Maryland Divorce Attorney Blog

Maryland divorce attorneys practicing in high income regions such as Howard County, Anne Arundel County and Baltimore County know that when things go wrong, a couple who could afford the luxury of a "stay at home mom" may find themselves in battle over alimony. In a prior posting, I have discussed issues relating to indefinite alimony. However, Maryland law enacted in 1980 adopted the concept of rehabilitative alimony that is intended to give the dependent spouse an opportunity to become economically self supporting.

If a spouse is unable to support her or himself and if the other spouse is able to pay, the court may award alimony. In deciding whether to make an award as well as the amount and the duration of alimony, the court will consider twelve statutory factors. These include the ability of the party requesting alimony to be wholly or partly self supporting, the time necessary to become self supporting, the standard of living during the divorce, duration of the marriage, contributions (both monetary and nonmonetary) of each party to the well being of the family, circumstances that contributed to the break up, age of each party, physical and mental condition of each party, the ability of the party from whom alimony is sought to meet both his or her needs and the other party's, and the financial needs and resources of each party. If the award is rehabilitative, it will end on a date set by the court.

Unless the parties have entered into an agreement that makes alimony non-modifiable, the court may extend the time during which alimony is paid if circumstances arise that would lead to a harsh and inequitable result without an extension. However, the petition for an extension must be filed during the original period. The amount of alimony may also be modified "as circumstances and justice may required"

In a previous post, I have provided an overview of custody and visitation. As a Maryland Custody Lawyer I'd like to provide some information about how disputes over willful denial of visitation can be resolved. One approach is filing a motion for contempt of court. Civil contempt is a process by which private rights such as visitation can enforced. It utilizes the power of the court to incarcerate as a leverage to gain compliance with a court order. Howard County, Baltimore County and Anne Arundel County are a few of the Maryland counties that employ full time Masters for Domestic Relations. This posting will outline the contempt process in counties with full or part time Masters.

The civil contempt process can be used to gain compliance from either the custodial parent or the non-custodial parent. However for sake of this discussion I will assume that a custodial parent is allegedly violating a non custodial parents visitation rights.

The process is initiated by a petition by the non custodial parent asking that the custodial parent be held in contempt. Unless the petition is frivolous on its face, the judge will issue a show cause order. The contents of this order are prescribed by Rule 15-206 . A summons, order and petition are served on the custodial parent who is commanded to come to court and defend against the claim for contempt.

The custodial parent is given an opportunity to file a written response and to appear at an evidentiary hearing on the allegations. At the hearing both parties will be given an opportunity to present evidence and arguments. Following the hearing the Master will prepare in writing recommendations which shall include his findings. He will also include a proposed order. Either party may file exceptions to the Master's findings and recommendations. The dispute then goes to a judge who must make an independent decision giving substantial deference to the Master's findings of fact. If an order is entered, there must be an opportunity for the custodial parent to purge the contempt. In other words, the custodial parent will be given a direct order by the court. If the custodial parent complies the threat of incarceration is lifted.

Maryland Child Custody and Divorce Lawyers know that the duty to pay child support is a bedrock principle of Family Law. In a previous posting, I have discussed efforts underway in the 2010 legislative session to update the current statute. The goal has been to make the calculation of child support as automatic as possible by establishing guidelines that are simple and accessible. Attempts to avoid paying child support are highly disfavored by the courts. On appeal in Duckworth vs. Kamp, Mr. Duckworth discovered how strong that policy is.

Mr. Duckworth played a trump card to defend against a claim for arrearages brought by his former wife. He asserted a claim that had long been a matter of suspicion. He wasn't the biological father of his 14 year old daughter! He actually convinced the trial court to order a paternity test. When the test supported his defense, the court dismissed the claim for unpaid child support and granted his motion to terminate child support.

On appeal by mother, the Maryland Court of Appeals refused to accept Mr. Duckworth's belated efforts to shuck off fatherhood because of financial convenience. The court held that the Circuit Court had erred because it failed to consider the best interest of the child. It went further in enumerating a host of legal principle that precluded his long delayed renunciation of fatherhood. However, setting aside issues that may be unique to Mr. Duckworth, this opinion confirms the principle that before entering any order for paternity testing the court must first determine that it is in the best interest of the child.

