Maryland Divorce Frequently Asked Questions

Yes. Under Maryland law, a court cannot modify alimony if an agreement of the parties specifically states that the provisions with respect to alimony or spousal support are not subject to any court modification.

There is no statutory limit, except death or remarriage of the payee. The court can order alimony for a fixed length of time, or for an indefinite period. Even when the court orders alimony for a fixed length of time, the order can be modified to extend alimony for additional time, or for an indefinite period.

Yes. The court can modify an alimony award upon a showing of a substantial change in circumstances justifying a modification.

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.

There is no statutory limit, except death or remarriage of the payee. The court can order alimony for a fixed length of time, or for an indefinite period. Even when the court orders alimony for a fixed length of time, the order can be modified to extend alimony for additional time, or for an indefinite period.

Yes, alimony is taxable to the payee and deductible by the payor, provided it meets the tax code's definition of alimony (see a lawyer or tax advisor about the definition) and the parties have not agreed to make it nondeductible.

The Maryland Court of Appeals consistently has declined to adopt a hard and fast rule regarding any disparity in income for purposes of awarding indefinite alimony. Each case depends upon its own circumstances. However, gross disparities in income levels frequently have been found unconscionable, and have supported the award of indefinite alimony.

Here is a list of factors:

• ability to be wholly or partly self-supporting,
• time needed for education or training,
• the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony,
• family living standard.

In addition, the court looks at many of the same factors considered in making a monetary award. Here is a list of some of these factors:

• the duration of the marriage; ,
• the contributions, monetary and nonmonetary, of each party to the well-being of the family; ,
• the circumstances that contributed to the estrangement of the parties;
• the age of each party;
• the physical and mental condition of each party;
• any agreement between the parties;
• the financial needs and financial resources of each party, including:(i) all income and assets, including property that does not produce income; (ii) any monetary award or use and possession award; (iii) the nature and amount of the financial obligations of each party; and (iv) the right of each party to receive retirement benefits

Even economic self-sufficiency does not bar an award of indefinite alimony if there nonetheless exists an unconscionable economic disparity in the parties' standards of living after divorce. In short, the determination of unconscionable disparity is made on a case-by-case basis.

The formula used in an "if, as, and when" award of pension benefits, referred to as the Bangs formula, calculates the value of the pension to which the non-employee spouse is entitled as a percentage, usually 50%, multiplied by a fraction, the numerator of which is the number of months and years of employment during the marriage, and the denominator of which is the total number of months and years of employment at the time of retirement.

Alimony is the payment of money for support of a spouse or former spouse at stated periods (monthly or weekly, usually) during the joint lives of the parties so long as they are separated.

Alimony is paid to support a spouse or former spouse. Child support is paid to support minor children

Maryland courts have said that alimony and a monetary award are "significantly interrelated and largely inseparable," but that a monetary award is not a "form of nor substitute for" alimony. In other words, the court must consider the two issues together in order to achieve a fair result.

The court may order retroactive alimony back to the date the complaint or petition seeking alimony was filed.

The court may award alimony for an indefinite period, if the court finds that:

• Due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or
• Even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.

The Maryland Department of Human Resources provides an online child support worksheet. However, this worksheet is not a substitute for the advice of an attorney, who can help apply to a particular case the legal definitions of sole custody or shared custody, actual income, adjusted actual income, work-related child care expenses, extra-ordinary medical expenses, and other terms used in computing child support.

Child care expenses are determined based on actual family experience, unless the court finds that the actual family experience is not in the child's best interest. If there is no actual family experience, or the court finds that the actual family experience is not in the child's best interest, then child care expenses are set at the lesser of what it would cost to provide quality care from a licensed source, or the actual cost of care chosen by the custodial parent.

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.

Maryland has adopted child support guidelines. The guidelines are computed using each parent's "actual income," adjusted for preexisting child support actually paid, and alimony (deducted from payor and added to payee). The outcome is affected by certain expenses which are divided proportionately based on the parties' incomes:

• health insurance premiums (if child included),
• work-related child care,
• extraordinary medical expenses,
• additional expenses (which may include: special or private school, transportation between parents' homes).

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.

Child support guidelines do not apply when the parents have a monthly combined adjusted income in excess of $10,000. Otherwise, the result obtained by applying the guidelines is presumed to be correct. Departure from results obtained using the child support guidelines is permitted only when application of the guidelines would be unjust or inappropriate.

For example, the court may depart from the child support guidelines to cover the costs of reasonable and necessary educational programs for an academically challenged or gifted student who requires remedial tutoring or advanced programming to meet his or her particular educational needs.

"Actual income," which is what counts for computing child support, means income from any source. "Actual income" includes: Salaries; Wages; Commissions; Bonuses; Dividend income; Pension income; Interest income; Trust income; Annuity income; Social Security benefits; Workers' compensation benefits; Unemployment insurance benefits; Disability insurance benefits; and Alimony or maintenance received. "Actual income" is not limited to these categories.

