For many residents of the DMV, straddling state lines is a fact of life. Many of us locals work in one jurisdiction, live in another, and enjoy downtime in all three.
However, residency can be critically important when it comes to divorce in the DMV, as Maryland and D.C. have significantly different laws on divorce and child custody.
This brings up the (perhaps literal) big-money question: Which is the preferred jurisdiction and why?
Do I Have the Option to File in Both Jurisdictions?
Both Maryland and D.C. Courts obtain jurisdiction over a divorce matter via the residency of one or more of the spouses. Jurisdiction for custody matters tilts on the children’s primary residence.
In either state, you [and the minor children] are considered a resident of that jurisdiction if you’ve lived there continuously for at least six months prior to the initial filing.
So, when do you have the option to file in both jurisdictions? When one spouse is living in one jurisdiction and the second spouse is living in the other, for at least six months prior to suit.
The most common example – you and your spouse are married and living together in either Maryland or D.C. Your spouse moves out, to the opposite jurisdiction, for whatever reason (e.g. to be closer to work; to be closer to a new love interest; to save money; etc.) and remains there for six months.
Top 5 Reasons to File in the District of Columbia
- DC can transfer title to almost any kind of property, regardless of whether or not jointly titled. Whereas in Maryland, the Court can only transfer title to (i) individually titled retirement assets; (ii) individually or jointly titled family use personal property (e.g. cars; appliances; etc), and (iii) jointly titled real estate that was also the principal residence of the parties when they lived together (subject to the consent of the lien holder).
- DC can equitably distribute, or allocate responsibility for payment of marital debt, regardless of how the debt is titled. Marital debt could include anything from credit card debts to student loan debts acquired to produce income during the marriage.
- DC has a presumption in favor of awarding joint legal and physical custody.
- Although marital property accumulates in both jurisdictions through the date of divorce, D.C. allows the Court to consider “…whether the asset was acquired or the debt incurred after separation” when deciding whether to equitably divide all or any portion of the asset. That qualifier can be significant as far as outcomes in cases where the separation preceding the divorce is long, or the asset acquired post-separation is substantial. For example, if one spouse wins Powerball post-separation, the D.C. statute permits the Court NOT to award half of the winnings to the other spouse, even though the winnings were acquired during the marriage. No such language exists in Maryland.
- DC Courts tend to issue lower monthly alimony awards than in Maryland. So, if you are the dominant wage earning spouse, but indefinite alimony is unlikely, filing in D.C. is preferred.
Top 5 Reasons to File in Maryland
- In Maryland, child support terminates at 18, or 19 (at the latest), as opposed to 21 in D.C. This means no legal responsibility for payment of college in Maryland.
- In Maryland, there is no presumption of joint physical or legal custody. The best interests standard controls without presumption.
- DC has no statutes or case law governing equitable division of stock options, restricted stock, or other executive deferred compensation. This means more potential for variances in outcome. The executive spouse will prefer to file in Maryland. It can go either way if you are the non-executive spouse.
- In general, Maryland cases move more quickly from start to conclusion than in D.C.
- In Maryland, the standards for modification and termination of alimony are clear and well settled. Whereas there is little guidance in D.C. on these issues. So, if you are the dominant wage earning spouse, and indefinite alimony is more of a likelihood than possibility, filing in Maryland, which allows greater predictability as far as modification and termination, would be logical.
Now, if your preferred state is the one in which you reside, think carefully about filing suit for divorce before your spouse accumulates six months’ residency in the other state. That is because, if jurisdiction is proper in both states, the Court will act on the case that was filed first (the other will be dismissed). So, beating your spouse to the Courthouse will eliminate the other option altogether.
For more information, contact Erik at 301-657-0725 or [email protected].