Maryland Divorce Lawyer Blog

Many clients incorrectly assume that mothers are favored over fathers in a custody case. The truth is that the “tender years doctrine,” has been abolished in all fifty states as it violates constitutional law. This doctrine, which is what many clients are relying on when assuming that a mother may be favored over a father, stated that young children should be placed with their mother unless she was unfit. Since the abolishment of this doctrine in Maryland, neither parent is given preference for custody based on exclusively their gender.

In Maryland, the standard that is used when determining custody of a child is the “best interest standard.” This is a standard in which Judges consider a number of factors such as the parents fitness, relationship of child and parents, children’s current environment, ability to maintain natural family relationships, who has been the primary care giver, wishes of child in some circumstances, any agreement the parents have made, prior abandonment of a child by a parent, the age and health of the child, and many, many other factors to determine what custody arrangement would be in the best interest of the child.

I have been on both sides of a custody battle, having represented both Mom's and Dad's and have prevailed in obtaining custody for both genders. Every case is different and has its own nuances, but I am of the opinion, that assuming both parents are fit and absent some extraordinary circumstance such as mental illness, physical /mental abuse, abandonement, and/or manipluation, Courts generally focus on who has been the primary care giver (oftentimes the responsibilities have been shared), stability of the parents and their living situationas and environment, parental and other familial involvement, the ability of each parent to work and communicate with the other like adults on child related issues, and the availability of each parent for the child(ren). Obviously, this is a generalization and each case is different, but I believe those factors hold considerable weight with most Judges. Oftentimes judicial custody determinations will hinge on one particular issue because the parties are otherwise relatively on the same playing field in the other factors. Rest assured however, the tender years doctrine has been abolished and Mothers and Fathers stand on equal legal footing as far as gender is concerned.

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If the respondent (alleged abuser) in a protective order proceeding has a protective order entered against them, what are the petitioner’s (alleged victim of abuse) options if the respondent violates the order? A violation of the protective order is any action the respondent takes that violates the provisions the judge ordered at the time of the hearing (no contact, no abuse, no harassment, emergency family maintenance, drug/alcohol/anger counseling). This violation can occur in an interim, temporary or final protective order situation (see August 16, 2009 blog for more information on types of protective orders).

Although the protective order is civil in nature, the violations of certain safety provisions of the order are considered criminal violations. If the respondent violates the provisions of the protective order that order no contact, no harassment, no abuse, the petitioner has the option of calling the police, or filing charges on their own. If the police witness the violation or have enough evidence to believe the violation occurred, they have the authority to arrest the respondent. The petitioner also has the option of filing criminal charges with the commissioner. A conviction for a violation of a protective order can result in imprisonment and/or fining of the respondent. Specifically, for a first offense, a fine is not to exceed $1,000.00 and imprisonment is not to exceed 90 days, and for a second or subsequent offense, a fine is not to exceed $2,500.00 and imprisonment is not to exceed one year.

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Divorce is a civil proceeding and therefore like all civil proceedings, the action shall be brought in the county or city where the Defendant (opposing spouse) resides, carries on a regular business, is employed, or habitually engages. However, unlike other civil proceedings a divorce proceeding may additionally be filed where the Plaintiff (spouse filing for the divorce) resides. In addition civil actions regarding custody may be filed where the father, alleged father, mother or child resides. Maryland Code, Courts and Judicial Proceedings, 6-202.

Although this may seem like a simple concept, filing in the wrong county/city, may subject your case to removal to another county upon a motion because of “inappropriate venue.” This may and most likely will cause a delay to your proceeding and will cause you to incur additional attorney fees. Additionally, you should keep in mind that if the grounds for divorce occur in Maryland, one of the parties must be a domiciliary of Maryland and if the grounds for divorce occur outside of Maryland, one of the parties must have resided in Maryland for at least one year prior to the filing of the action for divorce. Maryland Code, Family Law, 7-101.

