Thinking of Divorce? Here’s Your 6-Item Checklist

Legalese is boring, right? But hang in there because these are some things you should know in order to make smart decisions that won’t come back and haunt you in the future.

In Maryland, you can file for Absolute Divorce, Limited Divorce, and most recently, Mutual Consent Divorce.

Absolute divorce is what most people have in mind when they think of the word “divorce”. You no longer live together, your finances are independent, and you are free to date and form new relationships. In most cases in Maryland, you must be separated for a year before you can say, “Bye Felicia.”

Many people are aware of the one year separation in a contested divorce (contested divorce is when you and your partner can’t reach an agreement), so it’s a common practice to wait a year before consulting with an attorney to file for divorce.

Insider tip: meet with an attorney before your separation. Family law attorney, Brian Wise, advises this will make the process much easier and less expensive. Instead of waiting a full year, filing for a Limited Divorce will start the ball rolling and establish a legal determination of the parties’ rights when an Absolute Divorce is not yet available.

For example, let’s say your spouse falls in love with someone else and leaves you high and dry (desertion). With Limited Divorce the court can order your spouse to keep paying the mortgage, utilities, car payments, school tuition, groceries, vacations to Bermuda (just kidding), as well as set up a visitation schedule for the children. In a nutshell, Limited Divorce can help get what you need to keep moving forward while you wait to file for Absolute Divorce.

In October 2015,  Maryland passed a law allowing for a Mutual Consent Divorce. A couple qualifies for divorce by mutual consent if:

1. they have no minor children in common;
2. they have a signed, written settlement agreement covering both alimony and property rights;
3. neither party is contesting the divorce; and
4. they both appear at the uncontested divorce hearing.

In a Mutual Consent Divorce, there’s no waiting period for couples who mutually agree to end their marriage and have settled all issues. In October of this year Mutual Consent Divorce will be expanded to include couples with children, as long as the couple has worked out custody and parenting issues.

The answer is yes if you meet one of the following criteria:

1. Adultery

Adultery is self-explanatory (if you don’t know, Google it.) However, adultery is very difficult to prove. The one year waiting period does not apply in the case of adultery.

2. Desertion and Constructive Desertion

Desertion is when your spouse leaves to go buy ice cream and doesn’t come back.

Constructive desertion is when you are forced to leave the marital home because your spouse is abusive, makes harmful threats, or commits an act that forces you to leave. A one year waiting period does apply in cases of desertion as well as constructive desertion.

3. Insanity

Insanity as grounds for divorce is extremely rare and difficult to prove. Your spouse must be permanently and incurably insane and be confined in an institution for a minimum of three years before filing. Two or more psychiatrists are needed to testify that there is no hope of recovery. 

4. Imprisonment

To use imprisonment as grounds for divorce your spouse must be convicted of either a misdemeanor or a felony and be serving at least 12 months of a minimum three-year sentence.

5. One year separation

If you and your spouse have been separated continuously for 12 months — by desertion or mutual agreement — and there is no reasonable hope or expectation of a reconciliation, you have grounds for an absolute divorce.

Keep in mind however, during the 12-month separation if you and your spouse reconcile for even a moment of passion (again, Google if you need clarification) the clock starts over and the one year waiting period begins again.

How long is the divorce process in Maryland?

If the parties can’t reach an agreement and decide to fight it out in court, the divorce process may take 18 months or longer.

Couples who opt for a low-conflict resolution generally choose mediation, which averages around 5 months.  With the help of a mediator, they reach an agreement without having to litigate. Generally a much more satisfactory settlement can be achieved when the parties negotiate what is best for their family instead of letting a judge decide. No one knows your family dynamic better than you and your spouse. In meditation, the goal is to solve a problem rather than create more conflict.

Whether it’s a low-conflict meditation or a high-conflict divorce, it pays to have an accurate picture of your debts, assets, and financial big picture (both individual and combined).

• First open up a simple Excel file (or go old school with paper and pen) and put together a simple balance sheet of assets and debts.
• Gather and make copies of real property documents, bank accounts, mortgages, insurance policies, canceled checks, and tax returns.
• Create an inventory and take photographs of valuables.

