Get Help With Your Divorce Process or Separation
Separation and divorce can be difficult, both emotionally and financially, and can involve complex legal issues, which will affect your life and the lives of your children for years to come.
Divorce changes lives in significant ways, including alimony, support, child custody and the division of real estate, retirement plans and businesses.
It is essential to have a professional and experienced lawyer represent your interests, even if there is an amicable settlement. Proper planning can be key to protecting yourself and your children.
For over 35 years, the attorneys at Russell & Heffner LLC have offered families throughout Frederick County, MD with personal attention and compassionate representation.
Whether you are seeking a separation agreement, involved in a custody dispute or going through a difficult divorce, we will provide you with the representation you need to negotiate agreements, mediate disputes, and litigate your case before the courts when required.
We have years of legal experience and a commitment to our clients and their families. Consultations are private and privileged.
Contact Russell & Heffner LLC today at 301-695-2977 to set up a consultation. Evening and weekend consultations are available by appointment.
Most of the time, you do not just suddenly find yourself separated or in the middle of a divorce, there are usually signs of what is coming. If you're thinking of possibly separating or seeking a divorce or if your spouse has indicated that they want a separation or divorce, it is essential to plan ahead.
If you simply wait and hope for the best, it may be too late. You should consult with an experienced family law attorney, regardless of whether you and your spouse ultimately decide to stay together.
Being prepared for the worse is never a bad thing, and proper planning can drastically change the ultimate outcome if a separation or divorce ultimately occurs.
Joint bank accounts, joint credit cards, debts in the name of one party but not the other, bankruptcy, business interests, contribution to retirement and pension plans, contribution of non-marital property, extant property, alimony issues, powers of attorney, child custody and support; these are just a few of the issues that need to be considered and planned for.
Is your case suited for mediation or the collaborative process? With our experienced attorneys, it may take only a few hours to come up with a plan that may save you many times the cost.
Divorce and separation also come with a lot of emotional issues so that the parties are often at a point where they are least able to deal with the legal, financial and property issues that can be involved.
Again, an experienced attorney can help not only as an advocate, but also as an adviser, to help make good decisions and avoid pitfalls.
You often hear the term "legally separated," though there is no such thing in Maryland, other than arguably a "limited divorce," and some people will say they are divorced but do not understand they are not able to remarry because they do not have an "absolute divorce."
People often use terms
interchangeably when they are not interchangeable and have important; sometimes, crucial differences in their meaning. The information below is to help you understand some of the law applicable to divorce, separation and annulment, but it is no substitute for the assistance of an experienced attorney familiar with divorce, separation, custody, support and related issues.
The laws in this area are not just contained in statutes or rules, but in literally hundreds of cases dealing with these issues. Additionally, in order to present evidence to the court, there are still more statutes, rules and hundreds of more cases dealing solely with evidentiary issues.
You are separated in Maryland when you stop living under the same roof. No agreement is required to be separated, though many parties will enter into a Separation Agreement, which spells out the property, financial and custody provisions that will become a part of their divorce later. Such an agreement is not required in order to be separated, nor in order to obtain a divorce, and there exists at least some case law in Maryland that supports the notion that the parties may be separated even though they continue to reside in the same home.
There is also a case law which supports the position that even if the parties are not living in separate homes, they are not separated for purposes of counting the time required to obtain an absolute divorce, if they have had sexual relations with one another after they stopped living together.
Separation is integral to the concept of divorce in Maryland, since most grounds for divorce require a period of separation. In those cases, the court will look back to the last date on which the parties last resided under the same roof or had sexual relations, whichever is the most recent.
(Also referred to by various other names, such as a "Marital Property Settlement Agreement," "Settlement Agreement," etc.).
These agreements, regardless of the name by which they are called, are among the most important in any divorce. They can settle all of the property, financial and custody provisions that will become a part of the divorce.
If properly drafted by your attorney, they can be binding on the court as to everything except for issues concerning custody and child support, and even in these areas, these agreements are normally given strong deference by the court.
They can control issues, such as alimony, property, debts, interests in retirement plans and even inheritance rights. Depending on the complexity of the case, they may be in excess of fifty (50) pages in length. There is no one size that fits all, and careful drafting is essential; otherwise, there may be unanticipated and far-reaching consequences.
Whether you have been separated for many years or are planning to separate, a Separation or Property Settlement Agreement can bring resolution to your case based on the terms negotiated by the parties and / or their counsel.
