Putting the Fault Back in No-Fault Divorce

Adultery, Alimony, Child Custody, Divorce Advice, Divorce Law, Finances, Grounds for 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.

December 17, 2010/by James J. Gross

Maryland Attorneys May Use Alimony Guidelines

Alimony, Divorce Law

Advice from a MD divorce attorney: Alimony in Maryland is decided by considering twelve factors set forth in Family Law Section 11-106. There is nothing in the statute that quantifies the dollar amount or duration of alimony.

Alimony guidelines have been in existence for some time. The American Academy of Matrimonial Lawyers publishes alimony guidelines and the Women’s Law Center has a program called the Kaufman Alimony Guidelines Calculator. Even though the twelfth alimony factor is “anything else the court wants to consider”, it was not clear whether that included alimony guidelines or not.

The Maryland Court of Appeals ruled recently that the guidelines may be used by the judge as an aid so long as they do not replace the twelve factors or frustrate them. So now divorce lawyers in Maryland will be presenting guidelines in settlement discussions, mediation and court. Boemio v. Boemio, CA No. 57, September Term, 2009, May 11, 2010.

July 23, 2010/by James J. Gross

Adultery a Bar to Alimony?

Adultery, Alimony, Divorce Law

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.

May 21, 2010/by James J. Gross