Frequently Asked Questions
- Why should I consider retaining McLeod, Weschler & Yeager, P.C., to represent me in my divorce?
- Will McLeod, Weschler & Yeager, P.C., represent me in matters other than divorce or family law?
- What does a divorce cost?
- Can I get a divorce based on irreconcilable differences?
- What are the grounds for divorce?
- Can I get a divorce if my spouse and I are not sharing a bedroom but live in the same house?
- If my spouse and I have not yet been separated for a year, can I get any help from the court?
- How can I find out how much child support I will receive?
- Do the same child support guidelines apply if I do not have the children living with me full time?
- What happens if the other parent does not pay child support as ordered?
- What happens if the other parent quits a job in order to pay less child support?
- Can a parent deny visitation to another parent who is not paying child support?
- What happens if the other parent’s income goes up after the amount of child support is decided by the court or by an agreement?
- When does a parent’s obligation to pay child support end?
- Does a parent have to pay for a child’s college education?
- What is the difference between physical and legal custody?
- What does a court consider in deciding who has physical custody of the children?
- What does the court consider in deciding whether to grant joint legal custody of the children?
- What can I do to have the best chance at getting joint legal custody of my children?
- What can I do to have the best chance at getting sole physical custody?
- If I am awarded custody of our children, can I remain in the marital home with the children?
- If I am awarded physical custody of my children can I move to another state and take them with me?
- Is Maryland a community property state?
- What is marital property?
- Is my pension marital property?
- How does the court deal with marital property?
- Can an asset be marital even if it is titled in the name of one spouse?
- Can an asset be both marital and nonmarital?
- What is a use and possession order?
When you are going through a divorce, it is difficult to be objective. If you do not have any training in family law, you will not know how to protect yourself and fight for the best outcome for your case. You need smart, tough, hard-working lawyers to protect your interests. You need attorneys who can advise you about all the options that may be available to you and who can give you good, sound advice. Our lawyers are very experienced family law attorneys. They fight hard to get the best results for our clients. Thomas M. Weschler Jr. and Gwendolen McLeod are Distinguished and AV Preeminent peer-review rated,* the highest rating, through Martindale-Hubbell, and they have been selected for inclusion in Maryland Super Lawyers for multiple years. Gwendolen has also been cited by Washingtonian Magazine as one of the top 50 divorce lawyers in the Washington metropolitan area. We also have an additional attorney who has extensive experience in family law. All our clients benefit from a team approach where two lawyers normally work together on and are familiar with a client’s case. This gives the client the benefit of having two people who are familiar with their case so that the client can get the quickest possible response to problems or questions.
Yes, we will. In addition to the complex area of family law, our lawyers also represent people in domestic violence and third-party custody actions. They can offer our clients extensive knowledge and skill in all these areas. If you need referrals for attorneys in other areas, such as personal injury, criminal law, probate and similar matters, we are also happy to refer you to highly competent attorneys in those areas of the law.
It is not possible to predict what your divorce will cost. We charge for the time our attorneys actually spend on your case. If your case settles without the need for a trial, your fee will be substantially less than it would be if a trial was required. We are committed to providing you with the best possible representation at a reasonable cost. Our team is always willing to discuss with clients any questions they may have about their bills for legal services.
To get a divorce in Maryland, you must have a ground for divorce. The state of Maryland does not recognize irreconcilable differences as a ground for divorce. With the passage of a more recent law, parties may now get a divorce based on a separation that has lasted for at least one year, or, if they have a signed separation agreement resolving all marital issues, by mutual consent, which has no required separation period.
Maryland has “no-fault” and “fault” grounds for divorce. The no-fault grounds are separation for one year and mutual consent. These involve the following:
- Separation for one year: To get a divorce based on a one-year separation, the parties must have been separated for 12 months with the intention of ending their marriage.
