Maryland Divorce Lawyer Blog

With the economic downturn, more and more clients are filing for modification of their child support obligation, in an attempt to decrease the amount they owe every month. In fact, according to the Associated Press The Maryland Child Support Enforcement Administration has seen an 18 percent increase over the last year in requests for child support modifications.

In accordance with Section 12-104 of the Family Law Article, Annotated Code of Maryland, “the court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstances.” Courts have held that an involuntary loss of employment is a material change in circumstances. However, it is up to the parent who is seeking to reduce their payment to file for a modification, and child support is not decreased until an order is in place (not simply because a Motion was filed). Many clients who are paying child support and suffer loss of a job, incarceration or a decrease in income do not file a motion to modify their child support with the court, because they may not be aware of this option or they wait to file and end up with a huge arrearage situation (past due child support). If child support is in fact modified, the Court may only make the new amount retroactive to the date of the filing, not back to the date of the loss of employment, incarceration or decreased income. If a modification of child support is the best course of action, it is important to move quickly to maximize the potential benefit.

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A common belief is that a spouse may obtain a quick annulment of a marriage versus an actual divorce if they have been married for less than six months. While that may be the case elsewhere, it is not the case in the State of Maryland. In Maryland, an annulment can only be granted when a marriage is invalid because it is void or voidable, never due to the length of time, or lack thereof, that the parties resided together as husband and wife. The grounds for an annulment, making the marriage void or voidable, arise before the date of the actual marriage ceremony.

A void marriage was never valid, and a party can not waive the grounds that make the marriage void because these grounds implicate public policy concerns. Not only can a party to the marriage file for an annulment of this marriage, but so can a third party. A marriage is void if at the time of the marriage ceremony: either party was legally married to someone else, if you are related to your marriage partner, or if one of the marriage parties is insane or lacks the mental capacity to enter into the marriage. Not too long ago, I had a case where I obtained an annulment for a client because her husband was actually still married to his first wife. She thought her ‘husband’ was divorced and in fact, so did he, believing that he had obtained a divorce in another country over ten years ago. Needless to say, her ‘husband’ was served with a Complaint for Absolute Divorce from his first wife, after being ‘married’ to his second wife (my client) for four years. Ultimately the Mexican divorce he thought he had been granted over ten years ago, was not obtained in accordance with the Laws of the State of Maryland and he was still legally married to his first wife. In that situation, my client’s marriage was annulled because the marriage was never valid from the beginning – it was void.

A voidable marriage is valid until you receive an annulment and the grounds that make the marriage voidable are waiveable and can only be raised by the parties to the marriage. A marriage is voidable if at the time of the marriage ceremony one of the parties to the marriage was not of legal age, if the marriage was entered into under duress (physical force) or fraud (misrepresentation or concealment from one party to the other that is essential to the marriage), and if one of the parties lacked capacity to enter into the marriage due to mental illness and/or temporary lack of capacity (think Britney Spears in Las Vegas).

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With more and more Maryland couples coming to a marriage with substantial assets, those couples have property disposition issues at the time of divorce. For example, I am frequently asked what happens to the marital home that is titled as tenants by the entirety, but that one spouse contributed a substantial amount of non-marital money towards (for instance, one spouse sold a home that was acquired before the marriage and never lived in by the parties, and used those proceeds for part or all of the down payment on the marital home). Clients ask is this home then marital or non-marital, and can I get all of the non-marital money I back that I put into the home? The answer is it depends.

In accordance with Section 8-201 of the Family Law Article, Annotated Code of Maryland, “marital property includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement.” Therefore, even if non-martial funds are used to purchase the marital home, if it is titled as tenants by the entirety (T by E) both spouses are equal owners of the home and it is marital property. Under this scenario, Maryland case law precludes the court from employing a “source of funds” theory as it may with other types of marital property. However, the court may utilize Section 8-205 of the Family Law Article to “reimburse” a spouse by way of a monetary award. This is not an automatic refund to the contributing spouse and by current Maryland case law cannot be when non-marital funds are used to purchase a home titled as tenants by the entirety, but the court may use the monetary award to correct inequities in the way which martial property is titled.

