Maryland Divorce Lawyer Blog

As we reported on June 6, 2011, a novel issue was presented to the Court of Appeals involving law firm intervention in divorce in order to seek attorney’s fees. In the case of Tydings & Rosenberg LLP v. John Zorzit, Tydings & Roseberg former client, Julie Zorzit, after employing the firm to do a substantial amount of work, met privately with her husband, John Zorzit, and waived all rights for her attorney’s fees to be paid by her husband. The firm was seeking the fees, as Ms. Zorzit could not afford to pay for the work that had already been done, but Mr. Zorzit could. The Circuit Court for Baltimore County denied the firms request for the fees, and the case was appealed to the Maryland Court of Appeals.

On October 30, 2011, the Maryland Daily Record reported that the Court of Appeals found in Tydings & Rosenberg’s favor and held that family law attorneys can intervene in a divorce proceeding in order to ensure that they are paid for their services. The Court stated that The Maryland Code, Family Law Article § 7-107, the statute governing attorneys fees in divorce matters, gives the Court the authority to award counsel fees to a party’s lawyer directly, and therefore Tydings & Rosenberg had the right to intervene. The Court affirmed the parties’ divorce but vacated other provisions in their Judgment of Absolute Divorce and sent the case back to the Circuit Court for Baltimore County to be heard on the issue of attorney fees.

On Saturday, November 12, 2011, the Carroll County Times provided commentary on the differences between celebrity divorces, such as Kim Kardashian, and divorces for residents of Maryland. As we reported in our April 18, 2011 blog, as of October 1, 2011, Maryland has eliminated the 2 year waiting period to seek a divorce, making obtaining a divorce in Maryland a bit easier, although not as easy at it is for Kim K.

Previously, one filing for a divorce had to specify whether both parties, or just the moving party was seeking the divorce. If both parties were seeking a divorce, then only a one year separation period was required, if only one party was seeking the divorce, then a two year separation period was required. This distinction is no longer as of October 1, 2011 and separation, whether mutual or non mutual is only required to be one year to file for a divorce. As we mentioned in our April 18, 2011 blog, proponents of this legislation believe that it is one step closer to reducing the waiting period to obtaining a divorce, making a Kim K. divorce a future reality for Marylanders.

Continue reading "Why Can Kim Kardashian File for a Divorce so Quickly and I Can’t?" »

In our August 25, 2011 blog we discussed custody evaluation as one of the services that can be available to parties subject to domestic litigation. The Circuit Court for Baltimore County is one of the County courts that currently offers custody evaluations to those litigants with highly contested custody matters. They also offer co-parent education classes, custody mediation, home studies and supervised visitation. These services are currently offered to parties who qualify at no cost. The litigant or the litigant’s attorney needs to either file a motion with the Court requesting these services or request the service at the scheduling conference.

Commencing October 3, 2011, the Circuit Court will begin charging for these services, due to a decrease in funding received from the State Judiciary. The fees will be as follows:

• Co-Parent Education Classes: $35 per person
• Custody Mediation: $100 per person
• Home Study: $100 per study to be split between the parties
• Custody Evaluations:$450 per study to be split between the parties

For more information on Maryland custody and those services available to parties contact an experienced Maryland Custody Attorney.

In our June 28, 2011 blog we discussed how Courts in Maryland seem to be divided on whether same sex couples legally married in other states should be granted a divorce in Maryland. To confuse matters even more, as reported by the Maryland Daily Record on June 24, 2011, a criminal Judge has ruled that same sex couples are permitted to assert their spousal privilege in criminal matters. So while some family law Judges may not recognize same sex couples as spouses, it appears that some criminal Judges are. In the Washington County case, the lesbian partners were married in Washington D.C. Recently, one has threatened the other with violence, and therefore was charged with assault. However, in criminal matters spouses can invoke their right not to testify against their spouse. In this case, the victim of the alleged threat has asked to assert her privilege not to testify against her partner. The Judge has recognized the partners as spouses and allowed her to do so. The Judge specifically ruled that “Maryland generally recognizes a marriage as valid as long as it was valid in the jurisdiction in which it took place.”

On June 24, 2011 New York passed the law allowing same sex couples to wed in their state. New York is the sixth state to allow same-sex couples to wed, following Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington D.C. Like the bill that was proposed, but failed, earlier in Maryland this year, the law in New York will call for religious exemptions, meaning that there will be strong protections in place for religious groups that oppose gay marriages. New York does not have a residency requirement for marriage, so commencing July 24, 2011 it is predicted the state will see a lot of same sex couple weddings.

As we had previously reported in our March 1, 2010 blog the Maryland Attorney General issued an opinion in February 2010 that states Maryland should recognize same sex marriages performed legally in other states as valid marriages in Maryland. However, the bill to allow same sex couples to marry in Maryland did not pass in the legislature this term. This has left Maryland Courts in limbo with how to handle same sex couples who file for divorce. Local news station, WTOP, reported on Friday, June 24, 2011 that a local Prince Georges County same sex couple was recently denied a divorce based on “the unnatural circumstances of their marriage.” The Judge specifically stated in his opinion “to recognize the alleged marriage would be contrary to the public policy of Maryland.” The Prince Georges County couple has filed an appeal with the Maryland Court of Special Appeals.