Child support guidelines do not apply when the parents have a monthly combined adjusted income in excess of $10,000. In this situation, factors which should be considered when setting child support include the financial circumstances of the parties, their station in life, their age and physical condition, and expenses in educating the children.

Usually, the obligation to support a child ends when the first of these milestones is reached: the child reaches age 18 after graduating or withdrawing from high school, the child graduates or withdraws from high school after reaching age 18, the child reaches age 19, or the child or the parent paying child support dies.

However, if child support is owed for more than 1 child, as the obligation ends for each individual child the total amount due will not change unless a court order is obtained. In addition, child support can be extended if a child is a "destitute adult child," meaning the child has no means of subsistence; and cannot be self-supporting, due to mental or physical infirmity.

Both parents are the joint natural guardians of their child under eighteen years of age and are jointly and severally charged with the child's support, care, nurture, welfare and education. They have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child's custody.

Mediation can be used to resolve a variety of ongoing parenting disputes or to assist parents in routine co-parenting decisions.

An honest answer to this question must separate what Maryland courts and law aspire to from what really happens. In Maryland, the legal preference for awarding custody to mothers was abolished by the courts and by the state ERA many years ago. Still, mothers are awarded custody much more often than fathers. This could be because the maternal preference still survives in the hearts and minds of some judges, or it could be because primary caretakers are more often mothers than fathers.

Sexual orientation may be considered in making a custody decision only insofar as the minor child is actually harmed by it. This puts sexual orientation in the same category as lots of other behavior, including adultery and religious practices

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.

Clearly the most important factor in deciding joint legal custody is the capacity of the parents to communicate and to reach shared decisions affecting the child's welfare. Indeed, joint custody should not be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.

No. The parents need not agree on every aspect of parenting, but their views should not be so widely divergent or so inflexibly maintained as to forecast the probability of continuing disagreement on important matters.

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.

Remember, no list of factors can be complete, because of the unique character of each case. That said, here is a list culled from Maryland cases:

• Fitness of parents.
• Character and reputation of parties.
• Desire of parents and agreements between parties.
• Potentiality of maintaining natural family relations.
• Preference of the child.
• Material opportunities affecting the future life of the child.
• Age, health and sex of the child.
• Residences of the parents, and opportunities for visitation; or geographic proximity of parental homes.
• Length of child's separation from parent.
• Prior voluntary abandonment or surrender.

More factors, especially important when considering joint custody:

• Capacity of parents to communicate and reach shared decisions affecting child's welfare.
• Willingness of parents to share custody.
• Relationship between child and each parent.
• Potential disruption of child's social and school life.
• Demands of parental employment.
• Sincerity of parent's request.
• Financial status of parents.
• Benefit to parents.

Joint legal custody means that both parents have an equal voice in making legal custody decisions, and neither parent's rights are superior to the other.

Joint physical custody is in reality "shared" or "divided" custody. Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights. Note: This is NOT the definition of "shared custody" used in computing child support.

Embraced within the meaning of "custody" are the concepts of "legal" and "physical" custody. Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning a child's life and welfare.

Physical custody means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.

In any child custody case, the paramount concern is the best interest of the child. Formula solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that must be made. The best interest of the child is therefore not considered as one of many factors, but as the objective to which virtually all other factors speak.

Visitation issues are judged by the same standard as other custody issues: the best interests of the child.

Not exactly. Maryland law nowhere lists "irreconcilable differences" as grounds for divorce. However, conduct which many couples describe as "irreconcilable differences" may fit into one of the other grounds for divorce.

The practice of kinky or abnormal sexual relations by one spouse and the demand that these practices continue is inconsistent with the health, self-respect, and comfort of the other spouse. One who suffers from such demands may be justified in leaving on grounds of constructive desertion.

As with other contracts, a separation agreement is voidable, and subject to "recision" (meaning cancellation or annulment), if it can be shown that it was unconscionable or was obtained through fraud, duress, or undue influence. These are usually difficult to prove. For example, to establish duress there must be a wrongful act which strips the individual of the ability to utilize his or her free will.

A separation agreement is subject to the same general rules governing all contracts, and particular questions must be resolved by reference to particular language of the agreement. The primary source for determining the intention of the parties is the language of the contract itself. However, a contract is not ambiguous just because the parties to it disagree as to its meaning.

A Maryland court may modify any provision of an agreement with respect to the care, custody, education, or support of any minor child of the parties, if the modification would be in the best interests of the child.

In addition, a Maryland court may modify any provision of an agreement with respect to alimony or spousal support executed on or after April 13, 1976, regardless of how the provision is stated, unless there is: (1) An express waiver of alimony or spousal support; or (2) A provision that specifically states that the provisions with respect to alimony or spousal support are not subject to any court modification.

