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Divorce Lawyers

Thyden Gross and Callahan LLPCounselors and Attorneys at Law



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 December, 2006

Does Rickets Apply to an Absolute Divorce?

Tuesday, December 12th, 2006

In Maryland, you can have an absolute, that is a final divorce, or a limited divorce, which is similar to a legal separation in the District of Columbia, or a divorce from bed and board in Virginia.

You can convert a limited divorce into an absolute divorce when you have grounds for an absolute divorce. Usually it doesn’t make sense to file for a limited divorce because you are taking two steps when one will do. You don’t need to file for a limited divorce first in order to obtain an absolute divorce. And certain types of relief, like sale of real estate, is not available in a limited divorce.

So why would you file for a limited divorce? Well, if you didn’t have grounds for an absolute divorce, but you wanted to get in front of the court to decide something temporarily, like child custody, child support, visitation or alimony. Some of the grounds for a limited divorce are easier to meet than those for an absolute divorce.

So what do you do with the client that wants to file for an absolute divorce now, but the parties are still living together? Can Ricketts, which was a case involving a limited divorce, also apply in the case of an absolute divorce? In other words, if Mr. Ricketts had been forced to leave the bedroom and denied sex for a period of one year, could he maintain a suit for an absolute divorce on grounds of constructive desertion for one year?

The Maryland Court of Appeals gave us a clue in Ricketts:

The fact that the spouses sleep in separate bedrooms or that they have ceased engaging in sexual relations does not per se establish constructive desertion, however…. Additionally, when a husband and wife continue to live together without marital relations and yet neither makes any effort towards reconciliation, it is presumed that both spouses prefer to live under such circumstances, and, therefore, neither has a cause for divorce on the grounds of constructive desertion. Davey v. Davey, 202 Md. 428, 432, 96 A.2d. 606, 608 (1953).

So if seems to me, that you are going to have a hard time getting an absolute divorce in these circumstances because you have to overcome a presumption against you and the judge is going to ask you, “If it was so bad, why did you stay?” But you can try. Just be sure to also ask the court to give you a limited divorce if it does not find grounds sufficient to support an absolute divorce.

Does Ricketts Apply to Actual Desertion?

Friday, December 8th, 2006

I had reason to question today if the Ricketts case, decided by the Maryland Court of Appeals on July 28, 2006, which involved constructive desertion, could be applied in the case of actual desertion.

Mr. Ricketts was permitted to file for a limited divorce against Mrs. Ricketts on the grounds of constructive divorce even though they still lived in the same house. He alleged she withheld sex from him and forced him from the bedroom. If she had left the bedroom, it would be actual desertion. We don’t know yet if Mr. Ricketts will be able to prove those grounds and get his divorce, but at least he can try.

As for desertion, the court had this to say:

To be sure, both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home. We have held, however, that constructive desertion may occur where both parties continue to live under the same roof.

The court quoted Scheinin, a 1952 case, which said:

It is beyond question that there may be a desertion although the husband and wife continue to live under the same roof. For desertion, as applied to husband and wife, signifies something more than merely ceasing to live together. It means ceasing to live together as husband and wife.

The court also quoted Fleegle, a 1920 case:

the true doctrine is believed to be that the statutory term “desertion,” as applied to husband and wife, means a cessation of the martial relation; and this doctrine is in accord with the general principles of the divorce law…[d]esertion implies something more than merely ceasing to cohabit or live together; for, as applied to husband and wife, it means the ceasing to live together as husband and wife.

And the court quoted Mower, a 1956 case:

it is unquestionably the law in this State that permanent refusal of either the husband or the wife to have sexual intercourse with the other spouse, from no consideration of heath or other good reason, constitutes matrimonial desertion although the parties continue to live in the same house.

So from this it appears that you can file for a limited divorce based on actual desertion or constructive desertion when the parties are still living under the same roof but not having sex and sleeping in separate bedrooms.

Next: can the theory of Ricketts be extended to an absolute divorce?

On Marital and Nonmarital Assets

Thursday, December 7th, 2006

My partner, Mike Callahan, and I had another brown bag lunch at my desk today. I enjoy these get-togethers because it gives me a chance to discuss cases and the laws about divorce in Maryland.

“One thing I don’t get”, I said. “If marital assets include everything acquired during the marriage, except for inheritance or gift from a third party, then why isn’t appreciation on a premarital asset considered to be marital. It is acquired during the marriage.”

“No it’s not a new asset,” Mike says. “It is the same asset acquired before the marriage, only now it is worth more. So if you buy Google stock for $100 before the marriage, and it sits in your account during the marriage, and its worth $400 at your divorce, you get to keep it.”

“But isn’t the appreciation acquired during the marriage,” I ask.

Mike pulls down the statute from my book shelf. “Let’s see what it says. Family Law Article 8-201(e)(3) says marital property does not include property: (i) acquired before the marriage; (ii) inherited or gifted from a third party; (iii) excluded by agreement; or (iv) directly traceable to any of these sources.”

“So I guess you can say appreciation, as well as dividends and interest, are directly traceable to the premarital property,” I reply. “But what if I represent your spouse, and you actively manage your brokerage account during the marriage, and you have investment acumen. Now might I claim some of the appreciation was due to your efforts during the marriage, and those efforts are marital property?”

“You might get a judge to see it that way or you might not,” Mike says. “But take this example. “Let’s say my client has a 401k pension plan that was worth $2,000 before the marriage, and that $2,000 is worth $8,000 at divorce. A pension is an asset that can be part marital and part non-marital. The $8,000 is non-marital and belongs to my client. The rest of the plan is marital and can be divided by the court.”

“What if my client owns a business prior to marriage?” I say. “Would that be nonmarital?”

“It depends,” Mike says. “If appreciation during the marriage was due to your client’s efforts or my client’s efforts, then some of the value of the business might be marital property.”

“What about a house owned prior to the marriage,” I ask.

“Well, that might be part marital to the extent that marital funds were used to reduce the mortgage, or repairs and improvements were made with marital funds,” says Mike. “Any other questions?”

“Yeah,” I say. “Are you going to eat those fries?”

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