divorce

Published on: July 1, 2024

In What County or City Should Your Maryland Divorce Be Filed?

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 →

Published on: June 18, 2024

Will a Foreign Divorce be Recognized as a Valid Divorce in the State of Maryland

By Monica Scherer and Joseph S. Stephan

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 (1978), the Appellate Court of Maryland (then called the 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.

In the Wolff case, the parties were divorced by an English court and Ms. Wolff was awarded alimony by the English divorce decree. A few years later, Ms. Wolff, who was still residing in London, filed a Complaint to Enforce Foreign Decree seeking to enforce the alimony provision of the English divorce decree in the Circuit Court for Montgomery County, where Mr. Wolff resided. Mr. Wolff filed a preliminary objection, seeking to prevent the Maryland court from enforcing the English divorce decree by arguing that the Maryland court lacked jurisdiction. The circuit court agreed with Mr. Wolff and dismissed Ms. Wolff’s complaint. Ms. Wolff appealed, and the Appellate Court reversed the circuit’s court decision.

The Appellate 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.” Wolff, 40 Md. App. at 168.

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 which 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); or
where the foreign court lacked jurisdiction.

The Maryland case of Aleem v. Aleem, 404 Md. 404 (2008) illustrates a situation in which a foreign divorce is not afforded comity. In the Aleem case, Ms. Aleem filed for divorce in the Circuit Court for Montgomery County. Mr. Aleem filed an Answer to Ms. Aleem’s Complaint and did not raise any jurisdictional objections. While the Montgomery County case was pending, Mr. Aleem, a national of Pakistan, performed talaq at the Pakistan Embassy.

Talaq is a principle of Islamic law, adopted as the secular law of Pakistan, giving a husband the ability to divorce his wife by stating “I divorce thee” three times. The Supreme Court of Maryland (then called the Court of Appeals) refused to afford comity to Pakistani law, holding that Pakistani law offends the public policy of Maryland. Specifically, the Court held:

The talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state and we decline to give talaq, as it is presented in this case, any comity. The Pakistani statutes providing that property owned by the parties to a marriage, follows title upon the dissolution of the marriage unless there are agreements otherwise, conflicts with the laws of this State where, in the absence of valid agreements otherwise or in the absence of waiver, marital property is subject to fair and equitable division. Thus the Pakistani statutes are wholly in conflict with the public policy of this State as expressed in our statutes and we shall afford no comity to those Pakistani statutes. Aleem, 404 Md. at 425.

The Aleem Court was also concerned with due process and took issue with the fact that talaq permitted the husband to terminate the marriage and deprive the wife of her rights to marital property without proper notice to the wife.

The Aleem case represents a rare example of a foreign divorce decree not being afforded comity. Generally, foreign divorce decrees will be recognized in Maryland, provided that the foreign court had proper jurisdiction, the foreign divorce decree was supported by due process, and the foreign divorce does not offend the public policy of Maryland.

For more information on foreign divorce in Maryland, or divorce in general, contact the Family Law Group at Silverman Thompson.

Monica L. Scherer, Esq.

mscherer@silvermanthompson.com

(410) 385-2225

Joseph S. Stephan, Esq.

jstephan@silvermanthompson.com

(410) 385-2225

Erin D. Brooks, Esq.

ebrooks@silvermanthompson.com

(410) 385-2225

Continue reading →

Published on: June 18, 2024

Annulment Instead of Divorce in Maryland

By Monica Scherer and Joseph S. Stephan

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 is never valid, and a party cannot 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; or
The partners are related by birth or marriage within an impermissible degree of relationship. In Maryland, you may not marry your grandparent, parent, child, sibling, grandchild, grandparent’s spouse, spouse’s grandparent, parent’s sibling, stepparent, spouse’s parent, spouse’s child, child’s spouse, grandchild’s spouse, spouse’s grandchild, or sibling’s child.

The primary distinction between void and voidable marriages is whether the parties could have established a valid marriage with proper consent by both parties. A marriage is void if, even with legally effective consent by both parties, the parties could not have established a lawful marriage. A marriage is voidable if the parties could have established a lawful marriage had their consent to the marriage been legally effective. See Morris v. Goodwin, 230 Md. App. 395, 404 (2016).

A voidable marriage is valid until declared invalid by a court. Unlike a void marriage, the grounds that make the marriage voidable are waivable and can only be raised by a party to the marriage.

