Many of Maryland’s statutes relating to family law have unintended and no doubt, unanticipated, consequences. One of the most compelling is the statute that awards use and possession of what is called the “family home and personal property” to the custodial parent. An order granting use and possession doesn’t change title, and sometimes, it is very important, especially if the custodial parent is also the economically dependent spouse. Before the statute was passed, there were many circumstances when a spouse (usually the husband, since the statute was passed late in the 1970s, when women were just beginning to enter the workforce in significant numbers) could kick the economically dependent spouse and the kids to the curb and literally render them homeless, without any recourse. The reason was, husbands often held full title to the property and were well within their rights to “oust” (that’s one legal word that means what it sounds like!) the spouse whose name was not on the title to the property.

The use and possession statute was aimed specifically at correcting that wrong. It’s main purpose is specifically, first and foremost, “the best interests of any child.” Md. Code Ann., Fam. Law Art. sec. 8-208(b)(1). Problem is, times . . . and expectations . . . have changed so rapidly in the last thirty years that now, the statute often has the opposite effect of the wrong it was intended to correct. Now, instead of the wife and kids being rendered homeless, it’s the dads (who are, more often than not, the non-custodial parents) who are wandering the streets or living in the basement of their best friend.

What does a “use and possession order” do? It gives the custodial parent and the children the right to continue to live in the house for up to three (3) years following the date a court issues the order. It can also award use and possession of “family use personal property,” which usually means the family car, but also covers the contents of the family home. It also can require the non-custodial parent to pay “some or all” of the expenses of the home and/or personal property. That can mean, mortgage, rent, utilities, property upkeep, car payments, etc.

The statute has been challenged for constitutionality (the constitution guarantees a person’s interest in their own property without government intervention), but the appellate court found that since the government had a more important reason to interfere under the statute, it did not violate any constitutional protections. Next post, I’ll review the case in a different light than the arguments made thirty years ago. It may be time to dust off the old Constitutional argument!

An even bigger problem with the statute now is that because the benefits of living in the house and keeping the car and having someone (usually the husband) pay the freight for three years, parents have an additional incentive to fight over sole custody. Since mothers have often been at home with the kids, usually with dad’s blessing, this statute gives them yet another incentive to remain dependent, to rely on the husband’s support, and to avoid agreeing to shared residential custody.

Here’s another wrinkle. Even when parents have shared residential custody on a 50/50 basis, one parent or the other can end up with one-half to one full day more time with the kids. WIthout careful drafting to avoid this result (for example, trading years so that in Year 1, mom has the extra day, in Year 2, dad does) orders and agreements can still give one parent a tiny bit more time than the other. Who gets use and possession then? As far as I know, judges continue to award use and possession more often to mothers than fathers, even when parents share custody. It is time to carefully and rigorously evaluate custody decisions in Maryland, based on hard data, not opinions, to give us a truly accurate basis for evaluating this, and other legislation that may have a less than gender-neutral effect.

Okay, I’m jumping the gun . . . just a little. The first post was October 30, 2007, but posting this coming Thursday is not likely, so I’m doing this now. It’s been a wonderful, very rewarding year. To commemorate, I found this You Tube link to this sweet little Filipino girl’s tribute to her dad, on his birthday: Evelyn: Happy Birthday, Dad. For all the Evelyn’s and other kids out there, thanks to the fathers who made this blog possible.

I stumbled across this link the other day and wanted to highlight it. It looks to be a terrific resource for parents. Remarkable Parents. Check it out!

First of all, let me be very clear, I am a social liberal of the clearest stripe. No one who knows me would ever accuse me of being a conservative. But I found this column by this conservative columnist, in a very conservative venue and I still liked what she had to say. So here it is, folks, you saw it here, that liberal, Irish-Catholic redhead (okay, former redhead) is featuring Kathleen Parker on her blog. Give it a read. What she has to say is worth thinking about: Politically Incorrect Domestic Violence..

Well, only a little bit. I’ve started a new blog with the express purpose of collecting stories of women who consider themselves to be what I’ve called “primitive” feminists. Women who believe something has gone terribly wrong with what was, in the 60s and 70s, a movement toward equality for women AND men, and about respecting and honoring our differences, as races AND genders. Some of us have watched men we love suffer deeply because of the direction feminism has taken in the last twenty years. Others who have had the courage to stand up and speak for the need for men in our lives and those of our children have been subtly and overtly criticized, or even harmed, personally and professionally, for what we are saying.

