Family Law

Family law resized

Grounds for Divorce

When an individual files for divorce in the State of Maine, he or she must state the problems leading to the dissolution of the marriage. There are eight "grounds" for divorce in Maine. However, in recent years more states, including Maine, have allowed a party to obtain a divorce even though no party is at fault for the problems in the marriage. This is called a "no fault" divorce and the party filing the Complaint for Divorce need only allege that there are irreconcilable differences in the marriage.

Filing for Divorce

Maine law requires, however, that before a person files for a divorce they must have resided in good faith in the State of Maine for six months prior to the commencement of the action. The Plaintiff can always file a divorce action in Maine if his or her spouse resides in the State. One unique aspect of Maine law is the fact that with the service of a Complaint for Divorce, a preliminary injunction automatically issues, enjoining either party from 1) transferring assets, except in the usual course of business or for the necessities of life, without written consent of the other party or permission of the Court, (2) restraining the personal liberty of the other party or child; or (3) voluntarily removing the other party or a child from health insurance coverage. See Title 19-A M.R.S.A. Section 903.

Case Management Conference

Maine law has developed an intermediate system of case management to handle most interim issues and final orders that deal solely with child support. Previously known as the Case Management System (with the Court officers known as Case Management Officers or “CMO”), under revised Maine law the CMOs are now known as Magistrates, although their powers remain basically the same. A Case Management Conference is typically scheduled fairly soon after the commencement of the case and the Magistrates guide the case through the Court system insuring the timely progress of the case.

A Magistrate is empowered to make any decision with regards to child support. In addition, unless specifically waived by either party, the Magistrate may make interim temporary orders addressing which spouse will have the use of the marital home, responsibility for marital bills and debts, temporary support and alimony, temporary parental rights and responsibilities for children under the age of 18, and responsibility for interim attorneys' fees.

Mediation

Maine law requires mandatory mediation between the parties prior to any contested hearing, either pending or post divorce, on any issue if there are a minor child or children of the parties. See Title 19-A M.R.S.A. Section 261.

Marital Property

At the final hearing on the Complaint for Divorce, the Court is required to set apart to each spouse his or her separate, non marital property and to divide the marital property in such a manner as the Court deems just and equitable. This means that Maine is an "equitable distribution" state. This also requires the Court to distinguish marital property from non marital property. Under Maine law, "marital property" means all property acquired by either spouse after the marriage except 1) property acquired by gift, bequest, devise or descent; 2) property acquired in exchange for property acquired by gift, bequest, devise or descent; 3) property acquired by a spouse after a decree of legal separation; 4)property excluded by valid agreement of the parties; or 5) the increase in value of property acquired prior to the marriage.

Thus, Maine law presumes that all property is marital unless one party proves that a particular item of property is non marital. A particular item of property may have both martial and non marital components. In that event, the Court must set aside to the prevailing party that portion which is non marital and equitably divide the marital component of the property.

Over the past several years, the Maine Supreme Judicial Court, also known as the Law Court, which reviews the decisions of the lower courts, developed several rules as aids in distinguishing non marital and marital property. In October of 2002, the Law Court issued a decision in Warner v. Warner, 2002 ME 156, which provides an excellent treatise on this, and other, financial issues in divorce. Then, in 2008, the Law Court issued a decision which included a comprehensive overview of marital / nonmarital property decisions up to that point (Hedges v. Pitcher, 2008 ME 55).

In order for the Court to equitably divide the parties' marital property, it must consider all relevant factors, including 1) the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; 2) the value of the property set apart to each spouse; and 3) the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children. It is important to note that the Court is not allowed to consider fault in the distribution of property. Finally, as the Law Court has repeatedly stated, equitable does not mean equal: The Court is not compelled to divide the marital estate equally, and, in fact, a Court which automatically does so could be in error.

Spousal Support

The spousal support (formerly known as, but no longer used in legal parlance, “alimony”) statute was revised in 2000, defining various types of spousal support, including general, transitional, reimbursement, nominal, and interim support. There is a rebuttal presumption that general spousal support may not be awarded if the parties were married for less than ten years as of the date of the filing of the action for divorce. There is also a rebuttal presumption that general support may not be awarded for a term exceeding one-half the length of the marriage if the parties were married at least ten years, but no more than twenty years. In addition, the Court, when granting, denying, or modifying spousal support, must state 1) the type of support being awarded, the method of payment, the term and limitations imposed, if the support award is not subject to future modification, and the factors relied upon the Court in arriving at its decision to award, or deny, spousal support.

