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Archive for October, 2010

Divorce Four Way

Friday, October 29th, 2010

“My wife’s attorney said we ought to have a four way,” Tim says to his lawyer, Frank, outside the courtroom after the Scheduling Hearing.  “What’s a four way?”

Frank, a tall lanky man in gray, pulls his suit collar up.  “It’s getting colder.  A four way is a settlement meeting with both parties and their lawyers present,” responds Frank taking long strides.  “C’mon, lets go grab a coffee and we can talk about it.”

Warming both hands holding on the hot styrofoam cup, Franks looks over his glasses and says, “Four ways are good for a lot of things.  We can get information, educate the other side, answer questions, clear up misunderstandings and figure out what we can agree on and what we can’t.  You can accomplish more with everybody in room instead of you telling me, me writing her lawyer, her lawyer writing her and she responding to her lawyer and so forth.”

“What’s the downside?” Tim says.

“Well,” Frank says, “I’ve seen a lot of these four ways ramble on and go nowhere until one spouse pushes the other’s buttons and someone gets up and walks out.  So I always insist on a written agenda before I schedule one of these and usually an offer and a counteroffer.   I also like to prepare a Settlement Notebook to keep everyone focused on the issues.  I’ll call your wife’s attorney and see if I can set it up.”

The two men watch the leaves fall outside as they drink their coffees and turn their conversation to happier subjects like which party will win the election and which team will win the football game.

Pivotal Events May Cause Divorce

Tuesday, October 26th, 2010

Why do people divorce?  Susan Pease Gadoua, LCSW, writes at psychologytoday.com that certain life events can cause people to decide to get a divorce.  She calls these pivotal events because they are life altering and cause people to make other changes in their lives.

Examples of pivotal events are a heart attack, parent dying, job loss and a car accident.  “Pivotal events cause people to question whether they are living their best life,” says Gadoua.  “Pivotal events often cause people to question what they really want and whether they are living their life to the fullest. People begin to scrutinize themselves, their job, spouse, home and friends. If any of these areas was lacking something or was in question prior to the event, it is very likely to receive a major overhaul.”

If you have a pivotal event in your life, Gadoua suggests that you:

  • Do not make any other major life decisions in the next 90 days.
  • Consider the impact of the event on others in your life.
  • Seek another opinion from a friend or professional before you act.

The Scarlet “D”

Friday, October 22nd, 2010

Micah Toub, writing for Canada’s Globe and Mail, says he feels like his marriage was a success even though it ended in divorce.   While the bride and groom say they will stay together until death do us part, it doesn’t always work out that way.

Toub says the end of a marriage no longer leaves one with a scarlet ‘D’ on their relationship résumé.  Rather than view his marriage as a failure, Toub thinks it was a successful relationship.  “Unfortunately,” he says, “trying to perceive one’s ended marriage as a success doesn’t have a lot of cultural history.”

His ex-wife agrees and says,  “You would never say that was a lousy dinner party last night – everyone left.  And when you finish reading a book, you don’t think the book failed because it didn’t go on forever.”

Divorce Without Moving Out in DC

Thursday, October 21st, 2010

by Michael F. Callahan

We have been comparing answers around the Washington beltway to the question “Can I get a divorce if neither I nor my spouse has moved from the marital home?”   It is time to take a look at the District of Columbia.

D.C. Code Sec.16-904(a). provides that “a divorce from the bonds of marriage may be granted if: (1) both parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation for a period of six months next preceding the commencement of the action;” or “(2) both parties to the marriage have lived separate and apart without cohabitation for a period of one year next preceding the commencement of the action.”

Obtaining a divorce on separation grounds without moving out of the same household is not a problem in the District of Columbia.  There are no reported cases in DC where a divorce has been denied on separation grounds because neither spouse has moved out of the joint residence.  Also there is no corroboration requirement so those difficulties are not present.  The Superior Court is the only trial court so there is no possibility of varying interpretation between different circuit courts as there can be in Maryland and Virginia.

So the answer to the question in the District of Columbia is “Yes, you can get a divorce without moving out.”

Know Your Options

Tuesday, October 19th, 2010

spaghetti

In divorce negotiations, as in any negotiations, you should always know your options.  Technically this is called your “BATNA”, which stands for your best alternative to a negotiated agreement.  My wife aptly demonstrated this last night at dinner.

“How do you like the spaghetti?” she asked me.

“I like the thin noodles better,” I replied.

“I know, but I like the fat noodles,” she said, “so I compromised.”

