Maryland Divorce Lawyer Blog

Maryland Attorney General Supports Same Sex Marriage Recognition

2010-03-02T01:54:20Z

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.

Maryland Divorce: Fault Based Grounds for Divorce

2010-02-28T20:39:54Z

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.

]]> You can file for an absolute divorce on the grounds of insanity if your spouse has been a resident of a hospital or mental facility for three years, two physicians have confirmed that the insanity is incurable and there is no hope of recovery, and you or your spouse has lived in Maryland for two years.

In order to file for a divorce on the grounds of incarceration of your spouse, he or she must have been convicted of a felony or misdemeanor, sentenced to serve at least three years in a penal institution, and already had served one year of that sentence.

For more information on filing for a divorce on fault based grounds contact an experienced Maryland divorce attorney.

Relocation Custody Cases in Maryland - Part Two

2010-02-14T17:00:00Z

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.

Relocation Custody Cases in Maryland - Part One

2010-02-12T18:53:14Z

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

Maryland Lawmakers Reject Effort to Block Gay Marriage

2010-02-05T17:53:07Z

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.

Maryland Delegate Proposes “No Sex” Divorce

2010-02-04T18:54:12Z

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.

]]> For more information on the current one year waiting period, including current alternatives, contact an experienced Maryland divorce attorney.

How Do Courts Divide a Marital Business in a Maryland Divorce

2010-01-29T02:12:06Z

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.

]]> I recently settled a case, where the husband and wife started a business during the marriage and each party owned 50% of the stock individually. So while the business itself was marital and the individually held stock was also martial, the court would not have been able to sell the business though the divorce proceedings, unless agreed upon by the parties. Ultimately, my client bought out the other spouses interest, after months and months of negotiation. However, in the event a resolution had not been reached, the parties would have had to puruse a corporate dissolution proceeding with respect to the business. If you chose to start a business with your spouse, a simple way to avoid the pitfalls above is to title each share of stock jointly. By titling it to both parties, the Court, through the divorce proceeding, will have the authority to sell the asset.

For more information regarding marital property including marital businesses contact an experienced Maryland divorce attorney.

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

2010-01-20T14:50:29Z

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.

]]> While the Court of Appeals stated that they could understand Mr. Rosemann’s situation and pursuit, they affirmed the lower courts’ decisions. The Court can simply not place language in a statute that they believe should be there, or was meant to be there simply to avoid an unfortunate result.

If you have questions regarding your Maryland child support case an experienced Maryland divorce attorney will be able to assist you.

Recent Maryland Court of Special Appeals Ruling on Alimony

2009-12-18T16:38:27Z

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.

]]> For more information on alimony with our without a divorce, contact an experienced family law attorney.

Retirement Accounts in a Maryland Divorce

2009-12-07T19:50:12Z

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.

Holiday Disputes in Maryland Custody and Visitation Matters

2009-12-03T14:35:13Z

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.

]]> If you have further questions regarding holiday visitation, an experienced Maryland custody attorney will be able to assist you.

Maryland Court of Special Appeals Vacates Same-Sex Visitation Case

2009-11-27T17:00:00Z

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.

Modification of Child Custody in Maryland

2009-11-25T19:06:54Z

Clients often ask if their soon to be ex-spouse, ex-spouse or co-parent of their child(ren) will be able to change a custody order after it is entered at their free will whenever they want to? The answer is that the other parent may file with the Court to modify the existing order at anytime. Meeting the two-prong test required to change and/or modify custody is however not an easy task. First, the moving party must show a material change in circumstances. That begs the question, what is a material change in circumstance? There are a number of cases which assist us in defining it, but generally speaking it is one or a combination of the following: a significant change that occurred since the entry of the initial order; something material that was unknown at the time the initial order was passed has since come to light; and/or something since the entry of the Order is adversely impacting or could adversely impact the welfare of the child(ren). One circumstance that has been ruled a material change in Maryland is the relocation of a parent. Braun v. Headley, 131 Md. App. 588 (2000). When facing relocation of a parent, the court may consider such factors as a potential change in visitation schedule, child’s school change, the moving parent’s reason for the move, and the ability of the parents to both maintain a relationship with the child after the move when deciding whether or not the move will constitute a material change in circumstances. More often than not, a relocation of a parent is a material change in circumstance. Assuming the parent seeking to modify the existing Order establishes a material change in circumstance and the Court so finds, the second prong of the two prong test is what is in the best interest of the minor child(ren). In deciding what is in the best interest of the child(ren) the court considers a host of factors. Some of those factors include 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). It is important to keep in mind that even with a finding of a material change in circumstance, a modification of the custody order still must be determined by the court to be in the child(ren)'s best interest. ]]> experienced family law attorney will be able to assist you.

Maryland Custody: Are Mom’s Favored over Dad’s?

2009-10-23T15:25:08Z

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.

]]> If you have questions about custody or the determination of custody, an experienced Maryland custody attorney will be able to assist you.

Alleged Violations of Protective Orders in Maryland: Criminal and Civil Consequences

2009-10-22T15:26:56Z

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.

]]> If the respondent violates the provisions of the protective that are more civil in nature such as provisions ordering emergency family maintenance, child custody or access issues, or to attend counseling then this violation is civil in nature, although the safety provisions can also be civil violations. Therefore, the petitioner may file a petition for contempt with the court. Maryland Code, Family Law § 4-508

Oftentimes, the respondent asks what he or she can do, if the petitioner is violating the order by calling, e-mailing or otherwise contacting them? The petitioner is not violating the order because the order is not reciprocal in nature and it is not entered against the petitioner. The order is directing the behavior and conduct of the respondent, not vice versa. In these situations, the best advice to the respondent is not to respond to petitioner by phone, text, e-mail or otherwise, because the respondent’s response is a violation of the protective order if there is a no contact component to the order. To best protect yourself as a respondent, avoid the petitioner by all means necessary even if they are initiating contact. If the petitioner continues to attempt to contact the respondent, the respondent may want to consider filing a Motion with the Court to rescind the protective order.

If you are facing a protective order violation or contemplating filing a violation an experienced family law attorney will be able to assist you.