent case.

What is contempt?

Put simply, contempt, also referred to as contempt of court, is a violation of a court order or conduct that disrupts the orderly functioning of the court. There are multiple different forms of contempt under Maryland law. Contempt can be either civil or criminal, and each variation can be either constructive or direct. Maryland law recognizes four main forms of contempt: (1) constructive civil contempt, (2) constructive criminal contempt, (3) direct civil contempt, and (4) direct criminal contempt. These different forms of contempt are not always distinct. In some situations, the same occurrence could be categorized as multiple types of contempt or entail features of multiple types.

What is civil contempt?

Civil contempt can take many forms, but most commonly involves a failure to abide by the terms of a court order. Civil contempt is intended to compel present or future compliance with a court order. Civil contempt is not intended to punish past or completed misconduct.

What is criminal contempt?

Criminal contempt involves “behavior directed against the dignity and authority of the court that tends to bring the court into disrepute or disrespect.” Cameron v. State, 102 Md. App. 600, 607 (1994). In contrast to civil contempt, criminal contempt is punitive in nature, meaning that criminal contempt can impose a penalty for past misconduct.

What is direct contempt?

Md. Rule 15-202(b) defines direct contempt as “a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.” In other words, a direct contempt occurs inside the courtroom or close enough to the courtroom that the court’s proceedings are disrupted.

What is constructive contempt?

Md. Rule 15-202(a) defines constructive contempt as “any contempt other than a direct contempt.” In other words, constructive contempt occurs outside of the courtroom and does not disrupt the normal operation of the court’s proceedings.

Can I enforce a custody order with contempt?

Generally speaking, yes. If a court has issued an order involving custody of or access with a minor child, and the other parent is actively violating the terms of the court order, you can file a petition for contempt to compel compliance with the terms of the court order.

For example, if a parent unjustifiably refuses to return your child to you for your parenting time ordered by the court, you may be able to compel compliance with the custody order via constructive civil contempt. However, there are some limits to constructive civil contempt.

In 2021, the Appellate Court of Maryland (formerly known as the Court of Special Appeals), issued a landmark opinion clarifying the application of constructive civil contempt in child custody and access matters. See Breona C. v. Rodney D., 253 Md. App. 67 (2021). In the wake of the Breona C. opinion, many family law attorneys remarked that the decision may result in contempt ceasing to be a useful mechanism to enforce child custody orders. Although the Breona C. opinion limits the application of constructive civil contempt, contempt remains a viable means to compel compliance with custody orders in the right circumstances.

What is a contempt hearing for child support in Maryland?

When the person who owes child support falls behind, the party who receives the support can file a Petition for Contempt or the Child Support Enforcement Agency can file on behalf of the person who receives the payment of child support. A contempt hearing for child support is to determine if the party paying support is behind in payments. If it is determined the party is behind in payments and child support arrearages are owed, a court can order a sum of money to be paid as a purge within a period of time before imposing a potential period of incarceration.

How to file contempt of court in Maryland

To file a Petition for Contempt in Maryland, you must file a Petition and proposed Show Cause Order in the Circuit Court which issued the Order you allege has been violated.

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

Continue reading →

Published on: July 15, 2023

2022 Updates to Maryland Child Support Laws

By Monica Scherer

The Child Support Administration is required by law to review the Child Support Guidelines every 4 years to ensure that application of the Child Support Guidelines results in appropriate child support awards. The Child Support Administration must report its findings and recommendations to the General Assembly. During the 2020 Legislative Session, the General Assembly passed changes to Maryland’s child support laws, some of which took effect on July 1, 2022. One year later, this post discusses the changes to Maryland’s child support laws and the impact of these developments.

Changes to the Child Support Guidelines

Effective July 1, 2022, the schedule of basic child support obligations increased for parents with a combined adjusted actual income greater than $19,200 per year. This change recognizes that the costs of raising children have increased.