A marriage is voidable if, at the time of the marriage ceremony:

One of the parties lacked the capacity to marry. This could be due to a mental illness, temporary lack of capacity, or one of the parties not being of legal age to marry; or
A party’s consent to the marriage was improperly obtained, such as by fraud, duress, or undue influence.

Recently, we had a case where we obtained an annulment for a client because her husband was 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 (our 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, our client’s marriage was annulled because the marriage was never valid from the beginning—it was void.

In Maryland, if the court does grant an annulment, the court can award spousal support and child support, as well as divide property (see Section 8-202 of the Family Law Article, Annotated Code of Maryland) and decide custody of the children, as the court could in a divorce proceeding.

In practice, an annulment can be hard to achieve, and if the Judge denies your request, then a divorce proceeding is your next option. An experienced family law attorney will be able to assist you in deciding the best avenue to pursue.

For more information regarding annulments and divorce in Maryland, contact the Family Law Group at Silverman Thompson.

Monica L. Scherer, Esq.

mscherer@silvermanthompson.com

(410) 385-2225

Joseph S. Stephan, Esq.

jstephan@silvermanthompson.com

(410) 385-2225

Erin D. Brooks, Esq.

ebrooks@silvermanthompson.com

(410) 385-2225

Continue reading →

Published on: April 16, 2024

Application of Constructive Civil Contempt in a Recent Child Custody Case: Part 3 of 3

By Monica Scherer

This article discusses the application of constructive civil contempt in a recent child custody case. It is Part 3 of a three-part series. Part 1 provides an overview of the law of contempt in Maryland. Part 2 includes a summary and analysis of Breona C. v. Rodney D., 253 Md. App. 67 (2021), which clarified the law of civil contempt in child custody cases.

**Lessons from the Breona C. Case**

As discussed in Part 2, the opinion issued by the Appellate Court of Maryland in Breona C. v. Rodney D., 253 Md. App. 67 (2021) set forth important lessons regarding the application of constructive civil contempt in child custody cases:

An order finding a person in constructive civil contempt must include a valid sanction that is distinct from the purge provision and the requirement the Court seeks to enforce.
An order finding a person in constructive civil contempt must include a valid purge provision that allows the alleged contemnor to avoid the sanction by taking some defined, specific action.
An order finding a person in constructive civil contempt must be designed to compel present or future compliance with a court order, not to punish past noncompliance.

Constructive Civil Contempt in a Recent Child Custody Case

When parents share custody of their children, the parents must cooperate and communicate with each other to follow their custody order and co-parent effectively. Terms in a court order related to minor children (e.g., custody and child support) are modifiable by a court after applying a two-prong analysis. First, a court must find a material/substantial change in circumstance has occurred and then make a determination of the best interests of the children. When parents do not cooperate and communicate with each other to co-parent effectively, this frequently results in attempts to modify custody and petitions for contempt.

Our team was contacted by a prior client who had been served with a Petition for Contempt filed against him by his child’s mother. In our previous representation of the client, we reached a Consent Order, which established a custody schedule for each parent with their child. During the specific week at issue in the Petition for Contempt, the mother was scheduled to have the parties’ child in her care for a specific period of time pursuant to the terms of the Consent Order. During this particular week, the parties’ child had agreed upon organized extracurricular activities near our client’s home, which would also take the child out of the state for his participation.

My client and the child’s other parent agreed that my client would take their child to the activity on the first evening of the other parent’s scheduled access, then the other parent would pick their child from the activity and take the child from the remainder of their scheduled access and take the child to the activities, which would be out of state. The other parent did not pick the child up from the scheduled activity as arranged, so my client kept their child that night and asked the other parent to pick up their child to start their weekend the following morning. The other parent did not pick up their child the following day or the morning of the out-of-state travel. When faced with \the child missing the activity or taking the child himself, my client took their child to the out-of-state activity so the child would not miss it.

When my client returned home the following evening after the conclusion of the out-of-state activity, the child’s other parent picked up the child from my client. Two days later, the other parent filed a Petition for Contempt against my client, which alleged that my client violated the Consent Order by failing to make their child available to her during her scheduled parenting time.

**Applying the Lessons from the Breona C. Case to Serve Our Client**

Our approach to defend our client against the allegation that he violated the Consent Order was two-fold: (1) our client did not prevent the other parent from spending her scheduled weekend with their child, it was the other parent who failed to exercise parenting time; and (2) even if our client violated the Consent Order, that violation was cured when the other parent finally retrieved their child, and therefore our client could not be found in constructive civil contempt because there was no ongoing noncompliance to correct through the contempt process.

