Marital Property

Published on: July 12, 2023

Updates to Maryland Divorce Grounds Coming in October 2023

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.

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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

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Published on: May 5, 2020

Common Questions about Divorce in Maryland

By Monica Scherer

What is an Absolute Divorce?

The effect of Maryland’s absolute divorce is parallel to a traditional divorce; it is the final termination of the marriage. In an absolute divorce, custody, visitation, and child support terms between both parties are set, both parties are granted the right to live separately and apart, a legal name change may be granted (the resumption of a former name), and even remarry if they choose. An absolute divorce also allows the court to decide on matters regarding alimony and marital property, including any division of assets, transfer of retirement interests, and any other equitable distribution of real property, personal property and pension/retirement assets acquired during the course of the marriage. Ultimately, both parties are granted the right to sever all legal and financial ties from one another.

What are the grounds for divorce in Maryland?

In Maryland, the court may grant an absolute divorce on the grounds of:
(1) Adultery;
(2) Desertion, if it has continued for 12 months without interruption before filing for an Absolute Divorce; and the desertion was deliberate and final; and there is no reasonable expectation of reconciliation;
(3) Conviction of a felony or misdemeanor in any state or in any court of the United States if before the filing of the application for divorce the defendant was sentenced to serve at least three years or an intermediate sentence in a penal institution and served twelve months of that sentence;
(4) A twelve-month separation where the parties lived separate and apart without cohabitation for twelve uninterrupted months before the filing of the application for divorce;
(5) Insanity if the insane spouse has been confined in a mental institution, hospital, or other similar institution for at least three years before the filing of the application for divorce; the court must then determine from the testimony of at least two physicians who are competent in psychiatry that the insanity is incurable and that there is no hope of recovery; and one of the parties has remained a resident of this state for at least two years prior to the filing of the application for divorce;
(6) Cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation;
(7) Excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation;
(8) Mutual consent so long as the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues arising from the marital relationship (child custody, visitation, support, alimony and distribution of real and personal property, and asset division), neither party has filed a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules, and both parties appear before the court at the absolute divorce hearing.

Can I file for divorce if I have not been separated for one year?

While a 12-month statutory “no fault” ground remains a common way to receive an absolute divorce in Maryland, a party may be eligible to be granted an absolute divorce on fault based grounds requiring no period of separation if one can prove adultery, cruelty of treatment, excessively vicious conduct or have grounds for mutual consent.

What can I do if I do not have grounds to file for an Absolute Divorce?

A party may file for a Limited Divorce on the following grounds:
(1) Cruelty of treatment of the complaining party or of a minor child of the complaining party;
(2) Excessively vicious conduct to the complaining party or to a minor child of the complaining party;
(3) Desertion; or
(4) Separation, if the parties are living separate and apart without cohabitation

What is a Limited Divorce?

In Maryland, a limited divorce is not a final divorce. It does not terminate a marriage in its entirety. A limited divorce does not allow a spouse to remarry or to move forward in another relationship. A limited divorce is typically recommended in cases where division of marital property, spousal support, child custody, or child support are disputed and relief is sought by either party. Essentially, a limited divorce allows a party who has not yet met the grounds for an absolute divorce to obtain necessary relief from the court for custody, visitation, child support, use and possession of family home, family use personal property and family vehicle (when minor children are involved) in advance of a twelve-month separation.

What if the difference between a Limited Divorce and an Absolute Divorce?

The State of Maryland recognizes two types of divorce, an absolute divorce and a limited divorce.
An absolute divorce is the final termination of the marriage where custody and visitation terms for minor children are set, both parties are granted the right to live separately and apart, legally change their names, divide marital property, seek spousal support, and even remarry if they choose. In some cases, a physical separation of more than 12 months in different homes is not necessarily required before the filing for an absolute divorce if a party can prove adultery, cruelty of treatment, excessively vicious conduct or have grounds for mutual consent.

