2018 – New Ground for Divorce

The Maryland Legislature passed a new law enabling spouses to obtain a divorce who resided in Maryland for six months and have agreed in writing covering the required elements to obtain a divorce.

Parties still have the right to obtain a divorce on grounds such as adultery, cruelty, insanity, or imprisonment for 3 years. The written agreement, when meeting the elements, does not require a waiting period other than the 6-month residency requirement.

This new statute appears in the Annotated Code of Maryland, Family Law volume, Section 7-103(a) – Grounds for Absolute Divorce (8), Mutual Consent Subsections 1,2, and 3.

The family law judge still, after reviewing the agreement, has discretion to grant or deny the divorce based on the mutual consent agreement.

One benefit of the mutual consent agreement is no waiting period. If there is currently litigation in a contested case, the statute permits that if the required elements are met, there is no waiting period to obtain an absolute divorce. This law has obviated not just the time requirements of the parties but often having to wait 12 months and requiring the parties be separate and the savings costs of attorneys’ fees. Also under this new statute, by mutual consent the parties may, through amendment, obtain a divorce by placing the mutual consent agreement on the record and place the desired agreement in writing after the hearing.

Below are the requirements. The five most significant are:

  1. Alimony
  2. Custody
  3. Child support
  4. Property and
  5. Agreement in writing and signed by both spouses

Property includes marital property-personal property, pensions, 401K’s, 403B’s, and other deferred compensation; home goods; real property-real estate, marital homes, condos, investment properties, timeshares, jointly owned property. Remember, marital property is all property acquired by the parties regardless of under whose name the property appears. Exceptions to marital property are gifts and inheritances so long as the gifts and inheritances are kept separately and not co-mingled with marital property.

Alimony may include temporary, rehabilitative, or indefinite. Terms must be certain, including a waiver of alimony. The agreement must deal with any conditions that terminate alimony, how much alimony, and for how long.

Child Custody and Support– The mutual consent agreement must spell out legal, sole, shared, joint, visitation. The Maryland State Child Support Guidelines must be in writing and all terms applicable must be set forth, including the amount of child support and who claims dependents and other tax benefits. A child support worksheet must be attached to the consent agreement. In joint custody, the agreement must include which of the parties has tie-breaking authority and designate with whom holidays and birthdays, both of child and parents, are to be spent.

Marital Award: If part of the written agreement creates a marital award, all terms and conditions must be specified. The Court, in its discretion, must be satisfied that all necessary terms and conditions affecting dependent or minor children meet the standard and are in the best interest of the children.

There are other important factors such as reconciliation, res judicata, and condonation that could affect the Court’s acceptance of the written mutual consent agreement and often are less likely to occur.

However, here are general descriptions of three identified factual outcomes that affect the Court’s being satisfied and these three usually will not affect the approval of the mutual consent agreement:

  1. Recrimination: This term can mean one party files divorce on more than one ground and the other party files on grounds of equal degree. This situation may not prevent either party from obtaining a divorce yet a judge has discretion on the original court complaints (grounds for divorce) if adultery is a ground of allegation by one or both of the parties. In the adultery ground, the Court has the discretion to approve or disapprove the written mutual consent agreement.
  2. Condonation: This means forgiveness, i.e., one spouse admits to the other spouse that he/she has committed adultery and the non-adulterous spouse says, “I forgive you”. The parties resume their relationship, cohabit, resume intimacy, live together and the wrongdoer is forgiven. The forgiveness is conditional in that the adulterous spouse does not commit adultery again. If the adulterer commits adultery again, forgiveness ends. A judge may, in reviewing the facts, treat the subsequent adultery as either a reason to prevent the adultery resumption as a bar to the divorce or grant the divorce.
  3. Res judicata: This term typically means that a decision was made by the Court or the statute of limitations has run. Here it relates to another ground. Most often it relates to a situation wherein the other ground, such as a 12-month separation, exists.

This statute is just over one year old and possibly for cases to have reached the appellate level. Should a judge at the appellate level, Court of Special Appeals or Court of Appeals, have abused his or her discretion in granting or not granting an agreement for a divorce, an appellate court could reverse or remand the case back to the circuit court, or affirm it. Appellate courts mostly deal with abuse of discretion by a judge. Each judge must, in granting or denying, provide his or her reasons for granting or denying a mutual consent agreement. The appellate court could decide to reverse on other reasons such as misapplying the rule of law, evidence, or the judge at the circuit court level did not adequately explain the reasons for the decision. Abuse of discretion means an objective standard. Could any reasonable judge have made the decision that the judge made? Appellate courts are unable to determine the credibility of witnesses.

The requirements of the granting of approval of a mutual consent agreement are in my view quite clear and lawyers should be able to meet the requirements.

Fredric Antenberg has over 35 years’ experience handling family law cases, mostly in Central Maryland and also on the eastern and western shores as well as in Western Maryland. Call Fred for a free initial consultation at 410-730-440 or email him at fa@fgalaw.com.