A three-step analysis is to be used when determining a monetary award in a Maryland divorce proceeding: (1) the trial court must first determine whether each piece of property owned by the parties is marital or non-marital, (2) the court must then determine the value of all marital property, and (3) the court may then make a monetary award as an adjustment of the parties’ equities and rights in the marital property. Oftentimes the biggest dispute arises over whether property is marital or not and in some case, partial marital and partial non-marital. If the home is titled T by E it is marital property. However, I have had cases where the home was owned prior to marriage by one spouse, the deed was changed at some point during the marriage to reflect a T by E ownership interest, and the Court found it was partly marital and partly non-marital.

Once the court applies the three step analysis, it then needs to take into consideration a number of other factors. Specifically, Section 8-205 of the Family Law Article, states that the court shall determine the amount and the method of payment of a monetary award, after considering each of the following factors: (1) the contributions, monetary and non-monetary, of each party to the well-being of the family; (2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property or interest in property was acquired, including the effort expended by each party in accumulating the marital property or the interest in property, or both; (9) the contribution by either party of property to the acquisition of real property held by the parties as tenants by the entirety; (10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and (11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property, or both. What this means is that even if the court determines the home is marital, there is a non-marital monetary contribution by one spouse, a monetary award is still not automatic. While the court must apply and take into consideration the required factors, the Court has discretion when applying those factors as to whether or not a monetary award should in fact be granted.

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Many non-custodial parents (parents without primary physical custody) are left wondering what to do after being denied scheduled visitation with their child. As of July 1, 2009, those parents may not only have two, but three avenues to pursue.

The first and most frequent method of enforcing a Maryland visitation order that has been violated is through the court’s contempt powers. In accordance with Section 9-105 of the Family Law Article, Annotated Code of Maryland, if “the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions: (1) order that the [missed] visitation be rescheduled; (2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; and (3) assess costs or counsel fees against the party who has unjustifiably or interfered with visitation rights.” In practice, the non-custodial parent is often frustrated with the initial contempt process because the custodial parent more often than not receives a “slap on the wrist” from the Court. It is, however, a necessary step in order to build a case and to send a clear message to the custodial parent that the denial of visitation will not be tolerated. Ultimately, if the denial of child access continues, and subsequent Petitions for Contempt are filed and the allegations proven, the Courts, generally, take a more no-nonsense approach with the custodial parents and put more boundaries and restrictions upon the custodial parent to ensure compliance with the Court Order.

The second method of enforcing a visitation order is through a breach of contract action. If the custody or visitation order is memorialized as part of a settlement agreement, the parent may also bring a breach of contract action against the violating party. An experienced family law attorney will ensure that this second remedy is available to their client by incorporating, but not merging, any settlement agreement into the divorce Judgment or other Order of Court. In practice this avenue is often not explored.

The third avenue a parent may pursue in Maryland has arisen as the result of a controversial ruling in the Montgomery County Circuit Court. Marius Aydanian, a non-custodial father, sued his child’s mother, Antonina Aydanian, with a tort claim for damages after she interfered with his rights to visit his son. The court found that Antonina had substantially interfered with Marius’s right to visit the child, and the jury awarded him $23,000 in damages and attorney’s fees. In 2008, the Maryland Court of Appeals ruled in Khalifa et al. v. Shannon that a non custodial parent had the right to sue in tort when his wife abducted his children to Egypt. The Montgomery County Circuit Court’s ruling in Aydanian broadened the highest Court’s holding, allowing for tort damages in cases where the parent’s interference with visitation or custody does not amount to abduction.

In the wake of the recent legislation signed by Governor O’Malley mandating Judges to order the surrender firearms as part of a final protective order, and authorizing Judges to order the surrender of firearms as part of a temporary protective order, it is helpful to differentiate between the two, and in addition explain the interim protective order.