As reported there have been three instances in Maryland where a same sex couple has filed for the divorce, and only one in Anne Arundel County has been granted. This leaves same sex couples with the options of filing in Maryland with an unknown outcome, moving to another state that recognizes same sex marriages to establish residency and file, or staying married. Attorneys and same sex couples will await the Court of Special Appeals ruling on the Prince George’s County case for guidance on the subject.

Continue reading "How will Maryland Courts Handle Same-Sex Divorce Cases?" »

As we have explained in previous blogs, in order to file for an absolute divorce you must have a ground on which to file. The grounds for an absolute divorce can be no-fault based, which in Maryland is a separation of one year, or fault based, which in Maryland are adultery, desertion, cruelty of treatment, insanity, incarceration and excessively vicious conduct. Once you have a ground for divorce, and not before, you may actually file for the divorce in the appropriate Maryland Circuit Court. For more information on which county or city to file your Maryland divorce in visit our October 21, 2009 blog.

All divorces in Maryland are filed in Circuit Court, not District Court. The first step in the process is to file the Complaint for Absolute Divorce. The Complaint must contain information as to where you were married to your spouse, how long you have resided in Maryland, what marital property the two of you own, information regarding your children, etc. The Complaint must be filed with a filing fee, which varies by County, and also must be accompanied by a short form financial statement if you are seeking child support or a long form financial statement if you are seeking alimony. If you retain an attorney the Complaint and Financial Statements will be prepared for you. If you are filing pro se, or without an attorney, then the Court can provide you with the appropriate forms.

Continue reading "How do I file for a Divorce in Maryland?" »

Many clients come to me unclear as to their rights to their marital home. If your home is owned and was purchased during your marriage, it is a marital home. 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). Therefore, absent a protective order, discussed in our August 2009 blog, no one has the authority to make their spouse leave the home. If your home is rented and both names are on the lease then no one has superior rights over the other and therefore, no one has the authority to make their spouse leave the rented home.

If the parties come to an agreement that one spouse will leave, that is a different story. However, many individuals are “kicked out” of their marital home by their spouse because they are not aware of their rights. If you feel it is better that you leave the marital home, then you should do so, however, you are not barred from re-entering your home and may do so at any time. If your spouse changes the locks to your home then I would advise you contact the police to assist in re-entry.

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

As a follow up on our June 10, 2011 blog more regarding adultery and introducing a new relationship to your child(ren), we thought it may be best to touch on dating during your divorce proceedings. Typically, we advise clients to refrain from dating while their divorce is pending and we do so for several reasons.

First, as explained in the previous blog, it could be considered adultery to be dating while married if your spouse can prove the elements necessary to establish adultery. Although parties may be separated while waiting for a divorce, they are still technically married and therefore, it is still considered adultery, which is both a ground for divorce and a crime in the State of Maryland.

Second, it may not be what is in the best interest of your child(ren) and if you are not putting your child(ren)’s best interest first then you may be facing an uphill battle if custody is an issue in your matter. While dating may not offend a Judge, it will not be helpful to your case if the Judge feels that your children are being negatively affected by your dating life and you have still chosen to partake in it. Even if the individual you are dating is wonderful and wonderful to your child(ren), your children are still going through a major adjustment period and to have one or possibly two new individuals then become a part of their homes and time with their parents may not be what is best. Additionally, while your children may not overtly be exhibiting problems as a result of your pending divorce, it is best to be able to focus all of your attention on them during your time with them to be aware of any issues they may be experiencing.

Third, it is always better to do the right thing, even if your spouse is not, while a divorce is pending. Many clients are frustrated by their spouse’s continued misbehavior and feel that it will continue to go unnoticed. If and when it is noticed and considered by a Judge, then it is much better to be on the “clean hands” side of that dispute. Two wrongs never make a right.

Continue reading "Dating During Divorce Proceedings in Maryland" »

A bill has been proposed in Massachusetts that would prevent parents from having sex in their home until their divorce is final, Fox News Reported on May 19, 2011. More specifically, the bill would prevent divorcing parents from “conducting a dating or sexual relationship within the home” until their divorce is final. Those who favor the bill have stated that the bill is meant to shield children from unnecessary problems or domestic violence while their parents divorce is underway. Those who oppose the bill say it is infringing on parents rights.

Currently, not only is adultery a ground for divorce in Maryland, it is still codified as a crime in the Maryland Criminal Code. In our experience, it is wise to consult a mental health professional before introducing your child to a new relationship, especially while a divorce is pending. The effects of a divorce on children vary from child to child, however a mental health professional can provide some guidance and advice based on the child's developmental, emotional, and physical age.

A Maryland court will not likely ban such behavior if asked to do so by a litigant during their divorce proceedings, but will often consider a parents behavior and the effects of that behavior on the child(ren) when looking at what is in the best interest of the child(ren) in a custody determination.

