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Frequently Asked Questions

On this page, Attorney Cohn answers the questions he is most frequently asked about family law in Maryland.

What are the grounds for divorce?
How do I figure out child support?
When does child support end?
How can I enforce a child support order when a parent is not paying?
What are legal and physical custody?
Is there a formula the court will use to determine custody?
How does the court decide how to divide property?
What does use and possession of property mean?
Can the court divide pension proceeds?
What is divorce mediation?
How does the court determine when, and if, alimony will be awarded?
Can alimony be modified after it is awarded by the Court?

Disclaimer: The content of this website is only designed to provide general information. It is not designed to give legal advice. Maryland state statutes can be amended or repealed. Maryland state case law is constantly changing. Therefore, do not act or rely on any information contained herein without first seeking legal counsel. Nothing on this site shall constitute the establishment of an attorney-client relationship. Communication via this site does not constitute an attorney-client relationship. Therefore, do not send any confidential information until such a relationship has been established.

What are the grounds for divorce?

There are both fault and no fault grounds for divorce in Maryland.

The no fault grounds are:

• Voluntary Separation, if the parties are living separate and apart without cohabitation for 12 months without interruption and there is no reasonable expectation of reconciliation, OR
• a two year separation even if the separation is not voluntary

The grounds for a fault divorce are:

• Adultery
• A spouse is incarcerated, sentenced to serve three years of incarceration, and has served 12 months of that sentence
• Desertion (for 12 months without interruption)
• Cruelty of treatment toward the complaining party, if there is no reasonable expectation of reconciliation
• Excessively vicious conduct toward the complaining party, if there is no reasonable expectation of reconciliation.
• Constructive desertion: wheN a person had to move out to preserve his/her health, safety or self respect due to treatment from the other spouse AND the parties have lived separate and apart for one year.

How do I figure out child support?

The state has a formula to calculate child support based upon guidelines. The amount of support is based upon all the income of the parties, the cost for health insurance, court ordered obligations of the parties (such as other child support orders), day care costs, medical expenses, private school expenses and others expenses. Child support is based upon full custody of one parent unless the other parent has 35% of the overnights in any given year. In that case, the guideline amount of support will be lower to reflect the costs of housing the children in both homes.

When does child support end?

Child support will end when the youngest child turns 18 years old or when she or he graduates from high school, whichever is later, but no later than age 19. There is no obligation to pay for a college education; however, parties can agree to such payments as part of any final agreement between themselves. This will create a contractual obligation.

How can I enforce a child support order when a parent is not paying?

A person can enforce a child support obligation by filing a Motion to Enforce. A court can then order wage withholding and a repayment schedule in addition to the normal monthly child support. If the Court finds the payer in contempt of the Court Order (willfully failing to pay the support), the Court can sentence the payer to jail. It is important to note that if a person intentionally quits a job to avoid payment, the Court can still impute their previous earnings on them and child support arrears will accumulate and a finding of contempt becomes more likely.

What are legal and physical custody?

Legal custody describes which parent makes the major decisions for the child(ren) such as health decisions, religious upbringing, education decisions, and general welfare. It does not include the day-to-day decision that each parent makes when the children are in their care. Parties can request either sole legal rights or shared legal rights if they believe they will be able to work out and constructively discuss the child’s welfare. Parties can also divide legal rights. For example, one parent can have sole custody regarding religion upbringing and another parent can have sole legal custody regarding educational matters.

Physical custody describes where the child(ren) actually lives a majority of the time. Parties can request sole custody and shared custody. Shared custody can mean a 50/50 split or some other percentage of time (e.g. 60/40, 65/35, 57/43%, etc.)

Is there a formula the court will use to determine custody?

For both legal and physical custody, the Court will determine the best interests of the child based upon the evidence. There is no formula for this determination. However, the Court will look at the parenting roles during the marriage, the fitness of the parents, character and reputation of the parents, any agreements of the parties, preference of the child (The older the child, the more weight this is given.), residence of the parents and opportunity for visitation, the physical, spiritual and moral well-being of the child, the relationships between each parent and the child, the communication between the parents, the age and health of the parents and child, the child’s needs, and whatever factor the Court may deem relevant to determine custody. If there is a custody battle, this is a factual driven determination which needs careful attention. The Judge has broad judicial discretion and can consider any evidence it believes is relevant to the best interest of the child(ren). Assuming both parents are fit, the Court will try and ensure that both parents have adequate time with the child(ren). The focus is on the needs of the children rather than the needs of the parents.

How does the court decide how to divide property?