The statute still identifies a number of factors the Court must consider with determining an award of spousal support: 1) the length of the marriage; 2) the ability of each party to pay; 3) the age of each party; 4) the employment history and employment potential of each party; 5) the income history and income potential of each party; 6) the education and training of each party; 7) the provisions for retirement and health insurance benefits of each party; 8) the tax consequences of the division of marital property, including the tax consequences of the sale of the marital home, if applicable; 9) the health and disabilities of each party; 10) the tax consequences of a spousal support award; 11) the contributions of either party as homemaker; 12) the contributions of either party to the education or earning potential of the other party; 13) economic misconduct by either party resulting in the diminution of marital property or income; 14) the standard of living of the parties during the marriage; and 15) any other factors the Court considers appropriate. Instead of spousal support, the Court may order either party to pay a specific sum to the other party. It is important to note that the Court cannot expect a spouse to live on marital property set aside to him or her in the divorce. In other words, an award of spousal support should be based on the factors outlined in the statute and should not be modified based on how much property the spouse received through the divorce process.

As is the case with the division of marital property, fault is not a statutory consideration when determining the appropriateness of spousal support. However, the Court can consider any financial misconduct of a spouse when determining an appropriate award of spousal support.

Another interesting aspect of Maine law is that the Court, at any time, may alter or amend a decree for spousal support or specific sums when it appears that justice requires it, except that a Court cannot increase spousal support if the original decree prohibits an increase. In contrast, even if a settlement agreement prohibits spousal support from being decreased, the Court still has power to decrease spousal support under extraordinary circumstances. A non increase clause is enforceable, but a non decrease clause is not.

Child Custody

Maine law no longer utilizes the word "custody." What was formerly known as custody has been divided into two separate categories: Parental rights and responsibilities and residency. Although Maine Statute does not expressly require the Court to designate the division of time during which the child will be residing with either parent, the Court will often designate a primary residency for the children and the parental contact between the nonresidential parent and the children.

The Court is required, however, to determine the division of parental rights and responsibilities for the children. In making an award of parental rights and responsibilities with respect to a minor child, the Court is required to apply the standard of what is in the best interest of the child. In applying this standard, the Court must consider the following factors: 1) the age of the child; 2) the relationship of the child with the child's parents and any other persons who may significantly affect the child's welfare; 3) the preference of the child, if old enough to express a meaningful preference; 4) the duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity; 5) the stability of any proposed living arrangements for the child; 6) the motivation of the parties involved and their capacities to give the child love, affection and guidance; 7) the child's adjustment to the child's present home, school and community; 8) the capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access; 9) the capacity of each parent to cooperate or to learn to cooperate in child care; 10) methods for assisting parental cooperation and resolving disputes and each parent's willingness to use those methods; 11) the effect on the child if one parent has sole authority over the child's upbringing; 12) the existence of a history of domestic abuse between the parents; and 13) all other factors having a reasonable bearing on the physical and psychological well-being of the child.

The Court may award sole or shared parental rights and responsibilities, or may allocate parental rights and responsibilities between the parties. Under the recently passed revised statute, if a party requests shared primary residency of a child and the Court does not make that award, the Court must explain its reasoning for not doing so.

Shared parental rights and responsibilities mean that most or all aspects of a child's welfare remain the joint responsibility and right of both parents, so that both parents retain equal parental rights and responsibilities and both parents must confer and make joint decisions regarding the child's welfare. While there is no statutory presumption that the Court should order shared parental rights and responsibilities, where the parents have agreed to an award of shared parental rights and responsibilities or so agree in open Court, the Court shall make that award unless there is substantial evidence that it should not be ordered. The Court shall state in its decision the reasons for not ordering a shared parental rights and responsibilities award agreed to by the parents.

Sole parental rights and responsibilities mean that one parent is granted exclusive parental rights and responsibilities with respect to all aspects of a child's welfare, with the possible exception of the right and responsibility for support.

Allocated parental rights and responsibilities mean that responsibilities for the various aspects of a child's welfare are divided between the parents, with the parent allocated a particular responsibility having the right to control that aspect of the child's welfare. Responsibilities may be divided exclusively or proportionately. Aspects of a child's welfare for which responsibility may be divided include primary physical residence, parent-child contact, support, education, medical and dental care, religious upbringing, travel boundaries and expenses and any other aspect of parental rights and responsibilities. A parent allocated responsibility for a certain aspect of a child's welfare may be required to inform the other parent of major changes in that aspect.

The Court may award parental rights and responsibilities with respect to the child to a third person, some suitable society or institution for the care and protection of children or the Department of Human Services upon a finding that awarding parental rights and responsibilities to either or both parents will place the child in jeopardy.

It is also important to note that there is no presumption that siblings should not be separated, and that the Court may not apply a preference for one parent over the other in determining parental rights and responsibilities because of the parent's sex or the child's age or sex.