Continue reading "Massachusetts Proposed Bill Would Ban Parents from Engaging in Sexual Relations at Home While Divorce Pending" »

A divorce or separation is much more than two people parting ways, as there are often many other items that arose out of the marriage that must be resolved in order for parties to legally part ways. These items can be addressed in a separation agreement or are eventually resolved in divorce litigation. It is important to consider each of the following items at the beginning stages of pursuing a Maryland divorce:
• Child Custody – If you and your spouse have children, then custody of the children will need to be decided. Custody is comprised of two parts in Maryland, legal custody and physical custody. Legal custody involves decisions regarding the child involving health, education and religion. Physical custody is the time spent with each parent. Both forms of custody can be shared by parents, or awarded to only one parent. For more information see our September 10, 2010 blog.
• Child Access Schedule – Not only does custody of the children need to be decided but also when each parent will have access with the children. You need to consider the school year, summer vacation, holidays and school breaks. Also many parents designate how their children will communicate with the other parents when not in their care
• Child Support-Child support is awarded in many cases to account for a difference in time sharing of the children, or a difference in income of the parties. For more information on child support, see our September 11, 2009 blog
• Dependency Exemption for Child(ren)- You need to consider who will designate the children for purposes of the tax dependency. Will you and your spouse alternate, each take one child, etc?
• Health Insurance – You need to consider who will cover the children on their health insurance. Also, if you are currently covered by your spouses insurance, or covering your spouse, will you continue to do so until your divorce is final?
• Uninsured Medical Expenses for Kids-Typically parties may divide this evenly or in proportion to their incomes. If one parent is bearing the whole expense, and it is significant, it will be used for child support calculations.

Continue reading "Some Items to Consider when Contemplating a Maryland Divorce or Separation?" »

As we have previously discussed in our blogs, many family law matters are decided outside of Court, with the assistance of attorneys. However, what happens when the parties, who have employed attorneys to assist in their divorce litigation, decide to take matters into their own hands? As the Maryland Daily Record reported on June 2, 2011, the Baltimore law firm of Tydings and Rosenberg is facing such a situation right now. The firm’s client, Julie Zorzit, after employing the firm to do a substantial amount of work, met privately with her husband, John Zorzit, and waived all rights for her attorney’s fees to be paid by her husband. The firm is now seeking the fees, as Ms. Zorzit can not afford to pay for the work that has already been done, but Mr. Zorzit can. The Circuit Court for Baltimore County denied the firms request for the fees, the case was appealed to the Maryland Court of Appeals, and a decision is awaited.

Many clients inquire as to their rights to have their spouse pay for their attorney fees in their divorce matter. The Maryland Code, Family Law Article § 7-107 provides that “at any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding….[however] before ordering the payment, the court shall consider: (1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” Parties should not rely on the possibility of such an award when employing counsel, as in our experience, attorney fees are often denied. However, there are cases where attorney fees are absolutely justified and the Court makes an appropriate award.

Continue reading "Maryland’s Highest Court to Decide Law Firm’s Quest for Attorney’s Fees in Maryland Divorce Matter" »

As many of our clients are aware, going through a divorce process once is enough, let alone having to do it all over again. As the New York Times reported on May 30, 2011 , a New York man, Mr. Steven Simkin, is seeking to revise the divorce settlement him and his wife, Ms. Laura Blank reached in 2006, as the funds he was awarded were lost as a casualty to the Madoff disaster. As we have previously discussed, many parties reach a separation agreement or settlement agreement outside of court which resolves their marital issues.
When the parties reached their settlement in 2006, Ms. Blank chose to keep her funds out of the Madoff account, while Mr. Simkin chose to keep his with Mr. Madoff. Mr. Simkin argues that the settlement agreement, aka a contract, should be voided as the funds with Mr. Madoff did not even exist at the time of the divorce settlement. His argument relies on the “doctrine of “mutual mistake,” a well-established principle that allows for the cancellation of contracts, including divorce agreements, when both parties are innocently mistaken about an essential term. The case is currently with New York’s highest court and it is said that they are divided, as are many attorneys on the issue. The case could not only affect New York law, but the way that marital settlement agreements are handled throughout the country. Those who are against the revision of the agreement believe that it would allow for do-overs whenever an agreement does not go as planned. Many enter into these divorce agreements with no idea what the future holds, but it is a way of making a clean break from your spouse and moving forward.

Continue reading "New York Times Reports that “Madoff Victim Seeks Divorce Do-Over”" »

Currently, Maryland law regarding divorce involves two different waiting periods in order to obtain a no fault divorce. The one year waiting period applies when BOTH parties are seeking the divorce, i.e. the separation is MUTUAL and voluntary. The two year waiting period applies when only one of the two parties would like the divorce. We had previously discussed this distinction in our October 2010 blog. The Maryland legislature has passed a bill eliminating the two year waiting period, and now no fault divorces can proceed with only a one year separation, eliminating the need for the Court to consider if one or both parties is seeking the divorce for grounds purposes. The Maryland Daily Record reported on April 17, 2011 that this new legislation will go into effect October 1, 2011. The chief sponsor of the bill, Senator Bobby Zirkin believes that the two year separation period is only extending volatile situations and allowing parties to drag the litigation out in order to bargain for those items they want in the divorce. He also believes that this is a step in the right direction in his effort to reduce the waiting period to only six months, as we discussed in our February 17, 2011 blog .

The legislation pending to allow same-sex couples to marry is scheduled for a final vote this Friday, March 11, 2011 in the Maryland House of Delegates as reported by the Baltimore Sun. The legislation has already passed the Maryland Senate and the House Judiciary Committee. The passage of the bill, if signed by the Governor, would allow same-sex couples to marry in the State of Maryland. The passage of this bill would not afford same-sex couples who chose to marry more rights than those of their heterosexual counterparts. The bill would solely extend the civil protections already afforded to married couples to same-sex couples who chose to marry.