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On September 21, 2009, the Maryland Court of Appeals issued an opinion holding that the Circuit Court for Garrett County had erred in ordering a paternity test for a child without first considering the child’s best interest. The case, Kamp v. Department of Human Resources, began when Darren Kamp, the father of four children with ex-wife, Vicki Duckworth, requested a paternity test for his fourth child after his ex-wife filed a motion to increase child support. The parties had been married for 16 years, had three children whose paternity was not questioned, but then had a fourth child after Darren had had a vasectomy. During the divorce proceedings in 1999, Darren agreed that he had four children.

The trial court, after ordering paternity testing that found that Darren was not the father of the fourth child, denied Vicki’s motion to increase child support and further terminated Darren’s child support obligation. The Department of Human Services appealed the trial court’s ruling, arguing that Darren could not contest paternity. Maryland’s highest court’s judges all agreed that trial court erred in ordering the test and terminating support, but disagree on their reasoning why. Three of the judges would base their decision on Darren’s 13 year delay in challenging paternity of the child, while the other four judge’s base their decision on the trial court’s lack of consideration of the best interest of the child before ordering the test.

The law in Maryland states that “there is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception.” Maryland Code, Family Law 5-1027. The issue of paternity often arises during a divorce when there are adultery allegations. Based upon this new ruling, if the putative father is unsure he is the biological father, it is his burden at the divorce stage to pursue and resolve the issue. The failure to do so could mean he is financially obligated to support the child until child support would otherwise terminate.

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In Maryland alimony terminates, unless the parties agree otherwise, upon any of the following four events: (1) death of either party (2) the date specified by the court (rehabilitative alimony) (3) upon remarriage spose receiving alimony or (4) if the Court finds termination is necessary in order to avoid an inequitable result. Maryland Code, Family Law § 11-108.

Many clients ask if cohabitating with a new partner is the same as re-marriage for the purposes of termination of alimony. The answer is no, unless the parties agree otherwise (via a separation agreement). However, this does not mean that the paying ex-spouse can not seek a modification based upon the marriage type relationship. According to the Maryland Court of Appeals case Gordon v. Gordon, 342 Md. 294 (1996), the Court should consider the following factors when determining if a relationship amounts to cohabitation for purposes of terminating alimony according to separation agreement between the parties: establishment of common residence, long term romantic involvement, shared assets or bank accounts, joint contribution to household finances, and/or recognition of the relationship by the community. The Court in Gordon specifically states that the following provision included in a separation agreement properly defines cohabitation:

For the purposes of this agreement the term “remarriage of the Wife” shall be defined as either a ceremonial civil or religious marriage or a situation whereby the wife habitually and continuously resides with another man without benefit of a marriage ceremony for a period of 120 days consecutively or 120 days cumulatively within a sixteen-month period.
The parties may also agree, via separation agreement, that alimony may not be modified at any time. Otherwise, upon petition by the paying party, and a change in circumstance the Court may modify alimony at any time. Maryland Code, Family Law § 11-107.

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Alimony, also known as spousal support, is a payment or a series of payments made from a former spouse to the other that serves as a continuation of the economic responsibilities made during the marriage. There are three types of alimony awarded in Maryland. The first is pendente lite alimony (PL alimony) which is awarded to a spouse during the limited period while the case is pending. The purpose of PL alimony is to keep the status quo of the parties while the divorce action is pending, so that one party does not have an unfair economic advantage over the other. The second type of alimony is rehabilitative alimony. This is alimony that is awarded by the Court only for a set period of time. This period of time is for the purpose of allowing the receiving former spouse to rehabilitate themselves from economic dependence to economic independence through education or training. The third type of alimony is indefinite alimony which the Court only awards in 2 situations. First, when due to age, illness, infirmity or disability the former spouse seeking alimony cannot reasonably be expected to make progress towards becoming self-supporting. Second, when even after the former spouse seeking alimony will have made progress towards becoming self-supporting, the parties’ respective living standards would be unconscionably disproportionate.
Many clients inquire as to how alimony is determined and may be under the wrong impression that like child support , alimony is calculated using a set guideline or formula. There is no formula or guideline for calculating alimony in Maryland, and it is the Judge's discretion as to whether or not to award alimony. The amount and duration of alimony in Maryland is determined by the Court after considering a list of factors. Maryland Code, Family Law 11-106 states the factors, which are as follows:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health - General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.

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