Maryland Divorce Lawyer Blog

Published on: September 16, 2011

The Circuit Court for Baltimore County, Maryland to Charge for Family Division Services

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

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Published on: September 12, 2011

For all those Father’s with Custody in the State of Maryland

By Monica Scherer

Many times in cases where I represent the Father in a Maryland custody case, child support is often an issue where perhaps some believe the man is treated somewhat inequitably. While I do not necessarily agree that is always the case, I have heard many Father’s say “If I were a woman, child support would not even be an issue, I would get what I am supposed to get.” Well for all those Dad’s out there, I am happy to report that I recently successfully argued a ‘voluntary impoverishment’ case. In this case, the non-custodial parent (who happens to be a Mother) is being forced to pay child support based upon what she has the ability to earn because the Court determined she was not doing so at the time of the hearing.

Voluntary Impoverishment cases are difficult cases to prove unless the non-custodial parent basically admits s/he not working to avoid paying child support. In Maryland, for the purposes of child support guidelines, a parent shall be considered “voluntarily impoverished” whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources. The factors a Court will consider in making such a determination as to whether a parent is a voluntary impoverished are: (1) his or her current physical condition; (2) his or her respective level of education; (3) the timing of any change in employment or other financial circumstances relative to the divorce proceedings; (4) the relationship between the parties prior to the initiation of divorce proceedings; (5) his or her efforts to find an retain employment; (6) his or her efforts to secure retraining if that is needed; (7) whether he or she has ever withheld support; (8) his or her past work history; (9) the area in which the parties live and the status of the job market there; and (10) any other considerations presented by either party.

In the particular case, after considering all of the above factors the key factor for the Court was (5) her efforts to find and retain employment. At the first hearing, the Court actually ordered the Mother to make a certain number of applications each week of which a certain number had to be in person interviews, not just on-line applications. When we returned for the second hearing, the Mother had a stack of unorganized computer print outs, which although requested to be provided prior to the second hearing date, were not provided until we were in Court that day. After a review of the documents and a cross examination that revealed the Mother was limiting her availability for potential employers; turned down a job because she didn’t want to start when they offered; and was not wearing appropriate interview attire, the Court found that the Mother was voluntarily impoverishing herself. As a result the Court imputed her an income equivalent to that which she had the ability to earn. The icing on the cake for my client was that the Court also imposed monetary sanctions for the Mother’s failure to timely provide the documents brought to Court on the date of the second and final hearing. At the end of the day, this particular Dad is finally receiving a decent amount of child support based on what the Mother has the ability to earn and is really a victory for all custodial parents, whether you happen to be Mom or Dad.
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Published on: August 25, 2011

Custody Evaluations in Maryland Child Custody Cases

By Monica Scherer

As we have explained in previous blogs, in most counties in Maryland, the first scheduled court date once litigation has commenced is a scheduling conference. This is an opportunity for the litigants to tell the Court what hearings/trials they will need and court services they might need. Among those services to ask for may be a custody evaluation. In counties such as Anne Arundel County and Baltimore County custody evaluations are available at no cost in those custody cases where a Judge or Master can be convinced it is necessary. These would typically be cases where custody is highly contested or other exceptional circumstances exists (an unfit home, potential abuse, etc). A description of the custody evaluations performed in Anne Arundel County and Baltimore County can be found at their respective websites.

Depending on the county where the evaluation is ordered, an evaluation typically involves a meeting with both parents with the children, possibly a visit to each parent’s home, and interview with those who frequently interact with the parents and children (counselors, school staff, family members). Once the evaluation is completed, a report is typically drafted by the evaluator where he or she will recommend a custody arrangement and their reasons for recommending same. The Court may set in a conference date for the parties to review the evaluation, or the evaluation will be sent to the parties and/or their attorneys.
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Published on: July 1, 2011

Maryland Judge Rules Same-Sex Spouse Can Assert Spousal Privilege

By Monica Scherer

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.”

Published on: June 28, 2011

Same Sex Marriage Bills Passes in New York

By Monica Scherer

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.

For more information, contact Monica Scherer, Esq. at 410-625-4740

Published on: June 28, 2011

How will Maryland Courts Handle Same-Sex Divorce Cases?

By Monica Scherer

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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Published on: June 25, 2011

Am I Entitled to an Attorney in my Maryland Child Support Case?

By Monica Scherer

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.

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Published on: June 24, 2011

How do I file for a Divorce in Maryland?

By Monica Scherer

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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Published on: June 23, 2011

What to Do When Your Spouse Kicks You Out of your Maryland Home?

By Monica Scherer

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.

Published on: June 23, 2011

Dating During Divorce Proceedings in Maryland

By Monica Scherer

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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