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.

Driver’s license and Divorce in Maryland

Can they really take my drivers license? The answer is yes.
The Child Support Enforcement division may notify the Motor Vehicle Administration of any obligor who is 60 days or more out of compliance with the most recent order of the court in making child support payments if:
(i) the Administration has accepted an assignment of support under or
(ii) the recipient of support payments has filed an application for support enforcement services with the Administration.
Upon notification by the Administration under this subsection, the Motor Vehicle Administration:
(i) shall suspend the obligor's license or privilege to drive in the State; and
(ii) may issue a work-restricted license or work-restricted privilege to drive in the State.
Conditions for reinstatement of obligor's license
If after information about an obligor is supplied to the Motor Vehicle Administration the obligor's arrearage is paid in full, the obligor has demonstrated good faith by paying the ordered amount of support for 6 consecutive months, or the Administration finds that one of the grounds exist the Administration shall notify the Motor Vehicle Administration to reinstate the obligor's license or privilege to drive.

Material Change to Justify Modification of Child Support

There are some points of interest relative to child support modifications. If the child support was initially the result of a Court Order you can seek a modification upon a show of material change in financial circumstances. Generally any increase or decrease in the child support amount (not necessarily a decrease or increase in the income) that would increase or decrease the child support by 25% is a material change of financial circumstances. If however the child support was arrived at by agreement between the parties and that agreement was later incorporated in the judgment of divorce, then the child support can be modified only upon the showing of (1) that the modification of the child support is in the child(ren) best interest and (2) that the new proposed child support figure is in the child(ren) best interest. I have located cases in Maryland where the Court has reduced the child support as it was in the kids best interest. Mostly the cases revolve around a changed circumstance of course and the impact of the change circumstances on the payer's ability to maintain visitation and or relationships with the children. Apparently Maryland will forgo money in exchange for fostering relationships and quality contact between parent and child.

Child Support Modification in Maryland Divorce

I have been receiving several calls each day from non custodial parents who have unfortunately lost their employment in this recession. Each wants to know what they should do to change the child support obligation since they are no longer earning wages. It is important to note initially that the child support modification is retroactive only back to the date you seek a modification. This means you must file the motion to modify child support immediately. Once this is done I suggest a consent agreement. We normally pursue this with a letter to the custodial spouse outlining you are no longer employed. If unemployment is being pursued this is income for child support purposes. If there is no unemployment money and no other income and you are actively trying to find a job then unfortunately everyone suffers until new employment is secured. There is no point in everyone running to court to prove you are not working. The simplest solution is enter into a consent agreement with the agreement to share income information the minute you secure new employment. At that point the child support can be recalculated and the child support restarted as normal. If you have any questions on child support issues, please visit my web page or feel free to call me. 1-888-760-7339

Grounds for Divorce in Maryland Excesively Vicious Conduct

A little more information on this grounds for divorce in Maryland. According to Family Law § 7-103 (a) (7) & (8) the Court may decree an absolute divorce based upon cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable hope of reconciliation or if there is excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.

The Court defined excessively vicious conduct and cruelty in the matter of Das v. Das, 133 Md. App. 1, 754 A.2d 441 (2000). In Das the Court held in pertinent part that cruelty as a cause for divorce includes any conduct on the part of the husband or wife which is calculated to seriously impair the health or permanently destroy the happiness of the other. As such the court continued any misconduct of a husband that endangers, or creates a reasonable apprehension that it will endanger, the wife's safety or health to a degree rendering it physically or mentally impracticable for her to properly discharge the marital duties constitutes cruelty within the meaning of the divorce statute.

Cruelty and Vicious Conduct as a ground for Divorce in Maryland

A grounds for divorce in Maryland does include cruelty or excessively vicious conduct. The court's view point on this issue have changed greatly over the years as to what type conduct will justify the court granting an absolute divorce.

The specific grounds for absolute divorce on cruelty are found in Family Law § 7-103 (a) (7) & (8) the Court may decree an absolute divorce based upon cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable hope of reconciliation or if there is excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.

The Court has addressed this issue in the matter of Das v. Das, 133 Md. App. 1, 754 A.2d 441 (2000), therein the court found a basis for granting the absolute divorce on the grounds of cruelty and excessively vicious conduct. The case provides an excellent outline of the changing nature of the Court’s understanding of cruelty in today’s modern era of enlightenment. In Das the court was persuaded most with the issuance of a protective order and wife’s stated health problems due to stress. The factual basis for granting an absolute divorce in Das was further supported by evidence of the history of violence between Husband and Wife which justified entry of a one-year protective order in January 1998, and also noted this was “one in several cases of domestic violence.” Further the court considered the Wife testimony that husband was “making me stay up all night in order to listen to him, isolating me from my friends and from my family, and not allowing contact as much as possible. Hitting, pinching, pulling hair, etc., were also noted to the point health problems, including cardiac arrhythmia brought on by the “stress of the marriage and the tensions at home.” Wife also spoke about her fear of Husband's taunting questions about what she might do when the protective order expired. The court also noted the fact that the police came to the house.

