Use and Possession of Property in Maryland

The court is permitted to order that one custodial spouse with a child has the right to possess and use the family home and family use property for a limited time, regardless of how the property is titled. A use and possession order may only be issued in limited circumstances such as part of a divorce or annulment proceeding, temporarily in a pendente lite proceeding, or as the result of a protective order for domestic violence. The court can only award use and possession to a spouse with custody of a natural or adopted child, not a step child. The court may allocate financial responsibility to either or both the parties concerning indebtedness or expenses on the property. This means that the party not granted use and possession may be required to pay all or part of the expenses. The party bearing this financial responsibility has a right to seek contribution.

Qualified Domestic Relations Orders in Maryland

A Qualified Domestic Relations Order (QDRO) is an order by the court to modify the payee of a pension plan. The court has the power to transfer interests in pensions, retirement plans, profit-sharing, or deferred compensation. A QDRO must be prepared which meets the specific requirements outlined in the Employee Retirement Income Security Act (ERISA). A QDRO is a means for a spouse to claim an interest in a participant’s retirement benefits through a state court order enforceable under federal law. A QDRO must set forth the name and last known mailing address of the plan participant and the alternate payee, the amount or percentage of benefits going to the alternate payee, and the number of payments to which the plan applies. Benefits provided under a QDRO are considered income to the actual recipient.

Adultery as a Ground for Divorce in Maryland

Adultery is voluntary sexual intercourse between a married party and someone other than the spouse of the married party. The aggrieved spouse may file for an absolute divorce immediately on the ground of adultery without waiting for any separation time period to expire. Adultery is difficult to prove because of its private nature, so circumstantial evidence is permissible. This circumstantial evidence must show BOTH opportunity on the part of the defendant and paramour to commit adultery AND disposition to commit the adultery. An example of disposition is public displays of affection between the paramour and the defendant.

Proof Of Separation in a Maryland Divorce

Maryland requires the parties live separate and apart for one year before they are eligible to file a complaint for absolute divorce in all but two grounds for divorce. The exceptions being adultery and excessively vicious conduct. Proof of this separation typically is some fact witness who says I know he/she moved on such a day because (fill in the blanks), ie: I helped them move, they moved in with me, etc.. That same witness can also be used to offer the testimony that the separation has remained continuous and uninterrupted for the entire 12 months. other evidence is also available for example post office mail changes, driver license changes, leases, and any other evidence on point to show the date you and your spouse separated.

Custody Rights in a Divorce in Maryland

I receive many calls each day from parents asking what rights they have to the care and custody of their children. In a divorce in Maryland each parent has an equal right to the care and custody of their child until a court orders otherwise. See Maryland Family Law Statute 5-203

The parents are the joint natural guardians of their minor child.
(2) A parent is the sole natural guardian of the minor child if the other parent:
(i) dies;
(ii) abandons the family; or
(iii) is incapable of acting as a parent.
(1) are jointly and severally responsible for the child's support, care, nurture, welfare, and education; and
(2) have the same powers and duties in relation to the child. (d)(1) If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents.
(2) Neither parent is presumed to have any right to custody that is superior to the right of the other parent.

How to Make Non Marital Property Marital

Marital property in a divorce in Maryland is defined essentially as all value acquired during marriage. The definition excludes values existing before marriage, gifts received and inheritances of value. Even those values which appear non marital may be converted to marital property by the conduct of either of the parties. For example suppose wife owes a rental property before marriage. However, during marriage the husband works on the property to improve the property. In this example the value increased by the personal efforts of the husband become marital property. The same is true of marital income diverted to improve the property. The increased value attributed to the spending of marital income is now marital property.

The trick to the uncovering of the marital property in any case is to first identify the property and work backwards to see how the present value was acquired. Title does not matter at all in the equation. Look to person efforts and financial contributions made by either party to the acquisition of the value.

A Sample Complaint for Absolute Divorce in Maryland

This is a sample complaint for an absolute divorce in Maryland based upon a mutual and voluntary agreement to separate. There are several other grounds for divorce that you can plead. I am offering the sample only as a general outline. Your case may have difference facts and different prays for relief.


IN THE CIRCUIT COURT OF MARYLAND FOR xxxxxxxxxxxxxxx COUNTY
CASE NO.:

xxxxxxxxxxxxxxxx
xxxxxxxxxxxxxx
xxxxxxxxxxxxx
*
Plaintiff

v.
*
xxxxxxxxxxxxx
xxxxxxxxxxxxx

xxxxxxxxxxxxx

Defendant

**********************************************

COMPLAINT FOR ABSOLUTE DIVORCE

XXXXXXXXXXXXX , Plaintiff, by Keith Blair Bartnik, his/her attorney, respectfully represents unto Your Honor:


1. That Plaintiff is an adult and is a resident of XXXXXXX County, State of Maryland; that Defendant is an adult and is a resident of XXXXXXXXX County, State of Maryland; that both parties have been residents of the State of Maryland for more than one (1) year prior to the filing of this Complaint.

2. That the parties were married in a xxxxxxxxx ceremony on the day of , , in , State of Maryland, in accordance with the laws of that State.

3. That XXXXXXX children were born as a result of said marriage; namely, ,
that said children are in the care and custody of xxxxxx . That xxxxx is not a fit person to have custody of said children.

4. That the parties have acquired and accumulated property during their marriage
to each other and is "marital property", the same not having been acquired by an inheritance or gift from a third party, and is not excluded by a valid agreement nor is it directly traceable to any of these sources.

5. That the parties have acquired and accumulated marital debt during the
marriage to each other and is "marital debt".

6. That there are no other suit and or cases involving these parties.

7. That the parties are presently living separate and apart and have voluntarily lived separate and apart from one another without cohabitation from XXXXXXXXX to the date of the filing of this Complaint; that said separation is beyond any reasonable expectation of reconciliation.