If you need an attorney to negotiate an agreement, have reached an agreement in mediation or if you and your spouse have reached an agreement between yourselves and just need that agreement reduced to a formal written document, an experienced family law attorney is essential to avoiding potential drafting pitfalls, which could result in uncertainty and unanticipated problems and litigation down the road.
An agreement properly drafted by an experienced family law attorney can save you thousands in legal fees; improperly drafted, the result can be years of litigation and tens of thousands of dollars in expenses.
Formerly referred to as "Divorce a Mensa et Thoro" (a divorce from bed and board), is not a divorce at all in the sense that you cannot remarry, real property, monetary awards and retirement plans, to name a few issues, cannot be dealt with.
However, limited divorce remains an important concept and has a very practical use. Essentially, it permits the court to address issues, such as alimony, use and possession of Family Use Property and other personal property pending the time that the parties can obtain an absolute divorce.
At one time when the parties might be separated for years before they could obtain a divorce, they were essentially a long-term pendente lite order (an order pending competition of the litigation), but today pleading grounds for a limited divorce may be necessary in order to provide the court with jurisdiction to provide relief if only on a pendente lite basis, where the parties lack grounds for an absolute divorce.
Today, typically, no one gets a limited divorce and will usually amend to seek an absolute divorce once grounds become ripe.
Grounds for limited divorce include:
- Cruelty of treatment of the complaining party or of a minor child of the complaining party
- Excessively vicious conduct directed towards the complaining party or of a minor child of the complaining party
- Desertion, including constructive desertion
- Voluntary separation, if the parties are living separate and apart without cohabitation and there is no reasonable hope or expectation of reconciliation
Assuming the court has jurisdiction, at the time of trial on an absolute divorce, the court will address all property, financial and custody issues not otherwise resolved prior to trial, and upon the entry of a final judgment, the parties may remarry. If a divorce is to be contested, this is an essential time to have an attorney, since there are strict evidentiary requirements and rules that most litigants will be entirely unequipped to address.
At the time of the absolute divorce, the court can, among other things, grant or deny alimony, order that rights in certain retirement plans be transferred from one party to another, order that certain property be transferred from one party to another, grant attorney's fees and court costs, grant a monetary award from one party to the other to adjust the equities between the parties, address child support and custody, order that one party have the use of Family Use Personal Property and / or the Family Home, determine who will be entitled to claim the children as dependents, order one party to carry health insurance on the children or the other party, partition or order to be sold - both real and personal property and can provide numerous other forms of relief.
Grounds for absolute divorce include:
- Adultery on the part of the at-fault party (there is no period of separation required for this ground)
- Desertion, if the desertion has continued for 12 months without interruption before the filing of the application for divorce, the desertion is deliberate and final, and there is no reasonable expectation of reconciliation
- Conviction of a felony or misdemeanor in any state or in any court of the United States if before the filing for divorce the defendant has been sentenced to serve at least 3 years or an indeterminate sentence in a penal institution and served 12 months of the sentence
- 12 months of separation, where the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce
- Insanity if the insane spouse has been confined in a mental institution, hospital, or other similar institution for at least 3 years before the filing of the application for divorce, the court determines from the testimony of at least 2 physicians who are competent in Psychiatry that the insanity is incurable and there is no hope of recovery and one of the parties has been a resident of this state for at least 2 years before the filing of the application for divorce
- Cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation
- Excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation
- Consent divorce, if the parties have a signed agreement resolving all property and financial issues, including alimony, neither party is seeking to set aside the agreement, the parties have no minor children in common and both of the parties appear at testimony. The parties need not be separated from one another to obtain an absolute divorce on this ground and because it is uncontested, the parties can obtain an absolute divorce relatively quickly
It's common to have clients come in seeking an annulment, when in fact, they are only entitled to a divorce. Not to be confused with a religious annulment, an annulment in Maryland means that the marriage never in fact existed. Grounds include a marriage that was illegal at its inception (such as whether the parties are related to one another or one of the parties is still married to someone else), and marriages which were never consummated. These are indeed rare cases.
Just because you have grounds for divorce, it does not mean that Maryland can grant you a divorce. In order to grant a divorce, one of the parties must have resided in Maryland for at least 6 months prior to the filing of the complaint for divorce, or the grounds for divorce must have arisen in Maryland.
Further, just because the court has jurisdiction to grant the divorce, it does not mean that the court has the power to grant full relief ancillary to the granting of the divorce. If the court does not have jurisdiction under the Maryland Uniform Child Custody Jurisdiction and Enforcement Act, the court may not determine child custody.
Further, if the court does not have jurisdiction over the defendant or certain property, the court may not be able to determine alimony, financial and / or other property issues.