The Court must determine what property is marital property and what property is not marital property. Property which a spouse has inherited, was gifted, or brought into the marriage is not considered marital property unless there is a valid agreement otherwise. Once the court determines which property is marital it will divide the property using the following factors:

• Contributions, monetary and non-monetary, of each party to the well-being of the family (yes, there is “value” to being a home-maker);
• Value of all property interests of the parties
• The economic circumstances of the parties at the time of the award;
• The circumstances that led to the separation (this is the fault factor);
• Duration of marriage;
• Age of the parties;
• Physical and mental health of the parties;
• How and when interest in the pension and/or retirement was acquired;
• Contribution by either party to the marital home and any other real property (land or homes);
• The amount of alimony that the Court has made with respect to “family use personal property” or the family home (cars, furniture, household appliances and home used by the family used for family purposes);
• Any other factor the Court deems appropriate to come to a fair and equitable division of property or monetary award. (This is the catch-all provision that says the Court can look at anything that will help it come to a decision about division of property.)

What does use and possession of property mean?

The party who is awarded physical custody of the child(ren) can be awarded use and possession of the marital home for up-to three years after the granting of a divorce. It can be shorter than three years, but it cannot be longer. A person awarded use and possession can not remarry or the order will terminate.

Can the court divide pension proceeds?

Yes, pension or retirement which accumulated during the marriage is considered marital property and is subject to a property division by the Court. Pension or retirement earned before the marriage will not be considered in the division

What is divorce mediation?

Divorce mediation is a process of trying to resolve all the custody and property issues without the need for a contested hearing. It can occur before or after the filing of a divorce. A trained person familiar with both mediation techniques and the laws of this state will help the parties come to agreement. A mediator can not force either party to agree to anything. The parties themselves come up with the agreement with assistance of the mediator, who will draft a Memorandum of Understanding, which outlines all of the matters on which the parties agree.

The advantages of mediation are numerous. The parties control what will happen in the future concerning the children and property rather than having a judge dictate what will happen. Mediation is faster and much less expensive than a litigated divorce with lawyers, sometimes tens of thousands of dollars cheaper. Mediation causes less stress on the couple and can shield children from the tension of a contested custody battle. The agreement can be incorporated in a divorce Order issued by the Court.

There are few disadvantages to mediation. Lawyers can still review any proposed agreement before the parties sign anything. (A trained mediator will insist on this.) Attorneys can even participate in the mediation. Mediation can take a few sessions or a few weeks, saving time compared to the months or years usually taken for a contested divorce. Despite its advantages, mediation is not for all couples. When there has been physical abuse or if there is not an emotionally even playing field, mediation may not be appropriate. When it is appropriate, it is the preferred vehicle for resolving conflicts between couples.

How does the court determine when, and if, alimony will be awarded?

The Court prefers rehabilitative alimony (for fixed amount of time) rather than permanent alimony. The purpose of alimony is to make a person self-supporting, even if it results in a reduced standard of living. The Judge has considerable discretion in the amount and length of the award. The factors the Court will use are:

• the ability of the party seeking alimony to become wholly or partly self-supporting;
• the time necessary for the party to gain sufficient education or training to allow him/her to find suitable employment;
• the standard of living established during the marriage;
• length of the marriage (the longer the marriage, the more it tilts in favor of the party requesting alimony);
• the monetary and non-monetary contributions to the well-being of the marriage made by both parties;
• the circumstances that contributed to the break-up of the marriage (this is the fault factor);
• the age and health of the parties;
• the ability of the party from whom alimony is sought to meet their own needs;
• any agreement between the parties (such as a pre-nuptial agreement);
• the financial needs and resources of the parties, including what property is awarded to each as a result of the divorce and the retirement benefits each is entitled to receive.

A Court may award permanent (indefinite) alimony if the Court finds a person can not make substantial progress toward becoming self-supporting due to age, illness, infirmity or disability, or, if they can make progress toward becoming self-supporting, the respective standards of living of the parties will be unconscionably disparate.

Can alimony be modified after it is awarded by the Court?

Yes. There must be a showing of a substantial and material change of circumstance since the time of the award. In the past, an increase in the income of the spouse paying alimony was not a change of circumstance warranting an increase in alimony. Examples of changes in circumstances which warranted changing the amount and length of alimony are: the receiving spouse’s bi-polar prognosis did not improve as expected and the job market of the economically dependant spouse took a down turn and she was not able to earn close to the amount she had projected at trial. A motion must be filed before the award terminates or the Court cannot modify the previous award.

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