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Divorce and Custody

Maryland Family Law Practice.


In addition to his other fields of practice, Mr. Carpio also takes select family law cases involving Protective Orders, Peace Orders and Divorces. Mr. Carpio studied family law under Prof. John Fader, the premier Family Law judge in Baltimore County, and the foremost authority on the subject in Maryland, and author of the best-selling law book, Maryland Family Law. The following is some information concerning family law cases and applicable law.

Types of Divorces

There are two types of divorce in Maryland: Absolute and Limited.

1 Absolute: An absolute divorce is permanent, allows remarriage, and terminates property claims.
2. Limited: A limited divorce, on the other hand, is more like a legal separation. It does not allow either spouse to remarry nor for a final distribution of marital property.Furthermore, the number of grounds upon which a limited divorce can be obtained are fewer.

Grounds for Divorce:

1. Voluntary Separation

A voluntary separation is a mutual agreement between the parties to physically separate where:

(1) There is no intent to continue the marriage,
(2) All sexual relations have ceased for at least one year, and
(3) There is no hope or expectation of reconciliation.

2. Statutory Separation (“2-year separation”)

An absolute divorce can be obtained where the husband and wife live physically apart from each other for a continuous, uninterrupted two year period without cohabitation (i.e., no sexual relations).

3. Adultery

Adultery means voluntary sexual intercourse, involving some penetration, with someone other than your spouse. Adultery does not need to be proven by direct evidence, but there must be some proof of the occurrence of adultery. This can be shown through indirect evidence such as regular correspondence to the spouse’s paramour. You must prove opportunity and disposition to meet this ground

4. Desertion:

Divorce on the ground of desertion is, generally, an unjustified departure from the marriage for a continuous period of 12 months. To prove a valid desertion:
(1) The parties must not be having sexual relations;
(2) One spouse must have the intent to terminate the marriage relationship;
(3) The desertion must have continued, uninterrupted, for 12 months since the filing of the suit, and
(4) The parties have no reasonable hope or expectation of reconciliation.

5. Twelve-Month Imprisonment under Felony or Misdemeanor Sentence

An absolute divorce can be obtained under this ground where one spouse (the party complained against) has been convicted of a felony or misdemeanor within the United States and has served at least 12 months of a minimum three year sentence in any penal institution.

6. Insanity

If a spouse is incurably insane (i.e., their insanity is permanent) as determined by at least two psychiatrists, then the other spouse may have grounds for an absolute divorce where the insane spouse has been committed to an asylum, hospital, or a similar institution for no less than three years prior to filing the complaint.

7. Cruelty of Treatment Toward a Complaining Party or to a Minor Child of the Complaining Party

An absolute divorce may be granted where one spouse is cruel to the other or to the minor child of the victim-spouse. There must be no hope of reconciliation between the parties. Furthermore, the cruelty must be serious and detrimental to, and there must be a pattern of the cruelty affecting a victim’s health or happiness.

8. Excessively Vicious Conduct Toward a Complaining Party or to a Minor Child of the Complaining Part

An absolute divorce may also be granted where one spouse uses “excessively vicious conduct” against the other spouse or to the minor child of the victim-spouse. There must be no hope of reconciliation between the parties. Furthermore, the conduct must be a serious and detrimental to, and there must be a pattern of the excessively vicious conduct affecting a victim’s health or happiness.

Legal and Physical Custody of Children

The main theme in every child custody case is determining whether a custody decision is in “the best interests of the child.” Using this standard, allocations of parental decision making (“legal custody”) and time-sharing (“physical custody”) are made by the court in a contested custody battle.

(1) Legal Custody

Legal custody refers to the right and obligation to make decisions pertaining to the child’s education, religion, medical care, and general well-being. It does not include the day-to-day decisions that can be made without the input of the other parent. If decision making authority is vested in one parent, then that parent has sole legal custody. If decision making authority is shared, then both parents have joint or shared legal custody.

(2) Physical Custody

Physical custody is the right to provide a home for the child. Whichever parent’s home a child spends a majority of his or her time, that parent has primary physical custody. Where a child’s principal residence is split between parents, then the parents have joint physical custody.

Criteria for Determining Child Support Award (Child Support Guidelines)

The child support guidelines are the main tool used by Courts in determining the amount of child support to be paid by the non-custodial parent. The child support awards granted based on application of the guidelines are regarded as being presumptively valid although in certain instances it can be challenged. In any event, these guidelines set an automatic amount of child support based on the following criteria:

The combined income of the mother and father.
The number of children in the household
The children’s health insurance costs
Work-related childcare expenses.
Any extraordinary medical expenses for the children
Preexisting child support payments
Any alimony awarded to custodial parent.

Consideration of the following factors is important. As to income, it is defined as “income from any source” and includes:

  • Salaries
  • Wages
  • Commissions
  • Bonuses
  • Dividend income
  • Pension income
  • Interest income
  • Trust income
  • Annuity income
  • Social Security benefits
  • Workers’ compensation benefits
  • Unemployment insurance benefits
  • Disability insurance payment
  • Alimony received

Expense reimbursements or in-kind payments received by a parent while employed, self-employed, or in the operation of a business where the reimbursement or payment decreases the parent’s personal living expenses (i.e., reimbursement for housing expenses, car expenses, health insurance, etc)

Depending on the situation, it can also include: (i) severance pay; (ii) capital gains; (iii) gifts; or (iv) prizes. Finally, also included within “actual income” is income earned from overtime work. This amount, however, must be certain and not speculative

The guidelines set a ceiling for the combined income level at $10,000 per month or $120,000 per year. If the combined income exceeds this amount, then the court has discretion to create an appropriate amount of support.

Childcare expenses :

These are determined by what is actually spent by the custodial parent in retaining services of a licensed day-care or other quality care. If actual expenses cannot be obtained, or what is actually spent is not in the best interest of the child, then the expense is determined by the level required to provide care from a licensed source or the actual cost of child care expenses.

Extraordinary Medical Expenses :

These are uninsured medical expenses incurred on behalf of the child that exceed $100 for a single illness or condition. Examples include expenses for braces, dental treatment, asthma treatment, physical therapy, treatment for any chronic health problem, and professional counseling or psychiatric therapy for diagnosed mental disorders.

Alimony :

Parents who receive alimony in the same proceeding where child support is obtained, the amount of alimony to be obtained will be calculated prior to determining the amount of child support to be obtained.