Over the years we have had many clients ask if a divorce that they obtained in foreign country will be recognized here in Maryland. The answer is yes the divorce will be recognized in the united States, so long as the divorce was obtained by a Court that had authority to do so and the divorce was granted legally. In the Maryland case of Wolff v. Wolff, 40 Md.App. 168, 389 A.2d 413 (1978) the Maryland Court of Special Appeals determined that an English divorce decree was recognized in Maryland based on comity. The principle of comity allows judgments of courts in foreign countries to be recognized in the United States. The court stated that “… a decree of divorce granted in one country by a court having jurisdiction to do so will be given full force and effect in another country by comity, not only as a decree determining status, but also with respect to an award of alimony and child support.” However, there are some limitations to this doctrine. A foreign divorce will not be recognized where: the divorce was obtained by a procedure which denies due process of law; the divorce was obtained by fraud; the divorce offends the public policy of the state in which recognition is sought (examples of divorces that offend public policy include “mail-order divorces” obtained by nonresidents and laws that allow a husband, but not a wife, to divorce without any sort of judicial process); and where the foreign court lacked jurisdiction. For other questions about jurisdiction see our October 21, 2009 blog.

The same sex marriage bill passed at the House Judiciary Committee on Friday, March 4, 2011 by a 12-10 vote as the Baltimore Sun reports. This means that the bill will move to the full House of Delegates for debate, which is scheduled to start as early as this Tuesday, March 8, 2011. As we previously blogged, on February 25, 2011 the bill if passed into law would allow same sex couples to wed. Delegates who had previously opposed the bill have expressed that they will vote to pass the bill as they believe it should ultimately be up to the voters to decide. As the Sun reports, if the bill passes in the House of Delegates, “Gov. Martin O'Malley has said he will sign the legislation if it reaches his desk. Opponents could then gather the roughly 55,000 signatures needed to petition the new law to referendum, where voters in the 2012 presidential election will decide whether to repeal it or leave it on the books.

There is currently legislation pending before the Maryland General Assembly that would create a rebuttable presumption that joint legal and physical custody to each parent for equal periods of time is in the best interest of the child in certain custody proceedings. You can find the pending legislation at the Maryland General Assembly’s website. This bill would require parties in custody proceedings to overcome the statutory presumption that joint custody is in the child’s best interest. This would mean parties would enter a custody hearing on equal footing with respect to having the child in their shared custody and the Judge would have to find that one of the parties met their burden of overcoming the presumption in order to award a party sole physical or legal custody. The presumption aligns with the rights of parents without a custody order, in that parents have equal rights to their children, without a custody order stating otherwise. However, there is currently a great debate among family law attorneys over this pending legislation. Those who propose the bill support fathers’ rights, believe that parents may fight less over custody if the presumption is in place, and believe this takes such an important decision out of the court’s hands. Those who oppose the bill believe that the parties who have to take their custody case to trial should not be the ones who have a presumption of joint custody because they can not get along. Further, they do not believe that this decision should be taken out of the court’s hands, that the other best interest factors will not be considered if the presumption is in place, that those who are awarded joint custody who can not communicate will be back in court again and again, and that the current system is working well.

Continue reading "Is a Statutory Presumption of Joint Custody in Maryland in the Best Interest of Children?" »

We discussed the pending same-sex marriage legislation in our February 25, 2011 blog. In our blog we touched briefly on the rights of same sex unwed couples with children and thought the topic could use a little further explanation because there are consequences to not having a legal tie to your child(ren).

Typically, when a same sex couple adopts a child, only one of them actually adopts the child from the agency, country, service, because two people without a legal tie to one another are generally not permitted to adopt a child together. Therefore, only one parent in a same sex unwed relationship is deemed to be the legally recognized parent of the child. This means only that “legal parent” can authorize medical treatments, make medical decisions, consult with therapists, obtain emergency care for the child, obtain school records for the child, make decisions regarding the child's 504 or IEP plan, meet with teachers, etc. For example, the parent who is not legally recognized as the child’s parent cannot authorize the pediatrician to administer inoculations, tests, draw blood, or prescribe medication. This is obviously a challenge for same sex unwed parents who otherwise share in the day to day parenting responsibilities of the child and are working together as a family unit to raise the child. Some of the difficulties can be cured by subsequent adoption proceedings, powers of attorney, and adding names to birth certificates. However, the costs, time and emotion involved are substantial.

Continue reading "The Children of Same-Sex Couples in Maryland" »

Maryland law defines dissipation as when "one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown." Sharp v. Sharp, 58 Md. App. 386 (1984). At issue is also whether or not the party spent or depleted the marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of divorce. In a recent opinion by Judge Murphy on behalf of the Court of Appeals the Court faced the question as to who has the burden of proving that the assets had been dissipated. The case, Omayaka v. Omayaka was originally heard by the Circuit Court for Prince George's County for the final divorce hearing in July 2007. At this hearing the attorney for Mr. Omayaka attempted to prove that the wife had dissipated martial assets. Mr. Omayaka claimed that Mrs. Omayaka had opened up an account in her name only during their marriage and had withdrawn over $80,000.00 from the account since 2005. Mr. Omayaka’s attorney questioned Mrs. Omayaka on what the money was spent on and she stated clothing, food, insurance for the baby, rent, credit card debt, a car loan and the babysitter. At the conclusion of the case the Circuit Court found that there had not been a dissipation of assets because the attorney for Mr. Omayaka had not met the burden of proving that the money was spent for a purpose unrelated to the marriage during a time when the marriage is irretrievably broken. The attorney for Mr. Omayaka filed an appeal based on the contention that he had met his burden of proof showing dissipation of the assets. The Court of Appeals, in its’ opinion, clears up the burden of proof question with the following guide:

The alleging party must first put on a prima facie case that the marital assets were taken by one spouse without agreement with the other spouse. Then, the burden shifts to the alleged spending party to produce evidence that generates a genuine question of fact on the issues of whether the assets were taken without agreement, and/or where the funds are, and or were they used for marital or family expenses. However, the court points out that it is clear that the burden lies on the party who claims that the other party has dissipated marital assets to clearly prove that the funds were spent solely to reduce the money available for equitable distribution.

