Divorce

Published on: November 25, 2019

Does your child custody case need a custody evaluation or has one been ordered by the Court?

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.

Published on: November 22, 2019

Federal Government Pension Orders – be mindful of what was ordered by the Court

By Monica Scherer

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.

Published on: November 29, 2012

Maryland Opening Domestic Violence Visitation Center

By Monica Scherer

Baltimore will soon be the home to a supervised visitation center according to CBS Baltimore’s report on November 27, 2012. The Safe Havens center will allow victims of domestic violence, sexual assault, stalking, dating violence or child abuse to have parent-child contact in the presence of a third-party supervisor. The opening of the Center is critical as many courts in the area have recently had to close their supervised visitation centers due to lack of funding. The center may be useful to Judges in awarding visitation with a minor child under a protective order to an alleged abuser. As we have previously explained when entering a protective order, a Judge has the authority to establish temporary visitation with a minor child of the alleged abuser and a person eligible for relief on a basis which gives primary consideration to the welfare of the minor child and the safety of any other person eligible for relief.
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Published on: November 29, 2012

Maryland Court of Special Appeals Rules Marriage Over Phone Valid

By Monica Scherer

As the Washington Post reports, The Maryland Court of Special Appeals upheld the divorce of Marie-Louise Tshiani and Noel Tshiani, stating that their marriage, where Noel was only present by phone, was valid. When Ms. Tshiani filed for divorce in the Circuit Court for Montgomery County, seeking alimony and child support, Mr. Tshiani claimed that he did not know about their marriage. Mr. Tshiani was present for the 1993 ceremony that took place in the Democratic Republic of Congo by way of speaker phone only. He participated by answering questions from another country, but his cousin did stand in his place for the actual ceremony. The Maryland Court of Special Appeals held that this was a valid marriage under state law as Maryland law does not bar the Court “from recognizing a ceremony where on participates by proxy and the ceremony that is valid in another jurisdiction.” The ruling by the Court is especially important as it again confirms that Maryland will recognize a marriage performed elsewhere that would have been otherwise illegal in Maryland.
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Published on: November 8, 2012

What happens now to the children of same-sex married couples when their parents’ divorce?

By Monica Scherer

Now that the same-sex marriage legislation has been approved by the voters of the State of Maryland, we thought it would be a good idea to re-visit the issues surrounding the children of same-sex couples. If you are a frequent reader of our blogs, you may recall on February 28, 2011 we wrote about the current legal status of those children of same-sex couples. The passage of the same-sex marriage legislation in Maryland does not change the legal status of those children. The passage of the current legislation will, however change the legal status of children adopted or born during the course of the marriage of a same-sex couple.

In the State of Maryland, “a child born or conceived during a marriage is presumed to be the legitimate child of both spouses” in accordance with Section 1-206 of the Estates and Trusts Article of the Annotated Code of Maryland. The Code further states that “a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes”. It is my belief that it would follow that that those children born or conceived during a same-sex marriage are the legitimate children of both parents, not only the spouse who gave birth to the child.
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Published on: November 2, 2012

Divorce Insurance?

By Monica Scherer

Most of us are covered in case of death, disability, illness, car accident, fire, but what about for divorce? As we are aware divorce can be a lengthy and expensive process and unfortunately the divorce rate in the United States is high. We stumbled across the following website, which promotes “divorce/ marriage insurance.” It was featured in the Huffington Post in April 2012. Basically, the premise is that this insurance will reimburse you your costs of a divorce, including attorney fees, however the insurance will also eventually reward those who stay married. As stated by the Huffington Post, the insurance is not currently available and the website states the following:

WedLock Divorce Insurance was the first insurance product developed by SafeGuard Guaranty. Introduced in 2010 and originally underwritten by a Utah Surplus Lines insurance company, WedLock is not currently available until a new underwriter is found. However, although providing that kind of protection will certainly keep people from falling below the poverty line, we’d like the biggest reward go to those that have the good fortune to stay married and we are currently involved in the development of a product with that in mind.

The website also features a “divorce probability calculator,” which one can use and have their results emailed to them. The questions include age, income, race, religion, children born before/during marriage, marital status of parents, conflicts, etc. Soon some of us may be making checks out to not only State Farm, but SafeGuard Guaranty.
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Published on: March 21, 2012

Same Sex Divorce Case to Be Heard By Maryland Court of Appeals

By Monica Scherer

The Maryland Court of Appeals will hear an appeal on a denied same sex divorce next month according to the Baltimore Sun’s March 17, 2012 report. The couple, who was married in San Francisco in 2008, were married for two years before one filed for divorce in Maryland. Their uncontested divorce was denied by the Prince George’s County Circuit Court. Judge Chapdelaine of the Court denied the divorce because he found the parties California marriage was not valid in Maryland and therefore they can not divorce in Maryland. We had previously blogged on this issue as the Courts are in limbo with the legislation being passed, but not yet in effect and in light of the Attorney General’s February 2010 opinion that Maryland should recognize same sex marriages in other states as valid in Maryland. The Sun reports that few counties have granted same sex divorces, including Baltimore City, Calvert County and Prince Georges County, in another instance. As it stands it is the Judge’s call, which is why this future ruling by Maryland’s highest Court is crucial. If the Maryland Court of Appeals upholds Judge Chapdelaine’s ruling those same sex divorces that have been granted could be then potentially nullified.
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Published on: February 24, 2012

Maryland Ranked 10th Worst State to Obtain a Divorce

By Monica Scherer

Bloomberg rated Maryland the 10th worst state in the country as far as obstacles one might face in obtaining a divorce as reported by msn.com on February 2, 2012. The rankings took into account filing fees, minimum separation period, minimum length of residency, minimum waiting period after filing for the divorce, and minimum number of days for the entire process (start to finish). Bloomberg’s reasoning for Maryland’s low ranking was the one year waiting period before filing for a no-fault divorce, the minimum processing time of 360 days and the $135 filing fee.

The waiting period to obtain a no-fault divorce in Maryland has been at hot topic among the legislature as proponents seek to reduce it to six months. As stated in our April 18, 2011 blog, the Maryland legislature passed a bill eliminating the two year waiting period, which took effect October 1, 2011.
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Published on: February 24, 2012

Maryland Senate Passes Same Sex Marriage Bill

By Monica Scherer

As the Baltimore Sun reports, Thursday night, February 23, 2012, the Maryland Senate passed Govern Martin O’Malleys’ bill to legalize same-sex marriage in Maryland. We blogged on June 28, 2011 that New York had passed the law allowing same sex couples to wed, making it the 6th state to do so. Maryland is now the 8th state to approve same sex marriages. While it is a victory for supporters of the bill, many believe that the law will likely be up to the voters in November. If the law is passed by the voters, it will be effective in January 2013.

As expected the church has voiced their disapproval of the bill’s passing. The Maryland Daily Record reports that Baltimore’s Cardinal O’Brien states that the bill “threatens families.” He has pledged that the Baltimore Archdiocese will work to overturn the law and likely will be a key proponent in making sure the voters have a say in November.

We discussed the potential of this bill passing last February and discussed the changes we may see in the area of family law as a result of the law. As stated in the blog, the law will affect custody and visitation law, as now same-sex couples who marry and adopt a child will both be the legal parents of the child; pre-nuptial agreements; and same sex divorces.
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Published on: November 23, 2011

Maryland Highest Court Rules Law Firm Can Intervene to Obtain Fees

By Monica Scherer

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.