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WHAT
YOU NEED TO KNOW
BE
SMART - UNDERSTAND THE LAW
I'm ultimately going to divorce. I understand that
there needs to be a period of separation before
the courts grants a divorce. Is there a legal definition
of "separation" which I should be aware
of?
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Voluntary
separation is when two parties agree that they need to
go their own ways. Even though it may not start out as
a "voluntary" situation, the parties can eventually
come to a mutual agreement that separation was inevitable.
Most states require that you live separately for the statutory
period of time. This means no cohabitation. Separation
means residing (and sleeping) in different locations at
all times. Separate bedrooms in the same house do not
constitute a separation.
The
courts distinguish between separation and "desertion",
which is when one of the parties leaves without the intention
of returning. If the other person forces you to leave,
that is "constructive desertion." You won't
be penalized by the court if you leave for your own protection
or that of the child(ren).
When
is separation the appropriate course?
Before
you think about separation, ask yourself if you've
taken all reasonable steps to make the marriage
or home situation better by working together. Did
you try sitting down calmly with your spouse to
discuss the situation? Did you try counseling, either
individually or as a couple? Talking to a psychologist,
social worker, pastor, or trusted family friend
may provide the necessary medium for working out
differences.
If you have children, consider the impact of staying
(or leaving) on them. And never bring them into
the fight. Always remember: Children may be resilient,
but their armor is only so thick. Children know
more, see more and hear more than you think. If
staying together is creating an emotionally troubling
situation for them, perhaps separation is the best
option. |
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If
I decide to go ahead with it, how should I go about separating
from my spouse?
Make a plan, if possible.
You can't just kick your spouse out of the house (unless
perhaps the home is titled in your name only), and leaving
the house may impact your chances for obtaining custody
or protecting property interests. Consider where you're
going, what possessions and vehicles you can take with
you, who the children will stay with, how the children
will be cared for, and how bills will be paid. If you
can, discuss a separation with your spouse and agree on
temporary arrangements. If possible, put any agreement
in writing. A handwritten agreement signed by both parties
is enforceable in court and will provide extra protection
for you. If your spouse is not in agreement about a separation,
consult an attorney before leaving the marital home. An
attorney can assist you in planning for a separation that
doesn't jeopardize your rights.
How do
I provide for myself and the children during the separation?
Once separated, you can apply
to the court for several types of relief. First, you may
request child support if you have custody of the minor
children. The question is always "how much?"
Both of you are going to have to contribute. One of you
probably will think they are getting too little and the
other probably will think they are paying too much. Fortunately,
most states have implemented child support guidelines.
This mandated method of calculation takes some of the
guess work out of who pays how much.
But there's
more to support than a monthly check. What about education
or braces or money for sports competitions? What about
medical expenses or counseling?
The court can grant both
temporary and permanent support. Be knowledgeable about
how support is calculated; changing the amount of support
is neither automatic nor easy. A modification of support
in the future will require a significant change in financial
circumstances. A second type of support is spousal support
or family maintenance. You can request that your spouse
contribute to the mortgage and household expenses. If
the court has determined that you and the minor children
should remain in the marital home, the court may also
grant an award of support. The court will generally assess
the needs of the party requesting relief and the ability
of the other party to contribute.
How does
a judge decide who will be awarded custody of the children?
The courts use the "best
interests of the children" standard in assessing
a custody situation. If the two of you can work together,
then a joint or shared custody arrangement may be right
for you and your children. If effective communication
between yourself and your spouse is not a reality, sole
custody may be the only option. Having the court decide
who should have custody is the very last option. The courts
also look to whether an individual's bad acts are acts
that have harmed the children.
What does
"custody" mean, exactly?
Custody comes in two forms:
legal and physical. Legal custody is the authority to
make decisions concerning the minor child(ren)'s health,
education and welfare. Physical custody pertains to where
the child(ren) sleeps for the majority of the time. Generally,
the courts will grant legal custody to the parent having
physical custody. This makes sense since the parent taking
care of the child(ren) may have to make emergency decisions.
Two parents may share custody or one parent may have sole
custody. There are several possible combinations of custody:
shared (joint) legal with sole physical; shared legal
with shared physical; or sole legal with sole physical.
While many parents convey their desire for shared or joint
custody, the Maryland courts are not inclined to grant
shared custody unless that is the established arrangement.
A
Maryland law firm also serving the District of Columbia
and the Nations. Our Maryland divorce attorneys understand
the law to better help you.
YOU SHOULD REMEMBER THE INFORMATION THAT YOU READ HERE
IS GENERAL IN NATURE AND NOT MEANT TO BE A SUBSTITUTE
FOR SPECIFIC LEGAL ADVICE FROM AN ATTORNEY.
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