October 2009 Archives

October 28, 2009

Claim for Alimony While Dating

Divorce lawyers are often asked by clients about the legal consequences of dating after the parties have separated. At the very least, this question needs to be addressed in connection with issues relating to child custody and visitation, marital property and alimony. This blog post will only consider the issue of alimony under Maryland law.

Many who are recently separated are not ready to date again. This is not only the safest course emotionally but legally. Others are ready to leap back into the dating game. This raises some tricky questions.

Maryland law sets forth 12 factors that the court must determine in deciding the amount and duration of alimony. No one factor is more important than any other. In any single case one or more factors may stand out as being critical. The sixth factor, which is most relevant to this discussion, is "circumstances that contributed to the estrangement of the parties".

Adultery occurring before the breakup of the marriage may be viewed as a primary or major factor in the estrangement of the parties. On the other hand, if it is indisputable that dating began only after the parties separated, the analysis is much different. In Bangs vs. Bangs, the court upheld an award of alimony to wife who had an affair after husband had abandoned her for another woman. The court ruled that wife's post break up relationship was far from the sole cause of the estrangement and was rather an incidental contributory factor. While ruling in favor of alimony to wife who had been dating, the opinion leaves the issue wide open for the judgment of the trial judge. The inquiry will be on the status of the relationship of the parties when the dating began and whether it contributed to the estrangement. There may not be a bright line test. Instead, the issue requires a careful analysis of facts and law by divorce lawyer and client.


October 23, 2009

Alimony, A Tax Planning Opportunity

Federal tax rates are likely to be increased for higher income individuals. Moreover, tax planning issues are already important in Maryland. Our state's high income tax rate is added to the local rate levied by all counties with Howard and Baltimore at the highest level permitted by law. Divorce Lawyer need to keep in mind the income tax savings opportunities offered by payments that can be legitimately characterized as alimony. If alimony is paid by a higher income tax payer to a lower income taxpayer, the savings is the amount of the payment multiplied by the difference in the effective marginal rate.

There are nine tests for alimony: (1) payment must be in cash or cash equivalent, (2) the payment must be received by or on behalf of a spouse. The payment may be paid directly or indirectly, (3) the payment must be made under a "divorce or separation instrument", which includes a written separation agreement or court decree, (4) the divorce or separation instrument must not state that the payment is not alimony, (5) the parties must not be living together, although, there is an exception for parties who are "legally separated" pursuant to the Internal Revenue Code, (6) the payment must terminate on death of the payee spouse, (7) the parties may not file a joint tax return, (8) the payments may not constitute child support and (9) the payments may not be front end loaded so as to disguise a property settlement.

The difference between child support and alimony is somewhat complex. However, especially in an era of back breaking tuition for private schools and colleges, this is an area worth exploring for many higher income individuals involved in separation or divorce. Individuals who are interested in educating themselves further regarding the tax consequences of separation and divorce, should take a look at IRS pub 504 Tax Information for Divorced and Separated Individuals.

October 20, 2009

In Seperation and Divorce Who Owns a Joint Tax Refund?

As Ben Franklin reminded us "in this world, nothing is certain except death and taxes". As a Maryland Lawyer representing clients in their financial affairs arising from separation and divorce, tax issues must be kept in mind. My blog has previously alerted parties contemplating separation and divorce about the perils of filing joint tax returns. The IRS treats couples who file jointly as jointly liable for any deficiencies due on federal taxes, unless a spouse is deemed to be an "innocent spouse." In other words, the IRS can come after a spouse for the deficiency created by the other spouse. However, the rule differs for over payments on joint tax returns.

An overpayment on a joint tax return by one spouse belongs to that spouse. The IRS's reasoning is that filing a joint tax return does not create a new property interest in the spouse who did not make the overpayment.

In situations in which each spouse pays some of the tax liability, each spouse is entitled to a portion of the refund. The IRS has developed formula that considers what each spouse's tax liability would be individually and the actual contribution of each toward the joint tax liability. For anyone who wants to educate themselves about tax matters relating to separation and divorce should start with IRS Publication 504, Tax Information for Divorced and Separated Individuals.

October 17, 2009

Court Transfers Child Custody Case Jurisdiction to Ohio in Media Glare

Recently an interstate custody case has been showered with media attention. As a Maryland Child Custody lawyer, I discuss it here, not because of its drama, but because it is instructive on how interstate custody cases are handled. At the center of the dispute is Rifqa Barry a 17 year old whose Muslim parents had immigrated to the United States to provide their daughter with medical treatment for an eye ailment. She had converted to Christianity and run away in fear that her parents might harm her because of her repudiation of her Muslim religion. In Florida, the courts had assumed emergency jurisdiction over her based on the allegations of threats by her parents. Investigation of these allegations failed to corroborate her fears.

Dispute about which state should assume jurisdiction fall under the Uniform Child Custody Jurisdiction and Enforcement Act that has been adopted by all 50 states. Prior to the act, states courts could often battle over jurisdiction and produce contradictory results. The act was adopted to avoid conflicts among the states and thus bring "order to chaos". Under the Act, one of the states that has jurisdiction will bow out in favor of the other. This is based on a coordinated determination of which state is the more appropriate forum. This decision is made by way of a phone call between the two judges who confer by telephone.