Relying on the lessons from Breona C., we argued that the purpose of constructive civil contempt is to compel present or future compliance with a court order, not to punish past noncompliance; and in this case, our client remained in compliance with the Consent Order (or at a very minimum, was in compliance with the Consent Order by Sunday evening). The judge agreed with our position and denied the parent’s Petition for Contempt.

In many ways, the facts of this case were very similar to the facts of the Breona C. case. However, there was one critical difference. In Breona C., Breona was actively violating the operative custody order when the Petition for Contempt was filed against her, but Breona began complying with the custody order before the Contempt Hearing. In our case, there was no allegation that our client was actively violating the Consent Order at the time the Petition for Contempt was filed against him. This may seem like an insignificant distinction, but this fact turned out to have a major impact for our client.

You may recall that the Breona C. case instructs that the purpose of constructive civil contempt is to coerce or compel compliance with a court order, not to punish completed noncompliance. Because the other parent filed the Petition for Contempt against our client at a time when our client was undisputably complying with the Consent Order, we argued that the other parent’s Petition for Contempt was filed without substantial justification and filed a motion requesting that the other parent be ordered to pay our client’s attorneys’ fees pursuant to Maryland Rule 1-341. In most cases, the general rule is that each party must pay their own attorneys’ fees. There are some exceptions to this general rule, including Maryland Rule 1-341, which is “an extraordinary remedy” and allows a court to order one party to pay the other party’s attorneys’ fees if an action is maintained without substantial justification. We argued that, even accepting all of the other parent’s allegations as true, our client could not possibly have been found in constructive civil contempt because our client was undisputably complying with the Consent Order when the Petition for Contempt was filed, and therefore the other parent lacked substantial justification for filing the Petition for Contempt. The judge agreed with our position and ordered other parent to pay a portion of our client’s attorneys’ fees.

This case illustrates the importance of understanding and properly applying lessons from caselaw and the Maryland Rules to the real-life situations our clients face. Obtaining an order for attorneys’ fees pursuant to Maryland Rule 1-341 is very rare. Our client would not have achieved such a favorable result without our thorough research, clear writing, and persuasive arguments.

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

Continue reading →

Published on: April 16, 2024

Breona C. v. Rodney D. and Constructive Civil Contempt in Child Custody Cases: Part 2 of 3

By Monica Scherer

This article includes a summary and analysis of Breona C. v. Rodney D., 253 Md. App. 67 (2021), which clarified the law of civil contempt in child custody cases. It is Part 2 of a three-part series. Part 1 provides an overview of the law of contempt in Maryland. Part 3 addresses the application of Breona C. and constructive civil contempt in a recent case.

Constructive civil contempt in child custody cases

In 2021, the Appellate Court of Maryland (formerly known as the Court of Special Appeals), issued a landmark opinion clarifying the application of constructive civil contempt in child custody and access matters. See Breona C. v. Rodney D., 253 Md. App. 67 (2021). In the wake of the Breona C. opinion, many family law attorneys remarked that the decision may result in contempt ceasing to be a useful mechanism to enforce child custody orders. Although the Breona C. opinion limits the application of constructive civil contempt, contempt remains a viable means to compel compliance with custody orders in the right circumstances.

**What happened in the Breona C. v. Rodney D. case?**

In Breona C., the operative custody order granted Rodney D. primary physical custody of the parties’ six-year-old child and granted Breona C. parenting time with the child every weekend. Id. at 71. At the end of one of Breona’s weekends with the child, Breona refused to return the child to Rodney as required by the custody order due to concerns about the child’s health and safety. Id. Rodney filed an emergency petition to hold Breona in contempt for violating the custody order. Id. at 72. The next day, Breona sought and was granted a Temporary Protective Order, which awarded her temporary custody of the child. Id. A few weeks later at the Final Protective Order hearing, Breona’s request for a Final Protective Order was denied. Id. Therefore, the custody order which awarded Rodney primary physical custody was restored.

However, Breona refused to return the child to Rodney as required by the operative custody order. Id. In response, Rodney filed an emergency motion for custody, and the court ordered Breona to return the child to Rodney. Id. Breona then returned the child the Rodney as ordered by the court, and Mother remained in compliance with the court order from that point forward. Id.

A few months later, the court held a hearing on Rodney’s petition for contempt. The court held Breona in contempt for violating the custody order by not returning the child to Rodney immediately after the Final Protective Order requested by Breona was denied. Id. The contempt order did not include a sanction, but stated that Breona may purge her contempt with strict compliance to the operative custody order. Id.

