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.
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Most family law matters, such as divorce proceedings, and custody proceedings, do not involve the Maryland criminal system, or involve any imminent punishment such as jail time. However, when a non-paying child support obligor (parent who is supposed to be paying child support) is brought to court after the child support obligee (parent who is supposed to be receiving child support) files a Petition for Contempt, that obligor may be sentenced to jail time. Because this obligor faces jail time at this contempt proceeding, the proceeding, while civil in nature borderlines a criminal proceeding because of the punishment that can be imposed. While criminal defendants who cannot afford an attorney have the option of obtaining a public defender, civil defendants in most cases do not. Therefore, it has often been a question whether these non paying child support obligors are entitled to an attorney due to the threat and/or possibility of incarceration?
On Monday, June 20, 2011 the Supreme Court of the United States issued an Opinion on this very question. As the New York Times reports, “The Supreme Court on Monday gave a complicated answer to the simple question of whether poor people facing jail time for failing to pay child support are entitled to court-appointed lawyers.” The Supreme Court case, Turner v. Rogers, involved in a man who had been sent to jail numerous times after civil contempt proceedings for his failure to pay child support. He was not represented by an attorney at these hearings. The Supreme Court ruled that there is not an automatic right to counsel in these civil contempt proceedings, however cautioned that if the opposing side (the obligee) has an attorney then it may be a different story. The Court cautioned that courts should warn those facing civil contempt that their non payment is a “critical issue.”
Many would argue that the Maryland courts are already meeting this standard by issuing a show cause order to those facing contempt prior to the hearing and in many counties affording those facing contempt a public defender. It has been my experience that the Judges in Maryland will not usually impose jail sentences to child support obligors at the first contempt proceedings and instead, will give them a set amount to pay (a purge amount)and/ or a new date to come back again and appear before the Judge. Many argue that jail time does not remedy the situation as those who owe child support cannot work while in jail. However, in cases of “repeat offenders” and high arrearages jail sentences may be and are imposed. Typically Judges will set a bail amount, that when it is paid will go directly to the child support that is owed.
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.
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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.
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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.
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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.
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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.
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