However, there are a number of scenarios where spouses may not be eligible to obtain an absolute divorce. Where a fault based divorce cannot be proven, a 12-month separation has not yet accrued, and the parties cannot mutually consent to a settlement agreement and some relief from the court in the interim is necessary, a limited divorce is then an option.

A limited divorce differs from an absolute divorce in that it is not a final divorce. A limited divorce does not allow a spouse to remarry. Furthermore, marital property acquired by each party even after a limited divorce is awarded remains a part of divisible marital property. The court is required to value all marital property only at the time of absolute divorce. Filing for a limited divorce will allow the court to decide on matters regarding child custody, child support, and spousal support.

If the parties later satisfy the grounds for an absolute divorce while the action for limited divorce is still pending in the court, the complaint for limited divorce can be amended to include a request for absolute divorce. Simply put, when an absolute divorce issue is not yet ripe, a limited divorce proceeding can allow a party to obtain certain relief from the court.

What can a Court award in a Limited Divorce?

Generally, in a limited divorce proceeding, the court can determine child custody and visitation, when children are involved the use and possession of family home, vehicle, household furnishings, child support, temporary alimony, and can award attorney fees.

What can a Court award in an Absolute Divorce?

Generally, in an absolute divorce proceeding, the court can change a spouse’s name back to any former name, award custody, decide visitation, determine the amount of child support and alimony to be paid, grant a monetary award, when children are involved decide the use and possession of family home, vehicle, household furnishings, award attorney and expert fees and costs, order certain jointly titled assets to be sold, divide or order the sale of household furnishings, and order the division of pension and retirement accounts.

How long does it take to get an uncontested divorced in Maryland?

It varies in each county, however if you already have a complete Marital Settlement Agreement signed by both parties and the proceeding is uncontested, typically between 3 – 6 months.

How long does it take to get divorced in Maryland?

It varies by county, however if your matter is contested and all issues are not resolved by a signed Marital Settlement Agreement, you can expect your contested divorce to take anywhere from 1-2 years.

If you or someone you know is considering divorce, we encourage you to speak to an experienced family attorney at Silverman, Thompson, Slutkin & White, LLC who can help you decide the right choice that is specific to your circumstance.

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

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

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Published on: April 7, 2020

Should I try mediation to resolve my family law matter with COVID-19 court closures?

By Monica Scherer

Another unfortunate consequence of COVID-19 is the postponement of the pendente lite hearings, settlement conferences and merit trials which were actually scheduled on the court docket months ago, but are not going forward as planned due to the court closures. Thus far, my experience has been that the courts are working hard to get the postponed cases reset as quickly as possible. Unfortunately, I have already had several client matters get reset only to be postponed and reset yet again as a result of the Administrative Order to extend the court closures. As a litigant, this can be extremely frustrating especially when the access to/custody of your children and finances remain uncertain.

Mediation remains an option to consider bringing temporary or complete closure to your family law matter. Mediation has the capability of being conducted via video conferencing with a trained mediator or retired Judge which will ensure all parties, counsel and the mediator remain in compliance with CDC recommendations and Governor Hogan’s Orders while we all weather this crisis. The upside to successful mediation is you have some or complete closure now versus months from now when your matter is finally set back in to be heard by the Court. Mediation does not work in every case, but given these uncertain and challenging times, it may be worth considering as an option.

Published on: November 22, 2019

Federal Government Pension Orders – be mindful of what was ordered by the Court

By Monica Scherer

The U.S. Code of Federal Regulations, Part 838.103 provides “Self-only annuity means the recurring unreduced payments under CSRS or FERS to a retiree with no survivor annuity payable to anyone. Self-only annuity also includes the recurring unreduced phased retirement annuity payments under CSRS or FERS to a phased retiree before any other deduction. Unless the court order expressly provides otherwise, self-only annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a.” While the Gross annuity “means the amount of monthly annuity payable to a retiree or phased retiree after reducing the self-only annuity to provide survivor annuity benefits, if any, but before any other deduction. Unless the court order expressly provides otherwise, gross annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a”. The Office of Personnel Management (OPM) will apply the martial share formula to the gross annuity UNLESS the Order states otherwise, see U.S. Code of Federal Regulations, Part 838.306 (b) which states “the standard types of annuity to which OPM can apply the formula, percentage, or fraction are phased retirement annuity of a phased retiree, or net annuity, gross annuity, or self-only annuity of a retiree. Unless the court order otherwise directs, OPM will apply to gross annuity the formula, percentage, or fraction directed at annuity payable to either a retiree or a phased retiree.” Gross Annuity is the default.