Continue reading " Recent Maryland Court of Appeals Case on Dissipation" »

As the Baltimore Sun reports, the Maryland Senate approved the Civil Marriage Protection Act on Thursday, February 25, 2011, which would allow same-sex couples to wed. Although the House of Delegates still needs to pass the Act, the Senate’s passage is still “historic.” We have previously blogged about the issues that surround the recognition of same-sex marriages in Maryland, specifically the Attorney General’s support of recognizing same sex marriages created validly in other states maryland and Maryland lawmakers attempt to block gay marriages. With this Act being passed by the Senate, it is time for us to prepare for changes we may see in our divorce and family law practice with the allowance of same-sex marriage.

The potential changes are vast but include the changes that we will see in custody and visitation law. Often same-sex couples adopt a child, however when couples are not married, only one partner is usually the legally recognized adopted parent. When these relationships end, the child is left with one legal parent and one who is presently recognized as a third party (not a parent) in the State of Maryland. For more information on the third party status that same sex parents currently face see our November 27, 2009 blog. With the passage of this legislation, same-sex couples who marry and adopt a child will both be the legal parents of the child and will be recognized as same should the marital relationship end in separation and/or divorce.

Continue reading "Same-Sex Marriage in Maryland " »

As previously discussed in our August 15, 2009 blog, a divorce in Maryland may be filed on a no-fault basis (mutual and voluntary separation), after a one year separation period. Although parties may agree to file on a no-fault basis, they may not agree on the issues within their divorce, such as custody, property, alimony, etc., which renders the case contested. However, there are many cases where the couples were only married for a brief period of time, or do not have children, where clients come to us with not only a no-fault ground, but also no issues to resolve. They may have worked out a separation agreement before coming to us, or simply have no shared property to dispose of. In these cases, we must file for a divorce just as we would any other, but the courts have procedures in which these cases can be set in for the final divorce hearing much quicker than others. However, before the case can be set in for this hearing, the opposing side must file an Answer that confirms that the case is in fact uncontested and all issues are resolved. The final hearing is also much shorter than a normal hearing.
Even in an uncontested divorce that has been filed on a mutual and voluntary basis, the party must still prove the grounds for divorce. In Maryland, you must still have a corroborating witness at the hearing to testify that you and your spouse have lived separate and apart without cohabitation and without the resumption of the marital relationship (including sexual relations) for one year (or two in a two year separation ground), and there is no hope or expectation of reconciliation in your marriage. The witnessfurther needs to corroborate that the separation was in fact a mutual and voluntary one on the part of both husband and wife. The Maryland Code, Family Law § 7-101(b) states, “a court may not enter a decree of divorce on the uncorroborated testimony of the party who is seeking the divorce.” We have had many clients ask why when they have such a simple, issue free divorce they still have to jump through so many hoops. Unfortunately, even in what can be called a “simple divorce”, you still must meet the filing requirements and present the court with the evidence that is statutorily required to prove you are entitled to obtain a divorce.
For more information regarding Maryland divorce proceedings contact an experienced Maryland Divorce Attorney.

Many Maryland divorce attorneys believe that the one year separation period required for a no-fault divorce in Maryland is too long as reported by the Maryland Daily Record on February 14, 2011. For more information on the one year separation period for a divorce see our October 14, 2010 blog and August 19, 2009 blog . A number of attorneys supporting the reduction of this separation period arrived at a state Senate committee hearing last week to support legislation that would reduce the one year separation requirement to six months. Many attorneys feel that if the parties have agreed to split they should be able to do so without having to drag out the process for a full year. However, many of the Senators feel that this separation period validates the sanctity of marriage and gives people the time to think if this is what they truly want. Unfortunately, it has not been our experience that this waiting period helps parties to reconcile. As the Daily Record reports, many states such as Virginia, Delaware and Washington D. C. have only a six month separation period. We have many clients who come to us after a week or two of being separated and the news that they must wait a year to file for an absolute divorce is crushing. However, there are other options for these clients, such as filing for a limited divorce, as describe in our March 19, 2010 blog, or pursuing a separation agreement.
For more information regarding Maryland divorce proceedings contact an experienced Maryland Divorce Attorney.

When meeting with clients initially and discussing the general course of litigation, I will advise them that discovery is part of that process, which usually prompts many questions. First and foremost is what is discovery? Discovery is a litigation tool used to gather and exchange relevant information and potential evidence from and with the opposing side prior to a trial. In a divorce matter it most frequently consists of Interrogatories, Request for Production of Documents, and Depositions of parties and witnesses. However, discovery may also involve Request for Admission of Facts, Notice of Records Depositions, and/oror Mental or physical Examinations of parties. Interrogatories are a list of a maximum of thirty questions usually involving employment history, lifestyle, assets, marital and non-marital property, child rearing responsibilities, and reasons for the dissolution of the marriage. Request for Production of Documents are a list of requests asking for documents from a party. These usually consist of financial documents, employment records, documents regarding the children, documentation of communications with the other party, documentation of expenses/debt and documents regarding the parties’ assets.

