During the Initial Consultation, we will listen as you discuss your current domestic situation and describe to us what you hope to achieve through our representation. We may discuss with you, in general, such things as grounds for divorce in Maryland, determination and division of marital and non-marital property, alimony, child custody and visitation, and child support. During these general discussions, we may inquire further as to certain aspects of your situation in order to help us identify potential issues that may arise during the course of our representation. We will also explain the firm’s billing policies and the attorney’s billing rate.
Attorney is Retained
If, after or during the Initial Consultation, you elect to retain our firm, we will execute a Retainer Agreement. The terms of the Retainer Agreement will set forth the terms under which Davis, Upton, & Palumbo, LLC, agree to represent you. The Retainer Agreement will set forth such things as the amount of the initial retainer, hourly rates to be charged, etc. Typically, these issues are explained to you by the billing manager and any questions regarding billing practices should be addressed to the billing manager.
Client Information Worksheet
Once we have been retained, the next step in the process is for you to provide to your attorney information that he/she believes may be needed to prepare your domestic case.
- To assist you in this process, we have developed a Client Information Worksheet, a
copy of which is attached to this document.
- The worksheet is intended to gather comprehensive data about you and your family, including names, dates of birth of children, date and place of marriage, income, assets and debts.
- Your attorney will review this worksheet with you and assist you in providing the information requested. As part of this process, you may be asked to gather and bring in certain documentary evidence such as tax returns and pay stubs.
- Grounds – The Complaint could contain one or more “counts” or “grounds” for Divorce, Limited Divorce (i.e. a “legal separation”), Child Custody, Child Support, Modification of Custody, Support (“family maintenance” or “alimony”), or Visitation (“access”), etc.
- Facts – The Complaint does not need to contain all the facts that may be at issue in the case. Rather, it just needs to plead the minimum facts necessary to show that the Plaintiff has sufficient grounds to support the claim.
- Review – Once the Complaint is drafted, a copy of the Complaint will be sent to you for review and signature.
- Signed by Client – All Complaints for Divorce, Custody and Support must be signed by the client under oath, certifying to the Court under the penalties of perjury that the facts set forth in the Complaint are true and correct.
Complaint and Information Sheet are Filed with the Court
After the client has executed the Complaint, the attorney will complete a Case Tracking Information Form and will then file two copies of the Complaint and the Information Form with the appropriate Circuit Court.
- Filing Fee – The Court charges a $115.00 filing fee when the Complaint is filed.
- Payment of Fee – The filing fee will typically be advanced by your attorney and billed to you. This fee will be shown as “Filing Fee” on your monthly billing statement.
Summons is Issued by the Clerk
Upon the filing of the Complaint, the Clerk of the Circuit Court will issue a “Summons”.
- Summons – A Summons is a legal document requiring the person to whom it is directed (the “Defendant” or opposing party) to file an Answer or Response to the Complaint within a certain period of time after it is “served” upon them.
- Timing – The issuance of the Summons by the Clerk typically takes 7 – 10 days.
Summons, Complaint and Information Report are Served on the Opposing Party
When the attorney receives the Summons and Complaint back from the Clerk, the attorney must then arrange to have the opposing party “personally served” within 60 days of the date that the Summons was issued by the Clerk. There are several ways that personal service may be accomplished:
- Private Process Server – A private process server can be hired and charged with the task of personally delivering the Summons and Complaint to the opposing party. This typically is the best way to ensure prompt service of process upon the Defendant. However, it is also the most expensive with typical minimal charges in the range of $40.00 -$65.00. This cost may increase if the Defendant is difficult to locate or attempts to avoid service. In most cases the cost of private process service is justified due to the promptness and certainty of service.
- Certified Mail – In those cases where the client does not wish to incur the cost of a private process server, it is possible to serve the Defendant by certified mail, with a return receipt requested. This typically costs about $10.00. Again, this is the least expensive method of service; but, the opposing party can easily avoid service by refusing to pick up and sign for the certified mail at the post office. Should this occur, it typically takes the Post Office 30 – 45 days to notify the attorney that service was not accomplished. In those situations, a private process server is usually necessary.
- Service on Opposing Counsel – If there is an attorney representing the opposing party, that attorney may have permission to accept service on behalf of their client. This can be accomplished at no additional cost.
Answer to be Filed by Defendant
Once an Opposing Party is “served” with the Summons and Complaint, he or she must file an Answer to that Complaint.
