In Md., Alimony Without Divorce Is An Old Idea

CRIME BEAT

Crime Scenes

December 09, 2009|By Peter Hermann | Peter Hermann , peter.hermann@baltsun.com

If you thought there are few surprises left, here's one: In Maryland, you don't need to be divorced to be forced to pay alimony.

So says Maryland's second-highest court.

And just in case you're ready to accuse these judges of being activists bent on rewriting the law, history and common sense, the unanimous decision handed down late last month is steeped in historical precedent. Steeped in so much precedent, in fact, that the judges had to go back three centuries to references in English common law.

Turns out that in 1777, when the Free State first started hearing cases involving alimony - or, as the current court put it, "simply a fancy name for separate maintenance" - this state's judges did not copy the ecclesiastical courts of England as closely as perhaps they should have.

"The English courts invariably resolved the alimony issue along with their granting divorces, the companion issue that would seem to be alimony's inevitable concomitant," the Court of Special Appeals ruled Nov. 25. "Maryland, by dramatic contrast, did not. The Maryland courts had no power to take up what would seem to have been the logically complementary issue."

And that issue remained unchanged, surviving reforms to divorce laws in 1841 and 1980, and apparently lasting until the present. In the current case, Guzman Cruz tried to divorce Clemencia Solis Silva in Prince George's County in January after 14 years of marriage and two children.

Both spoke only Spanish, came to court without attorneys and without the witnesses required to testify before getting legally unhitched. The Circuit Court judge refused to divorce them, but he did order that the husband pay the wife $764 a month in child support and $1,500 a month in alimony.

Cruz appealed, and sent a higher court racing through the history books. The result: a 36-page opinion by retired Judge Charles E. Moylan Jr. in which he artfully ruled on Nov. 25 for the husband (on a legal technicality) while upholding a law that he said "survived a shipwreck of a divorce proceeding."

This is more of a "law scene" than a "crime scene," as the title of this feature suggests, but some might argue that it is indeed a crime that a 300-year-old procedure could somehow survive this long, or at the very least, escape notice. Moylan seemed to agree, writing in his introduction:

"The notion of alimony totally disconnected from a divorce, albeit a practice boasting a venerable pedigree, has become at least quaintly anachronistic, if not actually vestigial, in 21st Century Maryland."

Moylan sprinkled his ruling with history lessons and humor, and he repeatedly slowed to explain issues he knows modern readers would have a hard time grasping. He titles one section, "Distant Beginnings" and cites Galwith v. Galwith, which upheld that the Court of Chancery had the power to grant alimony.

That was 1689. The ruling was from a provincial court in Maryland, nearly 100 years before the American Revolution.

Moylan goes through centuries of legal change and upgrades, noting that "the very idea of alimony grew out of the symbiotic relationship" with divorce, but "though dramatic revolutionary changes in the divorce have buffeted the original concept of alimony," those changes never made it into Maryland lawbooks.

While English law tied alimony and divorce into a single package, Moylan wrote, Maryland courts at the time "were powerless to do so." The equity courts decided alimony, while the sole power to grant divorce rested in the hands of the General Assembly.

"The wall was impenetrable from either side," Moylan wrote.

And changes to Maryland's divorce law - the "Procedural Rapprochement of 1841" and the "Alimony Act of 1980" - failed to make alimony a byproduct of divorce. While everyone assumed one begot the other - the act for the first time put alimony within the divorce statute - Moylan ruled that the 1980 revision didn't even consider the old, forgotten practice that guided the courts.

"The practice was left undisturbed," Moylan wrote, adding that lawmakers left it on the books, "like a fly in amber, the old and unusual Maryland procedure."

So what does this mean to the Prince George's County couple?

"Even if slipping off the radar screen," Moylan wrote, alimony without divorce "remains a legally viable" option "and it was, therefore, available to the wife in the case now before us."

But there's a catch. The wife still has to prove she needs alimony and to justify the amount. Moylan said she didn't do that in this case, and he sent it all back to the Circuit Court of Prince George's County for another hearing.

She doesn't have to prove she's legally entitled to alimony, she just has to show how much she actually needs.

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