Military Divorce in Maryland

The military divorce in Maryland has some distinct difference from the civilian divorce in Maryland. Not that the law is different rather the issues are a bit more predictable in the military divorce. For example, the most common questions and conditions I encounter in the military divorce are jurisdiction, custody, what military benefits are included as income for child support purposes, the military pension, stay on litigation, and the 20/20/20 rule. What makes these issues more common place for the military divorce is the obvious situation where people are transient.

Maryland will exercise jurisdiction in your divorce if you or your spouse have resided in Maryland for one year before filing for the divorce.

Modification Of Child Custody in Divorce in Maryland

In a Divorce in Maryland even after the case is done and the judgment of divorce is final the Court still retains the jurisdiction and power to modify custody, child support and visitations. As to custody and visitation, these can be modified by the court on a petition for modification of custody and visitation filed in the jurisdiction where the child presently lives. This is true even if that is not the same location where the divorce decree was entered. However, in order to prevail on the petition for modification you must prove two things. First you must prove there has been a material change of circumstances. Second you must prove it is in the child's best interest to change custody. It is important to prove not just that things have changed like the child is older. Rather you have to prove things have changed in a material way. The court will not allow the non custodial parent to relitigate the same issues over and over see Schaefer v. Cusack 124 Md.App. 288, 722 A.2d 73 Md. App., 1998. As the Maryland divorce court said in Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992), the primary concern to a judge in awarding custody to one parent over the other is the best interests of the child. The courts in a divorce in Maryland have repeatedly stated the list of factors:

“For the purpose of ascertaining what is likely to be in the best interests and welfare of a child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child.”A change in circumstances has been required for a change of custody. In McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991), Judge McAuliffe said for the Court the question of whether there has been a material change in circumstances which relates to the welfare of the child is, however, often of importance in a custody case. The desirability of maintaining stability in the life of a child is well recognized, and a change in custody may disturb that stability.

Stability is not, however, the sole reason for ordinarily requiring proof of a change in circumstances to justify a modification of an existing custody order. A litigious or disappointed parent must not be permitted to relitigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim.

An order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child. As we said in Hardisty v. Salerno, 255 Md. 436, 439, 258 A.2d 209 (1969), ‘while custody decrees are never final in Maryland, any reconsideration of a decree should emphasize changes in circumstances which have occurred subsequent to the last court hearing.’ See Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1266-71 (1982).

I customarily advise my clients, if you are seeking a change in custody things have to have changed. The court generally will not fix it if it is not broken. You have to prove the child is not doing well under the present living arraignments. For example, but not by way of limitation, the grades are slipping, the child is not socializing, not eating, not sleeping, digressing in behavior, the custodial parent is not caring for the child and all this is different then it was when the court originally entered their order. As such it is now in the child's best interest to change the custody.

Divorce in Maryland: Alternative Means of Service of Process

After suit is filed in a divorce matter, service of process must be effected. The purpose of service of process is to give actual notice to the defendant that an action against them has been instituted. This is a due process requirement. Generally this is done by delivering a copy of the summons, complaint, and all other papers filed to the individual, or by leaving a copy of the summons, complaint and all other papers filed at the individual’s dwelling house with a resident of suitable age and discretion, or by certified mail requesting restricted delivery. Maryland Rule 2-121(a).

Occasionally I have represented clients who separated from their spouse years ago and do not know the current whereabouts of the spouse and are therefore unable to effect service of process. When this occurs, a plaintiff spouse may petition the Court and request alternative means of service under Maryland Rule 2-121(c). The Court will require an affidavit asserting good faith efforts to serve the defendant spouse were made pursuant to Maryland Rule 2-121(a) and have not succeeded. Other good faith efforts include publication of notice in newspaper, contacting friends and family members of the defendant spouse, retaining a private investigator and/or tracing companies, searches through social security, birth indexes, skip traces, and MVA records. (Lohman v. Lohman, 331 Md. 113, 626 A.2d 384 Md., 1993.)(In re Thomas J., 132 Md. App. 396, 752 A.2d 699 Md. App., 2000.)

Please feel free to contact me at 1-888-760-7339 should you have any further questions.

