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Thyden Gross and Callahan LLPCounselors and Attorneys at Law

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Maryland Divorce Legal Crier

News and comments about divorce, child support, child custody, alimony, equitable property distribution, father’s rights, mother’s rights, family law, laws on divorce and other legal information in Maryland.

Archive for September, 2006

Child Custody While Living Together

Tuesday, September 5th, 2006

To recap, you can file for a limited divorce, which is like a legal separation, in Maryland, based on certain grounds, or reasons.

They are set forth in Section 7-102(a) of the Family Law Article of the Maryland Code as (1) cruelty, (2) excessively vicious conduct, (3) desertion, or (4) voluntary separation.

Separation means not living under the same roof, although I have seen at least one case where the judge found that a two week vacation qualified.

Desertion can be actual or construtive. Actual desertion requires, as far as I know, that somebody leaves the house.

Constructive desertion means that it was so bad you had to leave. The departing party has the claim for constructive desertion against the one who stays.

But the Ricketts case tells us that you can file a complaint for limited divorce based on constructive desertion even while you are living under the same roof. In that case, the couple slept in separate bedrooms and the husband claimed the wife refused sex.

So what did the court have to say about Mr. Ricketts’ claim for child custody? After all, Section 5-203(d)(1) of the Family Law Article says “If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents.”

That seemed pretty clear to me that the parents have to live apart and not together for the court to award custody. The Carroll County Circuit Court agreed when it dismissed Mr. Ricketts’ complaint. I have even heard a judge say “Don’t come into my court asking for custody if your clients are living together.”

Mr. Ricketts’ attorney was not burdened by the clear and plain language of the statute and appealed. The Maryland Court of Appeals agreed with him and reversed the Circuit Court and reinstated his complaint for divorce and custody.

So how did the court get around it? They said that Section 5-203(d)(1) must be read in conjunction with Sections 1-201(a) and (b) which give the court broad powers to decide divorce and custody matters.

We do not yet know how the Ricketts case will ultimately turn out. Unless the case settles, Mr. Ricketts will now have to prove constructive desertion and corroborate it with independent evidence at trial. But we do know from his appeal, that under these circumstances, you can file for limited divorce and custody in Maryland, based on constructive desertion, while you are still living under the same roof.

Filing for Divorce While Living Together

Sunday, September 3rd, 2006

If you had come to my office and told me that you wanted to file a complaint for divorce against your husband or wife while you were still living together, I would have told you to forget it unless there was adultery or cruelty involved. I always thought the law of Maryland was that one of you had to move out first. You had to be separate and apart and that meant not living under the same roof. I would have said, even if you claim constructive desertion, the judge will ask you, if it was so bad, why didn’t you leave sooner?

But the lawyer for Robert M. Ricketts, Jr., apparently never heard of this law, and filed a complaint for limited divorce against Mary C. Ricketts for constructive desertion while the couple were still living together. To support his claim, Mr. Ricketts said that she had denied him sex and they were sleeping in separate bedrooms. Mrs. Ricketts’ lawyer filed a motion to dismiss saying you cannot file a complaint for constructive desertion while you are still living together. The Circuit Court for Carroll County, Maryland agreed and dismissed the case. All was right with the world and my view of the law of Maryland.

Then Mr. Ricketts’ lawyer appealed to the Maryland Court of Special Appeals. And then, the Maryland Court of Appeals, on its own, decided to issue a writ of certiorari, and take over the appeal. The Court issued its decision in Ricketts v. Ricketts on July 28, 2006.

At first the Court confirmed my view and said, “To be sure, both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home.”

Then the bombshell: “We have held, however, that constructive desertion may occur where both parties continue to live under the same roof.”

What? When did they hold that? Well it turns out they said something like that in Mower v. Mower in 1956. That was the most recent decision. The court also cited cases from 1946, 1938, 1934, 1924 and 1920. So the Court of Appeals reverses and tells us this has been the law of Maryland all along. News to me, Mrs. Ricketts’ attorney and the Judge for Carroll County. Will more people who are living together be filing for divorce now, under the Ricketts case, before trying to work it out?

Mr. Ricketts also asked for custody of the minor children. But can you even get custody when you are still living together? Think you know the answer? See my next Blog.

 
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