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When we were boys, my pal, Jerry, and I built a motorcycle one night. Somehow Jerry had gotten his hands on a motorcycle.  But it was in pieces scattered on the floor of his room. There were no instructions. Only a frame, a motor, gears, cables and hundreds of nuts and bolts. We had screwdrivers and wrenches. And we were young and insane with the possibilities of where that motorcycle could take us if we got it working.

We worked all night on that machine. We built it wrong, tore it down, bolt by bolt, and started over many times that night. We probably built a dozen motorcycles before we got it right.

By morning, we had a motorcycle. It didn’t look like much, but to us it was worth its weight in gold. We took it out for a test drive. That’s when we discovered a major design flaw. At the first stop sign, you had to disengage the clutch with one foot, and press the brake with the other foot at the same time, so there was no foot to put on the ground and hold the contraption upright.

That motorcycle taught me a lot about problem solving.  You have to keep working on it, all night long, if necessary.  This requires patience and persistence, focus and concentration.  You may have to tear down the solution and rebuild it several times to get it right.  Even then you may have to go back to the drawing board in the morning.  I’ve lost many night’s sleep solving chemical engineering problems, briefing cases in law school, and studying tax law. And now I’m solving problems in marriages, divorces and separations.  It’s as complicated as building a motorcycle.

by Michael F. Callahan

A Will directs the passage of property after the death of the maker of the Will and names the testator’s personal representative.  Wills are revocable – they can be modified or revoked by the testator so long as he or she is alive and has testamentary capacity.  Most of our divorce clients arrive in one of two situations – they have not made a Will or they have made a Will that leaves all their property to their spouse and names their spouse personal representative of their estate.  Most of our divorce clients have a lot going on – it’s not the best time for calm thoughtful reflection on how they want to take care of those they love in the event of their death.

If you are separated and contemplating or pursuing divorce, circumstances have certainly changed since you decided to leave all your property to your spouse and name him or her as your personal representative.  Divorce is a process, it takes time.  Unless there is an early settlement it can be years from separation to date of final divorce.  We recommend clients in this situation consider amending or revoking their Will.

What about those persons who are separated from their spouse and have not made a Will? If you die without a valid Will, the state has rules governing who gets your property and who has priority for appointment as your personal representative.  In most circumstances in the Washington, DC area, the state’s rules put the surviving spouse in charge of your estate.  If you have no children, your surviving spouse will receive all of your probate estate.  If you have children, his or her share will be one-third in DC and one-third in Virginia if your children are not the surviving spouse’s children, one-half in Maryland, or all in Virginia if all of your children are the surviving spouse’s children.  We recommend clients in this situation consider making a Will to avoid these outcomes.  Note, however, that statutory spousal protections usually make it impossible to ensure that your estranged spouse takes nothing from your estate.

 

 

“Say Something”
by A Great Big World

Say something, I’m giving up on you.
I’ll be the one, if you want me to.
Anywhere, I would’ve followed you.
Say something, I’m giving up on you.And I am feeling so small.
It was over my head
I know nothing at all.And I will stumble and fall.
I’m still learning to love
Just starting to crawl.

Say something, I’m giving up on you.
I’m sorry that I couldn’t get to you.
Anywhere, I would’ve followed you.
Say something, I’m giving up on you.

And I will swallow my pride.
You’re the one that I love
And I’m saying goodbye.

Say something, I’m giving up on you.
And I’m sorry that I couldn’t get to you.
And anywhere, I would have followed you.
Oh-oh-oh-oh say something, I’m giving up on you.

Say something, I’m giving up on you.
Say something…

Guest Post by David Williamson, content writer at Coles Solicitors who writes on different law and legal topics. He is expert in writing about personal injury law, family law, divorce law, employment law and many other legal topics.

The effects of divorce on the very young are still somewhat a mystery. Up until around the ages of 2 or 3, children are not going to remember the separation and show few signs of understanding the process. Therefore, the long term effects are, fundamentally, only conjecture.

Once they begin to age, however, up until around 8 or 9 years old, children will often demonstrate rudimentary and measurable signs of understanding the situation. They often take on board some feelings of responsibility and assume that the reason one of their parents has left falls to them. The consequences of this are a yearning for attention, often combined with a fear that the remaining parent will also ‘abandon’ them. This can result in lowered self-esteem and often cause a problematic sleeping pattern.

Mature children, around the ages of 9 to 12, often shoulder the responsibility of the situation more so than their younger counterparts. A common consequence during these ages is that of an increased imagination. Commonly, the child may imagine their parents are still together and take part in games or act out scenes of denial and a refusal to believe the situation that is unfolding before them; outside of their control. Anger may increase during this age range, whereas younger children may introvert, quietly sob and allow the feeling of abandon to push them into the fringes of their comfort zone, these more mature children will probably become more obvious with their feelings of anger and resentment.

Tipper Gore and Al Gore announced in an email to friends that they are separating after 40 years of marriage.  They said they labored over the decision for a long time and reached a mutual agreement to live separately.  The reason given was that they had grown apart.

My wife and I have different pursuits.  She stays home with our children.  She is the president of the PTA.  She is working on a local political campaign.

