Divorce, Custody and Family Law FAQs
Answering Common Maryland Custody and Family Law Questions
Who is entitled to child support?
Can I use property that is titled in my spouse’s name alone or titled jointly if it is necessary for the children?
How does the court decide custody and visitation of children?
If I file for divorce, can my spouse and I still resolve our issue outside of the court?
When does a parent’s child support obligation end?
How much child support am I entitled to on my child’s behalf?
Can I change the monthly amount of child support?
What is the difference between an absolute divorce and a limited divorce?
Can I change my name back to my former name in the divorce?
How is property divided by the court in a divorce when the parties cannot agree on the division themselves?
What requirements must I meet to get a divorce in Maryland?
Can I collect support if my child or the other parent lives out-of-state?
If my child’s other parent is earning less than he/she is able to, how can I still obtain a fair amount of child support?
Can I agree to a lesser amount than the Child Support Guidelines require?
If I didn’t ask for child support when my child was born or when I first separated from the child’s other parent, can I still collect child support?
My divorce is uncontested, do I need a witness to attend the divorce hearing?
What kind of custody can the court award?
Does my spouse have an interest in my property?
Can I keep non-marital property separate from marital property?
When do I need to think about child support?
How can I collect back child support?
Q: Who is entitled to child support?
A: All minor children are entitled to support from their parents, which is paid by the non-custodial parent to the custodial parent on the child’s behalf. This responsibility applies to biological and adopted children alike. In Maryland, it is a crime for parents to fail to support their minor children.
Q: Can I use property that is titled in my spouse’s name alone or titled jointly if it is necessary for the children?
A: Yes, the court can award use and possession of family use property. This includes the family home and family use personal property.
A house is the family home if it was acquired during the marriage, was used as the principal residence of the parties when living together, is owned or leased by one or both parties, and is being or will be used by one of the parties and a minor child as the principal residence.
Family use personal property is property acquired during the marriage, is owned by one or both of the parties, and is used primarily for family purposes. It includes motor vehicles, furniture, furnishings, and household appliances.
Q: How does the court decide custody and visitation of children?
A: In Maryland the court examines all facts and circumstances in order to determine what arrangement is in the child’s best interest. The best interests of the child is the chief concern of the court when deciding custody and visitation.
Q: If I file for divorce, can my spouse and I still resolve our issue outside of the court?
A: Yes, at any time during the court process, you and your spouse can reach an out-of-court agreement before the judge or master decides your case. However, by filing in court, you are obligated to comply with the deadlines set by the court, even if you do not intend for your case to go to trial.
If you are interested in discussing options for how to handle your separation and divorce, including Alternative Dispute Resolution, please contact us regarding our Family Law services and to schedule a consultation.
Q: When does a parent’s child support obligation end?
A: Maryland Courts have the authority to award support until the child reaches age eighteen and graduates from high school or age nineteen, whichever occurs first. However, parents may agree to extend this obligation until their child is older.
Q: How much child support am I entitled to on my child’s behalf?
A: The amount of child support paid is determined by the mathematical formula contained in the Maryland Child Support Guidelines. This formula is based primarily on the custody arrangement and the incomes of both parents. Some of the other factors considered in the calculation include: the cost of health insurance, child support obligations to other children, alimony paid, and the cost of work-related child care, and the child’s extraordinary medical along with other expenses. If the parents have joint or shared physical custody of the child, the amount of time each parent spends with the child is also taken into account in the Maryland Child Support Guidelines.
Q: Can I change the monthly amount of child support?
A: Yes, child support is always modifiable. Child support can be increased or decreased when there has been a “material change in circumstances.” This is a subjective determination made by the Court. Modifications can also be made by agreement of the parties. Factors that may be taken into account include a parent’s illness or disability, a sizable increase or decrease in a parent’s income, a child’s serious illness or accident, or a change in the child’s extraordinary medical expenses. Generally, Maryland Courts have considered a 25% change in income to be a material change in circumstance, though each situation is unique.
Q: What is the difference between an absolute divorce and a limited divorce?
A: An Absolute Divorce dissolves a marriage. If you and your spouse cannot agree, the court will decide all issues of custody, property (use and possession, ownership, value, whether marital or non-marital, and sale and/or division), and support (child support and alimony).