As a Maryland Divorce and Child Custody Lawyer in Howard County, I thought it would be helpful to discuss some important information about how contested domestic relations cases are handled in our county. In compliance with Maryland Rule 16-202, Howard County has adopted a Family Law Differentiated Case Management Plan. This plan sets forth a specific course of action for divorce and other family law matters so that they can be resolved in timely manner. The goal is to resolve most cases within twelve months and the remainder within 18 months of filing.

In most contested domestic relations cases, the court will hold a scheduling conference which will be set 30-45 days after a complaint and answer are filed. These scheduling conferences are held in the court house on Fridays. The Howard County family law coordinator presides. A scheduling order will be generated that may include referral to professional service providers such as parenting classes or mediation; appointment of an attorney for a child or children, custody evaluation, Master's Hearing date and setting discovery deadlines.

The family law coordinator must also determine the complexity to the case. More complex cases may require a longer discovery schedule. Cases that meet the criteria for complexity may be eligible for extension of discovery deadlines.

The differentiated case management plan for Howard County also provides for settlement conferences that will usually be conducted by a retired judge. These are set after discovery has been completed. If a case does not settle, the parties will go directly to case the management office to schedule a trial date on the merits.

In previous a Maryland Divorce Lawyer post, I have offered a menu of issues that need to be resolved in order to successfully negotiate a Separation Agreement. This is the key to minimizing legal expenses in your divorce. In situations involving a pension plan that is part of the Marital Property, the right of survivorship and who bears the cost of electing the right of survivorship needs to be considered.

Many defined benefit pension plans allow the participant to take a reduced monthly benefit in exchange for providing continued benefits to a spouse following the death of the participant. Known as the right of survivorship, this is typical of many pension plans including federal, state and local government plans. Because so many residents in the Howard County, Anne Arundel County, and Baltimore County area are government employees, this is an important issue frequently encountered by central Maryland Divorce Lawyers. The parties can share the reduction in the benefits pro rata or have the spouse who will benefit bear the full reduction in monthly benefits. It is usually advisable to resolve the issue in a clear and unambiguous fashion.

In the absence of a Separation Agreement by the parties, this is one of many issues that are left to the discretion of the judge based on all the facts and circumstances of the case. Ordinarily if you enter into a Separation Agreement you are compromising important issues in order to avoid litigation. It is not usually a preferred result to enter into a Separation Agreement that is unclear on this or any other point and end up in litigation over what the parties intended.

There is a recent Maryland appellate opinion that should be of interest to Maryland custody lawyers and their clients. It provides guidance to grandparents and others who are not biological or adoptive parents involved in custody or visitation disputes.

Recent decisions have clearly established that parents have a fundamental constitution right to raise their children. Unless it can be established that a parent is unfit or there are "exceptional" or "extraordinary" circumstances, the parent will be awarded custody rather than a third party. Grandparents, relatives and persons who might be regarded as de facto parents have no rights in this legal calculation. There is a heavy presumption in favor of the parent as opposed to all others. These decisions also have undercut grandparent visitation rights established in Section 9-102 of the Family Law Article by Maryland General Assembly. You will find a discussion of this issue in a prior posting on this site.

In Green vs. Green, the child's aunt and uncle won the right to continued physical custody against the mother who had sought to modify an existing custody order. They had originally obtained physical custody in a consent order entered into by mother and father. Mother filed a motion to modify, requesting that she be awarded physical custody following her completion of a substance abuse rehabilitation program. The trial court found that mother was a fit and proper parent. However, the court expressed concern about her continued use of alcohol even in moderation. The court perceived a danger of relapse and concluded that this might be legally sufficient to constitute exceptional circumstances sufficient to deny her constitutional right to custody. However on appeal, aunt and uncle prevailed not based on the finding of "exceptional circumstances but because of father's participation in both the original consent decree and his opposition to any modification.

The takeaway is that Grandparents and other non parents seeking visitation and/or custody should establish an alliance with and active participation of a parent whenever possible

A question on the website, Avvo caught my attention as a Maryland Domestic Violence Attorney. "How can my wife be filing a Domestic Violence petition against me, when we were both fighting?" This is not an uncommon situation and can be confusing. If two people in marriage or other relationship covered by the Domestic Violence Laws are "fighting", one, both or none of them may be committing Domestic Violence. One or both parties can file a petition for relief under the act. Relief can only be granted to a party who has filed a petition alleging that the he or she has been a victim of Domestic Violence.

Sometime when both parties have been fighting, a careful comparison is required of what has occurred with the definition of Domestic Violence under Section 4-501 Family Law Article. In the context of the question posed on AVVO, any act that causes serious bodily harm, places a person in fear of imminent serious bodily harm or that constitutes assault under the criminal code can constitute Domestic Violence.

