DIVORCE & FAMILY LAW
I work in the following areas of divorce, marriage, and related issues
(Residency requirements differ in Maryland, Virginia, and Washington, D.C.)
- Pendente Lite alimony (temporary spousal support)
- Rehabilitative alimony
- Indefinite alimony
Child custody / support / visitation
Domestic violence and protective orders
Marital Property (what it is, and how to divide it)
Marital Settlement Agreements
Pension and other retirement plans: to divide or not?
Divorce is always wrenching, no matter the reason, and no matter how much we may think we want it or feel we are ready for it. This is all the more so when children are involved. I try to make the process as calm and mutually respectful as possible by seeking to understand what each party wants and can live with. This takes a great deal of compassion and comprehension of the feelings and positions of both sides to the divorce.
In your divorce, I can act in one of three roles:
1) As the attorney for one of the spouses, I represent your interests alone, while all the while working toward bringing you and your spouse to an agreement. I have been able to keep the vast majority of divorce cases I've handled out of court, either by negotiating rationally with your spouse's attorney or taking the case to court (the least preferable choice, in my opinion).
2) I can represent both you and your spouse as your joint mediator. In this process, I act as a neutral party, and help guide you to a fair and workable solution. Please see my article on mediation elsewhere on this website to get a better idea of how mediation works. The three of us sit down to determine what issues are outstanding, and how we can best iron them out to both parties' approval.
3) I can represent you as part of the process called Collaborative Law. I have taken the lengthy, intensive training in this relatively new process, which suits some, but not all, situations. In collaborative law, the attorneys for both spouses sign a written agreement in which they commit to work toward an out-of-court settlement. If, during the process, that seems impossible or highly unlikely, both lawyers remove themselves from the case, and the divorcing spouses hire different lawyers.
"Tout ça change, tout ç'est la même chose."
In Maryland, adultery is a ground for asking the court to grant an immediate divorce. While Marylanders must usually be physically separated before they can file for divorce, one party can skip that waiting period if s/he can show the spouse has committed adultery.
Use of adultery as the sole ground for divorce is not favored in Maryland, although it may influence a judge's decision. The courts require substantial proof of adultery before granting a divorce solely on that ground, in order to avoid having couples try to circumvent the one- year waiting period by agreeing to admit to adultery. One spouse's statement that s/he committed adultery is not enough. Photos may help. Photos showing a man and woman going into a hotel in the evening and exiting in the morning, holding hands may suffice as proof of the adultery. However, judges have a great deal of discretion, and may decide not to accept as credible evidence anything short of a photo of the lovers in delicto flagrante.
The adultery complaint will allow the party asking for the divorce, the plaintiff, to get her/his foot in the court's door quickly. It is then up to both parties to prove their versions of the facts, including the adultery and their property ownership. A court will not directly penalize a party monetarily for the commission of the adultery itself. However, it will be taken into account as one of the many factors in deciding how to split a couple's property. Factors (4) and (11) in the list above give the judge wide leeway in taking the adultery into account.
An interesting case decided March 31, 2022, in Maryland's Court of Special Appeals (the second-highest court in Maryland), Gagliardi v. Gagliardi, https://casetext.com/case/gagliardi-v-gagliardi-2, reveals a great deal as to how adultery can play a role in a judge's attitude and decision. In that case, Mother (the court referred to the parties throughout as "Mother" and "Father") admitted she had committed adultery, but objected to the lower court's granting Father the divorce on the grounds of adultery in that he had "condoned" the adultery. Condonation -- the resumption of marital relations post-adultery -- is a defense to adultery, but it is only one of several factors in whether a judge will grant the divorce on that ground alone. In somewhat archaic terms, the Gagliardi court stated:
Condonation, as a defense to the charge, is [only] "a factor to be
considered" in determining whether divorce should be granted based
upon adultery. FL § 7-103(d).
