The Thin Man’s Divorce

, , , , , , , ,

“I’ve never been divorced before,”said the thin man sitting across the desk from me. His dark narrow eyes darted back and forth as he nervously sipped the bottled water my receptionist had given him.  He sank into one of the two wing-back chairs in my office. “I don’t know anything about it.  I have a million questions.”

In my line of work as a divorce lawyer I meet all kinds of people. I tried to put the thin man at ease. I put my fingers together in a church steeple, closed my eyes halfway, and leaned back in my burgundy leather office chair in my best Perry Mason imitation. “Well I’ve been divorced twice, so ask me your questions.”  I then proceeded to give him the following answers to his questions one by one.

Question 1.  I had an affair.  Am I going to lose everything in the divorce? 

Adultery gives your spouse grounds for divorce, not the right to 100% of the house, cars, 401(K), and everything else.  Jointly owned properties are divided equally.  The judge can make a marital award to make sure the division is fair.  In determining the marital award, the judge considers several factors.  One of these is who was at fault in the termination of the marriage.  The judge can also make adjustments for any marital funds you have spent on the affair.

Question 2.  Will the court take the children away from me because I cheated?

Adultery may make you a bad spouse but it does not necessarily make you a bad parent.  In Davis v. Davis, 280 Md 119, 372 A.2d 231 (1977), the Maryland Court of Appeals said

Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the children’s welfare.

The court looks at what is in the best interests of the children, not what is in the best interests of the parents.

Question 3.  Can My Spouse Get a Divorced if I Don’t Agree?

While it takes two people to get married, it only takes one to get divorced.   If you don’t want a divorce, you can slow down the process, but a spouse determined to get a divorce can get one.

Question 4. Do I Have to Have a Lawyer to File for Divorce?

It is not a requirement that you hire a lawyer for your divorce.  The Maryland courts have published divorce forms on the Internet and there is a self-help desk at the Montgomery County, Maryland, Courthouse.  We have do-it-yourself divorce help on this website and we have published self-help divorce books.  However, divorce cases can get complicated quickly.  If your case involves child custody, alimony, real estate, retirement funds or other assets, we recommend you hire a lawyer.

Question 5.  Does the Mother Always Win Custody?

In the old days many judges followed the Tender Years Doctrine which presumed that mothers were the better care taker for young children.  Today, however, the standard is best interests of the children.  Many jurisdictions, like The District of Columbia presume that joint custody is in the best interests of the children.

Question 6.  Can a Husband Get Alimony?

Today, there are many cases where the wife makes more money than the husband.  In those cases, husbands are entitled to the same rights as wives including the right seek alimony.

Question 7.  How Much Is All This Going to Cost?

In most cases of a long marriage, the judges in Maryland, Virginia and DC will divide marital assets equally, but they are not required to.  If you make a lot more than your spouse, or your spouse is ill or requires some training to get back in the workforce, you will probably have to pay alimony.  The judge decides the duration and amount.   Once custody and alimony are determined, you can use online calculators to determine child support.  You may have to pay all or a portion of your spouse’s attorney fees as well as your own.

 *  *  * 

The thin man sighed and said, “Thank you.  It’s not what I wanted to hear but I feel better knowing than not knowing.  I want you to be my lawyer.  What’s the first step?”

“Sign my retainer agreement and pay my retainer,” I replied as I pushed the document across the desk and held out my Mont Blanc fountain pen.  “I’ll start working on your case immediately.

 

/by James J. Gross

The Divorce Lawyer Answer Desk: Should I Tell My Wife About My Affair?

, , ,

“I had an affair with a woman I work with a few years ago,” said the prospective divorce client in Attorney Hamilton Starke’s office.  “I think I should tell my wife about it.”

“No, no, no!’ exclaimed Starkes.  “Look, your guilt is making you want to confess.  But the more you explain, the more problems you will create.”

“But I thought Maryland was no-fault divorce?”

Grounds for Divorce

“No-fault applies to grounds for divorce.  Maryland has both fault and no-fault grounds for divorce,” Starkes explained.  “We started with only fault grounds which are desertion, adultery, imprisonment, and insanity. Then we added the no-fault grounds which are currently one-year separation and mutual consent.”