Breona appealed the order finding her in contempt, arguing that the contempt order was improper because it punished past conduct and included a “forever purge” provisions that did not allow Breona any opportunity to purge her contempt. Id. at 72–73. The Appellate Court agreed with Breona and reversed the order of contempt. Id. at 73.

**Why is the Breona C. case important?**

The Appellate Court held that “an order holding a person in constructive civil contempt is not valid unless it: (1) imposes a sanction; (2) includes a purge provision that gives the contemnor the opportunity to avoid the sanction by taking a definite, specific action of which the contemnor is reasonably capable; and (3) is designed to coerce the contemnor’s future compliance with a valid legal requirement rather than to punish the contemnor for past, completed conduct.” Id. at 74.

The Appellate Court identified three primary reasons why the order finding Breona in constructive civil contempt was improper. First, the contempt order lacked a valid sanction. Id. at 75. Second, the contempt order lacked a valid purge provision. Id. Third, the contempt order punished “past noncompliance rather than compelling future compliance.” Id. at 76.

What is a valid sanction?

A valid sanction “must be distinct from the purge provision and the valid legal requirement the court seeks to enforce.” Id. at 74. A critical consideration is that the sanction must serve the coercive purpose of civil contempt. A valid sanction must impose a penalty such as a fine, period of incarceration, or other penalty. To be coercive, the penalty must provide for purging to allow the person in contempt to avoid the penalty by engaging in some defined, specific conduct. The Appellate Court noted that if the sanction is not distinct from the purge provision, then fulfilling the purge provision would complete, rather than avoid, the sanction. Id. In other words, it is impossible to purge a contempt if the purge provision is the sanction. The Appellate Court further noted that if the sanction is to abide by the existing court order, then “there is no coercive mechanism at all. Instead, there is just a second order directing compliance with an existing order.” Id. at 74–75.

What is a valid purge provision?

While the sanction and purge provision must be distinct from each other, the two concepts are deeply intertwined. Like a valid sanction, a valid purge provision must serve the coercive purpose of civil contempt.

A valid purge provision must allow the person in contempt to avoid the sanction by taking some defined, specific action. This is how the coercive purpose of civil contempt is served.

In the Breona C. case, the perpetual obligation to comply with the existing custody order was not a valid purge provision because it did not allow Breona to avoid a defined sanction by engaging in specific conduct.

What if a person regularly violates the operative order, but technically starts complying with the order before a Petition for Contempt is filed?

This question was not specifically at issue in the Breona C. case. Breona began complying with the custody order after Rodney filed a Petition for Contempt, but before the contempt hearing occurred. Breona’s compliance with the custody order was delayed, but she was complying with the custody order for months prior to the contempt finding. The contempt order was improper because it did not compel or coerce Breona to comply with the custody order in the present or future; instead, it punished Breona for past, completed noncompliance.

In the Breona C. opinion, the Appellate Court included a significant footnote contemplating a possible situation in which a person regularly violates a court order, and then begins complying with the operative court order by the time of the contempt hearing. “We are not confronted here with a situation in which a party is engaged in a continuing or repetitive pattern of conduct in violation of a court order that, due to its continuing or repetitive nature, could reasonably be found to be ongoing at the time of a contempt hearing even if the putative contemnor is not technically out of compliance with the order at the moment of the hearing. We do not foreclose the possibility that an order of constructive civil contempt could be issued in such a circumstance.” Id. at 76 n.6. In other words, it is possible that a party could be found in constructive civil contempt even if that party is technically complying with the operative order at the time of the contempt hearing. For this to occur, the party’s noncompliance with the court order must be so continuing or repetitive that the noncompliance can be considered ongoing despite that party’s present compliance.

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

Continue reading →

Published on: April 16, 2024

Overview of Contempt in Maryland: Contempt Blog Series Part 1 of 3

By Monica Scherer

This article includes a brief overview of contempt in Maryland. It is Part 1 of a three-part series. Part 2 addresses the landmark case of Breona C. v. Rodney D., which clarified the law of civil contempt in child custody cases. Part 3 addresses the application of Breona C. and constructive civil contempt in a recent case.

What is contempt?

Put simply, contempt, also referred to as contempt of court, is a violation of a court order or conduct that disrupts the orderly functioning of the court. There are multiple different forms of contempt under Maryland law. Contempt can be either civil or criminal, and each variation can be either constructive or direct. Maryland law recognizes four main forms of contempt: (1) constructive civil contempt, (2) constructive criminal contempt, (3) direct civil contempt, and (4) direct criminal contempt. These different forms of contempt are not always distinct. In some situations, the same occurrence could be categorized as multiple types of contempt or entail features of multiple types.

