General Concepts of Divorce

Divorce is basically the end of the legal part of a marriage. Remember that going through a divorce involves not only emotional issues, but financial as well. You need to be aware of your rights regarding your divorce so that you are fully protected. To help you through the process of making decisions regarding your divorce, read about the following concepts so that you can have a basic understanding of what divorce involves.

Absolute or Limited Divorce?

Absolute divorce: This type of divorce is a permanent, final divorce. You are allowed to remarry only after obtaining this type of divorce. This also ends a spouse's right to inherit from the other spouse. This type of divorce generally provides for the final resolution of all property, custody, child support, and alimony issues.

To obtain an absolute divorce, you must prove to the court that you have "grounds" for the divorce. There are several grounds that Maryland law provides as follows: a) adultery, b) desertion, c) constructive desertion, d) one year voluntary separation, e) two year separation, f) conviction of a felony or misdemeanor, g) insanity, and h) cruelty of treatment or excessively vicious conduct towards you or your child.

Limited divorce: This is a court enforced separation. This type of divorce is not final, meaning that you are still legally married to each other. This type of divorce is usually asked for by a person who does not have grounds for absolute divorce, or when two married people do not want to finalize or terminate their marriage but do not want to continue living as husband and wife, perhaps for religious reasons, or for other personal reasons.

You will still need grounds to be able to obtain this a limited divorce, which are: a) Cruelty of treatment or excessively vicious conduct towards you or your child, b) desertion, c) constructive desertion, or d) voluntary separation.

In a limited divorce, the court can establish custody and set child support, allow one of the parties to continue living in the home, order one spouse to continue providing health insurance to you and/or your children and resolve any questions as to ownership of personal property. The court may also order the sale of jointly owned personal property. Even after you obtain a limited divorce, you can later obtain an absolute divorce, once you have the grounds for that type of divorce.

Your attorney will be better able to fully explain each of the grounds described above, and the grounds in your case, if any.

Contested or Uncontested Divorce?

Whether you are requesting a Limited or Absolute divorce, if you and your spouse can agree on who your children will stay with, how much child support and/or alimony is to be paid, who gets to keep the house, who gets what item of property which you both may own, your grounds for divorce, and all the other decisions that come along with a divorce, then you can go forward with your divorce on an uncontested basis. Your agreement can be put into a written "Separation and Property Settlement Agreement," which can be later made part of your judgment of divorce. See the section titled "Property Division for a more detailed explanation of separation agreements.

A contested divorce will definitely cost a significantly greater amount of time and money, and it is usually a good idea to first see if you can proceed with an uncontested divorce. Do keep in mind that you should see an attorney when you are going through any type of divorce, or before signing any type of agreement that your spouse presents to you whether or not you think it is fair, to make sure that you are aware of all of your rights regarding your divorce.

What Will Happen to our Children?

If you have children who are less than 18 years old, the court has the authority to determine what custody situation will be best for the children. The court can order sole custody to one parent, or joint custody to both parents. There are two custody issues that arise in divorce, Legal custody, and Physical (or "residential") custody. Legal custody generally means which parent, or parents are entitled to make decisions regarding the important aspects of the children's lives, such as decisions regarding school and their medical care. Physical (or "residential") custody has to do with where the children live.

Remember that the court will always try to determine what is best for the children, and will take little account and consideration of what is best for the parents.

Also remember that you and your spouse can always agree on the custodial situation regarding your children, and the court will generally accept that agreement.

Please go to the section titled "Child Custody" for a more detailed explanation of this subject.

What Authority Does the Court Have Regarding my Divorce?

If complaint for divorce is filed, and you end up going to trial where the court hears both sides and makes a decision regarding your divorce, the court has the authority to:

• Grant custody of any children to one spouse, or to both
• Order visitation with your children
• Order child support from one spouse to the other
• Order one spouse to pay alimony
• Make a determination on whether or not property is "marital" or "non-marital," which basically means whether the property was acquired during the marriage and subject to division in a divorce
• Put a value on the property which it finds to be marital
• Transfer rights to any kind of retirement or pension account from one spouse to the other
• Order one party to pay the other a "monetary award" to make an equitable distribution of each spouse's share of the marital property-But keep in mind that this does not mean that everything will be split equally.
• Award attorney's fees
• Order one spouse to provide health insurance for your children.
• Allow one spouse to continue living in the marital home and to use the furniture in the home for a period of time, for up to three years.
• Order the sale of any property, including the marital home, the ownership of which the parties can't decide, and then divide the proceeds of that sale.
• Change the name of the wife back to her maiden name.

Remember that although you ask for the court to order any or all of the relief outlined above, it is not automatic. The court has to hear the specific facts of your case, and based on those facts, the court will determine whether or not you deserve any or all of the relief that you ask for.

What is the Difference Between Marital and Non-marital Property?

In a nutshell, any real or personal property that you and your spouse obtain from the date of your marriage is marital property, except for property obtained by one party as a gift or an inheritance from a third party, any real or personal property which you can trace to a gift or inheritance from a third party, or any property which was excluded from being marital property as a result of an agreement between you and your spouse. Any property that is determined to be non-marital property is then excluded, or exempt from the court's power to divide between the spouses. Any property determined to be marital property is therefore subject to the power of the court to determine ownership of and divide, if need be. See our section called "Property Division in Divorce" for a more detailed explanation of Marital property division.

It's my Spouse's Fault that our Marriage is Ending. How Will the Court Punish Him or Her for That?

This is a common question asked of domestic attorneys. People usually expect the court to punish the spouse that caused the breakup of the marriage. Unfortunately, according to Maryland law, that fault is only one of many considerations that the court takes into account when making a determination regarding alimony or the division of marital property.

What is a Pendente Lite Divorce Hearing?

"Pendente Lite" is a Latin term meaning "pending litigation." Once you or your spouse file for divorce, it may take 6 months or more for you to get a divorce hearing scheduled by the court. In many cases one of the parties to a divorce simply does not have the money and other resources to wait until the final divorce hearing to get financial and other support from their spouse. When there are children involved, it is also important for the court to determine temporary support and access of the children. To help see that spouse and the children through to the final divorce, the court will hold a Pendente Lite hearing, where it can order one spouse to pay for temporary alimony and/or child support, determine a temporary access schedule for the children, allow one spouse to temporarily remain in the home and use the furnishings in the home, as well as to order one spouse to help pay for the other spouse's attorney's fees and court costs.

The Pendente Lite Order set forth by court is effective until your case is finally heard by court and a determination is made by the court regarding your divorce.

Why Should I see an Attorney?

The issues you have just read about above are only some of the issues that arise during a divorce. As you can see, divorce involves many issues that you may have never thought about. That is why it is always important to see an attorney when you are going through a divorce, so that you become aware of your rights, and so that those rights are protected. Once you see an attorney, you may still choose to proceed with your divorce without an attorney's help, but you will at least have a better understanding of your situation before making any decisions that will affect the rest of your, and your children's lives.

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