Yes. Parties often include provisions in a separation agreement which are beyond a court's power to order. However, once included in a separation agreement, such terms can be enforced by court order.

Yes. The court can allocate financial responsibilities over property which is the subject of a use and possession award, including mortgage or rent; indebtedness related to property and maintenance and other expenses of property.

A spouse with custody of a minor child of the parties can be awarded use and possession of a family home, car, furniture, furnishings and home appliances. In making an award, the court considers the best interests of the child, the interests of each party in continued use of the property as a dwelling place or to provide income, and the hardship, if any, on the party whose interest would be infringed.

A court may not require one spouse to pay the sole obligation of the other, or to satisfy joint obligations of the parties such as mortgages and taxes on real property, or pay the interest on joint promissory notes. However, if one parent gets use and possession of a house or car, for example, the other parent can be forced to contribute to the mortgage or car payment.

Yes. A Maryland court may order transfer of ownership of the principal marital residence from one party to the other, or to authorize one party to purchase the residence from the other, on court-ordered terms. In addition, a Maryland court may order transfer of vehicles or other family use personal personal property from one or both spouses to one spouse, subject to the consent of any lienholders.

Dissipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown. When a court finds that property was dissipated to the point of being a fraud on marital rights, it should consider the dissipated property as extant to be valued with other existing marital property.

Yes. Separation agreements are generally favored by Maryland courts as a peaceful means of terminating marital strife and discord so long as they are not contrary to public policy.

No Maryland appellate court has tackled this question in a reported decision. So far, "adultery" as used in Maryland's divorce law has meant voluntary sexual intercourse between a married person and a partner other than the married person's spouse. Intercourse, which means penetration of the vagina by the penis, does not occur between same-sex partners. Thus, same-sex intimate conduct may not be classified as adultery. However, such conduct may amount to constructive desertion, discussed below.

Characterization as marital or non-marital property disregards title, except real property held as tenants by the entirety, which is deemed marital. The court may order the sale of jointly titled real or personal property, and division of the proceeds. But the court cannot transfer title ownership of property, except for pension, retirement, profit sharing or deferred compensation.

Maryland courts apply a 3-step process:
(1) Determine what property is marital property.
(2) Determine the value of all marital property.
(3) Make a monetary award as an adjustment of the equities and rights of the parties.

Terms of a separation agreement, which has been incorporated into a divorce decree, are enforceable either through contempt proceedings or as an independent contract

Use and possession must terminate no later than 3 years after a divorce is granted.

Under Maryland law, there are two kinds of "no-fault" divorce. After 1 year of mutual and voluntary separation, with no hope or expectation of reconciliation, either party can obtain an absolute divorce. "Mutual and voluntary" means that both parties agreed to separate, that they did so without any coercion or threat, and that they intended to end their marriage. After 2 years of separation for any reason, either spouse can obtain an absolute divorce. (Even a philandering and abusive spouse who stays away for 2 years is entitled to a divorce.)

Equal division is not required, although that is the outcome in many cases.

If a spouse, knowing he or she is afflicted with a sexually transmitted disease, continues to maintain sexual relations and communicates the disease to the other spouse, such action constitutes extreme cruelty justifying divorce. However, to establish cruelty as the result of communication of a sexually transmitted disease, the diseased spouse must have known of the condition and the other spouse must have not known about it.

No. Maryland is not a "community property" state. Maryland has an "equitable distribution" statute. Labels are not important. Read more FAQs to find out how Maryland courts handle property.

A single act of violence, in order to constitute cruelty, must indicate the intent of the offending spouse to do serious bodily harm or be of such nature as to threaten or place the victim in serious danger in the future.

In order to obtain an absolute divorce (which is the legal term for a "real divorce") in Maryland, unless the divorce is based on adultery or cruelty, the parties must have been separated for at least 1 year. However, no one should wait a year after separating to file for a divorce because court dockets are clogged and it will take most of that time to get a court date. In order to "get in line" for a court date, many parties file for a "limited divorce," a holdover from yesteryear which today serves two functions: getting temporary support and getting in line for an absolute divorce.

Abandonment and desertion as grounds for divorce contain two elements: (1) ending cohabitation and (2) intent to end the marriage.

The most common "fault" grounds are: adultery, desertion, constructive desertion, cruelty, and excessively vicious conduct.

Remember, it is not the court's task to rewrite an agreement to correct an ambiguity, to avoid hardship to a party, or because one party has become dissatisfied with its terms. However, when the court finds an agreement ambiguous, the court may receive evidence to clarify its meaning.

Ending cohabitation means ceasing to live in the same residence and ceasing to have sexual relations with one another.

It is rarely possible to obtain evidence of adultery by the testimony of eyewitnesses. But there is no need to "catch them in the act." Circumstantial evidence is sufficient. There must be evidence that the alleged adulterer and paramour were inclined to commit adultery when there was an opportunity to do so, and they were together at a time and place and under circumstances which provided them with an opportunity to engage in sexual intercourse.