For more information on Maryland divorce and retirement matters contact an experienced divorce attorney.

Published on: March 7, 2011

Maryland House Judiciary Committee Passes Same Sex Marriage Bill

By Monica Scherer

The same sex marriage bill passed at the House Judiciary Committee on Friday, March 4, 2011 by a 12-10 vote as the Baltimore Sun reports. This means that the bill will move to the full House of Delegates for debate, which is scheduled to start as early as this Tuesday, March 8, 2011. As we previously blogged, on February 25, 2011 the bill if passed into law would allow same sex couples to wed. Delegates who had previously opposed the bill have expressed that they will vote to pass the bill as they believe it should ultimately be up to the voters to decide. As the Sun reports, if the bill passes in the House of Delegates, “Gov. Martin O’Malley has said he will sign the legislation if it reaches his desk. Opponents could then gather the roughly 55,000 signatures needed to petition the new law to referendum, where voters in the 2012 presidential election will decide whether to repeal it or leave it on the books.

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

Published on: February 25, 2011

Recent Maryland Court of Appeals Case on Dissipation

By Monica Scherer

Maryland law defines dissipation as when “one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Sharp v. Sharp, 58 Md. App. 386 (1984). At issue is also whether or not the party spent or depleted the marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of divorce. In a recent opinion by Judge Murphy on behalf of the Court of Appeals the Court faced the question as to who has the burden of proving that the assets had been dissipated. The case, Omayaka v. Omayaka was originally heard by the Circuit Court for Prince George’s County for the final divorce hearing in July 2007. At this hearing the attorney for Mr. Omayaka attempted to prove that the wife had dissipated martial assets. Mr. Omayaka claimed that Mrs. Omayaka had opened up an account in her name only during their marriage and had withdrawn over $80,000.00 from the account since 2005. Mr. Omayaka’s attorney questioned Mrs. Omayaka on what the money was spent on and she stated clothing, food, insurance for the baby, rent, credit card debt, a car loan and the babysitter. At the conclusion of the case the Circuit Court found that there had not been a dissipation of assets because the attorney for Mr. Omayaka had not met the burden of proving that the money was spent for a purpose unrelated to the marriage during a time when the marriage is irretrievably broken. The attorney for Mr. Omayaka filed an appeal based on the contention that he had met his burden of proof showing dissipation of the assets. The Court of Appeals, in its’ opinion, clears up the burden of proof question with the following guide:

The alleging party must first put on a prima facie case that the marital assets were taken by one spouse without agreement with the other spouse. Then, the burden shifts to the alleged spending party to produce evidence that generates a genuine question of fact on the issues of whether the assets were taken without agreement, and/or where the funds are, and or were they used for marital or family expenses. However, the court points out that it is clear that the burden lies on the party who claims that the other party has dissipated marital assets to clearly prove that the funds were spent solely to reduce the money available for equitable distribution.

The Court explains that Mrs. Omayaka’s testimony was sufficient to prove that the funds were spent on the family and Mr. Omayaka’s attorney presented no further evidence to meet his burden otherwise. Therefore, the Court of Appeals found that the Prince George’s County Circuit Court’s ruling was correct, as the burden was not met.

