Several years ago a New York judge ordered Brian McGurk to pay his wife, Dorothy McGurk, $850 a month in lifetime alimony and gave her the marital residence because of her disability.

Recently Brian saw an entry on her blog that she was now belly dancing.  Furious, he took her back to court.

Dorothy claimed that her doctor had prescribed belly dancing as therapy for her injuries in a 1997 car accident.  The doctor however did not support that claim in court.

The judge reduced alimony to $400 a month, ordered her to pay her husband’s attorney fees of $5,000 and to give him 60% of the proceeds from the sale of the house.

As Shakira says, “Hips Don’t Lie”.

by Michael F. Callahan

We practice family law mostly in the Washington, DC commuting area, which includes DC Superior Court and the County Circuit Courts of the nearby Maryland and Virginia suburbs.  Divorce jurisdiction depends on a party’s residence at the time the court case is filed.  And divorce usually involves at least one party moving from the marital residence (more about that later).   So often there are at least two choices for filing the case even without any planning regarding where to file.

You may have read or heard that the basic law of divorce — grounds, property distribution, spousal support, child custody and child support — is similar in each of the three local jurisdictions.  Why then think about shopping around for a divorce court?

There are clear differences between the jurisdictions in certain aspects of the law.  Because of one of these clear differences, the most important issues in your case might be decided differently in each of the three jurisdictions.  It might be decided much differently (and better for you) in say, Virginia, than it would be in Maryland or the District of Columbia.  Armed with this knowledge before you move, since you’re moving anyway, maybe you’d decide to move to an apartment in Arlington for a while instead of one in Bethesda.

Next time, I’ll discuss how and when to pick the court for your divorce and how to put your choice into action.  In coming weeks, we’ll discuss the various differences in the laws that can result in big differences in the outcome of a particular case.

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.

Related Articles:  Corroboration, You Have to Testify to Get Divorced

Most people are pretty clear that they want to get divorced by the time they see me.  But I tell them that everything I do is reversible, in case they change their minds.

Once in a while some of them do.  How do you “unfile” a complaint for divorce?

Maryland Rule 6-205 has the answer.  Paragraph (a) says that if your spouse has not filed an answer, you can dismiss a complaint by filing a Notice of Dismissal.  If your spouse has filed an answer, you will need him or her sign a Stipulation of Dismissal.

If you cannot get your spouse to sign, then paragraph (b) requires you to ask the court for an order dismissing the case.

The first dismissal, according to paragraph (c), is without prejudice, meaning you can refile your complaint later, if you change your mind again.

by Michael F. Callahan

Sometimes, a person appealing a divorce wants more than a review of the trial judge’s ruling.  He or she wants the trial court’s judgment stayed while the case is being appealed.

The appellant who wants a stay in Maryland, Virginia or DC must request the stay and file a bond to ensure that if the trial court’s judgment is affirmed, there are funds to pay whatever is required.

The law in DC had been that an appeal automatically stayed the final judgment of divorce.  In 2002, however, the court adopted Rule 8 which provides that you must now file a motion for a stay pending appeal in the Superior Court (the trial court) within thirty days of entry of judgment.  That court then decides whether to grant a stay and on what terms.  The Superior Court’s decision on the stay is also appealable.

Many interesting and potentially disastrous consequences flow from a stay of the judgment of divorce which I will discuss in my next post.

“I promise to send you 30 pounds a month,” said Mr. Balfour to his wife,  before he set sail for Ceylon (now Sri Lanka) on assignment as an English civil engineer in the early 1900’s.  Mrs Balfour’s doctor said that she should stay in England for her health rather than return to the jungle climate of Ceylon.

“I think it is better that we stay separated,” wrote Mr. Balfour, and he stopped the payments.  Mrs. Balfour obtained a divorce and alimony.  In addition, she sued him for breach of contract for the 30 pounds a month he had promised her.

The lower court held that Mr. Balfour had to continue to pay her as agreed.  The Court of Appeal unanimously reversed, finding that there was no agreement enforceable in law.

Although the judges’ reasons differed, the heart of their analysis was that married couples make agreements all the time, to pay an allowance, for example.  The court said that not all domestic agreements rise to the level of a contract enforceable by law.  Balfour v Balfour [1919] 2 KB 571

In an uncontested divorce case in Maryland, the plaintiff needs to appear in court to testify.  The Court of Appeals once issued a rule that allowed for summary judgment in divorce cases so no one would have to appear.  However, the Legislature felt that divorce should be treated as a more serious matter, and so it passed the following law in 1984:

Oral testimony required for final decree.  In an action for alimony, annulment, or divorce, a final decree may not be entered except on oral testimony by the plaintiff in a hearing before an examiner or a master or in open court.  MD Family Law Article, Section 1-203(c).

