New Maryland laws take effect on October 1, 2023! We will be publishing a series of posts highlighting a few of the newly enacted laws. This series is just a small sampling of the new laws enacted by the 2023 Legislative Session. To read about more laws resulting from the 2023 session, see the list of new laws published by the Department of Legislative Services (DLS) of the General Assembly of Maryland. For a full listing of new laws effective October 1, 2023, check out the List of Laws effective on October 1, 2023 from DLS.
Note that all quotations, unless noted otherwise, are attributable to the 90 Day Report – A Review of the 2023 Session published by the Department of Legislative Services of the General Assembly of Maryland, which is available online. In addition, by visiting the link for specific legislation, you can view documents at the “Witness List” link for each bill that argue for and against that legislation.
Family Law
The following descriptions are taken from the 90-Day Report
Divorce
• Senate Bill 36 (CH645) and House Bill 14 (CH646) generally simplify the initiation of divorce proceedings by repealing most existing grounds for an absolute divorce and instead authorizing a court to grant an absolute divorce based on the grounds of
(1) six-month separation, if the parties have lived separate and apart for six months without interruption before the filing of the application for divorce or
(2) irreconcilable differences based on the reasons stated by the complainant for the permanent termination of the marriage.
The bills specify that parties who have pursued separate lives must be deemed to have lived separate and apart for purposes of the six-month separation even if the parties reside under the same roof or the separation is in accordance with a court order. The bills do not alter the ability of parties to be granted an absolute divorce based on the ground of mutual consent. Finally, the bills also repeal existing provisions that authorize a court to grant a limited divorce (a type of divorce that does not sever the marriage but can, among other things, address issues of custody, visitation, child support, alimony, and use and possession of a family home).
Child Custody
Maryland Child Abduction Prevention Act
The United States Department of Justice has previously reported over 200,000 incidents per year of children being taken by family members in violation of a custody agreement or a family member failing to return a child at the end of a visit. The Uniform Child Abduction Prevention Act (UCAPA), as promulgated by the Uniform Law Commission, is intended to provide courts and parties with tools to prevent unlawful abductions, both nationally and internationally.
Senate Bill 383/House Bill 267 generally adopt the provisions of UCAPA by authorizing a court to order abduction prevention measures in a child custody proceeding if the court finds that the evidence establishes a credible risk of abduction of the child.
A party to a child custody determination or another individual or entity having standing, as specified, may file a petition seeking abduction prevention measures to protect the child. In determining whether there is a credible risk of abduction, the court must consider certain factors, including (among other items), any evidence that the petitioner or respondent (1) has previously abducted or attempted to abduct the child; (2) has threatened to abduct the child; (3) has recently engaged in activities that may indicate a planned abduction; or (4) has used multiple names to attempt to mislead or defraud.
The court is required to consider any evidence that the respondent believed in good faith that the respondent’s conduct was necessary to avoid imminent harm to the child or respondent and any other evidence that may be relevant to whether the respondent may be permitted to remove or retain the child. If, at a hearing, the court finds a credible risk of abduction to the child, the court must enter an abduction prevention order that includes provisions that are reasonably calculated to prevent abduction of the child, as specified, giving due consideration to the custody and visitation rights of the parties.
Among other provisions, abduction prevention measures may include travel‐related restrictions, such as a prohibition on the respondent applying on behalf of the child for a passport, and conditions on the exercise of custody or visitation, such as a requirement for supervised visitation.
The bills also authorize a court to issue an ex parte warrant for physical custody of the child if the court finds that there is a credible risk of abduction and establishes related requirements and procedures.
Proposed Relocation of a Child
Generally, in any custody or visitation proceeding, the court may include as a condition of a custody or visitation order a requirement that either party provide advance written notice of at least 90 days to the court and/or the other party of the intent to relocate the permanent residence of the party or the child either within or outside the State. If either party files a petition regarding a proposed relocation within 20 days of the written notice, the court must set a hearing on an expedited basis. To further help ensure that, if necessary, a party whose access to a child may be affected by a proposed relocation can obtain prompt judicial intervention. Senate Bill 42/House Bill 440 require a court to set a hearing on a petition regarding a proposed relocation of a child that would significantly interfere with the other parent’s ability to maintain the predetermined parenting time schedule on an expedited basis.
Child Support
According to the Child Support Administration within the Department of Human Services, existing law is ambiguous regarding the extent to which settlements from workers’ compensation claims awarded to noncustodial parents may be garnished to pay child support arrearages. Senate Bill 71/House Bill 800 (both passed) specify that 25% of the net recovery by a debtor on a claim for workers’ compensation indemnity benefits is subject to execution on a judgment for a child support arrearage, including any weekly benefits or settlement proceeds payable to the debtor. The bills also specify that for the purpose of executing on a judgment for a child support arrearage, “net recovery” means the sum of money to be distributed to a debtor after deduction of attorney’s fees, expenses, medical bills, and satisfaction of any liens or subrogation claims arising out of the claims for personal injury, including those arising under a workers’ compensation insurance plan.
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NOTES ON “IRRECONCILABLE DIFFERENCES”
The Maryland Supreme court and Appellate Court will likely be asked to construe the term “irreconcilable differences.” In the meantime. there are resources that may be helpful guides to this aspect of “no fault” divorce.
Black’s Law Dictionary (11th ed. 2019), divorce – irreconcilable-differences divorce. Divorce granted on the grounds of persistent and unresolvable disagreements between the spouses. — Abbr. ID divorce.