Continue reading →

Published on: July 12, 2023

Updates to Maryland Divorce Grounds Coming in October 2023

By Monica Scherer

If you are considering filing for divorce in Maryland, your filing must include the grounds, or basis, for the divorce. Beginning this fall, selecting the grounds when filing for divorce will become an easier determination. During the 2023 Legislative Session, the General Assembly passed bills eliminating limited divorce in Maryland and changing the grounds available for an absolute divorce. On May 16, 2023, Governor Moore signed Senate Bill 36,which was cross-filed with House Bill 14, into law. The new version of Md. Code, Family Law § 7-103 will become effective on October 1, 2023, and will apply to all divorce cases filed on or after that date.

Current Law through September 20, 2023

Maryland law currently provides for two different types of divorce: limited divorce and absolute divorce. An absolute divorce is a permanent end to the marriage. An absolute divorce severs all legal ties between the parties and allows the parties to resume use of a former name or remarry if they choose. In contrast, a limited divorce does not end the marriage. A limited divorce allows a person who does not satisfy the grounds for absolute divorce and cannot reach an agreement with their spouse to ask the court to order temporary relief regarding child custody, child support, alimony, and use of real or personal property. Because a limited divorce is not a permanent end to the marriage, the court may revoke a limited divorce at any time if both spouses jointly request that the limited divorce be revoked. The differences between these two types of divorce and the grounds for each are explained in more detail in Common Questions about Divorce in Maryland.

Continue reading →

Published on: July 7, 2023

What Does Use and Possession Mean In A Divorce Proceeding?

By Monica Scherer

Use and possession applies to the family home and family use personal property.

What is considered the “family home”?

In Maryland, the “family home” is statutorily defined as real property in the State that was (1) used as the principal residence of the parties when they lived together, (2) is owned or leased by one or both of the parties at the time of the divorce proceeding, and (3) is being used or will be used as a principal residence by one or both of the parties and a child.

A “family home” does not include real property that was (1) acquired before marriage, (2) acquired by inheritance or gift from a third party, or (3) excluded by a valid agreement.

What is considered “family use personal property”?

The term “family use personal property” is also statutorily defined in Maryland and refers to anything tangible that is used primarily for family purposes. It is limited to only property that was acquired during the marriage of the parties. Examples of family use personal property include cars, furniture and furnishings, household appliances, and electronics.

When is use and possession granted?

The custodial parent of a minor child often requests use and possession of the family home in order to maintain a stable environment for the child. Maryland courts can exercise its powers to award use and possession to enable any child of the family to continue to live in the environment and community that are familiar to the child, and to provide for the continued occupancy of the family home and possession and use of family use personal property by a party with custody of a child who has a need to live in that home. Use and possession under this statute will not be awarded in Maryland if the parties do not have any minor children.

The use and possession statute’s main purpose is to benefit the minor child or children of the family. A parent’s or spouse’s needs are of no consideration except as those needs contribute to, or reflect upon, the obligation she or he owes to the minor child or children. The statute is meant to protect the interests of any minor child caught in the cross-fire of a divorce case, with the goal of making certain a child need not suffer the unsettling loss of his or her home during the course of the litigation.

What factors are considered in awarding use and possession?

A Maryland court can consider several factors when determining an award of use and possession. Generally, the interest of the minor child or children is given the greatest weight. Other factors include (1) the need of either party to possess and use the family home as a dwelling place, (2) how possession and use would affect either party’s ability to produce income, and (3) whether any party would suffer undue hardship by awarding use and possession.

How long is the use and possession granted for?

In Maryland, courts can award exclusive use and possession of the family home and family use personal property to a custodial parent for up to three years from the date of divorce. An award for use and possession may terminate prior to the three years if the party who was granted use and possession remarries.

When can a Court award use and possession?

The latest point at which a Maryland court has authority to award use and possession of a family home is when the court grants an annulment or divorce. When a court grants an annulment or an absolute divorce, regardless of how the family home or family use personal property is titled, owned, or leased, the court may (1) decide that one of the parties shall have the sole use and possession of that property, (2) divide the possession and use of the property between the parties, or (3) decline to award use and possession. A Maryland court can also award use and possession of a family home on an interim basis during the pendency of a divorce action.