Here is what the court considers:

• Contributions, both monetary and non-monetary, of each party to the well-being of the family
• The value of all property interests of each party
• The economic circumstances of each party at time of award
• Circumstances that contributed to estrangement of parties
• Duration of marriage
• age of each party
• physical and mental condition of each party
• How and when specific assets acquired, and efforts expended by each in accumulating marital property
• Alimony award and use and possession award
• Non-marital contribution to real property held as tenants by the entirety

Nothing, usually. The owner of nonmarital property keeps it. However, in considering a monetary award, and in deciding on alimony, a Maryland court must consider all of the financial circumstances and resources of each of the parties, including any nonmarital property. If a judgment is entered against someone for a monetary award, nothing prohibits the party entitled to the judgment from going after nonmarital property to collect it.

Usually, a party may not affirm the favorable part of a separation agreement, or accept its benefits, and avoid the unfavorable part.

A Maryland court is required to give effect to an agreement's "plain meaning," without regard to what the parties actually thought it meant or intended it to mean. The terms of an agreement are given their usual and ordinary meaning, unless it is clear that the parties assigned a special or technical meaning to certain words. Put another way, the test of what is meant is what a "reasonable person" in the position of the parties would have thought the contract meant.

Marital property is:
(a) Real property held as tenants by the entirety, unless excluded by valid agreement.
(b) Any property acquired by 1 or both parties during marriage, and does not include any property acquired before the marriage; acquired by inheritance or gift from a third party;excluded by valid agreement, or directly traceable to any of these sources.

Maryland courts have defined the term "acquired" as the ongoing process of making payment for property. Under this definition, characterization of property as nonmarital or marital depends upon the source of each contribution as payments are made, rather than the time at which legal or equitable title to or possession of the property is obtained. So, for example, a house that had been acquired by one spouse, subject to a mortgage, prior to a marriage, is initially wholly nonmarital property; as mortgage payments are made out of marital funds during the marriage, the property becomes partially marital.

"Directly traceable" is not synonymous with "attributable." When marital and nonmarital funds are commingled, no specific sum of money used to acquire property or reduce an indebtedness on any property can be directly traced to any source. This inability to trace property acquired during the marriage directly to a nonmarital source simply means that all property so acquired is marital property.

In Maryland, whether or not a couple is separated is a question of fact. If husband and wife are not having sexual relations and are not sleeping under the same roof (in the same residence), then they are separated. People usually use the phrase "legal separation" to mean that they have signed a contract, called a separation agreement, which settles all of their marital property rights, alimony claims, and other issues-but they have not yet obtained a divorce.

A monetary award is an adjustment of the equities and rights of the parties concerning marital property. In other words, it is what a court orders one spouse to pay the other spouse so that what each takes from the marriage is fair under all the circumstances of the case.

A "marital debt" is a debt which is directly traceable to the acquisition of marital property.

In Maryland, a husband and wife may make a valid and enforceable agreement that relates to alimony, support, property rights, or personal rights. Provisions regarding custody and visitation, child support, alimony, debts, pets, cars, household furnishings, health insurance, life insurance, retirement and survivor benefits, business interests, bank accounts and investments, and attorney fees may also be included in a separation agreement.

Cruelty encompasses mental as well as physical abuse. Verbal and physical abuse may have been tolerated in another era, but today evidence of controlling behavior, isolation from friends or family, taunting, violence and threats of violence, or other misconduct which is calculated to seriously impair the health or permanently destroy the happiness of the other spouse, will justify an absolute divorce on grounds of cruelty or excessively vicious conduct.

Under either the "contributions plus" method or the "present value" method, the court has discretion to order payment to the non-employee spouse in either a lump sum or in installments, depending primarily on other assets and relative financial positions of the parties.

Pension plan benefits payable to an employee spouse under an ERISA plan can be redirected to an alternate payee non-employee spouse only through the mechanism of a Qualified Domestic Relations Order or QDRO. Absent such a qualified order, not only will the pension plan administrator refuse to implement the court's decision, but there is at least a reasonable argument that a non-qualified order may be invalid even as between the parties.

Someone is legally justified in leaving when a spouse's conduct presents such a threat to a person's safety, physical health, or self-respect that continuation of the marital relationship has been made impossible. This is what Maryland law calls "constructive desertion" by the offending spouse.

Contractual language is considered ambiguous when the words used would tend to have more than one meaning to a "reasonable person.".

To determine if contractual language is ambiguous, a Maryland court reviews the contract itself; it must also consider the character of the contract, its purpose, and the facts and circumstances of the parties at the time the contract was executed.

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.

Voluntary separation is when two parties agree that they need to go their own way. 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 does 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).