Let me offer two simple rules of thumb. As your grandmother told you, "two wrongs don't make a right." In other words, the fact that one person is a victim of Domestic Violence does not mean that that same person did not also commit Domestic Violence. The second is that "size [sometimes] matters." If the parties in a fight consist of a healthy 200 pound male and a 97 pound female, this may (but not necessarily) be significant on the issue of who was and who was not "in fear of imminent serious bodily harm". For an overview of Domestic Violence proceedings you may review my prior post on the subject.

This post on custody and visitation is written from the point of view of a Maryland Custody Lawyer for divorcing parties who wish to negotiate a Separation Agreement. My prior posting offers a list of items that should be successfully negotiated and reduced to writing in an agreement in order to minimize legal expenses and stress in ending a marriage. You can also read my posting about protection that the Maryland General Assembly has provided against the custodial parent relocating the child without the non custodial parent being given adequate notice or opportunity to contest the decision.

In a traditional arrangement one parent gets custody and the other gets visitation. The custodial parent is responsible for the day to day care of the child and the obligation to provide food, shelter, clothing and other necessities. Custodial parent is charged with making long range decisions such as health care, education, religious training, place of residence and other decisions affecting the well being of the child. Visiting parent has the right to make decisions affecting the child during visitation, including emergency decision that must be made before the custodial parent can be contacted. The visiting parent will pay child support to the custodial parent usually based on the Maryland Child Support Guidelines

Frequently parents agree to share "legal custody" with sole physical custody going to one of them. This means that they must jointly make decisions of long term consequence to the child because neither parent has sole decision making authority.

Parents can also agree to joint "physical custody" which usually means that they will split the child's time between them and share in the day to day parental decision making. Joint physical custody is accepted by the Maryland Courts under certain circumstances. The most important factor that the courts will examine is whether the parties are able to effectively communicate and make shared decisions with respect day to day matters that impact the child's well being. Usually joint custody is an arrangement that is agreeable to both parties. Other factors that the court will examine, include but are not limited to, the fitness of each parent, the relationship of the child to each one, the child's preference, the potential disruption to the child's life, geographic proximity of the two residences, the parent's work schedule, age and number of children and financial status of parents.

The blizzard of media covering the transgressions of Tiger Woods inspired the Divorce Lawyer in me to review a 2005 opinion, Woodson vs Saldana. Wife's appeal raised an imaginative claim arising from husband's infidelity. She argued that husband's expenditure of over $42,000 in taking two different women on "vacations" during the time the marriage was breaking up constituted a dissipation of marital property. Her argument was grounded on the principle that "Dissipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown."Wife's claim on appeal was denied because she had not properly raised the issue before the trial judge. Nevertheless, it is an intriguing argument. In the words of a recent country and western song, a divorcing spouse is often inclined to "let herself [or himself] go" and sometimes that can lead to extravagance. In appropriate circumstances, such extravagances might be considered dissipation of marital property.

The issue of dissipation arises in connection with the Court's applying the Maryland Marital Property Act. This is a three step process in which the court identifies marital property, values it and then may make a monetary award after considering the eleven factors set forth in Section 8-205 of the Family Law Article. Ordinarily the court can only consider property in existence, unless the court finds that there has been dissipation. This is considered a fraud on marital rights. The dissipated property will be treated as if it existed and in the possession of the party who committed the fraud. This has the effect of increasing the monetary award to the other party. There are two prior postings, November 29 and September 8, 2009 , related to this issue that you may want to review.

Maryland Divorce Lawyers know that getting the divorcing parties to sign a Separation Agreement can be the key to an amicable divorce. This was the subject of a recent posting on this site. However there are exceptions to every rule. There are circumstances in which a party to a Separation Agreement argues that it should not be enforced. Under what circumstances can a Separation Agreement be set aside? This posting will be limited to situations in which a final judgment of divorce has not yet been entered.

The first indicia of a Separation Agreement that is a candidate to be set aside is the existence of terms that are unjust, oppressive or shocking to the conscience. This is a factor that is often concurrent with duress, undue influence, fraud or negligent misrepresentation.

