The end of a marriage is always a difficult time. Not only must you come to terms with life on your own, but a divorce is also a legal matter that must run through the State’s Family Court. Either the Court or the litigants themselves must decide the legal rights and obligations of both parties. This can include the division of property, the payment of alimony, and the care and custody of children.
A seasoned Montgomery County divorce lawyer could help you if you need to undergo a divorce. A dedicated family law attorney could be beneficial in taking the initiative to file a complaint in court, answering a summons where a spouse has moved for divorce, and working to protect your rights and the rights of your children every step of the way.
The Legal Grounds for Divorce
The Family Court in Montgomery County requires all people who petition for a divorce to cite a specific reason for why the Court should grant the motion. Md. Code, Family Law, §7-103 says that a plaintiff to a divorce case can move for a divorce on the grounds of:
- Excessively vicious conduct
- 12-month separation
- Mutual consent
While these motions for divorce typically name the other spouse as being at fault for the separation, far more common are no-fault divorces. To ask for a no-fault divorce, a spouse must state that the two parties have lived apart for at least 12 consecutive months prior to filing the application for divorce, or the parties must have a signed marital separation agreement resolving all matters in dispute in their marriage. A steadfast MoCo divorce attorney could help potential litigants select a reason for a divorce or defend themselves against allegations of fault that may sway a court’s distribution of assets or alimony orders.
What is the Difference Between Absolute and Limited Divorce?
Unlike many states, Maryland has two different types of divorce procedures. These procedures are known as absolute and limited divorce. It is vital for anyone considering divorce to understand these two options as they can dramatically impact a person’s life moving forward.
An absolute divorce is essentially the traditional divorce process in most other states. At the end of an absolute divorce, a marriage is completely dissolved and each spouse has the freedom to marry again if they choose to do so. An absolute divorce is concluded with a formal order entered by the court.
An absolute divorce cuts off the right of one spouse to inherit from another. Additionally, the court will also distribute the marital property between both parties as part of the final divorce decree, if requested to do so. At the end of the process, a spouse may also petition to return to the name they used prior to marriage.
One of the most confusing aspects of a limited divorce is that it is hardly a divorce at all. Despite the name, a limited divorce is closer to a legal separation overseen by the courts than an actual end to a marriage. Unlike an absolute divorce, a limited divorce is not final. It does not bring the marital relationship to a close, nor does it cut off many of the rights that come with being married.
Because it is not a final order, a limited divorce will not divide property or allow either spouse to re-marry. However, this process could result in temporary decisions regarding child custody, alimony, or child support.
A limited divorce could occur as a precursor to an absolute divorce while the parties work out a financial arrangement. Alternatively, a couple could maintain a limited divorce for the rest of their lives. Revoking a limited divorce is a simple process, but it requires the consent of both parties. If both parties agree to jointly request a discharge of the limited divorce, the court can revoke the divorce and reinstate the legal marriage.
Spouses have the freedom to pursue a limited divorce if they choose, but there is nothing in the law that requires a limited divorce as a step toward an absolute divorce. For that reason, limited divorces might not be for everyone. However, this process could make sense for couples that lack the grounds for an absolute divorce if they cannot resolve the issues in their marriage and need court intervention to address financial support or child custody disputes.
Common Matters at Issue in a Divorce
A divorce ends the marriage between two people and allows them to marry other people. It is final. A separation, even one where there is an agreement, does not end a marriage. Custody of the children, support, property division, and attorney’s fees are common matters that cause conflict when getting a divorce.
One major sticking issue in many MoCo divorces is the distribution of property. According to Md. Code, Family Law, §8-203, the court has the obligation to determine what property is marital property and which property is non-marital or separate property. Any marital property, which is property acquired during the marriage, is subject to equitable distribution upon divorce.
However, perhaps the most important matter in any divorce concerns the care of children. The Court has the obligation to make all rulings in the best interest of the child and Md. Code, Family Law, §9.5-201 states that Courts have the power to make rulings concerning all child custody questions. A skilled divorce lawyer in our area could help people protect their rights and privileges during every stage of a divorce proceeding. This includes fighting for their right to marital property, protecting their rights as parents, and working to create a better future for themselves and their children.
How Long Does Divorce Usually Take?
It is impossible to predict exactly how long a specific divorce case might take. Each divorce is different, and the issues that are contested between the spouses will largely determine how long it takes to resolve a divorce. Only divorces that are uncontested may only take a few months from beginning to end. Usually, more contentious cases can last for a year or more.
Ultimately, how contested a divorce is will largely determine how long it takes to wrap things up. When the parties agree to everything upfront, an uncontested divorce might only take a handful of months, assuming all the appropriate paperwork is filed with the court and the court sets a hearing promptly.
Not every couple will be able to resolve the issues in their divorce without the intervention of the court system. The more contested issues arise, the more likely a divorce case is to drag on. Property division disputes can be especially difficult to resolve. The same is true for disputes over child custody or access.
How is Property Divided in a Montgomery County Divorce?
Often, the division of marital property is one of the most contentious aspects of a divorce. This should come as no surprise given the financial impact these decisions can have on both spouses.
Maryland is an “equitable distribution” state. What that means is that the courts have no obligation to split marital assets evenly between two divorcing spouses. Instead, the law guides them to divide the assets in a way that is equitable—even if the split is not even. That said, many courts will ultimately determine the equitable way to divide the property is to split it equally between the parties.
