Can Married Minors File or Defend a Suit for Divorce?

Short Answer: Apparently not.

This post follows up on my previous post about Maryland’s Failure to Increase the Minimum Age to Marry.

I first wondered about this when referred a case for settlement involving a married minor. Could the minor participate in the case as the other spouse? Logically, one would think so. And, yet…

Is Marriage an Emancipation Event?

Not for purposes of filing or defending a suit for divorce.

Maryland lacks a formal procedure or statute for the emancipation of a minor. Marriage may confer certain rights on a minor if provided by statute. For example, a married minor can consent to medical treatment (Health General II §20-102(a)), and a married minor has expanded rights with respect to driver’s license applications (Transportation §16-107(a)) and ownership of real property (Estates and Trusts §13-503(a)).

However, a minor does not attain all the capacity, rights, powers, privileges, duties, liabilities, and responsibilities of an adult until reaching the age of majority, which is 18 years old in Maryland (General Provisions §1-401). Until then, as it pertains to legal age and capacity, a minor is a person under the age of 18 (General Provisions §1-103).

Age, not marriage, is the triggering event. (An aside: Marriage is an emancipating event for child support purposes if the child has reached the age of 18 but not yet graduated high school (General Provisions §1-401)).

Why Can’t a Married Minor Maintain a Suit for Divorce?

Because the Maryland Rules of Civil Procedure say so.

Rule 2-202 requires an “individual under disability” to file or defend a suit through a guardian, other fiduciary, next friend, by a parent if in the parent’s custody, or by other interested person. Rule 1-202 defines, in part, an “individual under disability” as an individual under the age of 18 years. There is no exception for marriage; again, age is the trigger.

Interestingly, “guardian” is defined as a natural or legal guardian (Rule 1-202) and pursuant to Family Law §5-203, the parents are the joint natural guardians of their minor child.

And to bring it full circle, because the Family Article does not define “minor child” or “child” pertaining to §5-203 or create an exception for married minors, one refers back to General Provisions’s definition of “under the age of 18 years”.

Likewise and with some exceptions, Rule 2-202 requires the parents to approve any divorce settlement.

It also begs the questions of:

– Whether a minor can contract to hire an attorney to represent him or her in the divorce?

– What happens if the minor turns 18 while the case is pending?

What is a Married Minor to Do?

On the one hand, since a minor requires adult involvement to marry, it may make sense to require adult involvement to divorce.

Or, perhaps waiting to divorce until age 18. But, not everyone has that luxury, especially if safety is a concern.

Annulment is not the answer because the same Rules apply.

I rather wonder whether minors in divorce cases are treated consistently across jurisdictions and even among judges in the same courthouse.

Continuing to allow minors to marry, however, clearly has unintended consequences. Revising the law, so no one under the age of 18 can marry, would fix this problem going forward.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked InFacebookLindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.

 

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