Things to Consider Before Filing a Family Case

The Collaborative Project of Maryland offers ways to resolve disputes on family matters before going to court. Matters that they address include: child custody, child support, divorce (even if you have not been separated for a year), dissolution of long-term partnerships, and modification of prior child custody and child support orders or agreements.

Types of Family Cases

What is the purpose of your filing? The following examples will help you understand the different types of family cases:

Alimony: I want the Court to set or change the amount of money that I receive from (or give) the other party for maintenance when we divorce or are legally separated, or while such action is pending.

Child Custody: I want the Court to decide who has the responsibility of physically living with my children and/or making major decisions for them, and how that responsibility should be shared with the other party.

Child Support or its Modification: I want the Court to determine, or change, the amount of monthly payment that I (or the other party) must provide to support taking care of my children.

Contempt: The other party is not honoring the arrangements ordered by the Court, and I want the Court to enforce the order.

Divorce (absolute divorce): I want the Court to grant me a complete ending of my marriage.

Paternity: I want to determine who is the biological father of the children.

Visitation: I want the Court to decide how often I (or the other party) can see the children and how the necessary arrangements will be made.

Residency Requirements

Do you satisfy the residency requirements to file a case in Montgomery County Circuit Court?

Absolute Divorce- You can file a complaint for divorce in Montgomery County Circuit Court if you live in Montgomery County or your spouse lives or works in the County. If the grounds for divorce occurred outside of Maryland, you cannot file for divorce in Maryland until either you or your spouse has lived in Maryland for at least one year.

Child Custody - You can file a complaint for child custody in Maryland if one of the followings conditions is met:

  • The child is present in Maryland and has lived in Maryland for at least the last six months;
  • The child is not in Maryland now, but Maryland was the child's home state within the last six months, and you currently live in Maryland;
  • The child is physically present in Maryland and was abandoned or emergency protection is necessary because the child was threatened or a victim of abuse or neglect; or
  • There is a current Maryland order for custody that you are seeking to modify or enforce, and no other state has jurisdiction.

Child Support - You can file a complaint for child support in Montgomery County Circuit Court if you or the non-custodial parent live in Montgomery County.

Case-Specific Requirements

Do you satisfy these other case-specific requirements?

The following case types require additional conditions before filing your case:

Absolute Divorce

Your case must meet one of the following conditions before you can file a Complaint for an Absolute Divorce:

  • One-year Separation
    1. You and your spouse have lived separate and apart from each other for one complete year without sexual intercourse with each other; and
    2. NOTE: During the last one year if you and your spouse lived together at all, or if you have had sexual intercourse with your spouse during that time, or if you spent even one night under the same roof, you cannot get an absolute divorce based on a one-year separation.
    3. There is no reasonable hope of getting back together.

  • Adultery
    1. Your spouse has had voluntary sexual intercourse with a person of the opposite sex other than you; and
    2. You must be able to prove that your spouse committed the act of adultery. To do this, you must have a witness who can testify that your spouse had the opportunity (a specific chance for your spouse to have had sexual intercourse with the other person) and the inclination (evidence your spouse and someone of the opposite sex acted romantically towards each other) to commit adultery.

  • Actual Desertion
    1. Your spouse left you more than 12 months ago with the intention of ending the marriage;
    2. You and your spouse have not had sexual intercourse with each other nor spent a night under the same roof, during that time;
    3. You and your spouse did not agree to separate;
    4. You did not do anything to force your spouse to leave; and
    5. There is no reasonable hope of getting back together.

  • Constructive Desertion
    1. At least 12 months ago your spouse forced you to leave the home by making it impossible for the two of you to live together in safety, with health, and with self-respect;
    2. You and your spouse have not had sexual intercourse with each other nor spent a night under the same roof during this time; and
    3. There is no reasonable hope of getting back together.

  • Criminal Conviction of a Felony or Misdemeanor
    1. Your spouse was sentenced to serve at least three years or an indeterminate sentence in a penal institution and has served 12 or more months of the sentence.

  • Cruelty/Excessively Vicious Conduct Against Me or My Minor Child
    1. Your spouse has endangered you or your minor child’s safety or health more than once; and
    2. There is no reasonable hope that you and your spouse will get back together.
    3. NOTE:One incident may be enough if it was very violent and your spouse intended to harm you. The Court will want you to prove that you cannot live safely with your spouse.

  • Insanity
    1. Your spouse was confined to a mental institution, hospital, or other similar institution and has been confined for more than 3 years;
    2. Your spouse, or you, have been a resident of Maryland for at least two years before the filing of this complaint; and
    3. Two doctors competent in psychiatry will testify that the insanity is incurable and there is no hope of recovery.
Absolute Divorce by Mutual Consent

To qualify for an Absolute Divorce by Mutual Consent, you must satisfy the following criteria:

  • Signed settlement agreement
  • Neither party has asked to set aside the agreement
Modifications to Existing Child Support Order

If you are receiving public assistance and are seeking an increase in child support, you must contact the Montgomery County Office of Child Support Enforcement (800-332-6347) or Montgomery County Sheriff’s Office Child Support Unit (240-777-7066). As a recipient of financial assistance, you assign to the State “all right, title and interest for support from any other person,” including child support owed you on behalf of a child for whom you are receiving public assistance. The local support enforcement office will pursue a modification of support, if appropriate, although the State will retain those amounts until you are no longer receiving financial assistance.

If you are NOT receiving public assistance and are seeking a change in child support, you need to prove a substantial change in circumstances in order for the Court to grant your petition to modify child support. A substantial change in circumstances can occur from one or more of the following situations.

  1. Expenses for the children have substantially increased;
  2. Expenses for the children have substantially decreased;
  3. Father's/Mother's income has substantially increased;
  4. Father's/Mother's income has substantially decreased;
  5. Children have reached the age of 18 years (or 19 if the child is still in high school); and/or
  6. Other changes have occurred.

Except for #5, you will need to fully explain the situations that you choose to elect as the reasons for modifying the amount of child support.

Modifications to Existing Custody/Visitation Order

For the court to grant your Petition to Modify Custody/Visitation, it must meet the following conditions:

  1. You must have a court order for custody or visitation and that court case named you as a Plaintiff or Defendant. To file a modification petition or order, you will need a copy of the original custody or visitation order. If you do not have a copy, ask the Clerk of the Court how to get one.
  2. There must have been a substantial change in circumstances that makes it in the best interests of the children to change the current arrangements of custody/visitation. While there are no clear-cut criteria as to what constitutes a “substantial” change in circumstances, you need to describe any changes in your, your children’s, and/or your former spouse’s, circumstances, such as financial status, health, living arrangements, and employment that may have made the current custody/visitation arrangements not in the best interest of the children. It is not enough to show that the children will be better off with the modification you are requesting. You must be able to show a substantial change in circumstance before the Court can even consider the changes you want to make.

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