Many clients question why these documents need to be exchanged as they feel it is an invasion of their privacy. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets or have withheld discoverable information from the other. Further, client's must know that if you or the opposing party makes a request or raises a particular issue in a matter, then the issue must be explored. The old adage "what is good for the goose is good for the gander", often applies in these situations. If a document is requested that is particularly confidential in nature or for some reason should not be turned over to opposing counsel, clients can seek protection of that document by filing a motion with the court. If the opposing side is not turning over their documents and answers in a timely fashion then one may file a motion with the court asking them to compel these documents or to prohibit that party from entering any evidence regarding same at trial. If a party tries to introduce a document at trial that was not turned over to the other side prior to the hearing then the Judge may prohibit it from being entered into evidence. The discovery process is governed by the Maryland Rules commencing with Rule 2-401. Clients should also understand that while all pleadings in a matter are filed with the court, the discovery requests and responses are not. The court will not see the Answers to Interrogatories or Responses to Request for Production of Documents unless they are admitted in evidence at a trial.

Continue reading "Discovery in Maryland Divorce Matters" »

It is a situation in which many individuals seeking a divorce find themselves. They have high value assets to chase in their divorce proceedings, but no money to afford an attorney to do so. As the New York Times Reported on December 4, 2010 , a California based company, Balance Point is funding divorces for those who can not afford to do so. However, they take a percentage of their client’s winnings, so the cases that they accept are those where high value assets are involved. As the New York Times reports, “the number of companies investing in divorce is small — Balance Point is one of the few that do it exclusively. But other businesses are gearing up. A New York start-up, Churchill Divorce Finance, also is planning to enter the business.”

The Maryland Lawyers’ Rules of Professional Conduct Rule 1.5 prohibits attorneys from taking divorce cases on a contingency fee basis, meaning to take a percentage (as is often seen in personal injury and medical malpractice cases) of their client’s ultimate share of the marital estate as their form of compensation.

Continue reading "Divorce Costs Funded by Investment Firms" »

While your spouse’s substance abuse issues may not affect you nearly as much since you have separated, they certainly will continue to affect your children. Unfortunately, many clients are faced with these issues. It is important to address all substance abuse concerns at the beginning of a matter, by bringing it to your attorney or the court’s attention. In many Maryland counties the Court, when requested, will order a substance abuse evaluation of the parties. Be aware that if you request an evaluation of your spouse, the Court will often order that the evaluation be performed on both parties. The evaluation will most likely consist of an interview including substance abuse history, and treatment and also in some cases urinalysis or other form of drug/alcohol screen. If a party asks, and the Court feels is it necessary, continuing drug screens of a party may be ordered. This allows for the party to gain visitation or custody with their child or children after maintaining positive results. If a custody evaluation is performed in a matter the evaluator will also utilize the information gained from drug screens or a substance abuse evaluation to assist them in making their recommendation.

Continue reading "How to Handle Your Spouse’s Substance Abuse Issues During a Maryland Divorce Proceeding" »

As reported in our September 30, 2010 blog , there are two parts to custody in the State of Maryland, legal custody and physical custody. Legal custody is the ability to make decisions regarding the child's health, education, religion and other matters of significant importance. Legal custody can be awarded solely to one parent or jointly to both parents (there are also variations on joint legal custody, such as having one parent as a tie breaker or a requirement to mediate when parents cannot reach a joint decision or assigning each parent sole legal decision making with respect to different issues, ie Mom makes the decisions on education and Dad makes the decisions on health matters and the parents have joint legal custody on religious issues). Maryland courts have held that the strongest factor in determining whether to award joint legal custody is the ability of the parents to communicate with each other regarding the children.

Many clients have questions as to exactly how a joint legal custody situation should operate. Questions such as, “if a doctor makes a recommendation for my child, I do not have to check with the other parent first, right?”, or “do I need to relay all information regarding my child to the other parent?” We tell clients that they can not take a doctors recommendation as the final decision without first discussing it with the other parent, unless it is an emergency situation. Ideally, the parents should attend the medical appointment together so decisions can be reached while with the doctor and the parents are hearing the same information from the doctor. In a joint legal custody situation, ALL decisions regarding the child’s health, education, and religion, whether it be the choice to administer a certain prescription medication, decisions regarding a child’s I.E.P., where the child will attend school, etc. must be discussed with the other parent and a joint decision must be reached.

Continue reading "What does Joint Legal Custody in the State of Maryland really mean?" »

As a follow up to our June 30, 2010 and July 8, 2010 blogs on Facebook evidence in Maryland family law proceedings, we have compiled a top five do’s and don’ts for Facebook for parents in the midst of custody litigation.

1. Do disable your Facebook account. If you can’t bring yourself to do it, make your presence on Facebook as minimal as possible, and we mean minimal.

2. Do set your Facebook page to private so only those who are your friends can view your page, and while you are at it do a “spring cleaning” of your friend list, eliminating those who are unnecessary. Friends should only be those who have no connection with your ex or your ex's family and/or friends. You never know who is viewing/printing information from your account and passing it along.