Limited Divorce vs Absolute Divorce in Maryland

People call me all the time asking about these two different types of divorce in Maryland. The easiest way to understand the difference is to understand what each divorce type is trying to accomplish. The limited divorce is there to assist people with the issues to be resolved pending the grounds for absolute divorce maturing. So for example if you have children and/or the need for spousal support and you are separated from your spouse and they will not help you or they are fighting with you over the children for custody, then you can file for a limited divorce with out waiting for one year before you can file as required in the absolute divorce. The court will hear those temporary issues and decide on them more quickly with the limited divorce. You are still married with the limited divorce but these temporary issues are resolved. The absolute divorce by contrast is the final resolution of the marriage and address all the issues of your divorce on a permanent basis. Please feel free to call me if you have questions. I am happy to answer for you right over the phone 1-888-760-7339

Divorce in Maryland: The Issue of Commingled Funds

Any property that is acquired during the marriage that cannot be directly traced to a non-marital source is considered marital property. The party who asserts a marital property interest bears the burden of producing evidence of the identity and value of the property. Furthermore, the party attempting to demonstrate that property acquired during the marriage is non-marital must directly trace the property to a non-marital source. Noffsinger v. Noffsinger, 95 Md. App. 265, 620 A.2d 415 Md. App., 1993. Without further evidence or testimony, the mere fact that non-marital funds rested in the same account as marital funds does not compel the conclusion that the funds commingled. The character of the non-marital property may be preserved if its origins can be traced to non-marital property. West's Ann. Md. Code, Family Law, § 8-201(e).

Grounds for Divorce in Maryland

Once you confirm Maryland has jurisdiction over your divorce action you next move to the issue of whether you have grounds to seek a divorce in Maryland. There are multiple grounds for divorce in Maryland. I am writing today only about those that are based on one year and a day separation. Each of these grounds require that you are separate and apart from your spouse for one year and one day before you can file the complaint for absolute divorce. There are two exceptions to this rule. One if your spouse is committing adultery and two if your spouse is treating you with excessively vicious conduct. The grounds that are available to you under the one year rule are desertion, constructive desertion and mutual and voluntary agreement to separate. Each requires this one year and one day separation for the entire year and a day, uninterrupted and continuously, without any hope of getting back together. Once you spearate you are legally separated. There is nothing to file with the court to make you more legally separated. Once you separate you have separated for purposes of the one year and a day requirements. If you have questions please feel free to call 1-888-760-7339.

Divorce in Maryland Income Defined

For Maryland child support issues income is defined as follows:

(b)(1) "Actual income" means income from any source.
(2) For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, "actual income" means gross receipts minus ordinary and necessary expenses required to produce income.
(3) "Actual income" includes: (i) salaries; (ii) wages; (iii) commissions; (iv) bonuses; (v) dividend income; (vi) pension income; (vii) interest income; (viii) trust income; (ix) annuity income; (x) Social Security benefits; (xi) workers' compensation benefits; (xii) unemployment insurance benefits; (xiii) disability insurance benefits; (xiv) for the obligor, any third party payment paid to or for a minor child as a result of the obligor's disability, retirement, or other compensable claim; (xv) alimony or maintenance received; and (xvi) expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business to the extent the reimbursements or payments reduce the parent's personal living expenses

Default Judgment and Child Support in Maryland Divorce

Occasionally I have a case where the plaintiff is the non custodial parent and seeks a divorce from the other. However, once served the custodial spouse fails to file any answer. As such naturally we move forward with the request to the court to enter a default judgment. Recently I have this very case. Once we arrived at the master's hearing on the default, as expected the issue of child support was addressed. Testimony before the master established my client's income and the custodial parents income was reduced to minimum wage as no one knew her income. You will not divorce in Maryland with out child support being ordered.

Divorce in Maryland

In any divorce in Maryland the court will consider extraordinary medical expenses as part of the child support obligation. I receive several calls on this issue each week from people interested to know if braces are included. The answer is yes braces are included. So having said that, extraordinary medical expenses are defined: Extraordinary medical expenses
(g)(1) "Extraordinary medical expenses" means uninsured expenses over $100 for a single illness or condition.
(2) "Extraordinary medical expenses" includes uninsured, reasonable, and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, treatment for any chronic health problem, and professional counseling or psychiatric therapy for diagnosed mental disorders.

Additionally, just to mention the list of added cost in determining the child support amount also include actual child care expenses incurred due to either parent's employment, FL § 12-204(g); extraordinary medical expenses, FL § 12-204(h); special or private school expenses, FL § 12-204(i)(1); expenses for transportation of the child between the parents' homes, FL § 12-204(i)(2); expenses related to medical support, FL § 12-101(d); and a requirement that a parent include the child in that parent's health insurance coverage, FL § 12-102(b). That is the extent of payments that are child support, or are in the nature of child support, under Maryland law.