FAMILY LAW

I.

MATTERS THAT PRECEDE GETTING MARRIED AND MARRIAGE (least impt)

A. PREMARRIAGE
i. *MD promise to marry is no longer actionable
ii. Prenuptial agreement/premarital agreement to address economic issues that might come
up if marriage fails the richer spouse wants to protect his interests. So youll see
challenge to prenuptial agreement that was written years before. How do you defend
validity of prenuptial agreement? 4 alternatives:
1. If the party seeking to uphold agreement can prove that at the time it was made,
he made a full and truthful disclosure of his assets OR show that the party
challenging it had knowledge of your assets despite not disclosing OR
2. Show that the agreement is not unfairly disproportionate that its a good deal
OR show that there was no overreaching, IOW that the other party had
representation, economic sophistication
iii. At common law, criminal conversation was a tort claim for adultery ABOLISHED
B. MARRIAGE
i. Need solemnization/ceremonial marriage; and
1. Need officiant someone to conduct procedure; anyone who can
2. Need witness
3. Exchange promises to take on the new status of husband and wife
ii. License purpose is inquiry into capacity (must be opposite sexes)
1. 48 hour waiting period for issuance of license and ceremony. Valid for only 6
months so have to go thru ceremony in that amount of time.
2. Failure to get a license does not affect the validity of the marriage
iii. *MD does not recognize common law marriage, but will recognize common law
marriage of couple from another state if they subsequently move here

II.

DISSOLUTION OF MARRIAGE (moderately impt)

A. ANNULMENT - based on ground that predates the marriage ceremony/problem that was there
i. Why get annulment? W, your marriage is void, u dont need annulment, but I
recommend you get one for .
1. Clarity of record
2. Need it to get collateral issues resolved, like assets
ii. Impediment b/c it impedes or prevents a fully valid marriage from coming into place.
Some impediments make marriage void, other make it voidable.
1. Void = no marriage at all; one where the grounds are not waivable; can be
collaterally attacked - a 3rd person can raise impediment to prove that these people
are not legal spouses. 3 grounds:
a. Lack of Mental Capacity
i. Alzheimers marriage void
b. Bigamy
i. Already married, then lack capacity
c. Consanguinity = incest
i. Ancestors (mother/grandmother), descendents (granddaughter,
daughter), and siblings
2. Voidable = married, but capable of being voided but have to go to judge to get a
decree; grounds waivable so you can stay married. Only one of the spouses can
raise the ground
a. Nonage one or more parties is too young; need to be 18 (waivable)
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i. If 16 or 17, can marry with consent of one parent

ii. Woman who is 16 or 17 who is pregnant can marry father without
consent
iii. If 15 girl can get married if both pregnant or gave birth & consent
of parent
b. Under the influence of alcohol or drugs all reason and judgment must be
blotted out
c. Duress
d. Fraud if prior to the marriage one party lied about or concealed an
essential aspect of the marriage, then the deceived party has grounds for
annulment
i. Religion lie about what faith you adhere to; how casually or
strictly observant you are; misrepresent how you plan to upbring
children
ii. Procreation or sex if you lie about ability to have children; if
pregnant and lie about father; lie about family planning or family
size maybe (not change of mind); lie significant way about past
sexual history; sexual agenda
iii. Finances, money, career doesnt go to essential aspects!
e. Impotence inability to have sexual intercourse; it has to be permanent
condition; nothing to do with lack of tenderness with spouse
f. Watered down incest if you marry into the following degree of
relationships: aunts/uncles, nieces/nephews, in-laws, step relationships
iii. All collateral remedies available so can ask for property, alimony, child custody
B. DIVORCE - looks forward from date of wedding
i. Absolute divorce that dissolves the marriage *MD hybrid state where you follow fault
and no fault. All grounds need to be corroborated, testimony is not enough
1. Fault based
a. Adultery one party to marriage is having voluntary sexual relations with
someone else (evidence of opportunity and disposition. Opportunity is
proof the D spouse was alone with 3rd person under circumstances where
sexual relations would be feasible. Disposition is some evidence of
affection. *MD this is a crime; penalty is $10.
b. Desertion unjustified departure from the marriage for a continuous
period of 12 or more months. *MD constructive desertion can be intent
manifested circumstantially thru conduct and no sex; domestic violence &
no sex; persistent attention to others outside of marriage coupled with
cessation of sex; insistence on abnormal sex can be desertion. Never
desertion to depart from marriage for a justifiable reason
c. Criminal Conviction if spouse convicted of crime after marriage and it
carries prison sentence of 3 or more years you can petition for divorce, but
cannot bring lawsuit until spouse serves 12 months
d. Insanity where both parties were of sound mind when entered into
marriage, but since then one has developed mental disorder or disease.
There has to be hospitalization, testimony from 2 psychiatrists, and can
only bring proceeding after insane party has been hospitalized for three
years
e. Cruelty any conduct that is calculated to seriously impair health or
destroy happiness. Can consist of lack of communicative ability, constant
badgering, humiliating.
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f. Excessively vicious conduct domestic violence