My new blog is an attempt to start collecting the stories of women who have had some (or all) of these experiences. If you have a story like this to tell, or if you know someone who does, visit my blog and be a part of this unique attempt to bring feminism back to its roots and its senses. Primitive Feminism.

A limited divorce is Maryland’s version of a legal separation (which we don’t have here in the sense that other states do). In other states, a couple can negotiate and execute a valid marital separation agreement and simply file it with the court and have legal recognition of their intention to live separately and end their marriage. It doesn’t work that way in Maryland. In Maryland, to get the same kind of legal recognition, you have to ask the court for a limited divorce. You can still negotiate and execute a marital separation agreement, but it is not filed separately with the court until a complaint (also known in other states as petition) for absolute divorce is filed. Then, it is attached as an exhibit to the complaint. It is a contract, that you can enforce by asking the court to enforce a contract, but that kind of lawsuit only has to do with the things you or your spouse are supposed to do (or not do), not with your marital status.

Most family law attorneys don’t file for limited divorce if they can help it. Unless the other side won’t negotiate a separation agreement and is doing or not doing something that harms the financial interests of the other spouse, there really isn’t much benefit to it. However, there are plenty of times when a couple does not have grounds for absolute divorce, and the other side will not negotiate an agreement and there are important interests, such as child custody, visitation, or financial support, that need to be addressed right away. Then, the only option is to file for a limited divorce.

A limited divorce does not end the marital relationship. The only thing the court can do with marital property is decide whether or not it is or isn’t marital property. It can’t value it and it can’t divide it. What it CAN do is award alimony (spousal support), issue an order of custody and/or visitation (access) to a non-custodial parent, award child support, and award use and possession of a family home and/or property (along with ordering the non-custodial parent to pay part of expenses related to the family home and/or property).

Grounds for a limited divorce include:

• Desertion – without any time period attached. Remember, this means REAL desertion – as in, no communication, no support, no anything. It does not necessarily mean leaving the home. Although many lawyers file for divorce and claim that just because a spouse left the home they deserted the marriage, if the case gets to trial, they have to prove desertion by a much higher standard than just making the claim when they file for divorce.

• Voluntary Separation – without any time period attached. The separation still means you live under separate roofs, without marital relations and that you intend to end the marriage (or, there isn’t any chance you will ever reconcile).

• Cruelty - usually, it means a pattern of conduct that includes physical violence to you or your kids, but technically, it could be possible to prove cruelty without the violence (but it would be very difficult and extremely rare). Also, in the context of a limited divorce, this ground assumes there is or could be hope for a reconciliation between the parties. I can’t figure this one out, but I suppose it is technically possible. This is not the case when cruelty is claimed for a ground for absolute divorce.

• Excessively vicious conduct – can be a single incident of extreme physical violence to you or your kids, that would make you believe it was likely to happen again. Again, and equally incomprehensible, is that if this is claimed for a limited divorce, it presumes there is, or could be, a hope of reconciliation. Go figure!

Here are some other completely odd parts to the Maryland statute on limited divorce:

• The Court CAN make a couple try to reconcile and CAN decide how they will pay for it. Personally, I think there’s some potential Constitutional problems with this part of the statute, but since I’ve never heard of a court actually doing it, I suppose it hasn’t come up.

• The Court CAN make the limited divorce decree temporary!

• The Court CAN revoke the decree of limited divorce if the couple both ask it to do so.

If someone fails to prove a ground for absolute divorce at trial, the Court CAN give the couple a limited divorce until they can prove a ground for absolute divorce.

If this all sounds bizarre to you, it is! Divorce law is based on the history of the individual state’s ecclesiastic (or church) law. Maryland was founded by the Catholic faith, so it’s laws about divorce, 200 plus years later, reflect that history.

“Grounds” are the legal reason the state has to allow a couple to divorce. Those reasons are found in the state statute. In Maryland, we have to divide them up between absolute and limited divorces, because they’re different for each type of divorce.

In Maryland, an absolute divorce ends the marriage, allows parties to change their name, divides marital property (hopefully all of it), can award alimony (spousal support), custody of children, child support, and decides what to do with retirement accounts.