What is civil contempt?

Civil contempt can take many forms, but most commonly involves a failure to abide by the terms of a court order. Civil contempt is intended to compel present or future compliance with a court order. Civil contempt is not intended to punish past or completed misconduct.

What is criminal contempt?

Criminal contempt involves “behavior directed against the dignity and authority of the court that tends to bring the court into disrepute or disrespect.” Cameron v. State, 102 Md. App. 600, 607 (1994). In contrast to civil contempt, criminal contempt is punitive in nature, meaning that criminal contempt can impose a penalty for past misconduct.

What is direct contempt?

Md. Rule 15-202(b) defines direct contempt as “a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.” In other words, a direct contempt occurs inside the courtroom or close enough to the courtroom that the court’s proceedings are disrupted.

What is constructive contempt?

Md. Rule 15-202(a) defines constructive contempt as “any contempt other than a direct contempt.” In other words, constructive contempt occurs outside of the courtroom and does not disrupt the normal operation of the court’s proceedings.

Can I enforce a custody order with contempt?

Generally speaking, yes. If a court has issued an order involving custody of or access with a minor child, and the other parent is actively violating the terms of the court order, you can file a petition for contempt to compel compliance with the terms of the court order.

For example, if a parent unjustifiably refuses to return your child to you for your parenting time ordered by the court, you may be able to compel compliance with the custody order via constructive civil contempt. However, there are some limits to constructive civil contempt.

In 2021, the Appellate Court of Maryland (formerly known as the Court of Special Appeals), issued a landmark opinion clarifying the application of constructive civil contempt in child custody and access matters. See Breona C. v. Rodney D., 253 Md. App. 67 (2021). In the wake of the Breona C. opinion, many family law attorneys remarked that the decision may result in contempt ceasing to be a useful mechanism to enforce child custody orders. Although the Breona C. opinion limits the application of constructive civil contempt, contempt remains a viable means to compel compliance with custody orders in the right circumstances.

What is a contempt hearing for child support in Maryland?

When the person who owes child support falls behind, the party who receives the support can file a Petition for Contempt or the Child Support Enforcement Agency can file on behalf of the person who receives the payment of child support. A contempt hearing for child support is to determine if the party paying support is behind in payments. If it is determined the party is behind in payments and child support arrearages are owed, a court can order a sum of money to be paid as a purge within a period of time before imposing a potential period of incarceration.

How to file contempt of court in Maryland

To file a Petition for Contempt in Maryland, you must file a Petition and proposed Show Cause Order in the Circuit Court which issued the Order you allege has been violated.

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

Continue reading →

Published on: July 12, 2023

Updates to Maryland Divorce Grounds Coming in October 2023

By Monica Scherer

If you are considering filing for divorce in Maryland, your filing must include the grounds, or basis, for the divorce. Beginning this fall, selecting the grounds when filing for divorce will become an easier determination. During the 2023 Legislative Session, the General Assembly passed bills eliminating limited divorce in Maryland and changing the grounds available for an absolute divorce. On May 16, 2023, Governor Moore signed Senate Bill 36,which was cross-filed with House Bill 14, into law. The new version of Md. Code, Family Law § 7-103 will become effective on October 1, 2023, and will apply to all divorce cases filed on or after that date.

Current Law through September 20, 2023

Maryland law currently provides for two different types of divorce: limited divorce and absolute divorce. An absolute divorce is a permanent end to the marriage. An absolute divorce severs all legal ties between the parties and allows the parties to resume use of a former name or remarry if they choose. In contrast, a limited divorce does not end the marriage. A limited divorce allows a person who does not satisfy the grounds for absolute divorce and cannot reach an agreement with their spouse to ask the court to order temporary relief regarding child custody, child support, alimony, and use of real or personal property. Because a limited divorce is not a permanent end to the marriage, the court may revoke a limited divorce at any time if both spouses jointly request that the limited divorce be revoked. The differences between these two types of divorce and the grounds for each are explained in more detail in Common Questions about Divorce in Maryland.

Continue reading →

Published on: July 3, 2023

What Happens to Jointly Titled Marital Maryland Real Property in a Divorce?

By Monica Scherer

In Maryland

Ideally, parties in a divorce proceeding work cooperatively to determine and divide their marital real property and reduce the terms to what will become a portion of a written marital settlement agreement. By proceeding in this fashion, the parties can agree on who has title to the real property owned, who will retain the title to real property, and then work to effectuate the transfer or retention of the same. Even if one party has already formally instituted divorce proceedings in a Maryland court, it is important to remember that the possibility of reaching an agreement is always available and can often be the best vehicle for a quicker and more affordable way to a final divorce.