As this Court has previously explained,
"[c]ondonation is a conditional forgiveness of a marital offense." [...] It
requires "an implied promise that the marital offenses or acts rendering
the marital relation intolerable will not be repeated by the erring
spouse and that the offended party will be treated with conjugal
kindness." Id. Evidence of condonation includes "[r]esuming normal
marital relations[.]" [...] Condonation is not, however, an "absolute bar"
to divorce on the grounds of adultery. FL § 7-103(d).
[Note: All boldface, italics, and brackets are mine, and were not in the
It appears, then, that one can get an absolute divorce on the grounds of adultery, even if s/he has condoned (forgiven) the adultery by resuming normal marital relations, even if the adultery has not been repeated after confrontation, and even if the aggrieved party has been treated with "conjugal kindness" (whatever that may mean). Thus, no matter what happens after the "erring spouse" has admitted the adultery, and been forgiven, there appears to be a window of opportunity during which the offended spouse may still sue for absolute divorce based on adultery.
None of this is totally clear and predictable. What is also not clear, and seemingly not yet tested in court, is how long that window stays open -- two months after resumption of conjugal relations? Six months? One year? This is uncharted ground that leaves a perhaps inordinate amount of discretion in the trial court judge to decide. It also leaves a great deal of uncertainty for parties heading to divorce court based on adultery.
Prenuptial and Postnuptial Agreements
Couples may wish to decide before getting married how they would like to divide their assets if and when they get divorced, or how their assets will be distributed at the time of their death.
A contract signed prior to marriage is called a "prenuptial" agreement, or "prenup" for short. It is also known as an antenuptial agreement ("ante" meaning before marriage). Parties may also wish to enter into a "postnuptial" agreement, which is an agreement signed at any time after they already are married.
More and more couples are memorializing their pre- or post-marriage agreements in a written contract. Their reasons are many. For example, the parties' financial situation may change during the course of their marriage, children may be born or adopted, an asset may become highly valuable -- or worthless, and one party may need full-time care that costs more than that party would get under the prenup.
Under Maryland law, if the parties don't agree themselves on how to divide their property, a judge is charged with making an "equitable" property distribution. Although "equitable" and "equal" sound similar, they are not.
"Equitable" means that the settlement will be fair, just, and reasonable, taking into account all the circumstances. "Equal" means fifty-fifty, which is something quite different, and is rarely how property is divided in Maryland. In shaping an equitable property distribution, a judge has to look at all the circumstances and come up with a decision that seems fair -- "equitable" -- to her or him. The lack of precision in the concept of what is fair can lead to property distribution decisions that may seem very far from fair, even outlandish, to some. What is more, the trial judge at the circuit court level has an enormous amount of discretion, which a court of appeal will only overturn if there is "clear error" or an "abuse of discretion".
In a court case, the judge first has to decide which of a couple's assets are marital and which are non-marital. Marital assets are divided between the parties in the amount and manner the judge determines. Non-marital assets are not divided: each party keeps the entirety of her/his own non-marital property.
The judge then has to determine the value of each asset to be divided, that is, each item of marital property. Lastly, the judge must consider all the following factors in order to decide how to divide the couple's marital property between the spouses. The judge has enormous discretion in dividing a couple's property -- another reason why parties may realize the benefits of mediation over litigation.
Maryland Code, Family Law Article § 8-205, entitled "Monetary award", states:
Grant of award or transfer ownership of an interest in property
(a)(1) Subject to the provisions of subsection (b) of this section, after the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.
(2) The court may transfer ownership of an interest in:
(i) a pension, retirement, profit sharing, or deferred compensation plan, from one party to either or both parties;
(ii) subject to the consent of any lienholders, family use personal property, from one or both parties to either or both parties; and
(iii) subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together, by:
1. ordering the transfer of ownership of the real property or any interest of one of the parties in the real property to the other party if the party to whom the real property is transferred obtains the release of the other party from any lien against the real property;
2. authorizing one party to purchase the interest of the other party in the real property, in accordance with the terms and conditions ordered by the court; or
(b) The court shall determine the amount and the method of payment of a monetary award, or the terms of the transfer of the interest in property described in subsection (a)(2) of this section, or both, after considering each of the following factors:
(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.