Here are the grounds for divorce in Maryland:

Adultery; Desertion; Voluntary Separation; Conviction of a Felony; Two Year Separation; Insanity; Cruelty of Treatment; and Excessively Vicious Conduct; Bigamy; Voluntary separation (requires that both parties live separate and apart); criminal incarceration; mental insanity. Voluntary Separation in (MD) Maryland is where both of you agree to live separate and apart without cohabitation. This means that you are mutually agreeing to live in separate residences. Maryland does not allow the two of you to stay in the same home and assert voluntary separation as a grounds for divorce.

The courts distinguish between "constructive desertion" and "desertion" in (MD) Maryland, which (under desertion) 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).

Cruelty and vicious conduct in (MD) Maryland is where you have been abused by your spouse. The mere fact that the two of you are not speaking is not generally considered abuse.

Adultery in Maryland (MD) is where your spouse is having sexual relations with another person. However, once you learn of the adultery and still have sexual relations with your husband it is deemed condoned or in plain english, forgiven. You do not have to catch the spouse in the actual act. The Court applies a more lenient test. Our attorney's can explain in more detail.

If your spouse has been incarcerated for more than 12 months on a three year sentence, then you can file for a divorce.

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.

A single act of violence, in order to constitute cruelty, must indicate the intent of the offending spouse to do serious bodily harm or be of such nature as to threaten or place the victim in serious danger in the future.

If a divorce occurs after at least 10 years of marriage, you can collect retirement benefits based on your former spouse's Social Security earnings record if you are at least age 62 and if your former spouse is entitled to or receiving benefits. If you remarry, you generally cannot collect benefits on your former spouse's earnings record unless your later marriage ends (whether by death, divorce, or annulment).

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 are included in "actual income."

Based on the circumstances of the case, the court may consider the following items as actual income:

• Severance pay;
• Capital gains;
• Gifts;
• Prizes.

For example, in one case where a parent had received regular subsidies from his mother for a long period of time, these subsidies were included in his "actual income." However, in another case, where a mother's live-in boyfriend paid toward bills for rent, electricity, cable, telephone service, and trash removal, the payments were not included in her "actual income."

The court need not determine the value of a pension, retirement, profit sharing, or deferred compensation plan, unless a party in a divorce proceeding has given notice that the party objects to a distribution of retirement benefits on an "if, as, and when" basis. If timely notice is not given, any objection to a distribution on an "if, as, and when" basis shall be deemed to be waived unless good cause is shown.

A divorced party with a retirement cannot reduce a former spouse's share of pension benefits by electing survivor benefits for someone other than the ex-spouse. Although an employee spouse is free to elect survivor benefits for someone other than the nonemployee former spouse, the nonemployee spouse's pension benefits should not be less than they would have been if such an election had not been made.

Yes. Awarding a nonemployee spouse a portion of an employee spouse's pension benefits on an "as, if, and when" basis, rather than as a lump sum, is permissible, despite the employee spouse's preference for a lump sum award. Likewise, awarding a nonemployee spouse a portion of an employee spouse's pension benefits on an "as, if, and when" basis, rather than as a lump sum, is permissible, despite the nonemployee spouse's preference for a lump sum award.

A court may not require one spouse to pay the sole obligation of the other, or to satisfy joint obligations of the parties such as mortgages and taxes on real property, or pay the interest on joint promissory notes. However, if one parent gets use and possession of a house or car, for example, the other parent can be forced to contribute to the mortgage or car payment.

Survivor benefits attached to a pension are property separate and apart from the pension itself. Although survivor benefits are like a pension, they have been treated as marital or nonmarital property in their own right, depending on when and how the survivor benefits were acquired.

QDROs can and must be drafted to provide for differing payment types depending upon the type of plan involved. One type of payment is a "shared payment." A second type of payment is a "separate interest."

If your divorced spouse dies, you can receive benefits as a widow/widower if the marriage lasted 10 years or more. Benefits paid to a surviving divorced spouse who is 60 or older will not affect the benefit rates for other survivors receiving benefits. In general, you cannot receive survivors benefits if you remarry before the age of 60 unless the later marriage ends, whether by death, divorce, or annulment. If you remarry after age 60 (50 if disabled), you can still collect benefits on your former spouse's record. When you reach age 62 or older, you may get retirement benefit on the record of your new spouse if they are higher. Your remarriage would have no effect on the benefits being paid to your children

Done properly, transfers between spouses incident to a divorce or separation instrument are not taxable events for either the transferor or the transferee. Consult a tax advisor with experience in transfers incident to divorce for guidance on how to transfer retirement assets properly. Of course, previously tax-deferred income will be taxable to the transferee spouse upon withdrawal from a retirement account. However, under certain circumstances, the transferee spouse may avoid withdrawal penalties. Consult a tax advisor for guidance on how to do so.

