Articles Posted in Divorce

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Another unfortunate consequence of COVID-19 is the postponement of the pendente lite hearings, settlement conferences and merit trials which were actually scheduled on the court docket months ago, but are not going forward as planned due to the court closures. Thus far, my experience has been that the courts are working hard to get the postponed cases reset as quickly as possible. Unfortunately, I have already had several client matters get reset only to be postponed and reset yet again as a result of the Administrative Order to extend the court closures. As a litigant, this can be extremely frustrating especially when the access to/custody of your children and finances remain uncertain.

Mediation remains an option to consider bringing temporary or complete closure to your family law matter. Mediation has the capability of being conducted via video conferencing with a trained mediator or retired Judge which will ensure all parties, counsel and the mediator remain in compliance with CDC recommendations and Governor Hogan’s Orders while we all weather this crisis. The upside to successful mediation is you have some or complete closure now versus months from now when your matter is finally set back in to be heard by the Court. Mediation does not work in every case, but given these uncertain and challenging times, it may be worth considering as an option.

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The short answer is yes, if your situation meets the statutory requirements for a protective order, peace order or extreme risk protective order, you may still obtain an interim order of protection. Pursuant to the Maryland Court of Appeals Chef Judge Administrative Order issued March 25, 2020, all petitions for new protective orders, peace orders, and extreme risk protective orders are to be handled by the District Court Commissioners’ office in the County/City where you would normally file. If granted by the Commissioner, the Interim Order will remain in place until further action is taken by the Court. As of now (April 7, 2020), the temporary hearings are being set for May 4 and 5, 2020 which may be subject to change, if the Administrative Order is modified.

If you are in need of protection and are seeking a protective order, peace order or extreme risk protective order, you should call the District Court Commissioner in your county or City first to obtain instructions on where to go.

If you need legal assistance, you should contact an attorney with experience in representing clients with Protective Orders, Peace Orders, and Extreme Risk Protective Orders.

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Oftentimes, parents with the best intentions disagree on how to manage the health, safety, and medical issues of their children. Throw in a pandemic and navigating custody and access becomes even more of a challenge with COVID-19 CDC recommendations and government-imposed restrictions. As a practitioner, this is a first, and we are all seeking some guidance from the judiciary to help us support and advise our clients on these issues. The Maryland Judiciary has put out the following statement on matters concerning children and families.

With schools closed and courthouses restricting operations to reduce exposure to COVID-19, custodians who live apart might be confused about changing family situations and their court orders. This statement is intended to clarify concerns you may have regarding these matters.

Custody and Parenting Time:

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Maness remains precedent in above the guidelines cases.

Maness v. Sawyer, 108 Md. App. 295 (2008).

In Maness, the Court of Special Appeals, again, reviewed an above-the-guidelines case. The father’s monthly actual income was $7,833 and the mother’s monthly actual income was $8,333, totaling a combined monthly income of $16,166.  This combined monthly income was beyond the $10,000 ceiling for the Maryland Child Support Guidelines at the time under Md. Family Law Code Ann. § 12-204(e), therefore, judicial discretion was used in the calculation of the child support obligation in accordance with Md. Family Law Code Ann. § 12-204(d).  The trial court ordered the father to pay $1,203 per month in child support.

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Jackson remains precedent in “above the guidelines” cases.

Jackson v. Proctor, 145 Md. App. 76 (2002).

The Court of Special appeals reviewed, once again, an above-the-guidelines case involving a professional football player in Jackson. The appellant, Mr. Jackson, earned an average salary of $710,000 per year, exclusive of bonuses, throughout his three year contract with the Tampa Bay Buccaneers.  The appellee earned a miniscule annual income that was around $16,000 per year, while she was earning her undergraduate and graduate degrees at Penn State University.  The parties’ combined monthly income exceeded $55,000 per month, constituting an above-the-guidelines, discretionary child support determination under Md. Family Law Code Ann. § 12-204(d).

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Freeman remains precedent in “above-the-guidelines” cases.

Smith v. Freeman, 149 Md. App. 1 (2002).

In Smith, the Court of Special Appeals addressed another above-the-guidelines case.  This case differs from the aforementioned cases as the parties were never married.  Antonio Freeman, the appellee was a professional football player earning annual salaries over $1,000,000 per year.  At all points relevant to this matter, the appellant was unemployed and attending school.  When the parties initially entered into an agreement regarding child support, Mr. Freeman was making an annual salary of $1.2 million.  At that time, Mr. Freeman was making a combined monthly child support payment of $4,016.66, which included the $3,500 child support payment the parties agreed upon and a monthly payment of $516.66 for the child’s tuition.  Two years later, Mr. Freeman was making an annual salary of $3.2 million.  Following this rise in salary, the appellant, Ms. Smith, requested a modification of the child support obligation arguing a material change in circumstances.