This is exactly what occurred last week, when Judge Daniel Dawson of Florida and Judge Elizabeth Gill of Ohio conferred over speaker phones with lawyers, representatives of numerous government agencies and the media listening. The conclusion was that Judge Dawson received sufficient assurances of Riqa'a safety ( she will be put in custody of the Franklin County Ohio Children's Services Agency and place with a pre-selected foster care family) that he ruled that Florida would decline jurisdiction.

My judgment as a parent and former elected official is that Ohio has been sufficiently alerted to the concerns about Rifqa's safety. The decision appears sound. One can only hope that the family can be reconciled. No doubt that was a factor that weighed heavily in favor of the transfer.

October 13, 2009

Domestic Violence Laws Continue to Strenghten

In recent years, my former colleagues in the Maryland General Assembly have continued to strengthen laws to protect against Domestic Violence. On October 1, 2009, a new law went into effect. It requires the court to order any person who commits an act of Domestic Violence or voluntarily consents to a protective order without a finding that an act of abuse has occurred, to surrender any firearms.

Before a protective order can be granted in a Domestic Violence case, there are a series of issues that must be analyzed. First, the parties must have a relationship that makes one them a "a person eligible for relief". Next an act or acts must have been committed that meet the statutory definition of abuse . Finally the act or acts must be proven, initially in a preliminary hearing by a preponderance of the evidence and then in a final hearing by "clear and convincing evidence".

Domestic Violence can have very serious consequences. The best solution is to avoid its occurrence. Not everyone can afford an attorney and volunteer assistance is often available. If possible however, the assistance of an experienced family law attorney should be considered. This advice would also include an evaluation of how Domestic Violence might impact other issues such as child custody, child support, possession of the family home or property and other matters that arise in a separation or divorce. Situations involving Domestic Violence evolve quickly and therefore time is of the essence in obtaining the assistance of a lawyer.

October 9, 2009

Divorce and Computer Spying

Spying on one's spouse goes back to the era of Shakespeare and beyond. However, in modern day Maryland and elsewhere, the advise of a knowledgeable Divorce Lawyer is advisable. This is especially true if you are curious about what your spouse has been doing on the computer. Maryland and Federal laws curtail what one can do to spy on another. That includes one's spouse. There are three Federal Laws that may apply: The Wiretap Act and Electronic Privacy Act of 1986; the Federal Stored Communications Act and the Computer Fraud and Abuse Act. Maryland has two statutes that may come into play, the Maryland Wiretap Act and Maryland Stored Wire Act.

These are criminal statutes that need to be taken seriously. Conduct that may seem innocent to a spouse who may have been the victim of cheating, may allow the cheater to turn the tables. Some examples of prohibited activities include taping a phone call or private conversation without the consent of the other party or guessing a spouse's password to access an email account. There are several court opinions that have considered the use of spyware to monitor a spouse's computer activity. In O'Brien vs.O'Brien, Florida appeals court held that a wife who had installed Spector, a spyware program on her husband's computer and recorded his online chats had violated the Federal Wiretap Act. As a result the husband was granted an injunction and wife was precluded from using the information as evidence.

Identifying prohibited conduct under these state and federal statutes is not intuitively obvious. It requires careful analysis by legal counsel of both the law and the technology employed. Alas, it was a lot easier in Shakespeare's day when one could simply hide behind the curtain.

October 5, 2009

Interstate Custody

Veteran child custody attorneys know how complex interstate custody disputes can become. The Maryland Uniform Child Custody Jurisdiction and Enforcement Act brings "some order to the chaos" by avoiding jurisdictional conflict amongst states that could otherwise exercise jurisdiction over a particular child custody dispute. Under the Act which has been enacted by all fifty states, two or more states may have jurisdiction at the same time. The Act envisions that one of the states which has jurisdiction will decline to exercise it after finding that (1) the state is an inconvenient forum to make the custody determination and (2) a court of another state is a more appropriate forum.
A recent decision by Maryland's highest appeals court illustrates a critical step in this process.

In Krebs vs Krebs, the opinion focused on the process by which judges in states with competing jurisdiction communicate with each other and exchange information. This is usually done via a telephone conference that usually results in one jurisdiction declining jurisdiction and the other accepting it.

The Krebs case involved a child who had left his mother's home in Arizona to spend the summer in Maryland with his father. After a custody dispute arose involving these two states, the judges in Maryland and Arizona conferred and decided that the Maryland Court should resolve the dispute. Custody was awarded to the Maryland father. The Maryland Court of Appeals refused to consider the merits of the Arizona mother's argument that the result of the judges' conference, conferring sole jurisdiction on Maryland, violated the Act. The Court ruled that if Mother wanted to appeal that issue, she needed to appeal that issue in the Arizona courts.

This result is an example of how complex interstate custody disputes can become and a reminder of how the conference between judges under the Act can be pivotal in determining the final results.