No. The Maryland statute governing disposition of marital property gives the court discretion to transfer interests in retirement, pension, and deferred compensation plans in divorce proceedings, but does not require the court to do so. The court has much discretion in determining the best way to allocate marital assets between parties. Whether to award retirement funds is but one of its options. If the court decides to award part of a retirement plan or similar account, it has considerable flexibility in determining how and when payments will be received. However, flexibility and discretion do not equate to a mandate that every divorce litigant with a retirement account must share it with an ex-spouse. The retirement account or pension plan is often, next to the family home, a divorcing party's largest asset, so it may become necessary for the court to consider dividing it. However, for example, where the retirement account represents only a fraction of the total marital property, some of the retirement asset was acquired before marriage, and other funds are available for a monetary award, the court may decide to let the retirement asset remain untouched.

Any pension, retirement, profit sharing, or deferred compensation plan or account acquired during marriage is marital property. So, for example, the right to receive retirement benefits under a private or public employee pension plan, whether or not vested, matured, or contributory, is property which, if acquired during marriage, constitutes marital property

Any pension, retirement, profit sharing, or deferred compensation plan or account acquired before marriage, by inheritance or gift from a third party, excluded by valid agreement, or traceable to any of these sources is nonmarital property. So, for example, payments made toward a 401K prior to marriage are nonmarital property. So, too, the increase in 401K's value during marriage which is "directly traceable" to the portion acquired prior to marriage is nonmarital property.

These are terms used in QDROs and other retirement orders. "Participant" refers to the spouse who is an employee or former employee of the plan sponsor, and "alternate payee" refers to a nonemployee spouse. Under ERISA, an alternate payee is "any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under the plan with respect to such participant." An alternate payee, under a QDRO, is treated as a plan beneficiary.

Equal division is not required, although that is the outcome in many cases.

No. Maryland is not a "community property" state. Maryland has an "equitable distribution" statute. Labels are not important.

One spouse's creation of an individual retirement account or IRA solely in the other spouse's name but primarily with the contributor spouse's nonmarital funds may indicate the contributor spouse's intent to make a gift to the recipient spouse, and to relinquish equitable interest in the funds. The contributor spouse's conduct may support classification of the IRA as the recipient spouse's nonmarital property upon divorce.

When the right to receive retirement benefits is acquired during marriage, it is marital property subject to equitable distribution, even when only one spouse contributed economically to earn that right.

Under a "separate interest" QDRO, the participant's actual retirement benefit is divided, and the alternate payee is permitted to receive a portion of the retirement benefit to be paid at a time and in a form different from that chosen by the participant. A separate interest QDRO is often preferred where the order seeks to divide a pension as part of the marital property as opposed to providing for support payments. A separate interest award is permitted by Maryland law whether the participant spouse's interest in the plan is vested or unvested at the time of divorce.

One type of payment available is a "shared payment," whereby the QDRO seeks to divide only actual payments made with respect to the participant under the plan. Under a shared payment approach, only the participant's stream of income is divided and the alternate payee is not actually given a portion of the actual retirement benefit. Therefore, the alternate payee's right to receive payment is dependent upon the participant's receipt of payments under the plan and he or she will not receive a distribution unless, and until, the participant is in pay status. Accordingly, QDROs providing for shared payments are typically entered in cases where the participant is already receiving payments under the plan.

A Qualified Domestic Relations Order, or QDRO (pronounced "quadro"), is one type of order that is issued by a court to transfer retirement assets. Although the term has a technical meaning, referring to employer-sponsored plans subject to ERISA, it has come to be used to refer to just about any order to transfer retirement assets. A QDRO must be approved by the administrator of the retirement plan as well as the court before it will be carried out.

The "if, as and when" method, recognizes that the value of a pension at the time of divorce cannot be ascertained with certainty until the employee spouse retires. This third method, which has been used widely, uses a formula for computing the nonemployee spouse's share of any future payments the employee spouse receives under the plan, payable to the non-employee spouse as, if, and when paid to the employee-spouse. Under this approach, of course, it is unnecessary to determine the value of the pension at all. The court need do no more than state the formula to be used to determine the percentage to which the non-employee spouse will be entitled.

The formula used in an "if, as, and when" award of pension benefits, referred to as the Bangs formula, calculates the value of the pension to which the non-employee spouse is entitled as a percentage, usually 50%, multiplied by a fraction, the numerator of which is the number of months and years of employment during the marriage, and the denominator of which is the total number of months and years of employment at the time of retirement.

Under this approach, benefits payable in the future have to be discounted for interest earned in the future, for mortality, and for vesting (if not fully vested at the time of divorce). The benefits then have to be calculated with respect to the employee-spouse's life expectancy as a retiree. This calculation involves considerable uncertainty, and the amount yielded changes as different assumptions are used with respect to mortality, job turn-over, and other factors. It has been recognized that this kind of calculation can be very difficult and that, where it becomes too speculative, the trial court should use a different method of valuation.

