A Glossary of Definitions for the 10 Most Frequently Misunderstood Maryland Family Law Terms

1. Incorporated But Not Merged:              Maryland Attorneys often request that the Court incorporate, but not merge, an Agreement into a Court Order.  The request can be made for any type of an Agreement;  a Marital Settlement Agreement, a Custody Agreement, a Temporary Agreement, a Post-Nuptial Agreement, or a Child Support Agreement, for example.  We do this so that the Agreement becomes a part of, or incorporated into, a Court Order and thus enforceable using the powers of contempt (which can include incarceration). It also retains its ability, as is not merged, to be enforced under contract law, which has different standards and remedies than contempt.  Obtaining the enforcement powers of a Court Order and retaining the enforcement powers of the contract provides more options in the event of a need to enforce the Agreement down the road.

2. Pendente Lite:   This is a Latin term that loosely translated means pending litigation.  For example, Pendente Lite Child Support is a temporary award of child support ordered by the Court at the beginning of a case as a short term and stop gap measure while the rest of the case is being conducted.  Pendente Lite hearings are held quickly and are generally shorter than final hearings.  Some of the forms of Pendente Lite relief that Maryland Judges and Family Law Magistrates have the authority to Order and Recommend are Pendente Lite Custody, Access, Child Support, Alimony, Use and Possession of the Family Home and Attorney and Expert Fees.

3. Without Prejudice:  This term is used by Maryland Attorneys in temporary or Pendente Lite Orders and/or Agreements.  This language is used to establish that a party has agreed to the terms temporarily but that the party believes that the terms are not agreeable for the long term and that the Court at a later hearing or trial should not be able use the fact that the Agreement or Order without Prejudice was agreed to for the benefit or detriment of either party.  For example, if parents have just separated and the parent moving out does not yet have a permanent residence suitable for overnight visitation but is in the process of obtaining such a residence, the parents may agree Pendente Lite and Without Prejudice that the parent remaining in the home have custody of the children with the moving out parent having access Tuesdays and Thursdays for dinner and every Saturday from 10 am to 8 pm.  The moving out parent does not want this temporary agreement with no overnights to prejudice him or her from later asking for overnights when she or he has obtained a suitable residence and accordingly the term Without Prejudice does just that.

4. Legal Custody and Physical Custody:  Legal custody relates to decision making authority and Physical custody relates to the actual schedule of overnights the children spend with each of their parents.  There is sole legal custody wherein one parent is granted the authority by the Court to make all important decisions relating to the children of the parties and joint legal custody wherein both parents must reach an agreement before important decisions can be made.   There is a hybrid, joint legal custody with tie-breaking authority to one parent wherein the parents have a duty to discuss and attempt to reach an agreement concerning important decisions, but if there is an impasse, one parent is granted tie-breaking authority and makes the decision.  Without a Court Order or Agreement signed by both parents, both parents have equal rights with regard to the legal and physical custody of their children.

5. Separation:  Maryland Law defines the word separation for the purposes of establishing grounds for divorce as never sleeping overnight in the same residence (separate rooms does not qualify as a separate residence) and not having marital relations.

6. Ex Parte:  In Maryland Family Law the term ex parte is used in two areas and in its simplest form means without the opposing side present.  The first is ex parte communications.  Lawyers and litigants are not permitted to communicate with Judges and Family Law Magistrates ex parte or without the opposing Lawyer and/or litigant present.  The second is an Ex Parte Request for an Emergency Hearing which is a request or pleading that can be filed with the Court in extreme situations such as severe abuse to a child, danger to a child, or child abduction.  In the rare instances when this type of request is granted, the Court has the authority to grant temporary relief such as custody to one parent without the other parent being present at the emergency hearing.

7. Interrogatories:  An important part of many family law cases is the gathering of information.  This process is called discovery.  One discovery tool is Interrogatories which consist of up to 30 questions that must be answered under oath within 30 days.  Exchanging this type of information assists attorneys and litigants to learn or discover the information they need to settle their case and/or prepare for trial.

8. Allegation:  An allegation is a statement made in a legal document or in open court.  It is a statement for which the Court has not yet made a decision as to its truthfulness.

9. Mediation and Arbitration:  Both mediation and arbitration are out of court settlement processes.  In mediation, the mediator assists the parties in reaching an agreement but does not provide legal advice to either party or make any decisions.  In mediation it is up to the parties to reach an agreement with the assistance of the mediator.  Parties can attend mediation with or without their attorneys.  Arbitration is very similar to a court hearing except that the arbitrator is a paid attorney or retired judge who, after an agreed process for presenting testimony and evidence is reached, conducts and decides the case very close to the same way that a Judge or Family Law Magistrate would.

10. Legal Separation:  There is no such thing as a legal separation in Maryland.  Parties establish the fact that they have been separated by memorializing their date of separation (see number 5. above for the definition of separation) in a Marital Settlement Agreement, Separation Agreement and/or presentation of testimony at a divorce hearing.