- Contents – The Answer must either admit or deny each allegation of fact set forth in the Complaint, or allege that the person filing the Answer does not have sufficient information to either admit or deny the particular factual allegation.
- Signed by Defendant – The Answer must also be signed by the Defendant under the penalties of perjury.
- Time for Filing by In-State Defendants – In-State Defendants must file their Answer with the Clerk of the Circuit Court within 30 days from the date they were served with the Complaint.
- Time for Filing by Out-of-State Defendants – Out of State Defendants have 60 days to file their Answer. Out of Country Defendants have 90 days to file their Answer.
- Service on Plaintiff – In all cases, the Defendant must also serve a copy of the Answer to the attorney for the Plaintiff when it is filed with the Court.
- Filing Fee – There is no filing fee for filing an Answer to a Complaint. However, if the Defendant is represented by an attorney, the attorney must pay an Appearance Fee of $10.00, which again is charged to the client.
If the opposing party fails to file an Answer within 30 days of service, the attorney may file a Motion for Default. The opposing party then has 30 days to Answer why they should not be held in default. During this time the Court will schedule a default hearing. All parties and attorneys attend this hearing where the opposing party has to explain to the Court why he or she failed to file an Answer. It is very common for the Judge or Master to accept the explanation and allow the opposing party to file an Answer. Occasionally, the Court does not accept their explanation; in this case the Judge or Master may grant the relief requested by Plaintiff.
Counter Complaint may be filed with the Court
The opposing party has 30 days after the time for filing an Answer to file a Counter Complaint. This gives the party the opportunity to plead their case and request relief specific to their needs. The process and timing is the same as for the initial Complaint.
Once an Answer to the initial Complaint has been filed, the Court clerk will set the case in for a Scheduling Conference.
- Attendance and Location – In most cases, only the attorneys will attend this conference which typically is held in the Judge’s or Master’s Chambers.
- Purpose – The purpose of the Scheduling Conference is to give the Judge or Master the opportunity to find out what the issues are and what needs to be done by the attorneys, parties, and the Court. Following the conference, the Judge or Master usually orders the parties to attend mediation, and may also order psychological evaluations, substance abuse evaluations and drug testing if the case warrants any of these.
- Cases Involving Children – In cases where there are children involved, the Court will order the parties to attend Families in Transition Training (FIT) to help the parents communicate with respect to their children, and to learn how to keep the children out of the middle of their domestic case. The Court may also require parents to enroll children in Children of Separation and Divorce (COSD) or Kids Connects classes through Family Services. The Court may also set a date for a Settlement Conference, a Pendente Lite Hearing (to decide custody/visitation, child support, and alimony for the short term) and/or a trial date.
Discovery is the formal process of gathering information about the case in preparation for trial. Maryland Rules allow for liberal discovery of information so that there should be no ‘surprises’ at trial. The Court’s philosophy is that there should be no “trial by ambush”. Typically, anything is discoverable if it could reasonably lead to evidence that would be admissible at trial. It is not necessary that the material requested is itself admissible at trial as long as it could lead to admissible information. The Discovery process is time consuming but extremely important. It can be very useful in trying to settle a case and for determining the strengths and weaknesses of a particular case.
- Timing – The Discovery process can begin with the filing of the Complaint and can continue right up through the final hearing. There is a continuing duty for each party to update discovery if new facts are learned or circumstances change.
- Types of Discovery – Several methods of discovery are typically used by attorneys in domestic cases.
- Interrogatories – Interrogatories are written questions that must be answered, in writing and under oath, by the client, within 30 days after receipt. Each party is limited to 30 Interrogatories directed to the other party. The client will be required to sign the final Answers to Interrogatories under oath.
- Requests for Production of Documents – Requests for Production of Documents consist of one or more written requests to produce, or permit the requesting party to access documents or property. The party receiving the request has 30 days to respond by providing the documents or property, providing the requesting party with an opportunity to view the documents or property, or a refusal to provide access to the documents or property along with the grounds for refusal.
- Depositions – A deposition is best described as a process whereby the opposing party’s attorney has the opportunity to ask you questions about your case and you are required to answer the questions under oath. Depositions are typically held at one of the attorneys’ offices. Everything that is said in a deposition is transcribed by a Court Reporter. The answers that you give at a Deposition may be used against you at trial if your answer at trial is different than your answer in the Deposition. In certain circumstances, a Deposition may also be videotaped. Usually, if depositions are to be held, they are conducted after Answers to Interrogatories and Requests for Production of Documents are served on the opposing party. This way, the attorney can delve more deeply into the answers that are given in response to the Interrogatories and may ask questions about the documents which have been produced.