 Alimony

“In a contested divorce, even one brought on no-fault grounds, a judge must consider fault in determining the amount and duration of alimony,” Starkes continued.  “Or, as the law puts it, the circumstances that contributed to the estrangement of the parties.  That includes fault such as an affair.”

Property Distribution

“And that’s not the only trouble a confession will bring to your case,” Starkes said.  “Maryland law requires a three-step procedure for distributing property.  In Step One the judge identifies the marital property of the parties.  In Step Two the judge values the marital property.  In Step Three the judge adjusts the equities if necessary with a Monetary Award.

In determining a Monetary Award,” Starke explained, “the judge must consider several factors including the circumstances that contributed to the estrangement of the parties.  So here we are, back to fault again.”

Confession or Discretion

“So I should lie to her?” asked the prospect.  Is that what you’re saying?”

“No,”  Starkes said, “Always tell the truth.  You just don’t always have to be telling it.”

/by James J. Gross

Multiple Grounds for Divorce in Maryland

, ,

To file a complaint for divorce, you have to have to cite a reason. These are known as as grounds for divorce in Maryland. They are listed in the Maryland Code.

The Code has both fault and no-fault grounds.   Fault grounds, such as adultery, desertion and cruelty, are factors the court must consider in determing alimony and distribution of property.

You may have, and plead, multiple grounds for divorce.  Or, like in the following case, the wife may plead one ground and the husband may plead another.  Who gets to pick the grounds on which the divorce is ultimately granted if more than one applies?

Mary and Timothy Welsh married in 1961.  Timothy had degrees in accounting and law and was licensed as a real estate agent.  Mary took care of the house and their four children.  They acquired a 22 acre property during the marriage.

Mary left Timothy in 1994 and filed for divorce based on adultery.  Timothy counterclaimed for divorce after two years of separation.

The trial court said that Mary failed to prove adultery but Timothy conceded it at trial.  Nonetheless, the trial court granted the divorce based on separation.

The Maryland Court of Special Appeals upheld the decision, stating that:

It is ultimately up to the court, based on its fact finding, to declare the grounds for divorce. It is not reasonable that the court be obligated to grant the divorce on the grounds requested when the judge is more persuaded that it is more likely than not that other grounds for the divorce are more justified.

Welsh v. Welsh; 135 Md.App. 29 (1999)

/by James J. Gross

No Presumptions that Adultery Makes You an Unfit Parent

, ,

In 1978, Robert Swain divorced Nancy Swain because of her adultery.  She did not deny it.  In fact, she was living in an apartment with another man she intended to marry.

What Robert objected to was the order giving Nancy custody of their minor daughter.  His position was that exposure to an adulterous relationship inevitably causes detriment to the morals and welfare of a child of impressionable years.

The Maryland Court of Special Appeals disagreed.  It said there are no presumptions that adultery makes you an unfit parent.  Adultery is relevant only as if it actually affects the child’s welfare.  There is no presumption of harm.  Adultery will not tip the balance against a parent in a custody case.

Swain v.  Swain, 43 Md. App. 622; 406 A.2d 680 (1979)

/by James J. Gross

Putting the Fault Back in No-Fault Divorce

, , , , , ,

Years ago Maryland and Virginia added no-fault divorce grounds to the traditional fault grounds.   DC has moved completely to no fault grounds.  However, even if you file on no-fault grounds, marital misconduct still comes into play in all three jurisdictions.

Alimony. In each jurisdiction, the law provides a list of factors the court must court must consider in determining alimony.  In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties.  In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Property. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider.  In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate.  In Virginia, one factor is circumstances contributing to the dissolution of marriage.  In DC, it is circumstances contributing to the estrangement.

Custody. Marital misconduct does not necessarily make you a bad parent.  The test is best interest of the children.  But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

As a result, the parties spend 90% of their time in discovery and trial trying to prove fault.  While most of the judges I’ve talked to say it affects their decision by 10% or less.

/by James J. Gross

Separated in the Same House (Virginia)

, ,

When Marja Kaarina Bchara suspected her husband, Adnan Bchara, of adultery in January of 2000, she moved his possessions out of the master bedroom and into the guest bedroom, and sued him for divorce.