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Bagley remains precedent in “above-the-guidelines” cases

Bagley v. Bagley, 98 Md. App. 18 (1993)

In Bagley, the Court of Special Appeals was asked to review the findings and recommendations of a Domestic Relations Master which were adopted by the Circuit Court for Montgomery County. This case, like Voishan and your current case, was an above-the-guidelines case as the father of the parties’ minor children recorded an annual income of over $507,360.  The master made the recommendation that the father pay $2,722 in child support per month; this recommendation was subsequently adopted by the trial court.

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Voishan remains precedent in “above-the-guidelines” cases.

  • Voishan v. Palma, 327 Md. 318 (1992).

In Voishan, the Court of Appeals addressed a mother’s Motion to Modify Child Support.  The trial court granted the mother’s motion and ordered the father to double the amount of support he was paying for the parties’ only minor child.  Evidence was presented in support of the motion for modification which revealed that the father was earning $145,000 per year and the mother was earning $30,000 per year.  The combined adjusted actual income of the parties was therefore $175,000 a year or $14,583 per month.  At the time, the Maryland Child Support Guidelines established through Md. Family Law Code Ann. § 12-204(e) only set guidelines for a combined adjusted actual income of $10,000 per month.  In order to address cases, such as this, where the parties monthly income exceeded the guidelines, the legislature provided trial court’s with the discretion to set the amount of child support under Md. Family Law Code Ann. § 12-204(d).

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A Custody Evaluator is appointed by a Court pursuant to Maryland Rule 9-205.3.  Pursuant to the Maryland Rule there are mandatory elements of a Custody Evaluation as set forth in 9-205.3(f)(1) and optional elements as set forth in 9-205.3(f)(2).  Mandatory elements, subject to any protective order of the court, a custody evaluation shall include: (A) a review of the relevant court records pertaining to the litigation; (B) an interview with each party; (C) an interview of the child, unless the custody evaluator determines and explains that by reason of age, disability, or lack of maturity, the child lacks capacity to be interviewed; (D) a review of any relevant educational, medical, and legal records pertaining to the child; (E) if feasible, observations of the child with each party, whenever possible in that party’s household; (F) factual findings about the needs of the child and the capacity of each party to meet the child’s needs; and (G) a custody and visitation recommendation based upon an analysis of the facts found or, if such a recommendation cannot be made, an explanation of why. Optional elements include, subject to subsection (f)(3) of this Rule, at the discretion of the custody evaluator, a custody evaluation also may include: (A) contact with collateral sources of information; (B) a review of additional records; (C) employment verification; (D) an interview with any other individual residing in the household; (E) a mental health evaluation; (F) consultation with other experts to develop information that is beyond the scope of the evaluator’s practice or area of expertise; and (G) an investigation into any other relevant information about the child’s needs. Maryland Rule 9-205.3(f)(1)(G) specifically provides the custody evaluator is to provide “a custody and visitation recommendation based upon an analysis of the facts found or, if such a recommendations cannot be made, an explanation of why”.

 

For more information on Maryland divorce and child custody matters contact an experienced divorce attorney.

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The U.S. Code of Federal Regulations, Part 838.103 provides “Self-only annuity means the recurring unreduced payments under CSRS or FERS to a retiree with no survivor annuity payable to anyone. Self-only annuity also includes the recurring unreduced phased retirement annuity payments under CSRS or FERS to a phased retiree before any other deduction. Unless the court order expressly provides otherwise, self-only annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a.” While the Gross annuity “means the amount of monthly annuity payable to a retiree or phased retiree after reducing the self-only annuity to provide survivor annuity benefits, if any, but before any other deduction. Unless the court order expressly provides otherwise, gross annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a”.  The Office of Personnel Management (OPM) will apply the martial share formula to the gross annuity UNLESS the Order states otherwise, see U.S. Code of Federal Regulations, Part 838.306 (b) which states “the standard types of annuity to which OPM can apply the formula, percentage, or fraction are phased retirement annuity of a phased retiree, or net annuity, gross annuity, or self-only annuity of a retiree. Unless the court order otherwise directs, OPM will apply to gross annuity the formula, percentage, or fraction directed at annuity payable to either a retiree or a phased retiree.”  Gross Annuity is the default.

 

For more information on Maryland divorce and retirement matters contact an experienced divorce attorney.

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