Arnold H. Rutkin, Family Law and Practice (New York, N.Y.: Matthew Bender, 1985) Chapter 4, Grounds for Divorce sections 4.01 Introduction and 4.02 No Fault Grounds
EXAMPLES OF GUIDES AND INFORMATION FROM OTHER STATES:
• The Self-Help Guide Divorce in New Jersey, 2019 Edition, provides:
To file a no-fault divorce complaint based on irreconcilable differences in New Jersey, the following requirements must be met:
-You or your spouse must have lived in New Jersey for 12 consecutive months preceding the filing of the complaint.
-You and your spouse must have experienced irreconcilable differences for a period of six months.
-The irreconcilable differences make it appear that the marriage should be dissolved.
-There is no reasonable prospect of reconciliation.
• A Self-Help page from the New Jersey Courts provides:
“There is no need to accuse the other spouse of doing anything wrong when filing based on irreconcilable differences. In fact, making accusations of adultery or other “wrongdoing” will not affect the outcome of the divorce or improve your chances of getting more child support, alimony, or other financial arrangements, such as equitable distribution.”
• According to an information page from a California Judicial Branch (Nevada County) website:
PLEASE NOTE: For dissolution of marriage or legal separation in California, there are only two legal grounds. The first is “irreconcilable differences”, meaning that at least one party asserts that the marriage cannot be saved. This is based on a statement by one of the parties, and does not require other proof. The other reason is “permanent legal incapacity to make decisions”. The second ground must be proven to the Court. It used to be called “incurable insanity”.
These instructions point out that irreconcilable differences is a default option when filing for a divorce:
Irreconcilable Differences
To obtain a divorce on the ground of Irreconcilable Differences:
1. The Divorce Petition must claim Irreconcilable Differences as a ground. Irreconcilable Differences is automatically claimed by filing the form, Petition for Divorce, included with the Petitioner’s Divorce Packet.
2. The Respondent must file an Answer, and the Answer must admit Irreconcilable Differences.
EXAMPLES OF CASE LAW DISCUSSION
• An instructive case is Dunham v. Sabers, 2022 S.D. 65, 981 N.W.2d 620 (S.D. 2022). In Dunham, the “circuit court granted the parties a divorce on the grounds of irreconcilable differences, finding that the parties had difficulties in their relationship for years, stemming from their different personalities.” 2022 S.D. 65 ¶ 16.
One of the issues on appeal was whether the circuit court “abused its discretion in failing to grant [the wife] a divorce on the grounds of extreme cruelty.” The South Dakota Supreme Court rejected this challenge, explaining that the “court fully considered the evidence and found that the parties had mutual conflict for many years that led to the irreparable breakdown of the marriage. The record supports this determination, and we find no clear error in the court’s decision to grant a divorce on the grounds of irreconcilable differences rather than extreme cruelty.” 2022 S.D. 65, ¶ 75 (emphasis added).
• In Guinn v. Claiborne, 352 So.3d 646 (Miss. Ct. App. 2022), the Mississippi intermediate appellate court explained:
16. “A divorce based on irreconcilable differences has certain statutory requirements that must be met[,]” and “[s]trict compliance with the statute is required.” Tyrone v. Tyrone, 32 So. 3d 1206, 1214 (¶26) (Miss. Ct. App. 2009) (citations and emphasis omitted). “Section 93-5-2 provides two ways by which parties may obtain a divorce on the grounds of irreconcilable differences.” Brown v. Brown, 329 So. 3d 544, 556 (¶30) (Miss. Ct. App. 2021). Under subsection (2), “[t]hey may agree to the divorce and sign an agreement that resolves all issues of custody, child support, alimony and property claims[,]” or under subsection (3), “they can agree on the divorce but allow the chancery court to adjudicate the other issues ….” Id. (citing Miss. Code Ann. § 93-5-2(2)-(3)).
• The California Court of Appeal in In re Marriage of Garica, 13 Cal. App. 5th 1334, 1346-47 (2017), pointed out:
A judgment of dissolution of marriage may be granted only on grounds of (a) irreconcilable differences that caused the irremediable breakdown of the marriage, or (b) permanent legal incapacity to make decisions. (§ 2310.) “Irreconcilable differences” are defined as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.” (§ 2311.) A dissolution of marriage based on this ground requires proof of “substantial marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and as to which there is no reasonable possibility of elimination, correction or resolution.”
• In In re Marriage of Greenway, 217 Cal. App. 4th 628, 651-52 (2013), the California Court of Appeal observed:
It is well settled the decision that a marriage is irretrievably broken does not need to be based on objective facts. (In re Marriage of Walton (1972) 28 Cal.App.3d 108, 116, 104 Cal.Rptr. 472 (Walton ).) “[I]t is obvious that the court must depend to a considerable extent upon the subjective state of mind of the parties. Indeed, it was the legislative intent that that be a major consideration. [Citation.]” (Id. at p. 117, 104 Cal.Rptr. 472.) The California Legislature, in adopting no-fault divorce in 1969, recognized the divorce proceedings were already highly adversarial in nature and it was not helpful to issues of child custody and division of property to force one party to prove why they made the personal and necessarily subjective decision to end the marriage.
For this reason, the code “offers no precise definition or guidelines to measure the existence of ‘irreconcilable differences.’ Instead, it simply requires the court to determine there are ‘substantial reasons for not continuing the marriage and which make it appear the marriage should be dissolved.’ [Fam.Code, § 2311]” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2012) ¶ 2:33, p. 2–13 (rev. # 1, 2012).) “The irreconcilable differences ground is purposely broad. It is intended to represent the actual reasons underlying marital breakdowns and at the same time make irrelevant questions of “fault” or misconduct by either party.
• In Brokaw v. Brokaw, 2010-Ohio-1053, ¶ 4, the Court ruled that the lower court “did not abuse its discretion by granting a divorce due to incompatibility[,]” when “both parties gave testimony in which they agreed they were no longer compatible.”
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