For purposes of divorce in Maryland, a court has broad discretion in evaluating pensions and retirement benefits. In a Maryland divorce action, pension or retirement benefits can be valued

• as equal to an employee's contributions to the pension plus accrued interest or market experience thereon,
• as the "present value" of future benefits expected to be received by the employee after retirement, or
• through determination of a percentage to be paid to the nonemployee spouse from any future retirement payments received by an employee spouse, payable "as, if, and when" received.

The method used for valuing a spouse's pension or retirement benefits in dividing marital property upon divorce will depend upon the facts and circumstances of the particular case.

Any pension, retirement, profit sharing, or deferred compensation plan or account is at issue. Retirement assets include IRA, 401K, 403B, TSP, profit sharing, money purchase, pension, stock option, annuity, and any other deferred compensation accounts or plans; military, FERS, CSRS, State, county, municipal, union, and private defined benefit plans and defined contribution plans; and survivor benefits.

An order will not be "qualified" if it grants any type or form of benefit, or any option, not otherwise provided under the plan, or results in a plan having to pay increased benefits.

Maryland's appellate courts have disapproved of attempts to freeze the non-employee spouse's share of the employee spouse's pension to its then current fixed value at the time of divorce. They have observed that an employee spouse's increases in salary after divorce would be based in part on work performance during the marriage. Moreover, any future adjustments by management might well relate to the length of the employee spouse's total service, including the period of the marriage.

Mediation is usually voluntary, but in Maryland a court can order parties to attend settlement conferences, which are like mediation sessions and are usually conducted by mediators, concerning custody, property and support.

Yes. Parties often include provisions in a mediated agreement which are beyond a court's power to order. However, once included in a mediated agreement, such terms can be enforced by court order.

Discussions in mediation are confidential and cannot be used as evidence in any court, arbitration or administrative hearing. No information obtained during mediation will be given to any outside person unless both parties agree.

No. The mediator is a neutral person, skilled at helping parties resolve conflict. The mediator does not act as a lawyer for either party -- or for both parties. Parties should consult their own attorneys for legal advice.

Parties are charged for mediation on an hourly basis. Hourly rates vary from mediator to mediator. The parties themselves decide how to divide the costs.

In our experience the expense and time needed to complete a divorce mediation depends on two key factors: the inherent complexity of the issues and the level of cooperation and communication between the spouses. When couples can exchange information and effectively discuss settlement options between mediation sessions, the mediation process can move rapidly. For example, we have had couples with complicated finances and parenting issues who have completed their settlement discussions in just two 2-hour mediation sessions. However, it's more common for couples to need five to six 2-hour sessions, and some couples have required more that six sessions. Once the couple has completed their negotiations, we draft a marital settlement agreement, and then we meet with them to review the document.

Mediation is billed at an hourly rate, and for the reasons just mentioned, we cannot predict in advance the total cost of the mediation. However, our fees for a complete mediation, including the orientation, mediation sessions, and the drafting and revising of a comprehensive agreement typically range from $4,000 to $8,000.

We are aware that separation and divorce are times of financial hardship for most families because it's a financial stretch to support two households on the income that used to support just one household. With that in mind, we use a structured mediation process that is designed to be efficient. We provide encouragement and specific guidance so that clients can do as much work as possible on their own. Our goal is to complete the mediation in a manner that produces a mutually satisfactory settlement, without incurring unnecessary fees.

It can be helpful to remember that mediation is an alternative to the more costly route of attorney negotiations or litigation. A recent survey indicated that collaborative law often costs 3 times as much as mediation, attorney negotiated settlements 4 times as much, and a divorce trial more than 10 times as much as mediation.

No. You can choose to mediate your dispute at any time -- before or after litigation is under way. Mediation can be a cost-effective alternative to continued litigation.

Yes, but the court proceedings are usually brief and uncontested. In Maryland, instead of a 2-day or 3-day custody or divorce trial, if an agreement is reached in mediation, a 10-minute hearing is usually all that is needed.

Mediation can work well in both high-conflict and low-conflict cases. It is in the high-conflict cases where mediation, as an alternative to litigation, can often save the most time, money, and emotional turmoil.

We enjoy the challenge of difficult cases. Many are difficult only on the surface. Underneath are the same reasons to work things out amicably as in less difficult situations.

In some instances, when two people cannot be together, we will meet with each person separately and conduct a type of shuttle diplomacy.

Mediation allows parties to control outcomes in ways that courts are unable to do. Mediation provides a calm, reflective setting for settling personal matters. Mediation provides a means for private and confidential exchange of information. Mediation is less costly than litigation, both financially and emotionally. Finally, successful mediation can create positive momentum between parties as they move on with their lives.

You do not have to bring anything with you, except for your willingness to participate. However, parties in mediation often find it helpful to bring financial records or other papers that might help everyone reach an agreement.