Maryland has two categories of absolute divorce, one is based on fault, the other is based on the amount of time a couple has been separated. Maryland does not have no-fault divorce, and in Maryland, there is no such thing as “irreconcilable differences” as a ground for divorce. There is only fault or time. We call fault-based grounds “culpable” and time-based grounds “non-culpable.”

Here is a list of fault-based grounds:

• Adultery – no time period of separation needed, in fact, no separation needed. This means your spouse had an affair with someone other than you. It does not mean she had an “emotional” affair, it does not mean she had an internet relationship, although these are both often symptoms of adultery in the legal sense.

• Cruelty – no time period of separation needed, in fact, no separation needed (but you might want to be separated if you want to prove this ground is true!) This ground usually (although not always) requires a pattern of physical violence to you or your kids. Also, there has to be no reasonable hope that you and your spouse will reconcile.

• Excessively vicious conduct – same as above as far as the time and proof needed, but here, the violence must be physical and must be severe and can be only a single incident that is extremely serious and gives the victim a reason to believe it will happen again. AND there has to be no reasonable hope that you and your spouse will reconcile.

• Desertion – this has to have continued for at least a year before you can even file for divorce, you have to prove the other person intended to end the marriage and that there is no reasonable hope or expectation you will reconcile and it has to be a real desertion, meaning no communication, the person abandoned (or took) all or most of the marital property, and that the person completely abandoned his or her financial obligations to the marriage. It rarely means just leaving the house.

• Constructive Desertion – this also has to have continued for at least a year before you can even file for divorce. It is pretty much like desertion as far as the reason for the end of the marriage and the lack of expectation you will reconcile. It’s different in that it is a little easier to prove than out-and-out desertion. This ground is a hybrid between cruelty and desertion. With constructive desertion, the person being deserted is the person who leaves. They leave because they have to do so “to preserve their health, safety and self-respect.”

• Insanity – before filing for divorce, the insane spouse has to have been in a mental institution for at least three years — that’s right, three. In today’s mental health treatment environment, this almost never happens. Two psychiatrists (this means M.D., not Ph.D.) have to testify that the insane spouse is incurable AND that there is no hope of recovery. Finally, one of the parties has to have lived in Maryland for two years. I suppose technically this is possible as a ground for divorce, but it would be pretty rare.

• Incarceration – before filing for divorce, the incarcerated spouse must have been convicted of a felony or misdemeanor; he or she has to have been sentenced to serve at least three years, or an indeterminate sentence. And he or she must have already served 12 months of the sentence. This too is technically possible, but practically very rare.

And here is a list of the time-based grounds for divorce in Maryland:

• One year of separation – you must have been separated for at least a year before you file for divorce, you have to prove that both you and your spouse intended to end the marriage and that there is no reasonable hope or expectation you will reconcile. Usually, the proof that you and your spouse separated voluntarily is a marital separation agreement, fully executed (that means you both sign it), that says you separated because you both wanted to end the marriage. The separation agreement should cover all the things the court would resolve if you went to trial. Folks who have this ground for divorce can get what we call an uncontested divorce.

• Two years of separation - you must have been separated for at least two years before you file for divorce. That’s it. No separation agreement needed. If there are outstanding issues about anything else, they still have to be resolved by the court if you don’t have a separation agreement. If you do, you can get an uncontested divorce.

• Notes on time-based grounds – here are a couple of things folks miss when they think about “non-culpable” grounds in Maryland. First, separation. You have to be really separated. This means living in separate residences. It means NOT living under the same roof (look for more about this in the next post on limited divorces). And even if you get an uncontested divorce, you have to have what is known as a “corroborating witness” at your ten-minute divorce hearing. We don’t have “paper” divorces in Maryland. Whoever files for divorce, has to show up at court, with a witness, who can testify to the important elements of the statute.

A California appellate court has affirmed the right of male victims of domestic violence to the same services provided to women under the equal protection clause of the California state constitution. Glenn Sacks, noted advocate for fathers rights from Los Angeles, California, featured the story in his October 15 newsletter Victory! CA Appellate Court Says Excluding Men From Domestic Violence Programs is Unconstitutional.. The taxpayer lawsuit was brought on behalf of four men, all of whom were victims of domestic violence.

Who knows, Maryland, with its Equal Rights Amendment, could be next!

