Maryland Divorce Lawyer Blog

On Wednesday, February 24, 2010, Maryland Attorney General Doug Gansler issued an opinion stating that Maryland courts and officials should recognize as valid same-sex marriages performed in other states. The Attorney General believes that the Maryland Courts will follow his lead, as they have recognized marriages performed legally in other states as legal here in Maryland. For example, while common law marriage is not recognized in Maryland, if a couple was married due to a common law relationship in another state Maryland has recognized that as a valid marriage. Also, the Attorney General points out that Maryland has recognized increasing rights for same-sex couples in the recent past, including the right to adopt. This Opinion puts state officials on notice that the Attorney General believes that Maryland is bound by the constitution to recognize these marriages as valid in Maryland, and state agencies should begin extending married rights to the couples. For more information on same-sex marriages view our February 5, 2010 blog.

As stated in the August 15, 2009 blog, Maryland is a hybrid state in that a party filing for an absolute divorce may elect to proceed on fault (contested) or no-fault (uncontested) based grounds. The Maryland Code, Family Law § 7-103 states that there are six fault based grounds for an absolute divorce: adultery, desertion, cruelty of treatment, insanity, incarceration and excessively vicious conduct.

Adultery, or voluntary intercourse between a spouse and an individual other than their spouse who is of the opposite sex, is a fault based ground for divorce that requires no waiting period to file. However, while you do not have to show evidence of the actual intercourse between your spouse and his or her paramour you must be able to prove both the opportunity and disposition for the adulterous intercourse to be proven.

In order to file for an absolute divorce based on desertion the desertion must continue for one year uninterrupted before filing, must have been a final and deliberate act, and there must be no reasonable hope of reconciliation. Desertion can be either actual or constructive. Actual desertion occurs when the spouse leaves the home without cause, and constructive desertion occurs when a spouse's conduct justifies a leaving spouse to do so.

Cruelty of treatment and excessively vicious conduct are both fault based grounds that do not require any waiting period. Both grounds involve acts or a single act of violent conduct. Cruelty of treatment involves conduct that threatens or inflicts bodily harm upon a person or minor child of the parties. Excessively vicious conduct is usually acts of extreme domestic violence and may require a pattern of this violence.

Continue reading "Maryland Divorce: Fault Based Grounds for Divorce" »

As I have said before and I will say again, child custody relocation cases are extremely difficult, especially from the perspective of the bench when the 'primary caregiver' is the parent relocating. In this case, the Mother moved to another State for a new job earning approximately, what will net to be about, $20,000.00 more a year. She does not have family there (actually moved further from all of her family), she has not attempted to facilitate any access for the Father, and she disobeyed an existing order of court. On the other hand, all of Father's family lives in Maryland, he owns a home in Maryland, Mother has a sister in Maryland, and Mother did not even attempt to find another position in the state of Maryland (and did I mention she voluntarily left her employment in Maryland, she was not unemployed).

In Maryland, in an establishment case, which this case is with the relocation twist, the Court must determine what is in the best interest of the minor child. Those factors include, but are not limited to, the fitness of the parents, the desires and agreements of the parents, the potential to maintain family relationships, the child’s preference if he or she is at a sufficient age, opportunities affecting the child, the age and health of the child, and the residence of the parents and opportunity for visitation. Montgomery County v. Sanders, 38 Md. App. 406 (1997). Relocation cases tap into additional factors, such as (1) the nature, quality, extent of involvement, and duration of the child's relationship with the parents, siblings and other significant persons in the child's life, (2) the age, developmental stage, needs of child, and most likely impact the relocation will have on the child's physical, mental, and educational development, (3) the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements; (4) whether the relocation of the child will enhance the general quality of life for both the custodial party seeking relocation and the child, including, but not limited to financial or emotional benefit or educational opportunity; (5) the reasons of each person for seeking or opposing the relocation; and (6) any other factors affecting the best interest of the child. In this particular case, among other things, what I thought was of utmost importance to point out to the Court was an additional factor, that the Mother has established a pattern of conduct attempting to thwart the relationship between the child and his Father and if she could not follow an existing Order of Court, why would she follow another Order if the Court grants her custody. In addition, when weighing stability (in my opinion we had a lot of stability factors on our side), there is a lot to be said for the stability of the child remaining in the environment and community in which they live. In the interest of the limited time we had for our closing arguments, I asked the Court to re-read Dominques v. Johnson and Braun v. Headley, in my opinion two of the leading cases on relocation, and to consider Shunk v. Walker and the impact that decision had on 9-105 of the Family Law Article . We are a little over a month out and still no decision, stay tuned for Part Three.