- Records Depositions – A Records Deposition is typically used when a non-party to a case has possession of records which contain discoverable information. A Notice of Records Deposition and a Subpoena is served on the person from whom records are sought. The person to whom the Notice of Records Deposition is directed will have 30 days to either provide copies of the documents requested, or allow the requesting party to inspect and copy the documents requested.
- Admissions – Admissions are written statements of asserted facts which the opposing party must either admit or deny. If the fact(s) are admitted by the opposing party, then the fact is deemed admitted for the purpose of trial. If the opposing party denies the truth of any asserted fact, and the party requesting the admission later proves the fact to be true, the party who denied the admission may be required to pay any cost incurred by the party who had to prove the fact at trial. Importantly, a party has 30 days to respond, either admitting or denying each request. An explanation must be
given for each denial. Any requests that the party does not respond to within 30 days to are deemed to be admitted.
- Responding to Interrogatories and Requests for Production of Documents –Usually, Interrogatories and Requests for Production of Documents are served together. When Interrogatories and Requests for Production of Documents are received from the opposing party, we will provide you a copy and request that you provide us with all information and all documents that could be responsive to the questions asked and requests submitted. We may even ask that you provide draft answers to Interrogatories that we will edit to arrive at the final Answers to Interrogatories. It is also very helpful if the client organizes and classifies all documents provided in response to the Request for Production of Documents consistently with the numbered request. This could save us time (and save you money!) in preparing the final Responses to Requests for Production of Documents. Typically, we will meet to review and finalize responses before they are submitted to the opposing party.
- Sanctions For Failing to Comply with Discovery Requests – If requests for Discovery are not responded to promptly and/or if documents are not provided in response to Discovery, the Court could order that a party should not be allowed to introduce certain evidence during a hearing or trial. A party has 30 days to file responses to Discovery requests.
Pendente Lite Relief
If the trial date will be several months away, or there are immediate issues that need to be dealt with, the Court may schedule a mini-hearing on specific issues. This hearing is called a Pendente Lite Hearing (PL Hearing). Pendente Lite is Latin for “pending litigation”. At this hearing, important issues such as child support, child custody and temporary alimony will be settled for the interim between the PL Hearing date and the trial date. Generally both parties and a few witnesses will testify at a Pendente Lite hearing. Although the determinations made by the Court during a PL Hearing are not final, the court will not set aside the decisions made during a PL Hearing unless the parties show why the PL decision was not correct or the opposing party can introduce new evidence that tends to contradict any determination made during the PL Hearing. Therefore, although the PL Hearing determination is not a final determination, it is very important to put forth all of the evidence available to support a parties’ particular position because it is hard to reverse a Judge’s or Master’s decision once it is made.
Mediation is an alternative to hearings and trials. A neutral third party mediator, who may be agreed upon by the parties or appointed by the Court, will meet with the parties together to attempt to reach a mutually beneficial agreement.
- Attendees – Generally attorneys are not present for mediation, but they may be ordered to attend.
- Number of Sessions – The Court usually orders a minimum of two sessions (unless an agreement is reached sooner or the mediator informs the Court that the case is not appropriate for continued mediation).
- Agreement – If the parties reach a proposed agreement, the Mediator will draft it and provide it to the attorneys for review. This may settle the case. The agreement reached at mediation functions as a contract, which may be included in a Court Order at a later date.
The Settlement Conference is scheduled by the Court and usually takes place anywhere from 45 to 60 days (in some cases longer) after the Scheduling Conference.
- Attendees – All parties and their attorneys attend the Settlement Conference.
- Purpose – At the Settlement Conference, the attorneys only will meet with the Judge
or Master and tell him or her the status of the case including whether any issues have been resolved, if Discovery has been completed and what has been done to try and settle the case (.e.g. mediation). If nothing has been settled, the Judge/Master may advise the attorneys on how he or she would likely rule if the case went to trial and might suggest a course of action for the attorneys/clients to pursue to settle the case or certain aspects of it. The Judge or Master may also refer the parties to mediation with a retired Judge, even if they have already tried mediation earlier in the process.
- Trial Scheduled – A trial date will be set, if not already scheduled. If the parties are unable to reach a settlement agreement, then they will proceed to trial. Depending on how many issues there are to litigate and how long the attorneys think they will need before the Court, it may take anywhere from 2 months to 12 months to get a trial date.