- Mutual consent: With mutual consent, there is no required separation period. You can divorce by mutual consent if you have a separation agreement that resolves all issues arising from the marriage and both parties agree to the divorce by mutual consent.
The fault grounds for divorce include desertion, constructive desertion, cruelty and adultery. They involve the following circumstances:
- Desertion: To obtain a divorce based on desertion (or abandonment), a person must prove that the parties have been living apart for one year and that the other spouse moved out with the intention of ending the marriage and without justification. While this ground for divorce was not repealed, it is unlikely that people will pursue this as a ground for divorce, as a one-year separation will suffice.
- Constructive desertion: To obtain a divorce based on constructive desertion, a person must prove that in order to preserve their health, safety or self-respect, they had to move out due to the treatment by the other spouse and that the parties have been living separate and apart for one year. While this ground for divorce was not repealed, it is also unlikely that people will pursue this as a ground for divorce, as a one-year separation will suffice.
- Cruelty: To prove this ground for divorce, you must show that there has been cruelty of treatment and that there is no reasonable expectation of reconciliation. This ground for divorce is a recent addition to the grounds for absolute divorce. It requires proof of misconduct by one spouse that creates a reasonable apprehension that it will endanger the safety or health of the other spouse to a degree rendering it physically or mentally impractical to remain in the marriage. This ground for divorce does not require a one-year separation and requires more serious acts than constructive desertion.
- Adultery: This ground for divorce requires “proof” that your spouse had sexual relations with a person outside of the marriage. You do not have to have pictures or video recordings showing the actual adultery. Adultery can be proven by circumstantial evidence and does not have to be proven beyond a reasonable doubt. The circumstantial evidence must be enough to lead a reasonable person to the conclusion that adultery has occurred. Usually to prove adultery, you must show that the parties demonstrated affection in public and that they were alone together for a sufficient time that they had the opportunity to commit adultery. Often, private investigators are used to obtain this evidence. Warning: Often, email, social media and cellphone records can lead to information that will help in proving or investigating adultery.
Most grounds for divorce require the parties to live in separate houses. To get a divorce based on the grounds of one-year separation, desertion or constructive desertion, the parties must be separated. That means that they cannot live under the same roof, even if one stays in the basement and the other lives in the main part of the house. A divorce can be granted to parties who still live under the same roof if the grounds for divorce are mutual consent, adultery or cruelty.
If you do not have grounds for an absolute divorce, you can file for a limited divorce. This allows you to ask the court to decide custody, visitation and support matters, including alimony and child support, and attorney’s fees. Once you have met the time requirement for getting an absolute divorce, you can amend your case and ask for it.
A parent who has either sole custody or shared custody of the children will receive child support based on the Maryland child support guidelines. The guidelines are based on a formula, which establishes the amount of monthly child support. To determine the amount of child support, the following information is inserted into the formula: each parent’s gross income, any income received by either parent from any other source, the cost of health insurance for the children, alimony obligations, child support obligations for other children, the cost of work-related daycare, extraordinary medical expenses and private school tuition. The child support guidelines chart stops at a combined family income of $360,000 per year. For families with higher incomes, the court will either extrapolate based on the guidelines or will determine the needs of the children and apportion the payment of these expenses based on the parents’ respective incomes. In a shared custody case, the number of overnights the children spend with each parent is also a factor.
If the children spend more than 25% of the overnights per year with the other parent, you will receive less child support because that parent may pay child support based on the shared child support guidelines; however, each party should pay their proportionate share of the children’s other expenses, such as clothing or activities. Often, this will affect custody or visitation negotiations because your spouse may want to manipulate the access schedule to be sure that the number of overnights will result in a reduced amount of child support based on the shared child support guidelines.
In addition to filing a contempt petition seeking attorney’s fees, you can ask the court to issue an Earnings Withholding Order. This will direct the other parent’s employer to deduct child support from their paycheck and send the deducted amount to you. You can also file an action with the court to enforce the payment of child support and ask to have the other parent held in contempt of court. This will give you extra leverage, as the court could sentence the other parent to some time in jail as a result of the failure to pay support when there is an ability to pay.
