Law Offices of Andrea Shapiro, Esquire - Frequently Asked Questions

Separation

Q: I want a legal separation; what do I need to do?

A: There is no such thing as a "legal separation" in Maryland. If you and your spouse are living apart, you are separated, and you may be able to obtain a limited divorce, depending on other factors. Once you and your spouse have been separated for more than one year, you may be able to get an absolute divorce, depending on other circumstances. If you are not separated, you may be able to reach an agreement with your spouse, as to who is going to leave the home, and under what circumstances, which could result in a "Separation Agreement."

Q: I want a separation, but my spouse won't move out; what can I do to make him/her leave?

A: Probably very little. If the house is your marital home, it is unlikely you will be able to "make" your spouse leave.

Q: If my spouse and I sleep in separate bedrooms, are we separated?

A: No. You and your spouse must physically reside in two different locations. You are not separated if you are sleeping in separate bedrooms; you are not separated if one person is living in the basement, and the other upstairs; and, you are not separated, because your spouse has left the home for a week, on business. A recent Maryland case, however, has suggested that parties may be able to obtain a limited divorce, on the grounds of constructive desertion, even if they are living in the same home. AS with everything else in the law, there are various factors that need to be present, in order for parties to be successful when asserting such a claim.

Divorce

Q: My spouse and I just don't get along anymore; can we get a divorce based on "irreconcilable differences?"

A: No. Maryland will not grant a divorce on the grounds of irreconcilable differences. Maryland recognizes only two types of "no-fault" divorce: that based on a mutual and voluntary separation, for longer than one year; or, that based on a separation, whether or not it is mutual and voluntary, of longer than two years.

Q: On what grounds, other than a separation, can I get a divorce?

A: Maryland recognizes several "fault" grounds for a divorce: they include adultery; desertion (for a period of 12 months or more); cruelty of treatment to a party, or a party's minor child; and excessively vicious conduct, toward a party, or a party's minor child.

Q: How long will it take for my divorce to be finalized?

A: The time period in which a divorce will become final depends on many different factors. Some of these factors include: whether the parties are in agreement about the terms of the divorce; whether there are issues of custody, visitation and child support; the grounds for the divorce; and, in what county the divorce will take place. This list is not exhaustive, and you should be aware that a divorce can take anywhere from several months, to, on rare occasion, several years, to be finalized.

Custody

Q: If there is no court order, who has custody of the children?

A: If there is no court order, each parent has the same legal rights to his/her children.

Q: Doesn't the court always give custody to the mother?

A: No. The court has an obligation to consider what is in the best interests of a child, when making a decision as to who should have custody.

Q: What is the difference between physical custody, and legal custody?

A: Physical custody dictates where a child actually lives; if a child spends most of his/her time with Mom, then Mom likely has "primary physical custody." If he/she spend most his/her time with Dad, then Dad likely has "primary physical custody." If a child spends equal time with both of his/her parents, then Mom and Dad likely have "shared physical custody."

Legal custody dictates who makes major decisions (regarding education, medical treatment, etc.) for a minor child. If parents share "joint legal custody," then both parents participate in decision-making for their minor child. If one or the other parent has "sole legal custody," that parent is responsible for making major decisions on behalf of the minor child.

Child Support

Q: If the kids are with me half of the time, I won't have to pay child support, right?

A: Maybe. If you and your spouse have similar incomes, and you each have the children 50% of the time, it is unlikely either of you will have to pay child support. However, if one spouse has a significantly greater income than the other, the spouse will the larger income will probably have to pay child support.

Q: I want my spouse to pay for college for our kids. Can the court order him/her to do that?

A: No. Absent an agreement between the parties, the court can only award child support until a child graduates from high school, or turns 19, whichever comes sooner. A court cannot order one spouse to pay for college for the children. Parties can agree to assume payments for college, and incorporate that agreement into a court order, which is then binding on both parties.

Q: If I'm not working, I'll get more child support, right?

A: You may get more child support if you are not working, but it is unlikely that the increased child support you receive will be close to whatever employment income you could earn.

Consider the following:

Case 1: You are not working. You and your ex-spouse have one child. You have primary physical custody of the child. Your ex-spouse's income in $45,000 per year, and your ex-spouse pays $150 per month, to maintain health insurance that includes the child. There are no daycare costs. In this case, the Maryland Child Support Guidelines suggest that you would receive $508 per month as child support.

Case 2: You are working, receiving an annual income of $18,000. You and your ex-spouse have one child. You have primary physical custody of the child. Your ex-spouse's income is $45,000 per year, and your ex-spouse pays $150 per month, to maintain health insurance that includes the child. There are no daycare costs. In this case, the Maryland Child Support Guidelines suggest that you would receive $481 per month in child support.

There are other things that may affect child support, such as daycare costs, costs for private school, etc., but, generally, all other things being equal, it is generally beneficial to be employed, as the difference in child support may be quite small, whether you are working, or not.

Alimony

Q: We've been married more than 5 years, so I'm entitled to alimony, aren't I?

A: No one is entitled to alimony. The court must consider a number of different factors, before it makes an award of alimony. These factors include, but are not limited to: the length of a marriage; the respective ages of the parties; the standard of living of the parties during their married; the physical and mental health of the each of the parties; and, the financial circumstances of each of the parties.

Q: For how long can I get alimony, and how much will I get?

A: There are two types of alimony that the court may award. One is "rehabilitative," or temporary. Rehabilitative alimony is often awarded for a finite period of time, to enable a divorcing spouse to return to school, or acquire skills necessary for re-entering the job market. The other type of alimony that may be awarded is "indefinite." An award of indefinite alimony has no specific ending date, and if often awarded to a party who cannot be expected to support him, or herself, even after receiving further education, or job skills.

As to the amount of alimony a court will award, again, the court must consider a number of factors, and thereafter, make a decision as to what is a fair and equitable award.

Q: If I get remarried, will my alimony end?

A: Without an agreement that specifically states alimony will continue in the case of remarriage, you will lose your alimony if you remarry.

Marital Property

Q: I want to keep the house after our divorce. Can I do that?

A: As is often the case, the answer is, maybe. There are many factors that are considered in making this determination. Those factors include, but are not limited to: how the house is titled; whether there are children living in the house; whether your spouse will agree to your keeping the house; whether you can afford to "buy out" your spouse's equity share in the home; and, whether a lender is willing to release one or the other party from the mortgage.

Q: I want to keep the car/furniture/pots and pans/etc. Can the court order that?

A: Again, the short answer is, maybe. The court must look at many of the same factors when addressing these items, as it must consider when addressing the disposition of the family home. You may be able to keep some of the furniture and other personal property, sometimes for a finite period of time; other circumstances might warrant an award of items to you, permanently. Finally, in some circumstances, the court can order that all the personal property of divorcing spouses be sold, and any proceeds split between them.

Q: My spouse has worked throughout our marriage, and everything is titled in his name, so nothing is mine, right?

A: Wrong. Anything that was acquired by either, or both, of you during the course of your marriage is "marital property," regardless of how it is titled, with certain exceptions (i.e., inheritances, gifts, by agreement, etc.). If your case goes to trial, the court will determine that portion of the marital property to which each spouse is entitled, and will thereafter grant a marital property award to one spouse.

Andrea L. Shapiro, Esquire
14760 Main Street
Suite 111
Upper Marlboro, MD 20772
Phone: 240-339-1741
Email: andrea@alshapirolaw.com

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