3. Do eliminate all photographs, wall posts, information that could be damaging to your matter, such as posts or photographs related to illegal substances, partying, unsuitable living conditions, boasting, and/or unemployment. In other words, eliminate all posts or photographs that you would not want a Judge to see.

4. Do NOT post pictures of your child doing anything that could be considered inappropriate. Do not let others post anything inapporpriate of your child either.
We recently had a case where the grandmother had a photograph posted of her grandchild (the child who was the subject of the custody dispute) sipping an alcoholic beverage. Needless to say the Judge was not amused.

5. DO NOT post status updates or wall posts regarding your ex or your kids, whether it has to do with your ongoing custody battle, or your most recent exchange of a child. During a protective order hearing I recently tried, the Judge found a parent’s posting of “I’m going to take you down” was enough of a threat to grant a final protective order. In other words, keep your custody battle off of Facebook! In addition, urge your mother, brother, friends, and next door neighbors to keep any and all posts regarding your ex off of Facebook.

1. Well in advance of each holiday, refer to your existing Court Order, Separation Agreement, and/or Judgment of Absolute Divorce to determine what your Order and/or Agreement sets forth for each holiday.

2. Communicate to the other parent, (preferably in writing via e-mail or text), your interpretation of the existing Order and/or written Agreement. Specifically spell out who has the child(ren) on which day or part of the day, the times and where exchanges are to take place. Ask the parent to confirm that is their understanding.

3. If there is not an existing Order and/or written Agreement, again, well in advance of the holiday, contact the other parent (preferably in writing) and set forth your specific proposal and ask them for there thoughts and comments.

4. Put your child(ren) first, not yourself. Understand that the child(ren) should have the opportunity to spend part of the holiday which each parent and their respective families, regardless of your feelings for the other parent. Do not be selfish, it will come back to haunt you.

5. If there is not an existing Order and/or written Agreement, keep the child(ren) out of the decision making process. This in an adult issue, keep it that way.

6. Keep the holiday schedules simple and fair.

7. Keep your emotions in check. Do not get emotional with your child(ren) or the other parent about the schedule.

8. Do not place your child(ren) in the middle, do not make them choose who they want to be with, and do not make them feel guilty because they will not be with you the entire holiday. Remember, your children did not ask to be in this position.

9. Use common sense. Do not call the police because the other parent said they would have the child(ren) back at 4:00 p.m. and it is 4:10 p.m. Call the other parent and ask for their estimated time of arrival.

10. As a last resort, you can seek the assistance of the Circuit Court in your Maryland county/city and have a Judge decide how your family will spend the holidays. Each County and the City have different protocols for addressing these holiday access issues. See our November 17, 2010 blog for local Circuit Court "Holiday Court" protocols.

With the holidays approaching many clients may be facing uncertainty or conflicts as to where their child(ren) will be spending the holiday. We always advise clients to plan holidays far in advance so a schedule can be arranged that is best for the child(ren). It is important to develop a schedule that is not too overwhelming for children, so they can enjoy the holiday without exchanges at inopportune times, such as midnight on Christmas Eve, or too many exchanges in one day. It is also important to remember not to make plans for your child(ren) on the holiday until you know what the schedule will be. Lastly, for your child’s sake, explain to them how the holiday schedule will go, do not seek their input or place a guilt trip on your child(ren) for not being with you for the holiday or a portion of the holiday, and be flexible and accommodating to making the holiday work for everyone. Everyone does include the other parent and his or her family.

If you are unable to reach a holiday arrangement with your child’s parent you may turn to what many practitioners refer to as “holiday court”. Most Circuit Courts throughout the State of Maryland implement a specific protocol 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 the nearby Circuit Courts to find out how they will be handling this year’s holiday disputes.

Continue reading "2010 Holiday Disputes in Maryland Custody and Visitation Matters" »

On October 13, 2010 Consumer Reports.com reported that no-fault divorce has become available in all fifty states, with New York making no fault divorce part of their laws on October 12, 2010. A no-fault divorce is a divorce filing in which no fault based grounds need to be alleged, such as adultery or spousal abuse. As reported in our August 19, 2009 blog Maryland is a what is called a “hybrid state” 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.

Continue reading "No Fault Divorce Now Law in All 50 States" »

There are two parts to custody in the State of Maryland, legal custody and physical custody. Legal custody is the ability to make decisions regarding the child's health, education, religion and other matters of significant importance. Legal custody can be awarded solely to one parent or jointly to both parents (there are also variations on joint legal custody, such as having on parent as a tie breaker or a requirement to mediate when parents cannot reach a joint decision or assigning each parent sole legal decision making with respect to different issues, ie Mom makes the decisions on education and Dad makes the decisions on religion and the parents have joint legal custody on religious issues). Maryland courts have held that the strongest factor in determining whether to award joint legal custody is the ability of the parents to communicate with each other regarding the children.

Physical custody pertains to with whom the child resides. Physical custody can be awarded primarily to one parent or it can be shared between the parents. The Maryland case Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986), sets forth a list of several of the factors a Court will consider for the award of shared physical custody. These considerations include:

i. capacity of the parents to communicate and reach shared decisions affecting the child's welfare;
ii. willingness of the parents to share custody;
iii. fitness of the parents;
iv. relationship established between the child and each parent;
v. preference of the child;
vi. potential disruption of the child's social and school lives;
vii. geographic proximity of the parental homes;
viii. demands of parental employment;
ix. age and number of the children;
x. sincerity of both parents' requests;
xi. financial status of the parties; and
xii. benefit to the parents.