If the other parent has quit a job or intentionally taken a reduction in income to avoid paying child support, the court can impute income to the other parent. This means that although the other parent is earning less, the court may treat the other parent as though they earning the higher income. Child support can be calculated based on that higher income.
Visitation is not dependent on the payment of child support, so you cannot deny the other parent the opportunity to visit the children even if child support is unpaid. The court will not condone the denial of visitation simply because child support is not paid. If your child’s parent is not paying court-ordered child support, file an action to enforce the support order.
Child support can always be modified by the court when there is a significant change in the income of either parent, a change in the cost of work-related child care, extraordinary medical expenses, or a change in the schedule from sole custody guidelines to shared custody guidelines or vice versa.
Child support terminates when the child reaches the age of 18 unless the child is still in high school. In that case, child support will continue until the child graduates from high school, but no later than the child’s 19th birthday. If you have a child with disabilities, you may be entitled to adult destitute child support as well, beyond the normal time child support would terminate.
Once the child reaches the age of 18, unless there is an order regarding adult destitute child support, a parent has no legal obligation to support a child unless the child is still in high school. Parents will often sign a separation agreement in which they agree to pay for college. This creates a contractual obligation that can be enforced.
A parent who has legal custody of the children can make all the decisions relating to the children’s health, education, safety, religion and welfare. When parents have joint legal custody, each parent has an equal voice in making these decisions and they must make joint decisions. Physical custody gives a parent the right to have the children live in that parent’s home. If the children live mainly with one parent, that parent has sole physical custody or is the primary physical custodian. If the children spend a significant amount of overnights with both parents (92 overnights or more), the living arrangement will be considered as a shared physical custody arrangement.
The court will always try to determine what living arrangement is in the best interests of the children. To decide this, the court will consider who has been the primary caretaker of the children and what each parent has done to contribute to the physical well-being of the children. If both parents are fit, the court will try to ensure that the children maintain a close relationship with each parent. In deciding custody cases, the needs of the children will always come before the needs of the parents.
The court will grant joint legal custody if the parties can communicate well enough to make joint decisions in the best interests of their children. They do not have to agree on every issue, but they must share enough common values and agree on the important issues relating to the children. The ability of the parents to make joint decisions in the past is a very important consideration. The court recognizes that if the parents are unable to communicate or if they have fundamental disagreements about what decisions are in the children’s best interests, joint legal custody may be unworkable.
Try to communicate with the other parent. Keep a log of all joint decisions that were made in the past (i.e., selection of the pediatrician, selection of a daycare provider or babysitter, selection of the preschool, decisions regarding emergency medical care, decisions regarding braces, etc.) Also, keep a log of any times the other parent has tried to exclude you from making a joint decision regarding the children. The court will not tolerate excluding a fit parent from the decision-making process. Keep a log of any discussions between yourself and the other parent. Email makes a good record of communications between you. Be careful about what you write in an email or text. It can be used in court. Also, be very careful about any messages you leave on the other parent’s voicemail as well as about anything you post on social media. Please remember that any email and social media posts can be used against you. It is illegal to record another person’s conversation if they do not consent to being recorded, but a message left on a voicemail is fair game and can be played in court.
If it is in the child(ren)’s best interest for you to get physical custody, you must be willing to do the parenting and should be able to show some track record of doing things for your children, such as:
- Getting them ready for school or daycare in the morning
- Getting up in the middle of the night when they are sick
- Staying home with them when they are sick
- Taking them to the doctor or dentist
- Shopping for their clothing
- Doing their laundry
- Preparing their meals
- Taking them to and from school or daycare
- Driving them to their sports events
- Being a sports coach for their teams
- Participating in scouting or other clubs they have joined
- Taking them to their friends’ birthday parties
- Preparing birthday parties for the children
- Going to their concerts or recitals, etc.