At trial the wife testified she took these actions to live separate and apart from her husband.  She stopped attending family functions with husband and his family.  She would not attend church with him.  She stopped depositing money into their joint checking account.   However, she continued to buy groceries, cook, do laundry, and clean house.  She said she asked her husband several times to leave the house, but he refused to do so.

A friend of the wife testified she visited the house once a week and observed the parties living in separate bedrooms.  The wife told her friend that she and husband were no longer “a couple.”   The divorce was granted.  Adnan Bchara V. Marja Kaarina Bchara, 38 Va. App. 302; 563 S.E.2d 398 (Va. App. 2002).

So in Virginia, unlike Maryland, you can get a divorce based on separation while living in the same house.  Also in Virginia, unlike DC and Maryland, a divorce may be granted upon separation for one year if only one of the parties intends that the separation be permanent.  Separation in the same house requires:

  • a separation – you cannot be separated in the same bedroom
  • a clear starting event – here the discovery of adultery, and
  • corroboration – so you need at least one frequent visitor.

You can maximize the likelihood of success by:

  1. a written separation agreement
  2. a clear event such as one spouse moves to the basement or lower level, documented and witnessed
  3. don’t have sexual relations
  4. separate the finances
  5. don’t go out together
  6. tell everyone you are separated and you are getting a divorce
  7. if you have children, don’t have family dinners and don’t drive to their events together

VA Grounds for Divorce

/by Michael Callahan

Alienation of Affection and Criminal Conversation

,

Paula Cook has filed a divorce petition in North Carolina alleging that her husband, Antwuan Cook, had an adulterous affair with the former American Idol winner, Fantasia Barino. Lawyers are speculating that Mrs. Cook might file a lawsuit against Fantasia for alienation of affection and criminal conversation.

Alienation of affection is a civil lawsuit against a person who deprives you of the love and affection of your spouse. Criminal conversation is also a civil, not criminal, suit against a third party in which you have to prove adultery.

Alienation of affection and criminal conversation causes of action exist in a few states but not in Maryland, Virginia or DC.

/by James J. Gross

Adultery a Bar to Alimony?

, ,

by Michael F. Callahan

Last week we discussed how to pick a court in which to file your uncontested divorce case.  This is the first of several articles in which we’ll talk about circumstances in which a case would be decided differently depending on which local jurisdiction’s court hears the case.

There is no bar to alimony in the District of Columbia or Maryland for adultery.  Fault is only one of many factors that a court may consider in deciding whether to award alimony and, if so, how much and for how long.

However, in Virginia the court cannot award spousal support (alimony) at the conclusion of the divorce case from a spouse who has proven adultery of the other spouse as a ground for divorce, unless the court determines based on clear and convincing evidence that it would be a manifest injustice to deny support.

So there is more at stake when Virginia spouses, who suspect their spouses of cheating hire private detectives and snoop, electronically and otherwise.  This is because solid evidence of adultery strengthens the potential support paying spouse’s hand in negotiations and at trial.

It is necessary to find such evidence because you cannot rely on forcing your spouse to admit adultery by asking him or her under oath.  Adultery is a crime in Virginia, seldom prosecuted but still on the books.  Accordingly, your spouse can “take the fifth” when questioned about adultery.

Once adultery has been established, to overcome the adultery evidence and be awarded spousal support, the prospective support payee must establish by clear and convincing evidence that it would be a manifest injustice to deny support.   The statute provides that the court is to look at the spouses’ respective degrees of fault and relative economic circumstances.  So to prevail the adulterous support-seeking spouse needs to show (1) he or she  really needs support and the other spouse really can afford to pay, and (2) looking at the entire marriage and the conduct of both spouses, the other spouse’s conduct is really more culpable than the adultery of the spouse seeking support.  In short, it is very difficult burden.

If your spouse moves out of the Virginia marital house and into D.C. or Maryland, he or she may be forum shopping to avoid the Virginia adultery bar to alimony.  In that case you would be wise to file a divorce case in Virginia promptly.

/by James J. Gross