If an amicable resolution is not a possibility, then the parties will leave the fate of their real property to a Maryland court. If a piece of real property is both marital and titled jointly a court can order use and possession (depending on custody of minor children), order the property to be sold or pursuant to the Maryland Annotated Code, Family Law § 8-205:

(a) (1) Subject to the provisions of subsection (b) of this section, after the court determines which property is marital property, and the value of marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of equities and rights of the parties concerning marital property, whether or not alimony is awarded.

(2) The court may transfer ownership of an interest in:

(iii) subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together, by:

(1) ordering the transfer of ownership of the real property or any interest of one of the parties in the real property to the other party if the party whom the real property is transferred obtains the release of the other party from any lien against the real property;

(2) authorizing one party to purchase the interest of the other party in the real property, in accordance with the terms and conditions ordered by the court; or

(3) both.

A Maryland court will determine the value of the jointly owned real property at issue based on evidence presented by each party at trial. If use and possession is not an issue and a buy-out and refinance of the property is not an option then a Maryland court will order the sale of the jointly owned real property with net proceeds to be divided between the parties. Notably, parties to a divorce where minor children are involved should be aware of a Maryland court’s power to award use and possession of real property to one of the parties for a period of up to three (3) years. Use and Possession blog.

Maryland Real Property Concerns When Divorce Occurs Outside of Maryland

Generally and subject to use and possession agreements and Orders, Maryland jointly held marital real property is sold or divided during the pendency of the divorce proceedings unless an agreement is reached otherwise. This practice, however, is not uniform from state to state. By way of example, it is possible that you obtain a final divorce decree from another state before your Maryland jointly owned real property is properly sold or divided. In that instance, by operation of Maryland law, that real property that was held as tenants by the entirety will be converted into real property held by tenants in common[1]. It is essential to understand that a fundamental characteristic of a tenancy by the entirety—the automatic right of survivorship—is absent in a tenancy in common. In other words, in the event of death, the deceased party’s interest will pass according to the deceased’s Last Will and Testament or the laws of intestate succession, instead of automatically passing to the other party. Another state granting a divorce before jointly held Maryland real property is properly disposed of, can drastically and fundamentally alter your rights in your Maryland real property. If you are seeking a divorce in a state other than Maryland but own real property in Maryland, it is important that you consult with a licensed Maryland attorney to understand how your rights in that real property may be impacted.

[1] “Given the valid dissolution of the marriage, Maryland law itself decides what happens to Maryland property, in the light of the facts which are that the former tenants by the entireties are no longer husband and wife. As a result, the parties became tenants in common, not by [out-of-state divorce] decree, but by Maryland law operating on their changed status[.]” Millar v. Millar, 200 Md. 14, 21, 87 A.2d 838, 841 (1952).

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

Continue reading →

Published on: June 22, 2023

Common Questions About Shielding Protective Orders – 2023 Update

By Monica Scherer

Who are the parties in a Protective Order proceeding?

In a Protective Order proceeding, the person who filed a Petition for Protective Order is called the “Petitioner,” and the person against whom the Petition was filed is called the “Respondent.”

What are the acts of abuse that can be grounds for a Protective Order in Maryland?

As defined in the Protective Order statute, “abuse” means any of the following acts:

An act that causes serious bodily harm;
An act that places a person eligible for relief in fear of imminent serious bodily harm;
Assault in any degree;
Rape or sexual offense;
Attempted rape or sexual offense;
False imprisonment;
Stalking; or
Revenge porn.

Are Protective Order records open to the public?

In Maryland, most court records are open to the public. Records of Protective Order proceedings are included among the types of records that are open to the public.

The entry of a Protective Order can cause serious collateral consequences for the Respondent, such as difficulties in seeking employment or obtaining a lease. However, Maryland law allows records of Protective Order proceedings to be shielded in certain circumstances.

What is a court record?

The court record of a Protective Order proceeding can include an index, docket entry, petition, memorandum, transcript, electric recording, judgment, and any electronic information about the proceeding on the Maryland Judiciary Case Search website.

What is shielding?

Shielding means that the records are removed from public inspection. Shielding of the court records of a Protective Order proceeding does not destroy or erase the records. Shielding does not remove information about the proceeding from the Domestic Violence Central Repository.