2. *MD Affirmative Defenses NOT ABSOLUTE defenses, just FACTORS
a. Condonation waiver, to put up with something. Knowledge of the
misconduct, forgiveness of conduct, and resumption of sexual relations.
i. In domestic violence and excessively vicious conduct be reluctant
about using this defense b/c domestic violence can be cyclical
b. Recrimination dirty hands, offsetting conduct by the P.
i. EX: adultery
3. No-fault based on a ground that the marriage is irretrievably broken
a. Statutory separation - Parties must separate and live apart in different
homes and refrain from sexual activity for 12 months (mutual agreement);
and 2 years (one spouse claiming irretrievably broken)
b. Still married during this time
ii. Limited = Separation
1. Why just get legal separation rather than full blown divorce?
a. Hope of reconciliation
b. Tactical reserve marriage status for economical reasons, eligible for
insurance, social security benefits
c. Moral or religious
2. Grounds
a. Cruelty
b. Excessively vicious conduct
c. Desertion need not be for 12 months, any period of time is adequate for
this one
d. Mutual agreement to voluntarily separate
C. PROCEDURE
i. Circuit Court for family court
ii. One spouse must be domiciled in the state of Maryland
iii. Unless grounds of divorce occurred in MD, then one year residency in MD
iv. When party is seeking collateral matters, then court needs PJ over D spouse
D. VENUE
i. Appropriate in county where D lives or county where he works, county where P lives,
county where ceremony was performed; if case of child custody or support then county
where custodial parent lives or child lives
ii. Couple from Pakistan. Husband went thru divorce thru Pakistani law. Commity
international equivalent of full faith and credit, optional doctrine. MD court refused to
grant international proceeding under commity doctrine b/c it violated the strong public
policy of MDs equal rights Amendments. The Pakistani divorce was asymmetrical.
E. ETHICAL RULES
i. Lawyer may not take contingent fee in matrimonial case
ii. Cannot represent both husband and wife even if they agree, they should have separate
counsel, unethical to represent both
III.

ECONOMIC ISSUES SURROUNDING MARRIAGE (high)

A. Property Division
i. *MD follows equitable distribution do 3 things:
1. Categorize assets as either Hs, Ws, and marital property
a. Anything owned prior to date of marriage
b. Any gifts or inheritance received during the marriage in the sole name of
one spouse is separate property of that spouse
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i. Passive appreciation on these items also single owned

c. Monies received as a result of tort judgment for personal injuries
d. (everything else will be marital: salary; wages; over-time; stocks; pension;
insurance policies; lottery winnings; appreciation on separate property
assets due to active intervention or management, not market reasons;
licenses/degrees)
2. Assign dollar value to each asset
a. Value is always net of debt
b. Valuation date is date of divorce, not of earlier separation
3. Apply the statutory factors to determine how much each spouse will get.
Doesnt have to be 50/50 discretion of court
a. Age older person needs more
b. Health unhealthier needs more
c. Economic circumstances how much separate property
d. Alimony if going to get alimony, maybe dont need property
e. Duration of marriage if long, then more inclined to 50/50
f. Circumstances that led to divorce
g. If party is custodian of any minor children
h. *MD enter an order giving other party cash rather than in-kind. 2
exceptions:
i. Marital home can be distributed in-kind
ii. Interests in pension plans/retirement/stock option
ii. Not a taxable event. All post tax money
iii. *MD can have a separation agreement is valid and binding so long as it is reduced to
writing and not unconscionable. Anything relating to kids is subject to judicial review
and modification from the court.
iv. Default rule can modify separation agreement, but can eliminate the possibility by
writing in a clause saying its non modifiable
v. Enforcement of separation agreement if divorce decree says that it is merged, then your
mechanism to enforce the agreement is to petition for contempt of court. If decree says
terms of separation agreement are incorporated by reference then agreement retains
separate identity and gives you two options to enforce it if breach.
B. Alimony
i. Purpose is to provide an opportunity for the recipient to become self-supporting
ii. Pendent lite or temporary alimony - Periodic support payments while lawsuit is still
pending (just something you can request while case is pending)
1. Granted regardless of fault or likelihood of success, and designed to maintain
status quo
iii. Post judgment alimony
1. Permanent or indefinite alimony awarded in limited circumstances: justified
where factors are present which make it unlikely that the recipient will ever be
able to become economically self-sufficient or where unconscionably disparate
living standards would exist
a. If due to age, health or illness, the recipient is never likely to become self
supporting
b. If the respective living standards of the parties will unconscionably
disproportionate
2. Rehabilitative alimony MD favored; granted only for limited period of time to
allow recipient to get education and training to become economically self
sufficient
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iv. Deciding Amount of Award, court will look at factors

1. Age
2. Health
3. Standard of living enjoyed during marriage
4. Contributions to marriage, including non monetary
5. Nature of education, training of recipient
6. Marital fault
v. Obligation that has a future component to them, which allows modification, but requires
a showing of change in circumstances. *MD they can be changed in either duration or
amount as circumstances of justice require
vi. Automatic termination of alimony upon death of either party or remarry of recipient;
cohabitation of recipient is not same as remarriage, but can be a change of circumstances
vii. Alimony is deductable to payor and taxable income to recipient
IV.