A Limited Divorce does not dissolve the marriage, but allows the court, if you and your spouse cannot agree, to decide issues of custody, property (use and possession and ownership only), and support (child support and alimony). The purpose of a Limited Divorce is to provide support until you meet the requirements for an Absolute Divorce. Once you meet the requirements, you may amend the court papers to request an Absolute Divorce.
Q: Can I change my name back to my former name in the event of a divorce?
A: Yes, if you took your spouse’s last name in the marriage and no longer wish to use it, the court will return you to your former name as long as your request is not for any illegal, fraudulent, or immoral purpose.
Q: How is property divided by the court in a divorce when the parties cannot agree on the division themselves?
A: Maryland is an equitable division state (not a community property state), which means that the court will consider all the facts and circumstances of the marriage in dividing property. However, there are limits on the court: The court cannot generally transfer title in property (real or personal), except it may transfer part of a retirement account, pension, or the like from one spouse to another and it may transfer title in personal property, subject to approval of any lien holders, if that property is necessary for the children (family use personal property). So, the court will generally order that all property in one person’s name remains that person’s property. Because the court cannot transfer title in jointly owned property (real or personal), with the exception of retirement accounts and the like and family use personal property (as described in the paragraph above), any jointly owned property must be sold and the proceeds divided between the parties. The court will divide these proceeds equitably, meaning as is fair in light of all the facts and circumstances of the parties. In making its decision, the court will consider what property is titled in your name and your spouse’s, and how much of that property is marital or non-marital. If you and your spouse own any property, it is best that you speak with an experienced family law attorney, so you understand all your rights with respect to marital property in your divorce. If your spouse or spouse’s attorney gives you any documents about dividing your marital property, you should consult with an attorney before signing any papers. Once signed, it can be very difficult to undo any agreement. To schedule an appointment to discuss your separation and divorce, any property issues, as well as any proposed separation agreement, please contact us.
Q: What requirements must I meet to get a divorce in Maryland?
A: First, either you or your spouse must reside in Maryland for at least one year before filing for a divorce and on the date the divorce papers are filed, or the grounds for the divorce must have occurred in Maryland.
Second, Maryland courts will grant an absolute divorce terminating your marriage if the following requirements are met:
- Voluntary Separation. If you and your spouse voluntarily have lived separate and apart continuously, and without cohabitation, for 12 months, and there is no reasonable hope of a reconciliation.
- 2 Year Separation. If you and your spouse have lived separate and apart continuously, and without cohabitation, for 2 years.
- Adultery. If your spouse has committed adultery and you have not forgiven your spouse or cohabited afterward.
- Desertion. If the desertion has continued for 12 months without interruption before the divorce papers were filed with the court, the desertion is deliberate and final, and there is no reasonable hope of a reconciliation between you and your spouse.
- Cruelty of Treatment. If you have been abused by your spouse and there is no reasonable expectation of a reconciliation.
- Excessively Vicious Conduct. If you have been abused by your spouse and there is no reasonable expectation of a reconciliation.
- Insanity. If your spouse has been confined for at least 3 years, and other statutory requirements are met.
- Conviction of a Crime. If your spouse has been sentenced to serve at least 3 years and has served 12 months of the sentence.
Third, a Maryland court will grant a limited divorce to resolve custody, visitation, and support if the following requirements are met:
- Voluntary Separation. If you and your spouse are voluntarily living separate and apart without cohabitation and there is no reasonable hope of a reconciliation.
- Desertion. If your spouse has left and not returned to the family home.
- Cruelty of Treatment. If you have or your minor child has been abused by your spouse.
- Excessively Vicious Conduct. If you have or your minor child has been abused by your spouse.
If you are interested in filing for a divorce and wish to discuss your situation with an experienced family law attorney, please contact us to schedule a consultation. The earlier you know your rights and options, the better decisions you can make for yourself and your family.
Q: Can I collect support if my child or the other parent lives out-of-state?
A: Yes. There is a body of law which allows parents to collect and receive child support from another state. However, depending on the situation, the other state’s child support laws may apply. Andalman & Flynn’s family law attorneys can assist you in establishing Maryland child support orders, enforcing existing child support orders in Maryland, and enrolling Maryland child support orders with child support enforcement offices of other states.
Q: If my child’s other parent is earning less than he/she is able to, how can I still obtain a fair amount of child support?
