Maryland Divorce FAQ

Basic Questions

Does Maryland recognize “common law” marriages?

Maryland does not recognize common law marriage itself, but will give full faith and credit to common law marriages that were formed in another state. In other words, no matter how long you live together in Maryland, there is no common law marriage.

However, should you live in a state that does recognize common law marriage and meet the threshold for common law marriage in that state before moving to Maryland, Maryland would recognize your common law marriage from the state you previously resided.

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What typically happens if I go to court to obtain my divorce myself?

That can depend greatly. The biggest concern facing anyone seeking a divorce on their own is that they may be in over their heads.

There are very specific rules that have to be followed when dealing with the court and court system. Failing to follow those rules can potentially result in an inability to thoroughly present your case at trial.

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How long do I have to live in Maryland to obtain a divorce?

Typically the residency requirement is one year.

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What if my spouse does not want the divorce?

Depending on the grounds for the divorce, you can move forward regardless.  For instance, the law in Maryland has recently been changed so that you may obtain a divorce after a year of living separate and apart, whether or not your spouse agreed to the separation or ultimate divorce.

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Does Maryland grant annulments?

In Maryland, annulments are only granted when the marriage is void.  For instance, an annulment could be granted in the case of incest or bigamy.

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Does Maryland grant divorces based on marital fault?


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Do I really need to hire an attorney?

Although a non-attorney could theoretically handle his or her own divorce, it is usually best to let a licensed professional handle the matter. Domestic litigation is rife with legal nuances that, if unknown or not understood, could put a non-attorney at a disadvantage when handling their own case.

Additionally, each state has their own law when it comes to Domestic Litigation, so what held true for your friend in another state may not be true in Maryland.

One of the other complicating factors when it comes to any kind of litigation is understanding and meeting the court’s procedural deadlines. By failing to file certain documents by certain times, you could jeopardize your case and possibly limit your standing in a given matter. An attorney will not only be familiar with the law in Domestic Litigation, but will also be aware of the Maryland Rules of Civil Procedure.

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What is a divorce going to cost me? Can I afford it?

It depends. The cost of divorce is entirely case specific. If the parties have many assets and debts to evaluate for distribution, it can be a fairly long, complicated, and expensive process. There are processes like settlement and mediation that can help reduce the potential costs.

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What is considered “grounds for divorce” in Maryland?

There are two types of divorce in Maryland: limited divorce (a divorce a mensa et throro) and absolute divorce (a divorce a vincula matrimonii).

A limited divorce constitutes permission to live separate and apart. The primary difference between the two is that you can only remarry after obtaining an Absolute Divorce. Grounds for both types of divorce in Maryland are determined by statute.

Grounds for a Limited Divorce:

  1. Cruelty of treatment of the complaining party or a minor child of the complaining party.
  2. Excessively vicious conduct to the complaining party or of a minor child of the complaining party.
  3. Desertion.
  4. Voluntary separation, if the parties are living separate and apart with no reasonable expectation of reconciliation.

Grounds for an Absolute Divorce:

  1. Adultery.
  2. Desertion, if the desertion has continued for at least 12 months without interruption before the filing of the complaint for an absolute divorce; the desertion is deliberate and final; and there is no reasonable expectation of reconciliation.
  3. 12-month separation, when the parties have lived separated and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.
  4. Cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.
  5. Excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.
  6. Conviction of felony or misdemeanor. Defendant has been convicted of a felony or misdemeanor, and has been sentenced to serve at least three years or an indeterminate sentence in a penal institution and has served twelve months of the sentence prior to complaint for divorce.
  7. Insanity, where the insane spouse has been confined for at least three years before filing complaint. The complaining party will have to provide proof of incurable insanity without hope of recovery from the testimony of two psychiatrists. Also, one of the parties has to have been a resident of Maryland for at least two years prior to filing complaint.
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Children, Support, and Property

Can I get maintenance or will I have to provide maintenance to my spouse?

Whether or not maintenance, or alimony, will be awarded to either party in a given case will depend on the specific facts of each case. The court uses a specific set of factors in determining alimony.

It is important to note that alimony in Maryland can be classified in three different groups: pendente lite alimony, statutory alimony, and indefinite alimony.

Alimony pendente lite is alimony awarded to a dependent spouse that is only meant to continue for the duration of the case, until a final order is entered. The purpose of pendente lite alimony is to maintain the status quo between the parties as much as possible.

Statutory alimony is awarded to a dependent spouse, the amount and duration of which is determined by a list of factors that the court considers. In Maryland, the primary purpose of alimony is to be “rehabilitative” in nature, allowing a dependent spouse time to reach a point where they may become self-supporting.  “Rehabilitative” alimony is temporary in nature and is typically awarded for a set period of time.

Indefinite alimony is the exception to the rule of statutory alimony. It may only be awarded if the court makes one of two specific findings regarding the dependent spouse.

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When can I modify custody?

A Complaint to Modify Custody can be brought at any time, however in order for it to be successful there must be showing of both a material change in circumstances and that modification is in the best interest of the child. It should be thought of as a two-step process.

First, the petitioning party must prove that a material change in circumstances has occurred since the time in which the previous custody award was granted. Then, the court will consider whether or not a modification of custody is in the best interest of the child.