“How is this a compromise?” I said, “You compromised between what you like and what I like by making what you like?”

“No,” she said, “between spaghetti with fat noodles or no spaghetti.”

After a pause in which I assessed my options, I said, “This spaghetti is delicious.”

Agreement After Separation

Wednesday, October 13th, 2010

Mary nervously twisted a white handkerchief in her hands on the witness stand at her uncontested divorce hearing.

“What was the date of separation?” asked her lawyer, Ned.

“April 1, 2010,”  Mary said.

“Was the separation mutual and voluntary on the part of both of you?”

“No, he just left.  He didn’t ask me.”

“Counsel approach the bench,” the Judge ordered.

“Hmmm,” said the Judge, “mere acquiescence in what you could not prevent is not a voluntary separation.  And a separation cannot, at the moment of its occurrence, constitute both an abandonment of one party by the other and a separation by mutual agreement.”

“I think I can fix it, Judge,” Ned said, “if you’ll let me ask a few more questions.

“Go ahead,” said the Judge.

Ned looked at Mary and said, “Now you testified that the separation on April 1 began with the abandonment of your husband, right?”

“Yes, that’s right,” she said.

“And was there a time when you decided to agree to the separation?”

“Oh, yes.”

“When was that?” asked Ned.

“About two weeks after he left,” answered Mary.

The rest of the case went smoothly and the Judge granted Mary her divorce.

What Is A Voluntary Separation?

Monday, October 11th, 2010

Anthony Matysek drank quite frequently and humiliated his wife on a number of occasions.  Following an argument with his wife, Marjorie Matysek, on the night of July 25, 1952, he repeatedly told her that she was “no good” and to “get out”.  She said “All right”, and early the next morning she moved to her mother’s home never to return.

Three years later, she sued for divorce based on a voluntary and mutually agreed separation.  Anthony denied that the separation was voluntary, and asserted that it was not by mutual agreement.

The Court of Appeals said that a voluntary agreement to live separate and apart does not have to be arrived at either with “calmness and courtesy or without anger”.

It distinguished the case of Miller v. Miller, where the husband threatened to leave the wife and she replied “Well if you want to go, go on and go, but you are going to have to take care of these children.”

The husband claimed that this amounted to a voluntary agreement to separate.  The court said it was merely to acquiescence in what she could not prevent, and that was not a voluntary agreement.

The difference in the Matysek case is that when the husband demanded that the wife leave, she could have refused.  Instead, she agreed to leave and she did leave.  The Court said:

We think that the language and conduct of the parties on the night of July 25th and the early morning of July 26th were sufficient to support the Chancellor’s explicit finding that the separation was voluntary. At the conclusion of the testimony he said: “I think these people separated voluntarily. They were glad to get away from each other.”

Matysek V. Matysek, 212 Md. 44; 128 A.2d 627 (1956)

Separated in the Same House (Virginia)

Friday, October 8th, 2010

by Michael F. Callahan

When Marja Kaarina Bchara suspected her husband, Adnan Bchara, of adultery in January of 2000, she moved his possessions out of the master bedroom and into the guest bedroom, and sued him for divorce.

At trial the wife testified she took these actions to live separate and apart from her husband.  She stopped attending family functions with husband and his family.  She would not attend church with him.  She stopped depositing money into their joint checking account.   However, she continued to buy groceries, cook, do laundry, and clean house.  She said she asked her husband several times to leave the house, but he refused to do so.

A friend of the wife testified she visited the house once a week and observed the parties living in separate bedrooms.  The wife told her friend that she and husband were no longer “a couple.”   The divorce was granted.  Adnan Bchara V. Marja Kaarina Bchara, 38 Va. App. 302; 563 S.E.2d 398 (Va. App. 2002).

So in Virginia, unlike Maryland, you can get a divorce based on separation while living in the same house.  Also in Virginia, unlike DC and Maryland, a divorce may be granted upon separation for one year if only one of the parties intends that the separation be permanent.  Separation in the same house requires:

  • a separation – you cannot be separated in the same bedroom
  • a clear starting event – here the discovery of adultery, and
  • corroboration – so you need at least one frequent visitor.

You can maximize the likelihood of success by:

  1. a written separation agreement
  2. a clear event such as one spouse moves to the basement or lower level, documented and witnessed
  3. don’t have sexual relations
  4. separate the finances
  5. don’t go out together
  6. tell everyone you are separated and you are getting a divorce
  7. if you have children, don’t have family dinners and don’t drive to their events together

VA Grounds for Divorce

 
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