Abney at Law, P.C.
Free Initial Consultation
View Our Practice Areas

Rockville Family Law Blog

Getting a legal separation before filing for divorce

In the state of Maryland, a couple considering ending their marriage has another option available before jumping right to the divorce process. Although they are not that common, a legal separation can be used in a situation where a couple is still figuring out whether they want to try and make their marriage work or if they want to go ahead with the divorce.

If a couple agrees to a legal separation, the court still makes a number of determinations regarding property division and child custody. Further, a spouse may also be entitled to separation maintenance, which can include the equivalent of spousal support and child support. If the couple later decides to get a divorce instead of working on the marriage, the separation maintenance can have an impact on what each spouse could be awarded during the actual divorce.

Considering the 401(k) plan in a divorce

Maryland spouses who are contemplating a divorce might be surprised to find out that it is possible to receive retirement benefits from their spouse's 401(k). While it is not normally legal for the funds of a 401(k) to be distributed to anyone other than the account holder, there is an exception that allows divorced spouses to receive retirement pay from their ex-spouses.

The exception permitted by the law is for the employee with a 401(k) to designate an alternate payee. This designation must be in accordance with the Employee Retirement Income Security Act of 1974, as well as with the regulations of the Internal Revenue Code to be considered by a divorce court.

Getting custody of a sibling

There may be circumstances in Maryland in which someone needs to get custody of a sibling. This may be necessary because the parents are unfit or deceased. In the former situation, the fight may be emotionally difficult. Furthermore, it will be necessary to prove that the parents are putting the child in danger. Courts are generally reluctant to separate a child from the biological parents. A person will also have to demonstrate an ability to support the child and offer stability.

However, there are circumstances in which a custody battle may not be necessary. The parents may agree to give a person custody of a sibling. Therefore, the first step may be to talk to the parents or guardians about this. If it is not possible to have this conversation or the parents refuse, then the next step is to file for custody. This must be done where the child resides.

Divorce and finances

Finances can be a significant concern when Maryland couples are ending their marriage. However, there are certain steps people can take to get ready.

When considering financial advice, people should be cautious of any counsel that appears to be marketed as applicable to all situations. Each state has its own divorce laws, and what may be beneficial in one situation may end up costing you money. It is always best to speak with a licensed attorney in the state in which the divorce will occur.

Aisha Tyler agrees to pay ex-husband $2 million

Maryland residents who watch the show "The Talk" may be interested to learn that, on May 19, co-host Aisha Tyler agreed to pay her ex-husband $2 million. Tyler said that she her former husband had agreed to the terms of the divorce settlement and that she had not been ordered by the judge to pay spousal support.

Tyler and her former husband were married in mid-1994 after being together in high school. They separated in early January 2015. He filed for divorce in April 2016, citing irreconcilable differences. Although he did not ask for spousal support when he filed for divorce, he did reserve the right to do so later on. As part of the divorce agreement, Tyler and her former husband agreed to split all of their assets, including the profits from the home that will be sold.

When another parent abuses drugs or alcohol

Maryland parents who are divorced might wonder what they can do to ensure that their child is safe if the other parent is abusing alcohol, prescription drugs or illegal drugs. A judge who has jurisdiction over child custody and who receives a report from one parent about such behavior might begin by investigating those allegations.

The court is concerned with the best interests of the child, so its focus will be on whether the parent's drug or alcohol abuse interferes with the ability to care for the child. The judge may also consider any past history of substance abuse.

When a change in child custody is necessary

Maryland parents who are not living together might need to modify a child custody agreement. While a court is reluctant to allow a child custody modification without good reason, there are several cases in which it is in the child's best interest to do so. For example, if the child is in danger, the court will act to protect the child. However, the court will still consider the situation first, and this will include weighing whether there has been domestic violence in the home, how willing the child is to remain in the home and how much immediate danger the child is in.

The relocation of a parent may necessitate a change in custody. Courts will consider the reason for the parent's move and how it affects the visitation schedule as well as how a modification will affect the child's life. If one parent refuses to follow the visitation schedule, this could also be a reason for a change.

How to prepare for a legal separation

Before beginning divorce proceedings, many Maryland couples choose to undergo a legal separation to sort out their feelings and see if their marriage can be saved. However, there are several considerations that people should keep in mind before choosing to live apart for a period of time.

For example, if one spouse handles all the finances, the other spouse should become familiar with all the accounts before the separation. This will ensure neither spouse hides income or expenditures from the other one. Each spouse should also open credit cards in their own name to establish credit as an individual. Likewise, all joint credit card accounts should be closed, as each party can be held legally responsible for any debt the other racks up during a separation. Estranged couples should also consider entering into a formal separation agreement, which would cover the financial terms of the separation, including liability for debts incurred during the separation, child and spousal support, who will pay health and life insurance premiums, and other applicable issues. They should have separate legal representation during this process.

Dealing with child custody following the death of a parent

The death of a Maryland custodial parent can be a difficult time for those involved. However, it can also be difficult to determine who the child will live with. Depending on the situation, a child may go to live with the noncustodial parent, a family member or a third party. When there is no one suitable, these children could become wards of the state.

Unless the other parent has a history of abuse or an illness that prevents them from being able to provide proper care for the child, they may be the first choice. In order for the parent to seek custody, however, they must establish paternity. This can be done through a simple DNA test if they did not sign the child's birth certificate. They can also opt to sign an acknowledgement of paternity, which then must be filed in court.

Focusing on children's well-being during a divorce

When Maryland parents are considering a divorce, they might also wonder what they can do make the process less difficult for their children. They might be able to work together to help their children adjust. This would begin with choosing the right time to file for divorce. One reason that March may be the most popular month for divorce filings is that its long stretch of school days means that parents can take care of divorce-related meetings while their children are in class. However, parents who do not want their children to have to cope with the adjustment during the school year may opt for summer when they might be able to spend more time with them.

Parents can also work together to explain the divorce to their children. This includes allowing plenty of time for children to ask questions. Children might need reassurance that their parents love them and that they are secure. A temporary custody and support order might be necessary. Parents may also decide that they can live together until the divorce is final or that they can take turns living in the house with their children.