ISSUES RELATING TO CHILDREN (high)

A. Child Support
i. Children born during the marriage are presumed to be the children of the marriage so can
be liable to pay for child support even if not biological child
ii. Both biological parents have duty to economically support biological children thru age
18, 19 if child still in high school
iii. If child is incapable of supporting himself into adulthood, then that duty continues
throughout childs life
iv. If living in same household as child, the custodial parent or parents pay their support in
the ordinary course of daily life.
v. Non custodial parents:
1. Parents post-divorce parent who doesnt live with kid anyone
2. Parents of children who were born to single mothers
vi. How much money does non custodial parent pay?
1. Look at tables based on combined parental income and number of kids in family
vii. Alimony received by custodial parent will be included in income so reduce non custodial
parents amount he has to pay
viii. Awards can be modified when circumstances change: standard: a material change in
circumstances pay attention to both paying parent and child
ix. Non custodial parent is not allowed to voluntarily impoverish himself to lower child
support (e.g., when someone quits job)
x. Child support not deductible, payor gets no deduction
xi. Enforcement of child support if the non custodial parent stops sending checks courts
can seize personal property and sell it and use proceeds to satisfy the child support
obligations, it can garnish wages (employer has to withhold that money before you see it
and give it to custodial parent); or can be held in contempt; tax payments can be
intercepted
1. What if deadbeat parent is out of state? Use Uniform Interstate Family Support
Act (UIFSA) prevents or reduces of forum shopping and inconsistent orders.
Provides for direct interstate enforcement. The out of state employer will have to
send money back to custodial parent. Register MD order with out of state court
2. Full Faith and Credit For Child Support Orders Act (FFCCSOA) orders every
state to give full faith and credit to child support orders in other states
3. If fall $5,000 or 1 year behind and live in different state than your child, that is
federal crime and go to jail
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B. Child Custody can be exclusive in one parent or shared/joint

i. Legal Custody right to make decisions about childs upbringing (e.g., private/public
school)
ii. Physical Custody where kid is going to live
iii. Primary Test Home State Jurisdiction
1. A court has jurisdiction to initially enter or modify a child custody or visitation
order if the state (i) is the childs home state, or (ii) was the childs home state
within the past 6 months and the child is absent from the state, but a parent or
person acting as a parent continues to live in the state. A childs home state is the
state in which the child lived with a parent for at least six consecutive months
immediately before the commencement of the proceeding, disregarding temporary
absences. If child <6 months old, home state is where child has lived since birth.
iv. Standard in awarding custody, visitation or child support: best interests of child. In
applying standard (use anytime kids!)
1. Look at desire and wishes of parties; if one parent doesnt want the child then
likely not in best interest of that child to put him with that parent
2. If child over 12 can listen to what he has to say
3. Look at circumstances of parents (age, health, prob with anger management,
domestic violence)
4. Family dynamics if one placement is likely to preserve relations with extended
family
5. Any new people in lives of parents, are either parents dating someone new, and is
that person good influence
6. Who was the primary caregiver?
v. Joint custody:
1. Discuss whether parents have a cooperative relationship
2. Physical proximity
vi. Custody disputes between parent and non parent presumed that childs best interests are
served by placing him with biological parent. Non parent has to show very strong
entitlement to custody like parental unfitness
vii. Parent who is non custodial is entitled to visitation considered core prerogative of
parenthood. If one parent prevents it, that parent can be held in contempt of court
viii. Visitation of non parents
1. MD would construe its grandparental statute so that it creates a rebuttable
presumption in favor of parents judgment; grandparents can overcome
presumption by: 1) exceptional circumstances demonstrating detriment to child
absent visitation; or 2) parental unfitness
ix. Gay couples and visitation
1. Can have child visited by them and is biological relationship to one of them. So
same standard as visitation of grandparents
x. Child custody is not concrete, but may be modified if there is a material change in
circumstances
1. Discuss stability;
2. If custodial parent relocates then always warrants a reconsideration
xi. Federalism and conflict of interstate laws
1. Interstate kidnapping one parent takes child out of state to thwart custody order.
Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA)
provides that the original state that issued the custody order and that was the home
state of child shall have continuing and exclusive jurisdiction of child of all
custody matters
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