It is important to understand the scope of property division. After all, the courts may only divide marital property during a divorce case. Marital property is any asset or thing of value that is owned by either party but acquired during the marriage, and not acquired by a gift from a third party, inheritance or excluded by valid agreement. Marital property could include anything from real estate to motor vehicles to cash accounts.
The general rule is that money acquired prior to the marriage is not marital property, while assets obtained during the course of the marriage are. Like with any legal rule, there are exceptions. Certain assets that are obtained during the course of the marriage like inheritance are not considered marital property subject to division.
Factors to Consider During Property Division
When the court makes decisions regarding the division of marital property, there is no set formula available to determine what each spouse is entitled to recover. However, there are several factors the court will weigh when determining what is equitable.
First, the court will look at what both spouses contributed to the family. These contributions are more than just financial, including caring for the wellbeing of any minor children.
The court will likely also consider how long the marriage lasted. The longer the marriage, the more likely the courts are to ensure a non-wage earning spouse maintains an equitableportion of the marital assets compared to a newlywed.
Next, courts often consider the health and income of each spouse. A spouse that lacks a job and is in poor health might be entitled to recover a large share of the marital property compared to someone who leaves a marriage capable of making a living.
The court will also take into consideration the general financial circumstances for each spouse. If one spouse has far more financial support than the other, that fact may influence the judge’s decision.
The Absolute Divorce Process in Montgomery County
Any person seeking the complete and final dissolution of their marriage can pursue that goal by initiating the absolute divorce process. The first step in this process is completing a legal document referred to as a Complaint for Absolute Divorce. In addition to the Complaint itself, a spouse seeking a divorce must also prepare other documents like a financial statement. Once these documents are prepared, the next step is to file them with the court. Filing the complaint initiates the divorce case.
Once these documents are filed with the appropriate circuit clerk, the step requires the filing spouse to perfect service. Service is the process of providing formal written notice to the other spouse of a pending divorce case. Under the law, providing this a copy of the documents filed is necessary before a divorce case may proceed. This is only fair, as it gives the other spouse an opportunity to be heard by the court. The court will issue the plaintiff in a divorce case a writ of summons that must be served on the defendant. Typically, service is handled by either sending it through certified mail, return receipt restrictedor by having it served personally by the sheriff or a private process sserver. Once service is perfected, it is time to complete an Affidavit of Service and file it with the court.
The other spouse has a short window of time to file an answer in the case. If the spouse lives in the state of Maryland, they have only 30 days to respond. That window of time is longer for anyone that lives in another state or country. If the other spouse fails to answer in the case, the plaintiff can seek a default and ask that the divorce be granted.
After an answer is filed, it is time for the court to determine the core issues of the case. These matters are ultimately dealt with at a scheduling hearing. At the scheduling hearing, the court set settle disputes related to child custody, spousal support, child support, or property division, for later trial dates and offer servies to the parties.
Is it Possible to Modify a Divorce Decree?
The decree entered at the end of a divorce case is considered a final order of the court, but that does not mean it can’t be changed. There are various circumstances that could allow for a change to the divorce decree—even some that have a retroactive effect.
Modifying the child custody and visitation terms in a divorce decree is always possible. This is because these decisions must always be weighed based on the best interest of the child. Since changing circumstances could always alter what is in a child’s best interest, custody issues are never truly final.
Likewise, ongoing spousal and child support issues are also frequently modified. The court will not simply alter this part of an agreement on a whim, but they might do so if one spouse can establish that a material change in circumstances has occurred. A change is only material if it effects the best interest of the child. For example, a change to spousal support obligations might be warranted if the paying spouse loses their job or becomes too sick to work.
Modifying other terms of a divorce decree could be more complex. While the courts have the power to modify the terms of a divorce decree as it relates to the division of property, these modifications are far less common. Typically, there must be some evidence of undue influence or fraud for the court to consider modifying this aspect of a final divorce decree. The court might agree to do so if there is evidence a spouse hid assets or only agreed to the terms of the divorce under duress. The ultimate decision on whether or not to modify the terms of the final order is made by the judge.
Is an Attorney Necessary During the Divorce Process?
There is nothing under the law that requires a person to hire an attorney when pursuing a divorce in Montgomery County. That does not mean proceeding without a lawyer is a good idea. There are many nuances to litigating a divorce that can be hard to pick up for anyone without a legal background. Against a trained attorney, this could put a person serving as their own legal counsel at a significant disadvantage.
One of the major risks that can come with a person serving as their own attorney is the potential for accidentally missing a legal deadline. In some cases, the failure to comply with the Maryland Rules of Civil Procedure could put a person’s divorce case in jeopardy. In a contested divorce, these errors could have a devastating impact on everything from custody decisions to spousal support disputes.
An attorney could ensure that all of the technical requirements necessary in a divorce case are met. They could also protect a spouse’s right and see to it that technical errors do not have a negative impact on custody, property division, or support decisions.
How a Montgomery County Divorce Attorney Can Help
A divorce is always a chaotic and emotional time. Every part of your past may endure heavy scrutiny and what a court decides is fair may not be in your best interest or what you desire. Of course, people can retain some level of control over any separation by entering into a divorce agreement with a former spouse. Still, this is not an option for everyone, and you may be forced into a long and contentious divorce case.
A knowledgeable Montgomery County divorce lawyer could stand by your side to fight for your rights. This includes filing a divorce complaint that outlines your demands, responding if your spouse has already filed in court, and working to push your interests in all court proceedings, mediation sessions, and other meetings. Contact qualified legal counsel today to discover more.