For more information regarding marital property including marital businesses contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

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Published on: December 15, 2010

Discovery in Maryland Divorce Matters

By Monica Scherer

When meeting with clients initially and discussing the general course of litigation, I will advise them that discovery is part of that process, which usually prompts many questions. First and foremost is what is discovery? Discovery is a litigation tool used to gather and exchange relevant information and potential evidence from and with the opposing side prior to a trial. In a divorce matter it most frequently consists of Interrogatories, Request for Production of Documents, and Depositions of parties and witnesses. However, discovery may also involve Request for Admission of Facts, Notice of Records Depositions, and/oror Mental or physical Examinations of parties. Interrogatories are a list of a maximum of thirty questions usually involving employment history, lifestyle, assets, marital and non-marital property, child rearing responsibilities, and reasons for the dissolution of the marriage. Request for Production of Documents are a list of requests asking for documents from a party. These usually consist of financial documents, employment records, documents regarding the children, documentation of communications with the other party, documentation of expenses/debt and documents regarding the parties’ assets.

Many clients question why these documents need to be exchanged as they feel it is an invasion of their privacy. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets or have withheld discoverable information from the other. Further, client’s must know that if you or the opposing party makes a request or raises a particular issue in a matter, then the issue must be explored. The old adage “what is good for the goose is good for the gander”, often applies in these situations. If a document is requested that is particularly confidential in nature or for some reason should not be turned over to opposing counsel, clients can seek protection of that document by filing a motion with the court. If the opposing side is not turning over their documents and answers in a timely fashion then one may file a motion with the court asking them to compel these documents or to prohibit that party from entering any evidence regarding same at trial. If a party tries to introduce a document at trial that was not turned over to the other side prior to the hearing then the Judge may prohibit it from being entered into evidence. The discovery process is governed by the Maryland Rules commencing with Rule 2-401. Clients should also understand that while all pleadings in a matter are filed with the court, the discovery requests and responses are not. The court will not see the Answers to Interrogatories or Responses to Request for Production of Documents unless they are admitted in evidence at a trial.
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Published on: July 12, 2010

Calvert County Judge Orders Couple to Share Custody of Dog

By Monica Scherer

The Baltimore Sun reported on July 7, 2010 that retired Prince George’s Circuit Judge Graydon S. McKee III ordered Gayle and Craig Meyers to split custody of their dog at their limited divorce proceeding . For more information on limited divorce see our March 19, 2010 blog. In accordance with Maryland law, pets are considered marital property and are to be divided as such. For more information on marital property in Maryland, see Maryland Code, Family Law 8-203 and see August 19, 2009 blog. Instead of ordering the couple to sell the dog and split the proceeds, the Judge ordered that the dog will alternate spending six months with each party. As reported, “it was very clear that both of them love this dog equally,” McKee said. “The only fair thing to do was to give each one an equal chance to share in the love of the dog.”
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Published on: June 30, 2010

Facebook Page Evidence in Maryland Divorce Cases

By Monica Scherer

The Maryland Daily Record reported on June 28, 2010 that 81% of divorce attorneys have used Facebook as a form of evidence. It is a growing phenomenon in the family law practice and it has occurred in our practice in divorce hearings, custody hearings, and protective order hearings. The statements on a spouse or parent’s Facebook page may be just enough, and appears to have been just enough, to push the Judge in one direction or another in a case. Most Judges may not be aware of the context of a picture or statement on Facebook and with blurry evidentiary rules regarding their admission a picture that is funny to you may appear disturbing to a Judge.

Many may question why a Facebook page would be relevant in a divorce, custody or protective order matter. As explained in our February 28, 2010 blog, a fault based divorce such as adultery requires proof of both the opportunity and disposition for the adulterous relationship to be proven. A Facebook page displaying pictures or words of affection may be the key to proving the disposition element needed for adultery. As explained in our October 23, 2009 blog, in custody proceedings a significant factor that is considered is parental fitness. A Facebook page displaying irresponsible habits of a parent may question the fitness of that parent in caring for their child. As explained in our August 16, 2009 blog, the alleged abuse that is needed to enter a protective order can consist of a threat of serious imminent bodily harm. Such a threat on a Facebook page may be enough for a Judge to enter a protective order.
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