An Interim Protective Order allows for domestic violence protective orders to be available 24 hours a day, 7 days a week. District Court Commissioners are available at any hour of the day and can issue an interim protective order if there is “reasonable grounds to believe” that the alleged abuser (the Respondent) has abused the person eligible for relief. This protective order lasts for up to 48 hours after the courts re-open, after which the individual seeking protection (the Petitioner) must seek a temporary protective order to extend the interim order.

A Temporary Protective Order is only issued after a hearing before a Judge. If the Judge finds that there is reasonable grounds to believe that the person eligible for relief has been abused then he or she may enter a temporary protective order, which will last for up to 7 days. However, the Judge may extend the temporary order for up to 30 days if good cause exists, prior to the final hearing (effective October 1, 2009 the temporary order may be extended for up to 6 months to effectuate service or for good cause). The Judge is authorized to order the alleged abuser to surrender all firearms when issuing a temporary protective order. Additionally, the Judge can order the alleged abuser to refrain from abuse or threats of abuse of the person eligible for relief, order the alleged abuse to refrain from contacting, attempting to contact, or harassing the person eligible for relief; order the alleged abuser to refrain from entering the residence of the person eligible for relief; order the alleged abuser to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief; order the alleged abuser to remain away from the place of employment, school, or temporary residence of the person eligible for relief or home of other family members; order the alleged abuser to remain away from a child care provider of a person eligible for relief while a child of the person is in the care of the child care provider; and award temporary custody of a minor child of the person eligible for relief. The temporary protective order additionally states the date of the final protective order hearing, which is generally set 7 days after the temporary protective order has been entered.

A Final Protective Order is issued after a hearing in which the alleged abuser has the opportunity to appear before the court, if the Judge finds clear and convincing evidence that the abuse has occurred, or if the alleged abuser consent to the entry of the protective order. A final protective order can be effective for up to 12 months, and, effective October 1, 2009, under certain circumstances for 2 years or permanently. The Judge is mandated to order the alleged abuser to surrender all firearms when issuing a final protective order. Additionally, the Judge can order the alleged abuser to refrain from abusing or threatening to abuse any person eligible for relief; order the alleged abuser to refrain from contacting, attempting to contact, or harassing any person eligible for relief; order the alleged abuser to refrain from entering the residence of any person eligible for relief; order the alleged abuser to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief; order the alleged abuser to remain away from the place of employment, school, or temporary residence of a person eligible for relief or home of other family members; order the alleged abuser to remain away from a child care provider of a person eligible for relief while a child of the person is in the care of the child care provider; award temporary custody of a minor child of the alleged abuser and a person eligible for relief; establish temporary visitation with a minor child of the alleged abuser and a person eligible for relief on a basis which gives primary consideration to the welfare of the minor child and the safety of any other person eligible for relief; award emergency family maintenance as necessary to support any person eligible for relief to whom the alleged abuser has a duty of support; award temporary use and possession of a vehicle jointly owned by the alleged abuser and a person eligible for relief to the person eligible for relief if necessary for the employment of the person eligible for relief or for the care of a minor child of the alleged abuser or a person eligible for relief; direct the alleged abuser or any or all of the persons eligible for relief to participate in professionally supervised counseling or a domestic violence program; and order the alleged abuser to pay filing fees and costs of the proceeding.

The entry of a Protective Order in Maryland can have many legal benefits for the Petitioner and many legal consequences for the Respondent, particularly if the parties are going through a divorce and/or custody case. With the passage of the amended legislation it is imperative that both Petitioners and Respondents know exactly what the entry of a final protective order means to them. Not knowing could result in many additional legal issues such as, criminal charges, civil and/or criminal contempt proceedings, and the basis for a ground for divorce, just to name a few.

In light of the Jon and Kate’s recent news and Kate Gosselin’s filing for a no-fault divorce, I have received many questions asking what is a “no-fault” divorce? Although the Gosselin’s divorce proceedings will be held in Pennsylvania, the law in Pennsylvania is similar to Maryland, in that a party filing for divorce may elect to proceed on fault (contested) or no-fault (uncontested) based grounds.