At our office, you have the option of having John or Donna serve individually as your mediator or having both of us work together as co-mediators. (For ease of explanation, the following answer is written using "we" to mean the two of us-John and Donna-working as your co-mediators.)

Divorce mediations begin with an orientation session. This session lasts from 1 to 2 hours. We will explain to both of you in detail how the mediation process works and, after hearing from you about your family situation, we will set out a proposed agenda of specific issues that would need to be addressed in mediation. If you decide to go forward with mediation, we will schedule one or more sessions and give you your "homework" for the first session.

Mediation sessions (after the orientation) are generally two hours long, with a short break in the middle. We will set a natural conversational tone for each session and act as your guide, as we talk you through the issues in a thoughtful sequence. Where useful, we may meet separately with each of you, usually for about 10 to 15 minutes during the two-hour session.

The agenda for each session will generally have been discussed and agreed on in advance. At the beginning of each session we will review the prior session with you, noting what was decided and what remains to be done. Then we will review the homework and begin discussing with you the issues on the agenda, or address any pressing issues that have come up since the last session. When working on financial support issues, we probably will use the computer to do budgeting and to calculate the state child support guidelines. At the end of each session, we will discuss with you the agenda and the "homework" for the next session.

We will meet with you until all the issues have been resolved. At that point, we will begin drafting an agreement. After you have had a chance to review the draft agreement, we will meet again with you to go over it together. We will then prepare a revised version which will be ready for attorney review. We recommend to all our clients that you each have your own attorney review any draft agreement which we have prepared, before you sign it.

Mediation is an informal process for problem-solving. A neutral person -- a mediator -- helps parties to discuss, negotiate, and reach an agreement to resolve a conflict or dispute.

Mediation is a process in which the two of you talk together, with the guidance of a specially trained facilitator, to figure out your own solutions to your disputes.

In mediation, a neutral person -- a mediator -- helps parties to discuss, negotiate, and reach an agreement to resolve a conflict or dispute. In arbitration, parties submit their dispute to a neutral person -- an arbitrator -- who decides the outcome of the dispute. In mediation, the parties decide the outcome; in arbitration, the arbitrator decides.

Divorce mediation gives you an opportunity, as a couple, to work out the terms of your separation and/or divorce. The mediation process provides a humane and effective alternative to litigation. If you have minor children, the mediation will focus on three key sets of issues: parenting plan, division of property, and financial support. If you do not have minor children, the mediation generally will focus on financial issues: division of property, and financial support. Depending on your circumstances, you may choose to use mediation to work out a temporary separation agreement or, instead, a comprehensive agreement called a "Marital Settlement Agreement." Once the Marital Settlement Agreement has been signed, you can use it as the basis for seeking an uncontested divorce decree from the court.

As your mediators, we will guide you through the issues in a sequence that promotes thoughtful decision making, facilitate your communications with each other, and document your decisions. We will be neutral and unbiased. We will not make decisions for you or act as a judge. We believe you can make the best decisions for yourselves, and we can help you reach that point.

As mediators, we have been through this process hundreds of times. We know the issues to be addressed and appreciate the emotional turmoil that is involved. We can visualize the end of the process even when participants are having a hard time seeing the next step. Part of our role is to provide information and suggest options to consider. Often we can tell you common ways other people have handled similar situations, so you don't have to reinvent the wheel. We can help you explore creative solutions when you want to go in new directions.

We will provide an environment that encourages attentive listening and good thinking. We will make sure each of you has a chance to be fully heard without interruptions. In difficult situations, we will help you set boundaries and encourage respectful behavior. Unlike litigation, in mediation many people learn skills of communication that can be useful in the future.

During each session we will also document the decisions that you have made. If you live in Maryland or DC, we will draft a marital settlement agreement for you. When signed, this agreement is an enforceable contract and can be used as the basis for seeking an uncontested divorce decree from the court. If you live in another state, we will draft a memorandum of understanding that can be taken to an attorney in your state.

We do recommend to all our clients that you each have your separate attorney review any draft agreement we have prepared, before you sign it. Some clients also find it helpful to consult with an attorney as they go through the mediation process. This helps them develop options to present in mediation or get feedback to the options already discussed in mediation. At your request we will give you referrals to attorneys who are supportive of the mediation process.

Most couples are able to complete the mediation process without having their attorneys participate in the session. In some cases it has proved helpful to have the attorneys participate. This option is available to all couples. Even when attorneys are present, the clients do most of the talking.

Any issue which can be included in a separation or parenting agreement can be mediated. In Maryland, parents are encouraged to reach agreement concerning custody and visitation, and child support. A husband and wife may make a valid and enforceable agreement that relates to alimony, support, property rights, or personal rights. Provisions regarding debts, pets, cars, household furnishings, health insurance, life insurance, retirement and survivor benefits, business interests, bank accounts and investments, college costs, and attorney fees may also be included in a mediated separation agreement.