Maryland Divorce Proceeding
A suit for divorce in Maryland starts with the filing of a Complaint. The party seeking the divorce, called the plaintiff, states in the Complaint specific allegations of fact supporting his or her request for divorce. These allegations of fact are followed by the relief the party is asking the Court to grant in the case, called prayers for relief. In addition to requesting that the Court grant a divorce, the plaintiff may ask the Court to decide other issues raised by the circumstances of the parties and their marriage. For example, if there are children, the party seeking a divorce may ask the Court to determine the custody and visitation rights of each parent and establish an amount to be paid as child support. There may be a request for the Court to order the other party to pay alimony, and to enter a marital property award under Maryland’s law of equitable distribution of marital property.
After the Plaintiff files the Complaint with the Court, the Court issues a Writ of Summons to the other party, the Defendant. The plaintiff is responsible to see that the Writ of Summons and Complaint are served upon the Defendant. In the Writ of Summons, the Court orders the Defendant to file a written response to the Complaint either through his/her attorney or as a pro se Defendant. If the Defendant is a resident of Maryland, the response is due in 30 days, and if not a resident, 60 days. The Writ of Summons warns the Defendant that failure to file a written response could subject him or her to a default judgment that grants the relief requested by the Plaintiff.
The written response may be either an Answer or a motion. An Answer states whether the party admits or denies each allegation of fact stated in the complaint. It may also assert defenses to the divorce action available under the law, and may include the responding party’s own allegations of fact and prayers for relief seeking action by the Court.
The other written response to a Complaint which may be filed is a motion asking the Court to take some action as to the Complaint. The Rules require that certain enumerated defenses be asserted in a motion filed before the filing of an Answer. If these defenses are not in a motion filed before the filing of an Answer, they are waived and may not be asserted later. One such defense is the Defendant’s contention that the Court lacks jurisdiction over his person. The Defendant’s failure to file the defense of lack of personal jurisdiction prior to filing an answer automatically waives this defense for the rest of the proceeding. In other words, the defendant has only this one occasion, before he or she files their Answer, to contest the jurisdiction of the Court over his/her person.
For a certain period of time during the divorce proceeding, called the discovery period, each party is given powers to obtain from the other party or from third parties information and documents he or she needs to prove his or her allegations. At the end of the discovery period, the parties have the opportunity to ask the Court to take action based upon the facts produced in the discovery period. The Court is asked to take action either in a motion to be ruled upon before a full trial, or at the trial where all of the evidence and issues are considered. The trial is also called a merits hearing.
In each divorce proceeding, there is at least one merits hearing, where live testimony and other evidence is presented in open court, and the Court is asked to enter a final judgment resolving the issue or issues pending before the Court. If a party fails to appear at the merits hearing, or if the party appears but fails to present evidence, the Court will base its judgment on the evidence presented by only the other party. If this evidence is sufficient to prove what is necessary to justify the relief requested, the court will enter an order granting the requested relief; This order would be indistinguishable from one resulting from a merits hearing were both parties are represented and submit evidence. As alluded to earlier, a default judgment is entered only in a situation were the Defendant never filed an Answer to the Complaint either through his/her attorney or as a pro se Defendant.
An order of the Court granting a request which concludes the rights of the parties in that matter is called a judgment. The Clerk of the Court must make a record of the judgment upon the file jacket or the docket book of the Court, according to the individual practice of that Court. The date the Clerk makes this entry is the date of the judgment. The judgment of the Court is served upon the parties. This service may be accomplished by mailing a copy of the judgment to the parties’ attorneys. If the party represents him or herself, it may be mailed to the address of the party most recently stated in their pleadings, or if none is so stated, to their last known address. The Clerk of the Court sends the copy of the judgment by regular mail and notes on the docket the date the copy is sent to the parties or their attorney.
A judgment which adjudicates all of the claims of the parties in the case is a “final judgment.” Subject to limited exceptions, a judgment which is not “final,” because it fails to adjudicate all of the parties’ claims, may not be appealed. The parties have thirty days from the date of the Clerk’s entry of a final judgment on the file jacket or docket book to appeal the judgment to an appellate court. If a timely appeal to an appellate court is not filed within 30 days, the Court which originally entered the judgment has no power to revise or change the judgment, unless there is a showing of fraud, mistake, or irregularity in the entry of the judgment.