For physical records kept in a courthouse, shielding means moving those records to a separate secure area that can only be accessed by someone who has a legitimate reason to access the records.

For electronic records, shielding completely removes all information about the Protective Order proceeding from the Case Search website. This includes the case number, parties’ names, any reference to the Protective Order proceeding, and any reference to the removal of the Protective Order proceeding from the Case Search website.

Who can access a shielded record of a Protective Order proceeding?

For a legitimate reason, a law enforcement officer, an attorney who represents or has represented the Petitioner or the Respondent, a State’s Attorney, an employee of a local Department of Social Services, or a victim services provider can access a shielded record.

Other persons may subpoena or file a motion for access to a shielded record. The court may grant access to a shielded record if the court finds that the requestor has a legitimate reason to access the record. In considering such a request, the court must balance the requestor’s need for access to the record with the parties’ right to privacy and the potential harm of unwarranted adverse consequences to the parties that may be created by the disclosure of the shielded record.

Who is eligible to shield a Protective Order?

Both the Petitioner and Respondent may file a request to shield the court records related to a Protective Order proceeding.

Records related to a Protective Order that was denied or dismissed at the interim, temporary, or final stage are eligible for shielding.

If the Respondent consented to the entry of the Protective Order, the records related to the proceeding are eligible for shielding.

If a Final Protective Order was entered after a contested hearing, records related to the Protective Order proceeding are not eligible for shielding.

When can I file a request to shield Protective Order records?

If the Protective Order was denied or dismissed, a request to shield can be filed 3 years after the denial or dismissal. The requestor can skip this 3-year waiting period if the requestor files a general waiver and release of all tort claims related to the proceeding.

If the Respondent consented to the entry of the Protective Order, a request to shield can be filed any time after the expiration of the Protective Order. If the request to shield was filed within 3 years of the consent to the entry of the Protective Order, the requestor must file a general waiver and release of all tort claims related to the proceeding.

What is the process when a request to shield is filed?

When a request to shield records of Protective Order proceedings is filed, the court will schedule a hearing on the request to shield and will give notice of the hearing to the other party or the other party’s attorney of record.

Flowchart: Shielding of denied or dismissed Protective Orders

The following flowchart explains the considerations that the court will apply to a request to shield the records related to a Protective Order that was denied or dismissed at the interim, temporary, or final stage.

Flowchart: Shielding of Protective Orders entered by consent

The following flowchart explains the considerations that the court will apply to a request to shield the records related to a Protective Order that was entered by the Respondent’s consent.

Navigating the court system can be a difficult and stressful process. If you are considering trying to shield records related to a Protective Order proceeding, we encourage you to speak to an experienced family law attorney at Silverman Thompson who can assist you in navigating the process from start to finish.

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

Continue reading →

Published on: May 5, 2020

Common Questions about Divorce in Maryland

By Monica Scherer

What is an Absolute Divorce?

The effect of Maryland’s absolute divorce is parallel to a traditional divorce; it is the final termination of the marriage. In an absolute divorce, custody, visitation, and child support terms between both parties are set, both parties are granted the right to live separately and apart, a legal name change may be granted (the resumption of a former name), and even remarry if they choose. An absolute divorce also allows the court to decide on matters regarding alimony and marital property, including any division of assets, transfer of retirement interests, and any other equitable distribution of real property, personal property and pension/retirement assets acquired during the course of the marriage. Ultimately, both parties are granted the right to sever all legal and financial ties from one another.

What are the grounds for divorce in Maryland?

In Maryland, the court may grant an absolute divorce on the grounds of:
(1) Adultery;
(2) Desertion, if it has continued for 12 months without interruption before filing for an Absolute Divorce; and the desertion was deliberate and final; and there is no reasonable expectation of reconciliation;
(3) Conviction of a felony or misdemeanor in any state or in any court of the United States if before the filing of the application for divorce the defendant was sentenced to serve at least three years or an intermediate sentence in a penal institution and served twelve months of that sentence;
(4) A twelve-month separation where the parties lived separate and apart without cohabitation for twelve uninterrupted months before the filing of the application for divorce;
(5) Insanity if the insane spouse has been confined in a mental institution, hospital, or other similar institution for at least three years before the filing of the application for divorce; the court must then determine from the testimony of at least two physicians who are competent in psychiatry that the insanity is incurable and that there is no hope of recovery; and one of the parties has remained a resident of this state for at least two years prior to the filing of the application for divorce;
(6) Cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation;
(7) Excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation;
(8) Mutual consent so long as the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues arising from the marital relationship (child custody, visitation, support, alimony and distribution of real and personal property, and asset division), neither party has filed a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules, and both parties appear before the court at the absolute divorce hearing.