,p>The Court also has the power to appoint a Guardian ad Litem in a disputed custody case. "Ad Litem" literally means "of the case" and the guardian is charged with investigating the situation and formulating a recommendation to the Court with regards to what is in the best interests of the child. In effect, the guardian represents the child or children in a disputed custody case, even though the guardian's duty is to the Court. In other words, the guardian is the Court's expert and is in no way representing the parents in the divorce.

The Law Court has ruled that the divorce Court can consider one parent's unsuccessful prosecution of a protection from abuse complaint against the other parent when awarding parental rights and responsibilities only if the Court finds by clear and convincing evidence both 1) that the parent willfully misused the protection process in order to gain a tactical advantage in the divorce proceeding and 2) that in the particular circumstances of the divorcing couple and their children, that willful misuse tends to show that the acting parent will, after the divorce, have a lessened ability and willingness to work with the other parent in their joint responsibility for the children. Either parent, or an agency of third person who has been granted parental rights and responsibilities with respect to a child, may always petition the Court to modify the previously determined custody arrangements. However, only a substantial change of circumstances will warrant a modification of a judgment, and the petitioning party has the burden of proving the existence of a substantial change of circumstances and that the previous order should be changed or modified.

Maine law does state that the relocation, or intended relocation, of a child who is a Maine resident to another state by a parent, when the other parent is a resident in this State and there exists an award of shared or allocated parental rights and responsibilities concerning the child, is a substantial change of circumstances, allowing the Court to review the custodial arrangements in light of the relocation.

Child Support

Maine has adopted child support guidelines promulgated by the Department of Human Services. The guidelines are based on the assumption that a child is entitled to the benefit of income derived by both parents independent of the parents' divorce. There is a rebuttable presumption that the calculated amount of child support will be paid by the party not providing primary residential care. The party providing primary residential care is presumed to pay their proportionate share of the child support directly on the child or children. These guidelines were revised and updated in September of 2001.

A parent obligated to pay child support may request a deviation from the presumptive child support obligation. The criteria that may justify deviation from the support guidelines includes: 1) the non primary residential care provider is in fact providing primary residential care for more than 30% of the time on an annual basis; 2) the number of children for whom support is being determined is greater than six; 3) the interrelation of the total support obligation established under the support guidelines for child support, the division of property and any award of spousal support made in the same proceeding for which a parental support obligation is being determined; 4) the financial resources of the children; 5) the financial resources and needs of a party, including non-recurring income not included in the definition of gross income; 6) the standard of living the child or children would have enjoyed had the marital relationship continued; 7) the physical and emotional conditions of the child or children; 8) the educational needs of the child or children; 9) inflation with relation to the cost of living; l0) available income and financial contributions of the domestic associate or current spouse of each party; 11) the existence of other persons who are actually financially dependent on either party, including, but not limited to, elderly, disabled or infirm relatives, or adult children pursuing post secondary education. If the primary care provider is legally responsible for other minor children who reside in the household and if the computation of a theoretical support obligation on behalf of the primary care provider would result in a significantly greater parental support obligation on the part of the non primary care provider, that factor may be considered; 12) the tax consequences of a support award, including the substantial monetary benefit that a party may derive from any federal tax credit for child care expenses; 13) the fact that the incremental cost of health insurance premiums required to be paid by a party, notwithstanding the deduction of these premiums from gross income, exceeds 15% of that party's share of the total support obligation; 14) the fact that income at a reasonable rate of return may be imputed to non-income-producing assets with an aggregate fair market value of $10,000 or more, other than an ordinary residence or other asset from which the children derive a substantial benefit; l5) the existence of special circumstances regarding a child 12 years of age or over that, for the child's best interest, requires that the primary residential care provider continue to provide for employment-related day care; 16) an obligor party's substantial financial obligation regarding the costs of transportation of the child or children for purposes of parent and child contact (to be considered substantial, the transportation costs must exceed 15% of the yearly support obligation); and 17) a finding by the Court or hearing officer that the application of the support guidelines would be unjust, inappropriate, or not in the child's best interest.

If two parents substantially share the residential care of a child, there is a separate child support calculation that is applied. If the parents have substantially equal incomes, neither party would be required to pay child support to the other party (although parties may still be required to share the cost of health insurance, uninsured medical expenses, and/or day care expenses). If the parties have unequal incomes, the Court will apply the shared residency child support calculations to determine the amount the higher wage earner is expected to pay to the lower wage earner.

In rare circumstances it is possible for the Court to deviate from the guidelines and order the primary caretaker to pay child support to the non primary provider when a non primary provider has the child for a significant portion of the available time.

A Maine divorce Court does not have the authority to award child support for expenses which will be incurred after the child's attainment of majority. However, parents may enter into a binding contractual agreement regarding college expenses, so long as the agreement and obligation is defined and specific. As is true with custodial arrangements, the Court may modify a child support order if necessitated by a substantial change of circumstances.

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