I manage a busy law office and spend most days puzzling out how to untangle complex financial relationships between divorcing spouses.  Sometimes, while I am in the middle of a million dollar deal, and trying hard to concentrate on some troublesome aspect, my wife will call me.  The fish died, my son made the swim team, what was in that salad we had last week, and oh by the way we need milk.

Do I stop what I’m doing, take a deep breath and redirect my mind to her world?  You bet.

We are different, but we respect the differences, sometimes even finding humor in them.   We have different worlds but they intersect at home, family and raising our children.  We interact, communicate and participate.  Growing apart is a decision you make.  The opposite decision is staying together.

“My husband and I have not been intimate for over a year,” Louise, an unhappily married woman tells Joe, a Maryland divorce lawyer, “and I want a divorce.”

“OK, any other woman in his life?” inquires Joe.

“No.”

“Hmmm, any domestic violence or threats?”

“No.”

“Then you’re going to have to move out of the house for a year before you can file a divorce complaint,” says Joe trying to push the box of tissues across his desk toward Louise unobtrusively.

“But we can’t afford that,” cries Louise reaching for the tissues, “There must be another way.”

Neighboring jurisdictions, DC and Virginia permit parties to be separated while living in the same house, but not Maryland.  In Maryland, spouses are required to live separate and apart under different roofs for one year if the both agree, and two years if they don’t.  This waiting period must occur before they can even file for divorce.  And the divorce might take a year or longer after that.  These are the no fault grounds.  Adultery and cruelty have no waiting period.

The purpose of this waiting period is to favor marriage over divorce and make sure the parties really, really want to be divorced and not married.  After all, sometimes people change their minds.  But the recession has forced many couples to live together in misery because they cannot afford to separate.

So Montgomery County Delegate Luiz Simmons, an attorney, will support legislation this year to add a new grounds for divorce in Maryland, according to this morning’s Frederick News Post.  If this law passes, couples who go a year without sex would be able to file for divorce.

You have to have oral testimony by the plaintiff, in person, and in the courtroom, to obtain a divorce.  Family Law Section 1-203 and Rule 9-209.

That testimony has to be corroborated by someone or something other than the parties to the divorce.  Family Law Section 7-101(b).   A marriage certificate can corroborate the marriage.  A notarized written agreement signed before the complaint was filed can corroborate a mutual and voluntary separation.  Family Law Section 1-104.

But most of your testimony is corroborated by a witness.  That testimony also has to be oral and in court “unless otherwise ordered by the court for good cause”.  Rule 9-209.

What is good cause?  The court has allowed me to use telephone testimony in a handful of cases where the corroborating witness was a geographically distant relative or a busy mental health professional.  In one uncontested divorce, I was permitted to corroborate adultery with the deposition transcript of the paramour, but the judge let me know he would have preferred live testimony.  If you are going to try to corroborate without a witness in the courtroom, call the judge’s clerk or secretary before the trial to make sure it will be permitted.

Grounds for an absolute divorce in Maryland can be a confusing and complicated concept.  You have to have grounds for divorce in order to file a complaint.  Grounds are reasons for the divorce.  Some grounds have a waiting period.  Others do not.  Some require you to live in separate places.  Others can occur while you are still living together.  Maryland has the traditional fault grounds.  It also has the more modern no-fault grounds.

No-Fault Grounds

The no-fault grounds are one year voluntary separation or two years involuntary separation.  Both of the no-fault grounds have a waiting period before you can file for divorce and you have to be physically separated continuously for that period.  That means you live in different places, or under separate roofs, as the court says.  You cannot meet the no-fault ground requirements if you both live in the same house.

Fault Grounds

The fault grounds are adultery, cruelty, excessively vicious conduct, desertion, insanity and imprisonment.  Three of the fault grounds have no waiting period before filing a complaint.  Those are adultery, cruelty and excessively vicious conduct.  You can live in the same house and file for divorce based on adultery, cruelty, excessively vicious conduct and even desertion.

In Maryland, if only one party wants a divorce, they can get it eventually.  A two year separation is grounds for divorce under Section 7-103(a)(5) of the Family Law Article of the Maryland Code.

That is why I say it takes two people to get married, but only one to get divorced.

Fault, or as the statute says “the circumstances that contributed to the estrangement of the parties”, is a factor the court can take into consideration in alimony and property determinations.

So is a divorce always the fault of one person, or are both parties at fault in some way?  This is the question asked at CreateDebate.com where you can register and vote and leave your comments.  Or you can tell us your opinion in the comment section below.

In Maryland, reconciliation is sometimes raised as a defense to a divorce.

An actual reconciliation stops the one year period of separation required for desertion, voluntary and involuntary separation grounds.

It used to be that an offer of reconciliation, which was rejected, could also be a defense, and could turn the deserted party into the deserter.

Section 7-104 of the Family Law Article now provides that neither an offer, attempt nor a refusal of reconciliation, in and of itself, is a defense or a bar to a divorce.

The grounds for divorce of desertion and voluntary separation require proof that there is no reasonable expectation of a reconciliation.  So the court may still consider attempts to reconcile in that context as well as in the context of fault for alimony and property distribution.