I recently tried what started off as a fairly typical Maryland custody case that turned into a relocation case four months before the scheduled trial date. The decision still has not been rendered by the Court, but nevertheless thought the situation is one in which many folks find themselves and could relate. The basic sets of facts are as follows: parties meet, relationship of some sort ensued (depends on which party you ask) and a child was born. Parties lived together off and on (again, depending on which party you ask) and ultimately began living in their own residences separate from one another. Eventually, the child would generally spend most weekends and extended blocks of time with one parent and weekdays with the other. Although the weekday parent typically controlled when and how frequently the other parent would see the child. Eventually, the weekday parent filed for custody and child support and other parent filed a Counter-Complaint for Custody. The case moved through the litigation process as most cases do, but four months prior to the trial, the weekday parent gives notice through counsel that she will be relocating to another state, approximately 8.5 hours away. As a side note there was a Consent Protective Order in place (I did not represent my client at the time), whereby a child access schedule was put into place where the parties had joint custody and the Father had access three overnights the first week of the month, two overnights the second weekend of the month, and two overnights the third weekend of the month. The Mother had the remainder of the time.

As the Father's attorney, upon notification of Mother's intended move, I filed an Emergency Motion with the Circuit Court where the action was pending to prevent the removal of the minor child from the State. The Motion was denied and the parties were directed to follow the existing Order (the Protective Order). I filed a Motion for Reconsideration, it was again denied, and the parties were directed by the Court that the Protective Order controlled and access should continue in accordance therewith. Needless to say, Mother moved with the minor child and did not follow the Protective Order access schedule and a Petition for Contempt was filed (a hearing has still not been held by the Court). Father went for almost two months without seeing his child in accordance with the Protective Order schedule (with the exception of a few days over the Christmas holiday) when this case went to trial.

PART TWO coming soon

The Maryland House Judiciary Committee has rejected a bill proposed by Delegate Emmett C. Burns, a Democrat from Baltimore County, that would prohibit the state from recognizing same-sex marriages lawfully performed in other states. The proposal "was seen as a pre-emptive strike against a legal opinion that state Attorney General Douglas F. Gansler has been working on since a senator requested it last year." The Attorney General has been known to favor legislation favoring same-sex marriages, but such legislation has not made it out of the committee. Despite attempted efforts to permit gay marriage, Maryland law still prohibits it. Maryland Code, Family Law 2-201 states that, “[o]nly a marriage between a man and a woman is valid in this State.” This issue has possible ramifications in custody and visitation between same-sex partners as explored in our November 27, 2009 blog.

The state of the current economy has left many of my clients trapped in a house with their current spouse, limiting their ability to file for an absolute divorce based on a one year separation (For more information on no fault divorce see our August 15, 2010 blog). The Baltimore Sun has reported that Montgomery County Delegate Luiz Simmons is fighting to change the necessity of actually living under separate roofs fro teh one yaer period. He is arguing that instead of having parties live separate and apart for one year, parties should just have to abstain from sex for one year. This would allow for couples in a financial predicament to remain in the same home while seeking a divorce. Many are protesting the proposal as it may make divorces more prominent in the state of Maryland. Delegate Simmon’s proposed bill states that the parties would need to testify that they have not resumed marital relations for one year. Currently, parties seeking a no fault divorce based on a one year separation must bring a witness who can confirm, amoung other things, that the parties have lived separate and apart for one year.