A court may set aside a Separation Agreement upon a finding of duress or undue influence. Duress occurs when there has been the use of coercion that results in the victim's loss of the ability to utilize his or her free will resulting in the entry of the victim in the agreement. If this sounds like a subjective standard, it is. However, it is a very difficult hurdle to overcome. Material fraud such as concealment of assets or income or negligent misrepresentation of such information can also be a basis for setting aside an agreement. A mutual misunderstanding of a material fact may also lead to overturning an agreement.

Ineffective assistance of counsel and unilateral mistake are not grounds for setting aside a Separation Agreement. Fortunately situations in which Separation Agreements are contested are rare. It should be understood that judges generally begin with a presumption that an agreement should be enforced. The party seeking to attack the agreement will have the burden of proof.

Maryland Divorce and Custody Attorneys know that divorcing couples often disagree on parenting issues. This may include disagreement over corporal punishment. The issue of corporal punishment can also arise in situation where the parents are in agreement. The use of corporal punishment can become (i) a criminal charge of child abuse under Section 3-601 of Criminal Law Article, (ii) a child abuse investigation and finding by the Department of Social Services under Section 5-701 of Family Law Article (subject to appeal to the Office of Administrative Hearings), (iii) a domestic violence case under Section 4-501 of the Family Law Article and (iv) an issue in a custody or visitation dispute.

In each of these types of proceedings, a parent's conduct can have important consequences to his or her parental rights. It is important for parents who might be involved in any of these types of litigation to understand the basic concepts of child abuse and be able to discuss the issue with their Family Law Attorney.

Section 4-501 Family Law Article adopts the common law principle permitting "reasonable punishment including reasonable corporal punishment, in light of the age and condition of the child performed by a parent or step-parent of a child." However, when corporal punishment causes injury to the child, even if unintended, it is likely that the conduct of the parent will be closely scrutinized.

There are two Maryland appeals court opinions that offer guidance in such cases. The first is Charles County Department of Social Services vs. Vann in which the Department's finding of child abuse was upheld. In this case, a six year old was trying to evade punishment by his father who sought to strike him on the buttocks with a belt. Father had swung a rather large belt buckle at his son who attempted to evade the blows by twisting, turning and grabbing the belt. The boy's back was injured. The Court found that it was reckless to have swung the belt buckle at the child. His evasive response meant that the blow could have landed anywhere on his body. Indeed the injuries could have been far more severe.

In Department of Human Resources vs. Howard, the Court of Special Appeals, the court reversed a finding by the Department based on inadvertent injuries to 13 year old boy's eye. Mother intended to hit the child in the back of the head with her knuckles. He surprised her by turning his head towards her so that she struck him in the eye. Mother did not act with intent to harm the boy or with recklessness towards his safety or welfare.

You and your spouse have discussed divorce and want to make it as amicable as possible. There are better things to do with your money than pay it to lawyers. When you hire a lawyer, you expect value for what you pay. Where do you begin? An initial meeting with a Maryland Divorce Attorney will allow you to develop a successful negotiating strategy.

As the client, you are entitled to control how negotiations are approached. However, your lawyer needs to educate you on how Maryland Divorce law, will influence each of the issues that applies to you, your spouse and your family. The following is an overview of issues to consider:

Children: Who will have legal custody? Who will have physical custody? What is the schedule for each parent to spend time with the children?

Child Support: Who will provide health care for the children? What extraordinary expenses do the children have, such as orthodontic bills, therapy, medical care and education? The latter may include private school K-12 and/or college expenses. Child support will be determined based on Maryland child support guidelines. The schedule in the Maryland Family Law Article only covers combined incomes of $120,000.00. Many families in high income regions such as Howard County, Anne Arundel County, Baltimore County, and Carroll County exceed this amount. Your attorney can help you anticipate how the Court is likely to use the guidelines to extrapolate an appropriate amount for higher income families. My prior posting discusses the fact that the Maryland General Assembly will be considering legislation to modify the state's child support guidelines.

Family Home: What will become of the family home? I have previously posted comments about how the upside down real estate market has made decisions more difficult for divorcing couples.

Alimony: Is this a case for temporary or indefinite alimony? In the absence of alimony, what will the income of each party be and how will their standard of living compare?

Property Disposition: What property including retirement assets is owned by the parties? How is the property titled? Why was it titled in that manner? You might want to review my prior posting on Marital Property. Identify the property that is Marital Property. What is the value of the Marital Property? How is the Marital Property titled?

Closely Held Businesses: This is a special subset of Property Disposition issues. Often, valuation is the biggest challenge. You may refer to my previous post on this issue.