A: In order to avoid paying child support, some parents purposely take a reduction in income. Maryland courts will consider several factors to determine whether a parent has “voluntarily impoverished” him/herself. If such a finding is made, the Maryland court is empowered to impute a higher income on such a parent, and to award child support based on this higher income. If you believe that your child’s other parent is voluntarily impoverishing him/herself, it is important that you work with an experienced family law attorney so the necessary financial information is presented to the court to give your child support case the best chances of success. To schedule a consultation to discuss your child support case, please contact us.
Q: Can I agree to a lesser amount than the Child Support Guidelines require?
A: Judges have an obligation to assure that children are adequately supported and do not suffer when their parents have unequal bargaining power. However, judges may accept child support amounts below the Maryland Guidelines if there is sufficient justification for such a deviation.
Q: If I didn’t ask for child support when my child was born or when I first separated from the child’s other parent, can I still collect child support?
A: Yes. A minor child is always entitled to support. A parent cannot permanently waive this obligation. If you have a child who is entitled to support, and you have not collected to date, the family law attorneys at Andalman & Flynn can assist you in filing a complaint in Court asking for child support to be established or you can seek the assistance of the Maryland Child Support Enforcement Office. You should keep in mind that your child will receive support dating back to the day you first file your request, so a delay in filing reduces the amount of back support your child will receive.
Q: My divorce is uncontested, do I need a witness to attend the divorce hearing?
A: If you and your spouse have minor children in common and/or seeking a divorce on the ground of one year separation, then yes, Maryland courts will require a witness, other than your spouse, to corroborate your separation and the other uncontested facts. However, if you and your spouse do not have minor children in common and have executed a written settlement agreement then you can obtain a divorce without waiting any separation time on the basis of “mutual consent” and the two of you (both spouses) will then need to testify at the uncontested hearing. Whether your case is contested or uncontested, it is important to consult with an experienced family law attorney to understand and protect your rights.
Q: What kind of custody can the court award?
A: In Maryland, the court can order physical custody and legal custody. Physical custody is with whom the child primarily resides, and legal custody is who makes decisions affecting the child’s health, well being, and welfare. Physical custody may be sole or joint/shared. Sole physical custody means that the child resides primarily with one parent, and has visitation with the other. Joint or shared physical custody is defined by statute, and means that each parent keeps the child overnight for more than 35% of the year. Legal custody may be sole or joint. Sole legal custody means one parent is responsible for decision-making. Joint legal custody means both parents are responsible for decision-making. If you have children and are thinking about separation or are involved in a divorce, you should speak with an experienced family law attorney to discuss your rights and obligations early in the process so you understand your options and can make fully-informed decisions from the start – to protect yourself and your children. To schedule a family law consultation, please contact us.
Q: Does my spouse have an interest in my property?
A: It depends upon whether your property is marital, non-marital, or partly marital and partly non-marital. Marital property is any property acquired during the marriage, including property acquired after your separation and until the date of your divorce. You and your spouse have an interest in all marital property of your marriage. Non-marital property is property acquired before the marriage, by inheritance, as a gift from a third party (not your spouse), excluded by valid agreement (for example, a prenuptial or antenuptial agreement), or directly traceable to these.
Property that starts out as non-marital property may become partly marital if you use funds acquired during the marriage to maintain that property (for example, a house purchase prior to marriage on which you make payments during the marriage from your earnings). Non-marital property may become completely marital if co-mingled with marital property and the non-marital portion cannot be distinguished or separated. Additionally, non-marital property may become marital if the title of the property is changed to you and your spouse and a gift was intended. Your spouse does not generally have an interest in your non-marital property.
Q: Can I keep non-marital property separate from marital property?
A: Yes. Each situation is unique, but generally if you maintain your non-marital property separate from your marital property, and do not co-mingle it with marital property, you will preserve your non-marital property. Before you transfer or use your non-marital property to acquire new property, you should discuss your situation with an experienced family law attorney.
Q: When do I need to think about child support?
A: If you are not receiving any financial support from your child’s other parent and either 1) you have a child out of wedlock and are not living with your child’s parent, or 2) you and the child’s other parent are separated or divorced, you should consider seeking child support. If you are not paying or receiving child support, you should meet with an experienced family law attorney to discuss your situation and your child’s, as well as to calculate possible child support figures. If you are interested in meeting with an attorney to discuss child support, please contact us to schedule a consultation.
Q: How can I collect back child support?
A: If you are owed back child support, the family law attorneys of Andalman & Flynn can help you obtain a judgment and collect the amount owed. In addition, the Maryland Child Support Enforcement Office may be able to assist you with the collection of arrears.