Review – Civil Protection OrderI. Threshold Questions

A. Is Petitioner a PEFR?

B. Has Abuse Occurred?

II. Two (Maybe Three) Stage Process

A. Interim/Temporary Hearing

1. Ex Parte

2. Limited Relief

3. Short Duration

B. CPO Hearing1. Notice to Respondent Required2. Relief Available Includes:

a) Injunctive – “stay away” ordersb) Vacate order –

threshold requirements and discretionary factors

c) Custody and visitationd) EFM – only if spouse/child

in common3. Duration – up to 12 months

Problem 3 – Steve and Janet• Can the court grant mutual orders of

protection?

1) 4-506(c)(2) – Steve hasn’t filed petition

2) 4-506(c)(3)(ii)(2) – Janet: self-defense

• What remedies are available under the statute to make visitation orders safe?

4-506(d)(8) – visitation can be supervised or restricted as to time, place and duration

• How do you change terms of emergency family maintenance order?

1) 4-507(a) – Motion to modify

(substantial change in circumstances?)

2) 4-507(b) – Appeal available (but ct. has wide discretion on

amt. of EFM 4-501(f); 4-506(d)(9))

• What happens if Steve doesn’t pay EFM?

1) wage withholding 4-506(d)(9)

2) crim. pros.; contempt 4-508(a)&(b)

DIVORCE

Part I

February 5, 2004

Historical Overview of Divorce in U.S.

 

Late 18th Century Late 19th Century Late 1960’s

Divorce uncommon Divorce rates rising Breakdown of fault-based system

North – Jud. Div. avail. But not common

Jud. Div. widely available on fault grounds only

Beginning of no-fault divorce in California

South – Annul./Legal Separation

Rare – Absolute Div – by legislative action

From Late 19th Century – 1960’s

Typical Divorce Statutes:

1) Judicial remedy

2) Adversarial proceeding

3) Reserved for innocent spouse against guilty spouse

Fault-based model until late 1960’s

Why did it break down?

1. Collusion/perjury

2. Highly discretionary

3. Litigation focused on establishing fault – waste resources

4. Unilateral fault – not consistent with married life

“No-Fault Revolution”Late 1960’s – Mid 1980’s

“Pure” No-Fault Mixed fault/no-fault

Unilateral divorce No-fault by consent only (vol.separation)

No waiting period Or unilateral divorce with long waiting period

Maryland Divorce GroundsMixed Fault/No-Fault

Limited (7-102) Absolute (7-103)

Fault Fault Adultery

Cruelty/Excessively Vicious Cruelty/Excessively Vicious Conduct to spouse or child Conduct to spouse or child

Desertion – actual or constructive Desertion – actual or constructive – sep for 12

months Insanity Conviction of a crime

Md Divorce Grounds – cont’d

Limited (7-102) Absolute (7-103)

No Fault No Fault

Voluntary separation Voluntary separation – 12 mos.

2 year separation

Defenses to Divorce

1) Reconciliation

2) Recrimination

3) Condonation

Fault Era – bar to divorce

No-Fault Era – factor but not bar