MYTHS ABOUT DIVORCING IN MARYLAND: LIVING TOGETHER AND DIVORCING? ALIMONY PAYMENTS FOREVER? HOW TO PROVE ADULTERY? - Diamant Gerstein

 Posted on January 19, 2018 in Uncategorized

There are often many myths associated with divorcing. Below, please find some common myths and commentary.

1.  The Mom will always get custody of the kids.  Nope! Custody or access time is a continuum and absent a horrible situation both parents will see the child.  If one parent withholds the child, custody can secede to the other side.  Generally, the parent who has the child for more than 65% of the overnights (256/365) is said to have primary physical custody. If the other parent has more than 35% of the overnight (128+) then the parents share physical custody. The Court determines the custody arrangement based on all sorts of factors to include parent work schedules, geography and logistics, past parenting, communications, involvement with school, doctors, sports, etc.
2. The Court will “Ding” Me for Sleeping with Someone Else while Married.. Not really.  If a spouse is cheating but not involving the children in any way, not doing it in a way that is designed to humiliate the faithful spouse, and not spending a lot of money on the paramour, then the adultery will not significantly affect custody or the division of marital property. In Maryland, if you can prove adultery you can get a divorce without any waiting period at all, and technically you could live in the house during the divorce. Still, adultery is a crime subject to a $10 fine in Maryland and it may reduce the amount of alimony that will change hands.
3. My kids are going to decide who they want to live with.  Not exactly.  While teenagers will “think with their feet,” and stay with whomever they want, in Maryland, Judges do not let kids pick who they live with, and Judges do not like it when a parent puts a child in that position. That in and of itself could be the main reason someone loses primary custody. The older the child is the more his or her choice may be considered but generally Judges want the child to be represented by a Best Interest Attorney (BIA) so the Court can hear the child’s preference and the reasons for that preference.  Judges don’t like kids testifying in court.  Once your child reaches age 16, he/she can file his own petition for custody/emancipation.

4. I can cancel visits if I don’t get child support.  NO!!!!!  Child Support and Visitation are not related. So the other parent does not pay for time and you cannot threaten or deny the other parent visitation if s/he is not paying child support.
5. You can agree to not pay or receive child support. Child support obligations and amounts in Maryland are established by the Maryland child support guidelines. The child support money is earmarked for the financial benefit of the child. You have to pay it, and if you don’t, the court will enter an EWO (Earning Withholding Order) against you. If you don’t pay child support, the repercussions can be severe: it may start with a letter, then move on to suspension of your driver’s license, and ultimately if all else fails, you can go to jail.

6. If property is titled only in my name she cannot get it. False. While the Court cannot transfer ownership of the property if the property was partially or fully acquired during the marriage then it is marital property subject to division. I would go so far to say that even houses acquired prior to marriage, if used during the marriage and if renovations were done, etc. are subject to equitable distribution by the court.

7. I will get alimony forever.  Maryland favors rehabilitative alimony, and the receiving spouse to get back on “his or her feet.” This means that the alimony duration can be for a term of years for the amount of time that spouse needs to get further educated, trained, certified, etc. to be self-supporting. Of course there are exceptions for very long marriages and older spouses but generally indefinite alimony is a not ordered.

8. You can get divorced while you live together. Very complicated question to answer, but the short answer is that generally, NO.  If you have no minor kids AND you have a signed separation agreement, you can get a divorce while living together under the concept of Mutual Consent.  However, if you do have kids, and usually this issue only pops up with parties who have kids, then you generally need to be separated for a year before divorcing.  There are four grounds to get an absolute divorce sooner than a year, but in the wise words of a Judge in one of my recent cases: “It’s next to impossible and Judges are loathe to grant them.”

If I can be of assistance to you in any domestic matter, divorce, custody, peace or protective order, and so forth, please give me a call. Sharon 301-560-2685