The defendant need only appear if he or she wants to do so. You will need to bring a witness with you to corroborate the facts of your divorce.

In the Fletcher case, the Maryland Court of Special Appeals had to decide whether there was a residency requirement in a case where the grounds for divorce arose within the state.

The court discussed the statutory history and case law and decided as follows:

1.  If grounds for divorce occur within the state, there does not have to be one year of residency, but

2.  at least one of the parties must live in Maryland when the complaint is filed for the court to have jurisdiction over the divorce.

The court then turned its attention to the facts.  Louis had moved to Maryland from Virginia after his wife separated from him and hit a lottery jackpot.  He filed for divorce in Maryland, then she filed in Virginia.  The Maryland court said that Louis was not a bona fide resident because he was just after the lottery money, and it dismissed Louis’s case for lack of jurisdiction.

But the Maryland appeals court said that even if Louis had moved to Maryland to take advantage of its more favorable divorce laws, motive is not an issue in determining whether he was a bona fide resident or not.  The question is not why he moved here but whether he moved here and if he intends to stay.  The court said this was to be determined by such factors as where he lives, where he votes, where he pays taxes, where he receives mail, where his personal belongs are, his current driver’s license, and where he banks.

Therefore, with all due respect to Virginia, the court found that Maryland did have jurisdiction over the divorce and Louis was allowed to proceed with his divorce in Maryland.

Fletcher v. Fletcher, 95 Md. App. 114; 619 A2d 561 (1993)

Louis and Charlotte Fletcher lived in Virginia for most of their marriage.  But when Charlotte left Louis she bought a lottery ticket and won $7,000,000.

Marital property is determined at the time of separation in Virginia, but at the time of divorce in Maryland.

So Louis moved to Maryland and filed for divorce, alleging that Charlotte had committed adultery in a condo she had purchased in Ocean City Maryland.

Two months later Charlotte filed for divorce in Virginia and moved to dismiss the Maryland case for lack of jurisdiction.  The judge decided that Louis moved to Maryland because of the lottery ticket, so he wasn’t a bona fide resident, and besides he hadn’t been here for a year before filing his complaint.  Therefore he dismissed the Maryland case.  Louis appealed.

The Court of Special Appeals of Maryland took a look at Section 7-101(a) of the Family Law Article of the Maryland Code, which provides:

“If the grounds for divorce occurred outside of this State, a party may not apply for a divorce unless 1 of the parties has resided in this State for at least 1 year before the application is filed.”

Does that mean the opposite is true as well?  That is, if the grounds for divorce occur inside Maryland, as the adultery in this case, a one year residence is not required?  Is any residence required?

The answers tomorrow.

Mr. and Mrs. Woodcock lived in Wicomico County, Maryland, until Mrs. Woodcock left the marital residence and moved to her parent’s home in Baltimore.  She filed for alimony in Baltimore claiming that Mr. Woodcock had forced her to move out.

Upon being served with the complaint, Mr. Woodcock filed his complaint for divorce based on desertion in Wicomico County and a motion to dismiss his wife’s suit in Baltimore for lack of jurisdiction.

The Baltimore judge said that the general rule in the statute is that a suit must be filed in the county where the defendant resides.  An exception to the general rule is a suit for divorce which may be brought in the county where either party resides.  When two courts have jurisdiction over a case, the first court keeps the case and a second court cannot interfere.  Since Mrs. Woodcock filed first, she should have won.

However, Mrs. Woodcock had filed a suit for alimony, not divorce, which fell within the general rule so it should have been filed in her husband’s county.  The Baltimore judge dismissed her complaint for alimony and gave her permission to refile an amended complaint for divorce, which she did.

The husband appealed and the Maryland Court of Appeals said slow down.  Since the first case for alimony was filed in the wrong county, it didn’t count.  That meant the Wicomico court had jurisdiction over the case when the husband filed for divorce there.  And the Baltimore court couldn’t get it back by an amendment to the alimony complaint.

Woodcock v. Woodcock, 169 Md. 40; 179 A. 826 (1935)