Pensions: Is either of the parties entitled to a pension? How will these pension benefits be allocated? This is another subset of Property Disposition issues; military, federal, state and local government pensions are included.

An opinion dated November 18, 2009 (not yet released for publication) by a prominent member of Maryland's highest court, Judge Murphy, is intended to be instructive to Maryland Custody Attorneys and members of military families impacted by overseas deployment. There are many such families located in Howard County, Anne Arundel County, Baltimore County and Harford County because of their proximity to military bases.

When preparing for deployment, often a service member with custody places a child with family members. While the servicemember is absent on active duty, the other parent seeks custody of the child. If custody is awarded, the deployed parent may face legal obstacles in regaining custody upon his or her return.

Judge Murphy made two major points. First he spelled out the rights of deployed service members under the Family Law Article. As a former U.S. Navy nuclear submarine officer and sixteen year member of the Maryland House of Delegates, I have explained this legislation and expressed my appreciation for recent action to strengthen these rights in a prior posting.

The second point made by Judge Murphy is that deployed members are limited in the use they can make of the Servicemembers Civil Relief Act. In other situations this federal legislation can be raised to slow down or delay lawsuits. However, in situations involving custody, that is not going to be allowed. Murphy explains his viewpoint by quoting a Tennessee opinion that observed: "[the child's} life goes on". In other words the federal law is designed to protect a servicemember but cannot be used to gain an advantage in a dispute that impacts a child's life such as custody.

In the case reviewed by Judge Murphy, the father had been denied visitation by mother's parents while she was overseas. Father gained physical possession of the child and the court left that situation undisturbed until mother returned from overseas. It was also noted that grandparents lacked standing to pursue custody of the child. This is also a topic which I have previously posted on this site.

Anyone facing the possibility of a separation and divorce that involves significant assets should confer at an early stage with a Maryland Divorce Attorney. Such a conference should include an evaluation of all property disposition issues. The potential for disappearing or undisclosed assets are just a couple of issues that should be explored at an early phase of separating from a spouse.

In sitting down with a Family Law attorney, you need to understand the context in which property issues will arise. At the time of separation and divorce, a couple's financial affairs become subject to careful scrutiny. Title to property may have been set up in a way that would lead to a disproportionate benefit to one of the parties. In order to avoid an unjust result, Maryland's Marital Property Law empowers the judge at the time of divorce to balance the equities between the spouses. In a three step process, the court identifies marital property, values it and then makes a monetary award. The last step is a subjective decision that the judge makes based on the eleven factors set forth in section 8-205 of the family law article

Sometimes, a divorcing spouse attempts to obstruct this process. One form of obstruction is for marital property to "disappear". Such action can be considered a fraud on the marital rights of the other spouse. There must be evidence that the property was expended for the principle purpose of keeping the judge from considering its existence in making a monetary award. On the other hand the spouse who is charged with dissipation of property has the opportunity to prove that it was used for appropriate purposes, for example mortgage payments and other legitimate expenses.

Maryland's laws relating to property disposition in Divorce are not intuitively obvious to the layman. As discussed in a prior blog post, it is far too easy for a party to inadvertently prejudice their position. Even in separations that are expected to be amicable, careful analysis and understanding of your rights is recommended.

Under Maryland Divorce law, what constitutes "abandonment" and when does it occur? This is a question recently posed on a public on-line forum by a wife who was upset when she found evidence that her husband have seen a divorce lawyer. Her response was to start spending nights at her mother's house. She was concerned that this might constitute grounds for her husband to obtain a divorce. The short answer is "no". However, it is important to understand the underlying principles involved.

One of the grounds for divorce under Maryland Law is desertion, also known as abandonment. This means the unjustified separation of one spouse from another with the intention to end the marriage. In order to constitute grounds for divorce it must continue for at least 12 months. If both parties agree to the separation, there can be no desertion. In the absence of an agreement to separate, there must be proof that the deserting spouse has acted with an intention of ending the marriage. This can be shown by the words used or conduct.

The fact that husband and wife have continued to have sexual relations, means that no desertion has occurred. On the other hand, if one party refuses to have sexual relations with the other, without justification, this may be sufficient evidence of desertion. However, refusal for 12 months does not constitute abandonment if there is justification, for example, mistreatment.

If a party finds him or herself in a situation like this, it would be a good idea to seek advice from a Maryland Divorce Lawyer. Seeking advice does not mean that you are planning a divorce. It only means that you are making plans to protect yourself.