Continue reading "Maryland Delegate Proposes “No Sex” Divorce" »

The short answer is, they do not. Martial property is defined as “the property, however titled, acquired by 1 or both parties during the marriage.” Maryland Code, Family Law § 8-201(3). This includes a marital business acquired by one or both of the parties during the marriage. For more information on marital property division during a divorce proceeding see our Marital Property Blog from August 19, 2009 . Many times the issue of how to solve the 'division' of a martial business in a divorce proceeding is a complicated one due to stock ownership, the value of the business, and consideration of employees of the business.

In accordance with Maryland Code, Family Law § 8-202 (b) when the court determines the ownership of personal or real property, the court may: (1) grant a decree that states what the ownership interest of each party is; and (2) as to any property owned by both of the parties, order a partition or a sale instead of partition and a division of the proceeds. A business is not real or personal property and due to how the stock of the company is held, a sale of the business may not always be a viable option. In the recent case of Turner v. Turner, 147 Md. App. 350 (2002) the Court of Special Appeals found that they could not order sale of the marital business or partition (divide) the marital business, awarding wife 50% of the business, because the husband owned 87% of the shares of stock in the company and Wife owned the remaining shares. The court does not have the authority to re-title stock and does not have the authority to sell it. Therefore in Turner, the court awarded the wife a larger percentage of the parties total value of marital property (a monetary award). What this means is that when a marital business is an issue and stock is held by both husband and wife, but titled individually, in addition to divorce proceedings, an action to dissolve the corporation may also be necessary if parties are unable or unwilling to continue to work/ run the business together.

Continue reading "How Do Courts Divide a Marital Business in a Maryland Divorce" »

The Maryland Court of Appeal issued an opinion in Curtis O. Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC on January 13, 2010 stating that funds received as a part of a settlement in personal injury case are exempt from being executed for a judgment of child support arrearages. Mr. Rosemann, the father and primary custodial parent of two minor children sought to garnish funds received from his ex-wife in a personal injury lawsuit after she failed to pay her child support. Mr. Rosemann’s battle began in 2001 when he obtained two judgments in the Circuit Court for Howard County against his ex-wife for child support arrearages totaling over $33,000.00. Ms. Rosemann and her attorneys were awarded $30,000.00 from America West Airlines in a personal injury lawsuit after being injured while on an America West flight. After learning of this settlement, Mr. Rosemann attempted to garnish the account that held Ms. Rosemann’s share of the settlement.

The Circuit Court found, and the Court of Special Appeals affirmed that the funds were exempt from execution on judgment in accordance with Maryland Code, Courts and Judicial Proceedings § 11-504(b)(2), which states the following: (b) The following items are exempt from execution on a judgment: (2) Money payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings. This exemption includes but is not limited to money payable on account of judgments, arbitrations, compromises, insurance, benefits, compensation, and relief. Disability income benefits are not exempt if the judgment is for necessities contracted for after the disability is incurred.

Continue reading "Maryland Court of Appeals Finds that Compensation for Personal Injury is Exempt from Child Support Judgment" »

Maryland’s second highest court filed an opinion in the case of Guzman Cruz v. Clemencia Silva on November 25, 2009, which held that a spouse can be awarded alimony absent a divorce. The idea of alimony disconnected from a divorce, although a strange scenario for most to imagine, has long been a reality in Maryland. For more information regarding alimony see our October 2, 2009 and October 13, 2009 blog posts.

The Cruz’s came to the Circuit Court for Princes George’s County on January 9, 2008, both seeking a divorce but did not prove legally sufficient grounds for the divorce. However, the Judge awarded custody of the two minor children to Clemencia, ordered Guzman to pay her $764.00 per month in child support, and $1,500.00 per month in alimony. Guzman appealed to the Court of Special Appeals contending that the trial court erred in awarding alimony to Clemencia without granting a divorce and without properly determining the type and amount of alimony. The Court stated that Maryland has long recognized that the common law obligation of alimony was the obligation of husband to provide support to wife (or wife to husband). This is evidenced by Maryland Code, Family Law Section 11-101(a)(1), which provides that a court may award alimony not only in a decree of divorce, but also in a bill of complaint for alimony. The Court of Special Appeals held that while a spouse can be awarded alimony absent a divorce, that in this case the award was an error as a spouse still has to prove a case that would entitle him or her to alimony.

