Divorce In Maryland. Can I Force My Spouse Out of the House?

I receive maybe 25 calls a week on this subject. The answer is maybe and it depends.

If there is an act of violence or the threat of violence, then yes you can force your spouse out of the house under the Maryland Domestic Violence Statue.

Also, obviously the answer is yes if your spouse simply agrees to leave.

However, will Maryland law order your spouse from the home, absent violence. The answer appears to be no. Assume you have a spouse and a minor child. Your spouse will not leave. What can you do to get them out of the house? Will Maryland Divorce law help you in this situation? In a typical custody battle, the court can award use and possession when the parties are separated. This use and possession order will keep your spouse out of the home. However if the spouse refuses to leave then what? It is true that parties can pursue a limited divorce in Maryland based upon constructive desertion and still live under the same roof. This is a recent and some what dramatic change of position for the courts in Maryland. See Ricketts v Ricketts. Oddly Maryland Family Law Article 5-203 states the court does not have the power to award custody to either party when the parties are not separated. This was addressed by the Ricketts court and it was determined that 5-203 must be read in conjunction with § 1-201(a) and (b). The ultimate conclusion of the court is the trial court, in short, has the jurisdiction and power to determine the custody, visitation, and support even when the parties continue to live together. You will note Ricketts did not mention the right to order use and possession. As such the court will grant you custody and support but still will not order your spouse out. This decision makes sense when you realize Maryland public policy as reflected in Maryland divorce law wants marriages to survive and families to stay together.

Child Custody Factors in Maryland Divorce

As we know custody in a Maryland Divorce occurs on two different levels. There is legal custody and physical custody. Before a judge makes a determination as to what is in the child's best interest the judge will consider a number of factors on both of these issues. As to physical custody: The factors a judge considers as to physical custody are as follows:1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties, 4) potentiality of maintaining natural family relations, 5) preference of the child, 6) material opportunities affecting the future life of the child; 7) age, health and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender.

While the court considers all the above factors, it will generally not weigh any one to the exclusion of all others. The court should examine the totality of the situation in the alternative environments and avoid focusing on any single factor such as the financial situation.

In my experience the judge will reward reasonable behavior by a parent in promoting the relationship between the child and the otherwise non custodial parent. Oddly the best way to win the war is not to battle. That does not mean go to war unprepared. And this does not apply to every case. There are circumstances where a parent actually does cause harm to the child. In this case there must be contact that is controlled. However, you must think in terms of what is best for the child. Understand judges generally believe that a child benefits from both parents being involved in their lives. The party that promotes relationships and encourages contact, tempered by reasonable decision making, is far ahead in the custody battle.

Child Custody in a Maryland Divorce

Maryland Child Custody Law revolves around the simple concept of what is in the child's best interest. Custody happens on two different levels, which are themselves further broken down into two levels. You have Legal Custody, further broken into sole and joint, and you have Physical Custody, further broken into sole and shared. It is interesting to note that the Court in Maryland can not enter an order for pendente lite custody when the parties continue to reside together. See Maryland Family Law Article 5-203.

Legal Custody: Sole Legal Custody and Joint Legal Custody.

Sole Legal Custody is where only the custodial parent has the right to make the decisions affecting health, education and welfare.

Joint Legal Custody is where both parents share equally in decision affecting the health, education and welfare of the minor child.

Physical Custody is where the child lives. Physical Custody is also broken down into two different categories. You have either Sole Physical Custody or Shared Physical Custody. Once a non custodial parent enjoys Shared Physical Custody it means two things (1) he/she has the child with them in excess of 128 over nights per year and (2) the child support obligation is affected by the overnights with the otherwise non custodial parent. You will find many people fight over the 128 overnights. In order for a non custodial parent to reach the 128 number they must establish it is in the child's best interest.

Please feel free to call me to discuss your custody case. I am more then happy to talk with you over the phone at no cost to you and answer any questions you may have regarding a divorce in Maryland. 1-888-760-7339.

Alimony in maryland divorce

Alimony may be obtained in: (1) Complaint for Support; (2) Limited Divorce; or (3) Absolute Divorce.
Alimony can be: (1) Temporary; (2) Rehabilitative; or (3) Indefinite.
Alimony is subject to modification if: (1) a separation agreement does not say it is “not subject to modification” and (2) it is awarded and the party seeking to modify does so during the term of the alimony and can show a material change of circumstances.
For many years alimony was awarded only to a wife, but Family Law § 11-101(b) now provides, "The court may award alimony to either party." This change in language was in accordance with the Equal Rights Amendment, adopted in 1972. In Bricker v. Bricker, the court used the descriptive designations "economically dependent spouse" and "economically independent spouse" to identify the parties. Following tentative beginnings, alimony law has developed with alarming speed. By the late 1970s the case law had exploded. The aim of an alimony award was to assure suitable maintenance for the economically dependent spouse.
The courts established factors to be considered in making awards.
FACTORS:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties; (see Caccamise 747 A.2d 221 Trial court, in the exercise of its judgment, after considering statutory factors, may award alimony to the "guilty" party).
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income; (ii) any award made under §§ 8-205 and 8-208 of this article; (iii) the nature and amount of the financial obligations of each party; and (iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health - General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.

Divorce in Maryland Claiming Counsel Fees

As part of your claim for relief in any contested divorce case you generally always ask the court to award your client counsel fees. I believe this builds in an element of pressure on the other side to force reasonable conduct. Also, there is the obvious need and justification in many cases. So what is the basis for the court to award counsel fees?. You will find the statutory authority in the Family Law Articles at sections 7-107 also 8-214 and again at 11-110. It is necessary to prove two elements to pursue the fees award. Specifically: (1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.