Keeping tabs of your financial situation can give you an idea of how assets will be split and allow you to set aside a budget to spend on the divorce process. If you feel that your spouse is a financial bully or has been secretive about money it might make sense to do some detective work to ascertain your spouse’s annual income.

In Maryland, it’s worth noting that marital property (as well as marital debt) is subject to equitable distribution, where property is divided in a “fair and equitable manner” instead of 50-50 division of property. However, 50-50 ends up being an equitable result in most cases. Keep in mind that marital property also doesn’t mean all property. Let’s say Sue’s mom gave Sue a blender for her birthday and Sue loves making daiquiris with her blender. Lucky Sue! The blender is not marital property as it was given to her by a third party. However, if Sue’s husband, Tom, gave her the blender, too bad for Sue, the blender is marital property. Gifts given by one spouse to the other are considered marital property. If Tom’s Great Aunt Agnes bequeaths a life size portrait of herself to Tom during the marriage, Sue should be relieved to know she has no rights to that painting, it belongs solely to Tom.  Uh-oh, Tom discovers that Sue has been fooling around with Jerry and files for divorce on the grounds of adultery. Tom is pretty sure the court will punish Sue by giving her a smaller share of marital assets. Sorry Tom, a court rarely considers adultery, alcohol and drug abuse, domestic violence, or involvement in criminal activities when making an equitable distribution of marital property. A spouse’s behavior will only be considered if it impacts the couple’s finances. For instance, if Tom discovers that Sue has been funnelling money to Jerry, the court may award Tom a larger percentage of the couple’s estate. When deciding equitable distribution the court generally considers the age and health of the spouses, the duration of the marriage, and the socioeconomic status of the parties.

Finally, it’s also a good time to realistically assess what you can earn post-divorce. If you’re currently not working but may have to return to the job market after separation, it might be a good idea to check if your skills are still marketable, and whether or not you need to get extra training or attend further education.

If you’re the spouse who deals with monthly family expenses and bills, it might be easier for you to figure out how much it’s going to cost to live on your own (or with the children) after divorce.

Whether you’re the one staying or leaving your household, find out how much you’re supposed to pay for basic necessities such as monthly rent on mortgage, groceries, and utilities.

Find out your credit history and determine if you need to rebuild or repair your credit score. Stay on top of joint debts and keep in mind that your soon-to-be-ex’s actions (or non-action) can still affect your credit score. If possible, close joint credit card accounts and keep paying bills until you can separate accounts.

The consumer credit reporting agency,  Experian, recommends paying at least the minimum payment due on all joint bills while you are going through the divorce process. If you miss even one payment it may stay on your credit profile for up to seven years, making it difficult to obtain new credit in your own name.

Insider tip:  If you’re paying the credit card bill, consider reducing the spending limit. You don’t want your spouse clearing out the shelves in Target while you’re responsible for paying for the shopping spree.

Ultimately, do a self-check: Do you have sufficient savings right now to keep the household running after divorce? Can you pay for rent if you’re moving out post-divorce?

Put together a specific figure for your daily necessities and find out if you have enough funds stowed away to support your new beginning.

You must be emotionally prepared before telling your spouse about your decision to call it quits. Divorce is ranked as the second most stressful life event (right after death of a loved one). Even if it ultimately ends up being a good change, the emotional toll on you and your family can’t be overlooked.

If possible, talk to a therapist or mental health professional. Build your support network by talking to friends and family members who have been in the same situation. Getting a handle on your emotions and thoughts during divorce will allow you to be able to make clear-headed decisions.

Consulting with an attorney should be a priority the moment you’re considering divorce. Don’t just settle for one consultation and interview more than one attorney when you can. You’ll want to work with a Maryland divorce lawyer who understands your goals for litigation and offers solutions after (not before) listening to your case.

You must speak with an attorney even if you don’t have a significant amount of joint assets, no children, or plans to handle it all yourself. Even the most modest of couples have assets and liabilities as well as pension or retirement plan to consider.

As much as possible, do not talk to your spouse (or family members) about the possibility of divorce when you haven’t consulted with a lawyer yet. A qualified Maryland divorce team will be able to help you avoid divorce traps and mistakes. Also, keep in mind that information or well-meaning advice from divorced friends are not reliable because every case is different.