No parent can do all these things all the time, but the parent who has a good track record of being there for the children will have the best chance of getting physical custody.
The court may award a use and possession order to a parent who is awarded custody of the parties’ minor children in a divorce action. The use and possession is granted if the court determines that it is in the best interests of the children to remain in the marital home. The order allows the custodial parent and the children to remain in the marital home for up to three years after the divorce as well as use of any family personal property. The court will decide how long the use and possession order should be. If the custodial parent marries during the use and possession period, the use and possession order will terminate.
When a custodial parent moves out of the area, it is considered a material change of circumstance that could allow the other parent to seek a change in the custodial arrangement. In deciding whether a custodial parent can move out of the area, the court will apply the best interests of the child standard. The court will want to see if the move to another area is in the children’s best interests. The court will also want to make certain that the move is not being made simply to deny the other parent access to the children. If you are going to have to move out of the area, be sure you have a lot of good information about the new area to prove to the court that the children will have access to good schools, a nice neighborhood, similar extracurricular activities and a source of family/friends. You should also have a proposed plan for keeping the other parent involved with the children through visitation and videoconferencing.
Maryland is not a community property state. Our courts decide property issues by applying various factors to reach an equitable distribution of marital property. After the court considers various factors, such as the cause of the breakup of the marriage, the monetary and nonmonetary contributions of each party, the age and health of each party, and each party’s other resources, the court will determine what share of property each party will receive. Unless the case is very unusual, the court will try to give each party an equal amount of the marital assets.
Marital property is any property acquired during the marriage unless the asset was a gift to one party from a third party, it was inherited by one party, it is traceable to an asset owned by a party before the marriage or it is excluded from marital assets by a valid agreement between the parties. Warning: Be careful not to commingle your nonmarital funds in a joint account or an account in which you deposit marital funds or you risk those funds becoming fully marital.
The portion of your pension earned during the marriage is marital property. The court may use a formula to determine what portion of your pension is to be divided.
The court must identify which assets are marital property and determine the value of the marital property. The court will order the sale of jointly titled assets that are not subject to a use and possession order. The proceeds from the sale of the jointly titled assets will be equally divided. Since the court generally cannot transfer the title of an asset from one spouse to another (except for pension benefits, family use property and the marital home), the court will grant a monetary award to the spouse who does not receive an equitable share of the marital assets pursuant to title. For example, if the wife has many marital assets titled in her name alone, the court cannot make her transfer an asset to the husband, but the court can order the wife to pay the husband a monetary award, which is designed to create an equitable division. This will usually result in an equal division of the marital assets.
Title does not determine whether an asset is marital. The source of the funds used to acquire the asset is a factor that the court considers in determining whether an asset is marital. If a car was purchased during the marriage with marital funds but titled in the name of the husband alone, it is still marital property and will be treated as marital property. Since the court cannot transfer a title between the spouses, the husband will retain the car, and the court will consider the marital value of the car when making a monetary award to the wife.
Yes, an asset can be partially marital and partially nonmarital. For example, if the husband put a down payment on a car before the marriage, the portion paid before the marriage creates a nonmarital interest. If he continues to make car payments after the marriage using marital money such as a paycheck, then a marital interest is also created in the car.
This is an order that permits a parent who is awarded custody of the minor child in a divorce action to remain in the marital home for up to three years after the divorce. The court will decide how long the use and possession order should be. If the custodial parent marries during the use and possession period, the use and possession order terminates.
*AV®, AV Preeminent®, Martindale-Hubbell Distinguished and Martindale-Hubbell Notable are certification marks used under license in accordance with the Martindale-Hubbell certification procedures, standards and policies. Martindale-Hubbell® is the facilitator of a peer-review rating process. Ratings reflect the anonymous opinions of members of the bar and the judiciary. Martindale-Hubbell® Peer Review Ratings™ fall into two categories – legal ability and general ethical standards.