If the parties are unable to reach an agreement regarding the terms of their separation and divorce, the issues will be determined at trial. A domestic trial may be held either before a Master for Domestic Relations or before a Judge.
- Before the Master – Many family law cases take place before the Master for Domestic Relations. The Master is sort of a “mini-judge”. Cases tried before the Master follow the same procedure as cases tried before a Judge. In such cases, each party will have the opportunity to make opening and closing statements, present evidence through their own witnesses, and cross-examine witnesses of the opposing party. At the end of the hearing, the Master will make findings of fact and give “recommendations” to the Court. Once the Master makes a recommendation, the attorneys and parties will have 10 days to review the recommendation, and file an Exception if they disagree with all or any part of the recommendation. If the matter is uncontested, or if the parties agree on the recommendation, they may agree to waive this 10-day period. If no Exceptions are filed, or the exceptions period is waived, the Judge will sign the recommendations into a Court Order. If Exceptions are filed, the Court will schedule a hearing at which each party can argue why the recommendations should or should not be followed. In most cases, the Court will rule on the Exceptions, although the Court always has the option to reopen the case and take additional testimony.
- Before the Court – A hearing before the Court will be heard by a Judge. Each party will have the opportunity to make opening and closing statements, present evidence through their own witnesses, and cross-examine witnesses of the opposing party. At the conclusion of the case, the Court will make a ruling which determines the outstanding issues in the case. In certain cases, the Court may take the case ‘under advisement’, allowing the Court time to review the evidence, research uncertain areas of law, and issue a written formal opinion.
- Pre-Trial Conference – When a case is set for a trial date it will most likely be set in for a Pre-Trial Conference 30-60 days prior to the trial date. All parties and their attorneys must attend the Pre-Trial Conference. The Pre-Trial Conference is an opportunity for the actual Judge who is going to hear the case to meet with the attorneys and discuss the issues that will be litigated before the Judge and to make sure that all of the appropriate pleadings, any amendments, documents, studies, etc. that may be necessary have been completed and filed with the Court. The Judge may also suggest settlement options to the attorneys to discuss with their clients.
Once the Judge has entered the final Judgment (Order), the attorney will go over the details with the client. It may be necessary for the client to take specific steps to comply with the Order, and the attorney will discuss these steps with the client. If there is a reason to appeal the Order, the attorney will discuss these reasons with the client, and file an Appeal within 30 days of the Order.
The Basic Law
Grounds for Divorce
In Maryland, there are specific grounds that must be met in order to be granted either a Limited or Absolute Divorce. In fact, a party may not file for Divorce in Maryland unless he or she has met the grounds for divorce at the time of filing.
- Limited Divorce – A Limited Divorce in Maryland is nothing more than a legal separation. It allows a party to bring a case to Court in the situation where Pendente Lite relief is required, but there are no grounds that would otherwise entitle the parties to a final or Absolute Divorce. At a hearing for a Limited Divorce, the only issues that the Court may address are: pendent lite child custody, child support, use and possession of the family home, and temporary alimony. In order to obtain a Limited Divorce in Maryland, the complaining party must meet one of the following grounds for Limited Divorce.
- Voluntary Separation – Parties must be living separate and apart, voluntary,
with the intent of ending their marriage.
- Desertion – The statutory term ‘Desertion’ means a cessation of the marital
relations with the intent of ending the marriage.
- Cruelty of Treatment – This means a course of conduct that is calculated to
seriously impair the health and/or happiness of the other party or a child of the party.
- Excessively Vicious Conduct – The complaining party must be able to prove
that the opposing party acted in a cruel and excessively viscous manner toward the party or a minor child of the party. This may be a one time occurrence as opposed to a course of conduct.
- Absolute Divorce – An Absolute Divorce in Maryland is a Final Divorce. At a hearing for an Absolute Divorce, the Court will determine all issues related to the marriage of the parties, including child support, child custody and parental access, alimony, use and possession of the family home, and division of marital property. In order to obtain an Absolute Divorce in Maryland, the complaining party must meet one of the following grounds for Absolute Divorce.
- Adultery – Adultery is the act of a married individual having sexual intercourse with a person other than that individual’s spouse. A Complaint for Divorce may be filed on adultery grounds as soon as the party discovers the adultery. To obtain a divorce on the grounds of adultery, the complaining party must prove a) a public show of affection and b) the opportunity to commit the act.