Whether you are negotiating a settlement or litigating your divorce, providing full and fair disclosure of your assets and liabilities is critical to resolving your divorce. Here is a list of some of the documents you should be able to provide in the process. If you can, be sure to print this out and use it as a checklist for documents to bring to my office when you meet with me for the first time.

_____ Insurance policies (whole life, term life, long term disability);

_____ Cash surrender value statements for whole life insurance;

_____ Certified copy of your marriage license;

_____ Pay stubs (at first, only for the past three pay periods, but eventually, for the past year or more);

_____ an Employment Handbook outlining all of your employment benefits, especially health insurance and pensions or retirement benefits;

_____ a copy of your pension plan or 401(k) from your employment (or statements from other 401(k) plans you might have);

_____ Tax returns for the past three years including W-2s, 1099s, Schedules C or other schedules, and any information about extensions or prior penalties;

_____ Bank statements for the past year, and if your bank still provides them, cancelled checks. If you have check registers, copies of those for all your checking and savings accounts for the same time period;

_____ information on all your assets, including brokerage, investment, or money market account statements, stock option agreements and any other statements showing your assets, those of your spouse, or those of the two of you, for the last year or from the date you separated to the present time, whichever is longer;

_____ copies of any financial statements made by you, your spouse, or both of you, in applying for a loan for the past three years;

_____ copy of the deed and deed of trust to your house and any other real property you, your spouse or both of you own (if you don’t own a home, a copy of your lease agreement);

_____ copy of an appraisal for your home or any other real property you, your spouse, or both of you, own. If you don’t think you have one, and you’ve done a re-finance for the property in the past three years, check with the settlement agent for the re-finance. He or she may be able to get an appraisal for you;

_____ a statement showing the location and number of any safety deposit box you, your spouse of both of you have, along with a list of its contents;

_____ a list of vehicles you, your spouse, or both of you, own, along with a copy of the title to the car(s), documents showing any liens on the cars, and a copy of the registration certificates for the cars;

_____ if you have fine art, jewelry, collections (such as coins, or antiques), a list of all of them and any appraisals showing the value of these assets;

_____ loan and mortgage statements for the past year;

_____ a copy of all Promissory Notes you, your spouse or both of you have signed;

_____ a copy of credit card statements for all credit cards, for the last year for you, your spouse, or both of you;

_____ copies of any court documents that have to do with your family (such as any adoptions or estate cases) and any court documents that have to do with your current or any prior separation(s) or divorce(s);

_____ all the information you can gather about assets, debts or property you had before you got married;

_____ if you have a business, especially if it is a family business or one where you are a shareholder, bring the corporate charter, by-laws, or, if the business is a partnership, the partnership agreement, or if an L.L.C., the operating agreement, as well as the last three years of corporate financial statements, tax returns and property tax assessment notices, and corporate bank statements for the past year;

______ documents showing special expenses for your children, such as tuition bills, orthodontist bills, therapist’s bills, and any bills for any special expenses they may have.

The purpose of dividing marital property in Maryland is based on fairness. The courts cannot usually change title to property — for instance, the title to a house — but they can order property sold and a monetary award granted to one party if it is fair (or “equitable”) to do so.

Marital property is whatever a couple acquires while they are married except for:

* What each person had before the marriage
* What was given to either person during marriage as a gift or inheritance from a third person; OR
* What two married persons agree is not marital property (such as property excluded by a pre-or post-marital agreement).

If any property that can be directly traced to one of these sources it is not marital property.

In deciding whether or not to give a monetary award, Maryland courts first decide what is and is not marital property. A couple prepares a complicated list, known as a Rule 9-207 statement. Each person must describe their property and make a statement of who owns the property and whether the ownership is marital or not. The court next decides the value of the property, which often requires appraisals. Finally, the court decides whether or not to grant a monetary award. The court makes this decision based on several factors found in the statute. Maryland is not a “community property” state. In community property states, the courts generally divide marital property 50/50. In Maryland, the court may award an amount from 0% to 100% based on its consideration of the facts of your case and how the law applies to those facts.

Dividing marital property in Maryland is a complex process. In order for you to know your rights, and to have the information and advice you need to make a fair settlement, or to prepare your case for trial, it is important to have sound legal advice. I can help you understand the complicated process of propertydivision in Maryland and will do my best to help you reach a property division result that protects your best interests.