Continue reading "Recent Maryland Court of Special Appeals Ruling on Alimony" »

When disclosing or researching your marital property in a Maryland divorce action, it is important that clients are informed that any portion of a retirement account accrued during the marriage is marital property. For more information on marital property in Maryland, see Maryland Code, Family Law 8-203 and see August 19, 2009 blog. The courts in Maryland have the authority to transfer any percentage of the martial portion of the retirement account whether it be a pension, profit sharing plan, deferred compensation plan, thrift savings account, 401k or IRA from one spouse to the other, Maryland Code, Family Law §8-205. The court may apply one of several methods when valuing the marital portion of the retirement account, all of which an attorney would be able to advise you.

In order for a portion of the retirement benefit to be transferred a Qualified Domestic Relations Order, otherwise known as a QDRO, must be signed by a Judge and submitted to the plan administrator. The QDRO is an order by the court to modify the payee of all or a portion of the retirement plan. Each plan administrator may require a different type of QDRO and QDRO’s must comply with the ERISA (The Employee Retirement Income Security Act of 1974) laws, so it may be important to hire an attorney to assist you in this drafting process.

With the holidays approaching many parents in divided households may be facing uncertainty or conflicts as to where their child(ren) will be spending the holiday. The Maryland Court system in years past has implemented specific instructions for what is known as “holiday court,” or the process that takes place in order to resolve these holiday access disputes. We have collected information from a few of the surrounding venues to find out how they will be handling this year’s (2009) holiday disputes.

Baltimore County Circuit Court
Baltimore County Circuit Court will consider holiday visitation disputes from November 23, 2009-December 19, 2009, and all disputes shall be submitted to Judge Dugan, who will assign each matter to a particular Judge on a rotating basis. When the case is assigned to the Judge who will hear the holiday dispute, the party should contact the Judge’s chambers with the name and contact information for all parties involved, the details of any efforts to reach an agreement between the parties, what relief each party is requesting, and what each party is proposing the holiday access schedule be.

Baltimore City Circuit Court
Baltimore City Circuit Court is hearing holiday visitation issues on December 8, 2009 and December 17, 2009 in front of Master Kelly. All requests for a holiday visitation hearing should be filed with the clerk’s office with a copy sent to the Family Law Coordinator as well.

Harford County Circuit Court
Harford County Circuit Court will forward all pleadings involving holiday disputes to the Family Law Coordinator, who will set the dispute in for a hearing either before a Judge or Master.

Continue reading "Holiday Disputes in Maryland Custody and Visitation Matters" »

The Daily Record reports that the Maryland Court of Special Appeals has decided to vacate the Baltimore County Circuit Court’s decision to allow Larissa S. to visit with her ex-partner Melissa B.’s eight year old son. The couple dated for seven years, before deciding to have a child in 2001, through the help of a friend. After the couple broke up in 2002, Melissa gave birth to a second child. Larissa never adopted either child, but visited with both boys from 2002-2005 until she was denied access, which triggered her to file for visitation rights.

The Baltimore County Circuit Court, namely Judge Daniels, after much back and forth with Maryland’s higher court, found that the third party exceptional circumstances standard was met in this case, and therefore, ordered that there should be visitation between Larissa and the eldest child. For more information regarding third party custody and the exceptional circumstances standard see the August 11, 2009 blog. The Court of Special Appeals found that the lower court erred in finding exceptional circumstances because the Judge improperly refused to hear evidence from Melissa about the potential effects that this visitation with Larissa could have on her eldest son. Such new evidence could include the time that Larissa has been absent from the child’s life, due to this ongoing litigation. The case will return to Baltimore County Circuit Court where a judge will have to listen to all evidence to determine whether exceptional circumstances exist to order visitation between Larissa and the child.