- Voluntary Separation – The parties must be living separate and apart without cohabitation for one (1) year before filing for Absolute Divorce. The intent to dissolve the marriage must be mutual and there must be no hope of reconciliation.
- Two Year Separation – The parties must be living separate and apart for two (2) years before filing for Absolute Divorce. There is no need for mutual intent to dissolve the marriage, but there must be no hope of reconciliation.
- Cruelty of Treatment – A course of conduct that is calculated to seriously impair the health and/or happiness of the other party or a child of the party with no hope of reconciliation.
- Excessively Vicious Conduct – Cruel and excessively viscous action toward the party or a minor child of the party with no hope of reconciliation.
- Insanity – One party must be confined to a mental institution for at least 3 years before a Complaint may be filed. Two physicians must testify that the insanity is incurable.
- Conviction of a Crime – One party must be convicted of a felony or misdemeanor, sentenced to serve at least 3 years in prison, and have already served at least 12 months of the sentence.
Marital property includes all property, regardless of how it is titled, that is acquired by one or both parties during the marriage. Marital property does not include:
- property acquired prior to the marriage,
- inheritances from a 3rd party,
- gifts from a 3rd party specifically given to husband or wife, or
- property that is excluded by valid agreement.
The Court does not get involved with issues involving marital property until the hearing on the Absolute Divorce.
There are three different types of Alimony in the State of Maryland.
- Pendente Lite Alimony – This is also commonly referred to as “Temporary Alimony” and may be awarded at a Pendente Lite Hearing or at a hearing for a Limited Divorce. The only factors that matter in a Pendente Lite Alimony case are one party’s need and the other party’s ability to pay. Temporary alimony may be back-dated to the date the request for alimony was filed with the Court. The amount awarded as temporary alimony may become the final award for alimony as well.
- Statutory Alimony – The goal of statutory alimony is to make the recipient spouse self-supporting. It may be backdated to the date of filing with the Court and will last as long as it will take for the recipient party to become self-supporting. There are 12 factors that a Court must consider in making an award of Statutory Alimony:
- The ability of the party seeking alimony to become self-supporting,
- The time necessary for the party seeking alimony to gain sufficient education/skill to become self-supporting,
- The standard of living established by the parties during their marriage,
- The duration of the marriage,
- The contributions each party has made to the well-being of the family,
- The circumstances leading to divorce,
- The age of the parties,
- The health of the parties,
- The ability of the party from whom alimony is sought to pay,
- Any agreements between the spouses,
- The needs and resources of each party, and
- The effect any award of alimony would have on the eligibility of either party to be eligible for medical assistance.
- Indefinite Alimony – Indefinite alimony is only awarded in rare circumstances where the recipient party, due to age, illness, infirmity or disability cannot become self supporting, or even after becoming self supporting, there will be an unconscionable disparity in the party’s standard of living.
Custody and Visitation/Access
Maryland Courts have jurisdiction to make decisions on child custody, visitation/access, and child support.
- Types of Custody – The Court has jurisdiction to decide two types of custody.
- Legal Custody – the right to make long range decisions regarding education, religion, and medical care. The Court may award legal custody to one (“sole”) or both (“joint”) parents. If the parents are awarded joint legal custody, neither parent may make a long range decision without the input of the other parent.
- Physical Custody – the right to have the child primarily in your residence. The Court may award physical custody to one (“sole”) or both (“joint”) parents. An award of joint custody is based on the number of overnights – not days – that a child spends with each parent. For joint physical custody, the minimum number of overnights per year, per parent, is 128.
- Custody Determ – Custody is determined either by agreement, or in court based on the “Best Interest” standard. In making a decision on child custody and visitation/access, the Court will take the following factors into consideration: 11) Whether either parent abandoned the child at any time.
- The fitness of the parents,
- The character and reputation of the parties,
- The parents’ desires,
- Any agreements between the parties,
- The child’s preference,
- Opportunities each parent can give the child,
- Age, health, and sex of the child,
- Residences of the parents,
- Opportunities for visitation,
- The length of separation of the parents
In Maryland, child support is determined using a formula, The Maryland Child Support Guidelines. The Guidelines take into account each parent’s income, any alimony and child support paid or received, any payments for child care, health insurance, extraordinary medical expenses and school expenses, as well as the custody arrangement. There is a presumption that the amount determined by the Guidelines is correct, but it may be increased or decreased if another amount would be in the best interest of the child.