WHEREFORE, Plaintiff request the following relief:

That Plaintiff be granted an absolute divorce from the Defendant.

That Plaintiff be awarded temporary and/or permanent custody of the minor children of the parties.

That the Defendant be ordered to pay to the Plaintiff a reasonable sum for temporary and permanent child support and child care.

That the Defendant be ordered to pay the cost of health insurance for Plaintiff and
the minor child(ren) of the parties.

That the Court determine the ownership of all personal property and real property regardless of how titled.

That the residence of the parties be declared a family home.

That the Plaintiff be granted a use and possession order of said family home for the benefit of the minor child(ren) both pendente lite and for a period of not less than three years from the date of divorce.

That the Defendant be ordered to pay all or part of the mortgage payments/rent,
all or any part of the indebtedness related to the property, the cost of any maintenance, insurance, assessments and taxes, and any other similar expenses in connection with the property.

That the Defendant be restrained from entering upon the family home property in violation of the use and possession order.

That the furniture and furnishings in said residence be declared family use personal property both pendente lite and for a period of not less than three years from the date of divorce.

That the family use car be declared family use personal property both
pendente lite and for a period of not less than three years from the date of divorce.

That the Defendant be ordered to pay to the Plaintiff Pendente lite and permanent alimony.

That the Court make a determination of all marital property of the parties.

That the Court determine the value of all marital property of the parties.

That the Court make a monetary award to the Plaintiff after adjusting the parties'
equities in the marital property.

That such monetary award in favor of Plaintiff be reduced to a judgment together with interest in Plaintiff’s favor.

That the Court order a sale in lieu of partition of all real and person property
determined to be jointly owned and not determined to be family home or family
use personal property and divide the proceeds.

That the Defendant be enjoined from disposing of or otherwise encumbering any of the property marital property or property acquired during separation.

That the Court order the real and personal marital property to constitute lis pendens with respect to all real and personal property.

That the Defendant be ordered to pay to the Plaintiff suit money and court costs,
including a reasonable contribution toward Plaintiff's attorney's fees in connection with
legal services for the benefit of said child(ren) and attorney's fees for the Plaintiff, and
that such order be reduced to Judgment in favor of Keith Blair Bartnik, P.A..

That the Plaintiff be granted the use of her maiden name.

That the Court enter an Order as justice may require both pendente and permanent

That the Court grant such other and further relief as the Plaintiff’s cause may require.


______________________________
Plaintiff

How To File For Divorce In Maryland

The very first step before filing for divorce in Maryland is to confirm you have the correct jurisdiction. Secondly you need to verify you have a grounds for divorce. Once these are verified and you are confident you have the correct location (jurisdiction) and you have a grounds for divorce, then you are ready to draft the pleadings. The pleadings themselves are to follow specific outlines. The rules for pleadings are found in RULE 1-301. FORM OF COURT PAPERS. A pleading is to have

Caption and Titling. Every pleading and paper filed shall contain a caption setting forth (1) the parties or, where appropriate, the matter, (2) the name of the court, (3) the assigned docket reference, and (4) a brief descriptive title of the pleading or paper which indicates its nature.

An original pleading shall contain the names and addresses, including zip code, of all parties to the action if the names and addresses are known to the person filing the pleading. If the address of a party is unknown, the pleading shall so state.

Regardless of the nature of the action, the party bringing an action shall be called the plaintiff and the party against whom the action is brought shall be called the defendant.

Annulment in Maryland

Annulment is the legal determination that a marriage did not exist, as distinguished from divorce, which is a legal determination that a marriage existed, but is terminated. There are eight grounds for annulment in Maryland. These grounds include failure to have a license or a civil/religious ceremony, bigamy, consanguinity, age, insanity, intoxication, duress or fraud. If the facts of your situation do not fit in any of these grounds then your marriage must be terminated through the divorce process.

Setting Aside a Settlement Agreement in Maryland

Often times a Husband and Wife will enter into an Agreement relating to custody, visitation, child support, alimony, and property rights. If approved by the Court, the Agreement will be enforced. However the Court can refuse to enforce an Agreement using contract principles of law. The Court will generally set aside an Agreement based upon three types of circumstances. The first circumstance is unconscionability, which occurs when the terms contained within the Agreement are so inequitable and unjust as to “shock the conscience” of the Court. The second circumstance is duress, where one side involuntarily accepted terms, had no alternative and did so because of coercive acts of the other. The third and final circumstance is fraud, where an intent to deceive must be proven.

Child Custody Lawyer in Maryland

In Maryland the biological parent has rights to the care and custody of their child that are superior to any non biological persons. In fact in the event of a custody dispute the non biological party must prove the biological parent is unfit or there are exceptional circumstances affecting the best interest of the child as a threshold to the court ordering them to have custody. See Ross v Pick, 199 Md 341 86 A 2d 463 (1952). If you have encountered this situation where someone is trying to win custody over you for the care of your child, call me I am happy to discuss the case with you over the phone at no cost to you. 1-888-760-7339

Talaq Divorce Not Recognized in Maryland

The Court of Appeals in Maryland had the opportunity to address the issue of a talaq divorce issued at the Pakistani embassy in DC. The case is reported in Aleem v Aleem 404 Md 404, 947 A 2d 489 (2008). The Maryland court determined in this instance that the Pakistani law permitting the divorce and subsequent property distribution was in conflict with Maryland public policy as that policy impacts property distribution. At issue was the husband's million dollar pension, which had the Maryland court not interceded would have remained his sole possession post the talaq divorce.