December 2009 Archives

December 27, 2009

Negotiating Child Custody and Visitation

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.

December 21, 2009

Dissipation of Marital Assets and Infidelity

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.

December 16, 2009

Separation Agreement: Can It Be Set Aside?

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.

December 9, 2009

Corporal Punishment Issues Arise in Custody and Domestic Violence Cases

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.

December 6, 2009

Separation Agreement ,Key To Amicable Divorce

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.

December 2, 2009

Custody Disputes Involving Deployed Militarypersons

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.