Frequently Asked Questions About Divorce
What is Divorce?
A divorce is the ending of a marriage. You and your spouse cannot simply agree to a divorce. A court must issue an order to terminate a marriage. In addition, if you file for divorce, you may be required to meet certain residency requirements to obtain a divorce in Maryland.
What types of Divorce exist in Maryland?
In Maryland, there are two types of divorce: absolute and limited.
- Absolute Divorce: An absolute divorce ends the marriage, permits you and your ex-spouse to remarry and ends joint property rights. There are several claims (commonly referred to as "grounds") under Maryland law that permit you to seek an absolute divorce immediately; among them, adultery, cruelty of treatment and excessively vicious conduct. There are also other grounds upon which you may seek an absolute divorce but these grounds typically require a waiting period of twelve (12) months from the date you and your spouse begin living separate and apart.
- Limited Divorce: Sometimes called a "legal separation", a limited divorce is not permanent and you cannot remarry after obtaining a limited divorce. A person seeking a limited divorce must also claim certain grounds for the divorce that are recognized by the law of Maryland. A limited divorce may be revoked by the courts if the parties jointly apply, in which case, the parties return to their married state. In a limited divorce, the court may make temporary decisions affecting custody, child support, use and possession of property, and alimony/spousal support; however, the court will not address property issues. If you do not have grounds for an absolute divorce, the court may still grant you a limited divorce.
What is an uncontested divorce?
An uncontested divorce means that you and your spouse do not disagree on the grounds for divorce, neither you nor your spouse is requesting alimony/spousal support, child support is not an issue or has already been determined and there are no property issues for the court to decide. Either an absolute divorce or limited divorce may be uncontested. Even though you and your spouse agree on a divorce, the court must still hold a hearing to hear the testimony of the person filing the complaint for divorce. In addition, the person filing for divorce must have a witness present who can corroborate the testimony. The hearing for a non-contested divorce takes place before a Master (A Master is a lawyer that helps a judge decide a case).
What is an Annulment?
Annulment is a relatively rare special action which establishes that your marriage never existed. If a court finds the facts necessary to grant an annulment it is as if you and your spouse were never married. The factors necessary to prove an annulment are often difficult to meet and therefore courts are reluctant to grant an annulment. If sufficient grounds exist, the court may grant a divorce instead.
What is Marital Property?
"Marital Property" is defined as any property that you and/or your spouse acquired during your marriage, no matter how it is titled (example: if you purchase an automobile, in your name only, during your marriage, it is still considered marital property). Marital property may include, but is not limited to, homes, pensions, 401k, automobiles, stock, businesses, and furniture. Marital property does not include property that you or your spouse acquired before you married, property that was inherited or gifted separately to you or your spouse from a third party, property that you and your spouse agreed to exclude by agreement or property that is directly traceable to any of the aforementioned sources. However, if you commingle non-marital property with marital property, the court must determine how much of that property is marital and how much is non-marital.
At the time I obtain a divorce, does the court decide how our marital property should be divided between my spouse and me?
In a proceeding for absolute divorce, the court will make final decisions affecting your marital property. However, the court will not decide issues relating to marital property if you are only seeking a limited divorce. You must wait until you seek an absolute divorce to request that the court decide marital property issues.
It is possible for you and your spouse to mutually agree in writing beforehand to terms for dividing your marital property and, except in limited circumstances, the court will not change any agreement you reach. However, because of the various complexities involved in dividing marital property and in drafting marital settlement agreements, you and your spouse should separately consult with an attorney before you sign such an agreement to make sure it is fair and reasonable, particularly where the property issues are complex.
What Is A Qualified Domestic Relations Order?
A Qualified Domestic Relations Order (QDRO) is a domestic relations order that is separate from an Order of Divorce, and which allows payouts from a retirement plan (IRA, Keogh, 401k, etc.) to a former spouse.
If you and/or your spouse are the current or future recipient(s) of a retirement plan and any of the funds in the plan accrued during your marriage, some of the funds will likely be considered marital property and thus is subject to division, in accordance with specific formulas and language required by the Plan Administrator of the plans.
The QDRO is necessary when dividing a retirement account pursuant to divorce proceedings due to the restrictions placed on pensions by Internal Revenue Code and Employee Retirement Income Security Act (ERISA). A QDRO is necessary to assure that a former spouse may receive benefits as an alternate payee. Without a QDRO, the benefits may only be paid out to the individual employee who earned the benefits.
What is a Prenuptial Agreement?
A "prenuptial agreement" is a contract between two parties who intend to be married. Prenuptial agreements serve to control the rights and responsibilities of each party should the marriage end. These agreements are also referred to as "premarital agreements" or "prenups." Prenuptial agreements serve an important purpose: to protect the parties' investments and assets before, during, and after the marriage. A prenuptial agreement can reduce or eliminate spousal support, and control how property is divided, should the marriage end. A prenuptial agreement is a critical tool that can protect the property that you bring into a marriage as well as the property that you earn or acquire during a marriage. If your spouse-to-be has presented you with an agreement, be sure to have an attorney review the contract so that your rights and obligations are clear.
The Law Office of L. Juanita Board can assist you and your future spouse in negotiating the terms of your property division in the event your marriage ends. If you are entering into a marriage and are considering negotiating a prenuptial agreement, contact my office to ensure that your rights are protected. I can assist you with any of the following matters:
- Prenuptial agreements
- Marital agreements
- Litigation of prenuptial agreements
What is a Marital Settlement Agreement?
A marital settlement agreement is a written contract between two parties who intend to divorce. It is a vehicle by which the parties reach agreement on a variety of issues typically involved in divorce proceedings such as the grounds for divorce, property disposition, custody, visitation and alimony. Parties who can reach agreement on these issues prior to going to court can save themselves time, costs and stress associated with a trial. In general, the court will accept the term of any agreement reached between the parties.