Continue reading "Better Parenting After Divorce?" »

The Baltimore Sun reported on July 7, 2010 that retired Prince George's Circuit Judge Graydon S. McKee III ordered Gayle and Craig Meyers to split custody of their dog at their limited divorce proceeding . For more information on limited divorce see our March 19, 2010 blog. In accordance with Maryland law, pets are considered marital property and are to be divided as such. For more information on marital property in Maryland, see Maryland Code, Family Law 8-203 and see August 19, 2009 blog. Instead of ordering the couple to sell the dog and split the proceeds, the Judge ordered that the dog will alternate spending six months with each party. As reported, "it was very clear that both of them love this dog equally," McKee said. "The only fair thing to do was to give each one an equal chance to share in the love of the dog."

Continue reading "Calvert County Judge Orders Couple to Share Custody of Dog" »

The Maryland Daily Record reported on June 28, 2010 that 81% of divorce attorneys have used Facebook as a form of evidence. It is a growing phenomenon in the family law practice and it has occurred in our practice in divorce hearings, custody hearings, and protective order hearings. The statements on a spouse or parent’s Facebook page may be just enough, and appears to have been just enough, to push the Judge in one direction or another in a case. Most Judges may not be aware of the context of a picture or statement on Facebook and with blurry evidentiary rules regarding their admission a picture that is funny to you may appear disturbing to a Judge.

Many may question why a Facebook page would be relevant in a divorce, custody or protective order matter. As explained in our February 28, 2010 blog, a fault based divorce such as adultery requires proof of both the opportunity and disposition for the adulterous relationship to be proven. A Facebook page displaying pictures or words of affection may be the key to proving the disposition element needed for adultery. As explained in our October 23, 2009 blog, in custody proceedings a significant factor that is considered is parental fitness. A Facebook page displaying irresponsible habits of a parent may question the fitness of that parent in caring for their child. As explained in our August 16, 2009 blog, the alleged abuse that is needed to enter a protective order can consist of a threat of serious imminent bodily harm. Such a threat on a Facebook page may be enough for a Judge to enter a protective order.

Continue reading "Facebook Page Evidence in Maryland Divorce Cases" »

As stated in our October 2, 2009 blog on alimony the Court may consider, among others, twelve different factors in deciding how much and for how long to award alimony. However, these factors provide very little guidance on how much alimony is appropriate based on income and financial figures. In Boemio v. Boemio, No. 57, September Term, 2009, the Court held that the courts are not limited to the twelve enumerated factors in the statue and that given the difficulty of translating those factors into a numerical award, courts may consult guidelines developed by a reasonable and neutral source. Such guidelines are fashioned similar to the Maryland Child Support guidelines and provide a numeric formula. The Circuit Court in this case consulted the American Academy of Matrimonial Lawyer’s guidelines but the Court of Appeals held that courts may also consult other guidelines such as the Women’s Law Center Kaufman Alimony Guidelines.

Continue reading "Recent Maryland Court of Appeals Decision Ok’s Use of Alimony Guidelines in a Maryland Divorce" »

It is common for one to be unaware that there are two types of divorce in Maryland. An absolute divorce is typically what one thinks of when thinking of a “divorce.” See February 28, 2010 Blog . On the other hand, a limited divorce merely legalizes a separation. A limited divorce is generally sought when the parties do not have grounds for an absolute divorce yet and are unable to come up with a settlement agreement, but a party is in need of financial relief or child custody and access needs to be established.

Under Maryland law, the Judge may grant a limited divorce on grounds of: “(1) cruelty of treatment of the filing party or of a minor child of the filing party, (2) excessively vicious conduct to the filing party or to a minor child of the filing party; (3) desertion (actual or constructive); or (4) voluntary separation, if the parties are living separate and apart without cohabitation and there is no reasonable expectation of reconciliation.” Maryland Code, Family Law § 7-102 . In contrast to an absolute divorce, there is no time period that the parties need to be living separate and apart in order for the judge to grant a limited divorce on the grounds of voluntary separation.

Unlike an absolute divorce, a limited divorce does not sever the marital bonds. Therefore, the parties are not entitled to remarry. Judges will often grant a limited divorce to a couple seeking an absolute divorce if they find that there is insufficient evidence to amount to an absolute divorce, but sufficient grounds for a limited divorce. There are few advantages to filing for a limited divorce. It can be a way to get a spouse out of the house without a waiting period, or for a spouse to leave the house without risking a claim of desertion. Additionally, a couple may want to keep their marital status for religious or economic reasons, such as health benefits or tax purposes. It also serves as a method of documenting the start date of the parties’ separation period, if needed for an absolute divorce.

Continue reading "Grounds for a Limited Divorce in Maryland" »

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" »

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 for the one year 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, among 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" »

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" »

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.

Continue reading "In What County or City Should Your Maryland Divorce Be Filed?" »

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 of either party 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.

Continue reading "Follow Up on Maryland Alimony—When Does Alimony Terminate in Maryland?" »

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.

Continue reading "How is Alimony Calculated in a Maryland Divorce?" »

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).

Continue reading "Annulments instead of a Divorce in Maryland" »

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.