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When will child custody be decided?

An order regarding custody can be made in several ways and at different times in the process. Depending on the course of the case, temporary awards of custody could be made at an Emergency Hearing, the Scheduling Conference, a Pendente Lite Hearing, or any other Court appearance. The final decision regarding custody will be made at the final trial or hearing.

Important things to note:

  • Custody is modifiable.
  • If the parties can reach an agreement regarding custody, the court is most likely going to accept that agreement and incorporate it into any final order.
  • A temporary determination of custody could be made during an action for a Protective Order.
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When can my child decide which parent to live with?

Custody is never the child’s sole decision, but the court may consider the child’s wishes if the child is of sufficient age and capacity to form a rational judgment in the matter. The court is not required, however, to speak to the child regarding preference.

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If both parents share custody does anyone pay child support?

It depends. Child support is determined by a mathematical calculation set forth by statue.

It uses several factors including, but not limited to, who has the physical custody of the child(ren); if physical custody is shared, the number of over-nights each parent has; the gross income of the parties; and the cost of the child(ren)’s health insurance, day care, and extra-ordinary medical costs.

Even if there is an award of shared physical custody, there is no guarantee that there will not also be an award of child support to one of the parties.

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How is child support determined in Maryland?

Child support is determined by a mathematical calculation set forth by statute.  This calculation process is performed by applying the child support guidelines.

It is mandatory in Maryland that in every case where child support is involved, that legislatively mandated child support guidelines be used.

The guidelines use several factors to calculate support, including, but not limited to:

  • Gross income of each party;
  • Alimony paid or received in this case;
  • Alimony paid in a separate case;
  • Child support paid in a separate case;
  • Who has the physical custody of the child(ren);
  • If physical custody is shared, the number of over-nights each parent has; and
  • The cost of the child(ren)’s health insurance, day care, and/or extra-ordinary medical costs.
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What is joint custody? What is sole custody?

There are two types of custody in Maryland: legal custody and physical custody.

The parties can jointly hold legal custody, or one party may be given sole legal custody of the child. Legal custody is the right to make major life decisions for a minor child, such as education, major medical treatment, and religious affiliation.

If both parents have joint legal custody, they both share that decision making right. It should be granted in a scenario where both parents are willing and able to effectively communicate with each other about decisions regarding their child.  In sole legal custody, the party granted the same is the decision-maker for the child.

Physical custody can be either shared physical custody or sole physical custody to one parent with visitation to the other. Sole custody involves one parent having physical custody of the child or children. The other parent, or “non-custodial” parent, only exercises physical custody over the child when visitation rights are involved.

In order for physical custody to be shared, both parties have at least a minimum of 128 overnight visitations (or 35% of the year) and both contribute to the expenses of the child in addition to any award of child support.

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Who does Maryland favor for custody?

There are no set rules on who will automatically get custody of the children. In Maryland, like many other states, the one ultimate standard in determining custody is what is in “the best interest of the child.” There are statutory factors that the court must consider to determine the best interest of the child.

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Divorce Procedure

How and where is a divorce complaint filed?

In Maryland, a divorce complaint must be filed with the Circuit Court for the county that has jurisdiction. The party filing the initial complaint will also have to pay a filing fee.

The Complaint and the Summons, which will be generated by the court, will then have to be properly served on the opposing party.

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What forms do I need to file a divorce?

To initiate a case for divorce, you will need to file a Complaint for an Absolute and/or Limited Divorce, a financial statement, and a Maryland Civil Domestic Case Information Report.

These are only the papers you would need to begin the case. The progression of the case after filing will dictate what other papers may have to be filed.

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Do I have to appear in court?

To obtain a divorce in Maryland, even if a divorce is uncontested and all of the issues have been resolved by agreement, the Plaintiff (or the party that filed the initial Complaint) will have to appear in court to give specifically required testimony regarding the marriage and divorce. That party will also be required to bring a witness to corroborate the necessary testimony.

If a divorce is contested and/or there are outstanding issues that have not been settled at the time of the trial or hearing regarding the divorce, both parties will likely have to appear in court.

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When is my case going to be over?

The length of a case for divorce depends on the complexity of the matter and the jurisdiction in which it is being heard. For instance, an uncontested divorce where the parties have agreed to all issues and the Complaint and Answer were filed contemporaneously, may take as little as two months. Most cases do not move so quickly.

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When can I file for divorce?

A limited divorce can be filed immediately, regardless of the grounds. The time period in which to file for an absolute divorce will be determined by the grounds for the divorce.

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Will my child need to appear in court?

Most courts do not encourage the appearance of the minor child. For instance, the Family Division of the Baltimore City Circuit Court does not allow minors in the courtrooms. If the testimony of a child is relevant and/or necessary, the judge or the master will most likely speak with the child in chambers as opposed to open court.

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Can I collect my own evidence to use if my case goes to court?

Yes, however you will need to abide by the Maryland Rules of Evidence in introducing the proposed evidence. Also, if there has been discovery in your case, you will need to insure that you complied with any requests for said evidence during discovery, or you may be prevented from entering it as evidence at the time of the trial.

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