In Maryland, a no-fault (uncontested) divorce is based on the understanding that the marriage is irretrievably broken. Meaning, that the husband and wife mutually and voluntarily separated from one another, there is no hope or expectation of a reconciliation, and they are and have been living separate and apart without cohabitation for a period of at least one year. If the prior conditions are met, either spouse may file for a divorce once they have been separated for 365 consecutive days. If only one spouse believes that the marriage is irretrievably broken, that spouse may file for a no-fault (uncontested) divorce after the parties live separate and apart for 24 months.

Often a client who has fault (contested) based grounds to file for a divorce, may additionally or alternatively want to file on no-fault (uncontested) based grounds. Depending on the particular issues of the case, a no-fault (uncontested) divorce may be less expensive, and quicker. It is important to keep in mind, however, that regardless of fault (contested) or no-fault (uncontested) grounds, a divorce must still resolve all of the issues arising out of the marriage. Those issues may range from child related issues, such as custody, child access, and child support to whether one spouse is granted a monetary award. So while the actual grounds for divorce may be uncontested, the issues arising from the marital relationship may in fact be contested. In the case of Jon and Kate, unless a settlement is reached, the divorce itself may move forward on no-fault (uncontested) grounds, but the child related issues and the division of the marital estate may in fact be litigated.

As a practicing family law attorney in Maryland, I am often asked if Jack and Jill who have been living together for ten years now in the State of Maryland, but have never had a lawful marriage ceremony, are legally married under the doctrine of common law marriage? The answer is no, Maryland does not recognize common law marriages. Therefore, if Jack wanted to end his relationship with Jill, no legal action would be required on his part. Also, if Jill wanted to inherit from Jack, or participate in his health benefits, this may pose a problem as they are not married under the laws of the State of Maryland.

A common law marriage, by definition, is a marriage formed between two individuals who have lived together for a specified amount of time, rather than participating in a lawful ceremony. However, the parties must be of the legal age to be married, must mutually intend to take on the status of husband and wife, and must not only live together, but represent to the community that they are husband and wife.

Although Maryland does not recognize common law marriage, it will accept as a legal marriage a common law marriage validly entered into in another state. These marriages will be treated just like any other valid marriage in the Maryland court system, requiring a filing for divorce when one party wants to terminate the relationship.

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On June 3, 2009, in the case of Barrett v. Ayres, the Maryland Court of Special Appeals found that Sharon Barrett did not need to show a material change in circumstances in order to modify the current set visitation schedule between her daughter and her daughter’s paternal grandparents, Bryan and Helen Ayres. Sharon Barrett had agreed to a visitation schedule between her daughter and the Ayres after her husband was seriously injured in a car accident in 2004. However, the relationship had become strained and Sharon believed that it was no longer in her daughter’s best interest to visit with her grandparents. The Court stated a parent’s decision that their child’s visitation with a third party should be modified is a material change in and of itself. The burden then shifts to the third party to establish that the parent is unfit or other exceptional circumstances exist. In this case the grandparents now have the burden to prove the parents are unfit or exceptional circumstances exist.

While not seemingly an issue in the Barrett case, some factors used to assess
fitness include parental characteristics such as age, stability, and the capacity and interest of a parent to provide for the emotional, social, moral, material, and educational needs of the child. If the Court finds a parent to be fit, the next issue is whether such exceptional circumstances exist to determine what is in the minor child’s best interest in terms of visitation and/or custody. In cases of both custody and visitation there can be any number of factors used to determine whether exceptional circumstances exist. Historically, the Court often makes findings as to (1) nature and strength of ties between child and third party; (2) intense and genuine desire of third party to have custody/visitation of the child; (3) stability and certainty of child’s future; and (4) emotional effect of changing custody. If the Court finds exceptional circumstances exist, then the Court will determine what is in the minor child’s best interest.

In custody matters, Maryland Courts presume that a child’s best interests are better served in the care and custody of his or her natural parents rather than a third party. The third party threshold showing is necessary because parents have a fundamental right to control the upbringing of their children, which includes with whom the children spend their time, i.e. with whom they have visitation. Barrett is a landmark decision in Maryland as it expands the 2007 decision in Koshko v. Haining to apply to not only initial determinations of third party custody or visitation, but also to modifications of it.