Can I file for divorce if I have not been separated for one year?

While a 12-month statutory “no fault” ground remains a common way to receive an absolute divorce in Maryland, a party may be eligible to be granted an absolute divorce on fault based grounds requiring no period of separation if one can prove adultery, cruelty of treatment, excessively vicious conduct or have grounds for mutual consent.

What can I do if I do not have grounds to file for an Absolute Divorce?

A party may file for a Limited Divorce on the following grounds:
(1) Cruelty of treatment of the complaining party or of a minor child of the complaining party;
(2) Excessively vicious conduct to the complaining party or to a minor child of the complaining party;
(3) Desertion; or
(4) Separation, if the parties are living separate and apart without cohabitation

What is a Limited Divorce?

In Maryland, a limited divorce is not a final divorce. It does not terminate a marriage in its entirety. A limited divorce does not allow a spouse to remarry or to move forward in another relationship. A limited divorce is typically recommended in cases where division of marital property, spousal support, child custody, or child support are disputed and relief is sought by either party. Essentially, a limited divorce allows a party who has not yet met the grounds for an absolute divorce to obtain necessary relief from the court for custody, visitation, child support, use and possession of family home, family use personal property and family vehicle (when minor children are involved) in advance of a twelve-month separation.

What if the difference between a Limited Divorce and an Absolute Divorce?

The State of Maryland recognizes two types of divorce, an absolute divorce and a limited divorce.
An absolute divorce is the final termination of the marriage where custody and visitation terms for minor children are set, both parties are granted the right to live separately and apart, legally change their names, divide marital property, seek spousal support, and even remarry if they choose. In some cases, a physical separation of more than 12 months in different homes is not necessarily required before the filing for an absolute divorce if a party can prove adultery, cruelty of treatment, excessively vicious conduct or have grounds for mutual consent.

However, there are a number of scenarios where spouses may not be eligible to obtain an absolute divorce. Where a fault based divorce cannot be proven, a 12-month separation has not yet accrued, and the parties cannot mutually consent to a settlement agreement and some relief from the court in the interim is necessary, a limited divorce is then an option.

A limited divorce differs from an absolute divorce in that it is not a final divorce. A limited divorce does not allow a spouse to remarry. Furthermore, marital property acquired by each party even after a limited divorce is awarded remains a part of divisible marital property. The court is required to value all marital property only at the time of absolute divorce. Filing for a limited divorce will allow the court to decide on matters regarding child custody, child support, and spousal support.

If the parties later satisfy the grounds for an absolute divorce while the action for limited divorce is still pending in the court, the complaint for limited divorce can be amended to include a request for absolute divorce. Simply put, when an absolute divorce issue is not yet ripe, a limited divorce proceeding can allow a party to obtain certain relief from the court.

What can a Court award in a Limited Divorce?

Generally, in a limited divorce proceeding, the court can determine child custody and visitation, when children are involved the use and possession of family home, vehicle, household furnishings, child support, temporary alimony, and can award attorney fees.

What can a Court award in an Absolute Divorce?

Generally, in an absolute divorce proceeding, the court can change a spouse’s name back to any former name, award custody, decide visitation, determine the amount of child support and alimony to be paid, grant a monetary award, when children are involved decide the use and possession of family home, vehicle, household furnishings, award attorney and expert fees and costs, order certain jointly titled assets to be sold, divide or order the sale of household furnishings, and order the division of pension and retirement accounts.

How long does it take to get an uncontested divorced in Maryland?

It varies in each county, however if you already have a complete Marital Settlement Agreement signed by both parties and the proceeding is uncontested, typically between 3 – 6 months.

How long does it take to get divorced in Maryland?

It varies by county, however if your matter is contested and all issues are not resolved by a signed Marital Settlement Agreement, you can expect your contested divorce to take anywhere from 1-2 years.

If you or someone you know is considering divorce, we encourage you to speak to an experienced family attorney at Silverman, Thompson, Slutkin & White, LLC who can help you decide the right choice that is specific to your circumstance.

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

Monica L. Scherer, Esq.

mscherer@silvermanthompson.com

(410) 385-2225

Joseph S. Stephan, Esq.

jstephan@silvermanthompson.com

(410) 385-2225

Erin D. Brooks, Esq.

ebrooks@silvermanthompson.com

(410) 385-2225

Continue reading →