The courts will also determine how financial responsibilities related to the family home and family use personal property are allocated, if the parties have not been able to come to an agreement. The final disposition of the family home and family use personal property will depend on certain factors, including how other marital property was divided in the divorce, if alimony was awarded, and whether a monetary award was granted or is necessary to achieve equitable division.

Navigating the court system in a divorce can be a difficult and stressful process. If you are considering a divorce or are currently involved in a divorce proceeding, we encourage you to speak to an experienced family law attorney who can assist you in navigating the process from start to finish.

For more information, contact Monica Scherer, Esq. at 410-625-4740

Continue reading →

Published on: July 3, 2023

What Happens to Jointly Titled Marital Maryland Real Property in a Divorce?

By Monica Scherer

In Maryland

Ideally, parties in a divorce proceeding work cooperatively to determine and divide their marital real property and reduce the terms to what will become a portion of a written marital settlement agreement. By proceeding in this fashion, the parties can agree on who has title to the real property owned, who will retain the title to real property, and then work to effectuate the transfer or retention of the same. Even if one party has already formally instituted divorce proceedings in a Maryland court, it is important to remember that the possibility of reaching an agreement is always available and can often be the best vehicle for a quicker and more affordable way to a final divorce.

If an amicable resolution is not a possibility, then the parties will leave the fate of their real property to a Maryland court. If a piece of real property is both marital and titled jointly a court can order use and possession (depending on custody of minor children), order the property to be sold or pursuant to the Maryland Annotated Code, Family Law § 8-205:

(a) (1) Subject to the provisions of subsection (b) of this section, after the court determines which property is marital property, and the value of marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of equities and rights of the parties concerning marital property, whether or not alimony is awarded.

(2) The court may transfer ownership of an interest in:

(iii) subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together, by:

(1) ordering the transfer of ownership of the real property or any interest of one of the parties in the real property to the other party if the party whom the real property is transferred obtains the release of the other party from any lien against the real property;

(2) authorizing one party to purchase the interest of the other party in the real property, in accordance with the terms and conditions ordered by the court; or

(3) both.

A Maryland court will determine the value of the jointly owned real property at issue based on evidence presented by each party at trial. If use and possession is not an issue and a buy-out and refinance of the property is not an option then a Maryland court will order the sale of the jointly owned real property with net proceeds to be divided between the parties. Notably, parties to a divorce where minor children are involved should be aware of a Maryland court’s power to award use and possession of real property to one of the parties for a period of up to three (3) years. Use and Possession blog.

Maryland Real Property Concerns When Divorce Occurs Outside of Maryland

Generally and subject to use and possession agreements and Orders, Maryland jointly held marital real property is sold or divided during the pendency of the divorce proceedings unless an agreement is reached otherwise. This practice, however, is not uniform from state to state. By way of example, it is possible that you obtain a final divorce decree from another state before your Maryland jointly owned real property is properly sold or divided. In that instance, by operation of Maryland law, that real property that was held as tenants by the entirety will be converted into real property held by tenants in common[1]. It is essential to understand that a fundamental characteristic of a tenancy by the entirety—the automatic right of survivorship—is absent in a tenancy in common. In other words, in the event of death, the deceased party’s interest will pass according to the deceased’s Last Will and Testament or the laws of intestate succession, instead of automatically passing to the other party. Another state granting a divorce before jointly held Maryland real property is properly disposed of, can drastically and fundamentally alter your rights in your Maryland real property. If you are seeking a divorce in a state other than Maryland but own real property in Maryland, it is important that you consult with a licensed Maryland attorney to understand how your rights in that real property may be impacted.

[1] “Given the valid dissolution of the marriage, Maryland law itself decides what happens to Maryland property, in the light of the facts which are that the former tenants by the entireties are no longer husband and wife. As a result, the parties became tenants in common, not by [out-of-state divorce] decree, but by Maryland law operating on their changed status[.]” Millar v. Millar, 200 Md. 14, 21, 87 A.2d 838, 841 (1952).

For more information, contact Monica Scherer, Esq. at 410-625-4740

Continue reading →