March 2011 Archives

March 28, 2011

Dissipation of Marital Property & Burden of Persuasion

This posting is a companion to my March 20, 2011 discussion of Omayaka v. Omayaka. Maryland Divorce Lawyers will recognize that this is a rare opinion on family law by Maryland's Court of Appeals. As Maryland's highest court noted "dissipation of marital assets, as with many issues in the field of family law, has not been considered much of late by this Court. The majority of modern reported cases developing the doctrine of intentional dissipation of marital assets have been reported by the Court of Special Appeals."

The opinion upheld the trial court's decision declining to find dissipation by wife. She had made "over the counter" withdrawal of approximately $80,000 during an eight month period. Wife testified that these withdrawals were for "household goods, mortgages, clothes, to pay off credit card debt, and to send money to her minor children, somewhere." Husband pointed to her lack of receipts. He argued that her testimony strained credulity considering that she had a salary, received child support and had received $12,000 from refinancing of the house.

Wife prevailed. The court explained that the party alleging dissipation has the initial burden of proof. Proof that a spouse has made sizable withdrawals from bank accounts under his or her control is sufficient to support a finding of dissipation. Faced with prima facie evidence of dissipation, Wife then had to produce sufficient evidence to show that the expenditures were appropriate. However, the ultimate burden of persuasion remains with the party alleging dissipation. Husband simply failed to persuade the trial judge. While I have been successful in obtaining rulings of dissipation, Maryland Divorce Lawyers know that it is not uncommon for trial judges to reject claims that marital assets have been dissipated.

March 20, 2011

Dissipation of Marital Property Defined By Court of Appeals

Judge Murphy has written an opinion in Omayaka v.Omayaka that provides Maryland Divorce Attorneys with a useful guideline in any dispute over dissipation of marital property. Prior precedent on this topic has been limited to the Court of Special Appeals. This opinion is welcome because it comes from Maryland's highest court. Three prior postings published on the Maryland Divorce Attorney Blog describe the context in which disputes regarding dissipation can arise.

Dissipation has frequently been defined as occurring 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. In dicta, Judge Murphy provides a broader definition of dissipation pointing to opinions holding that gifts to paramours and excessive gambling losses constituted dissipation. He concludes that dissipation may occur in circumstances in which the marriage is not undergoing an irreconcilable breakdown and/or the dissipating spouse's principal purpose was a purpose other than "reducing the amount of funds that would be available for equitable distribution at time of divorce." He cites Judge John F. Fader' treatise on Maryland Family Law that dissipation occurs when marital assets are taken by one spouse without agreement by the other spouse.

The remainder of the opinion in Omayaka v.Omayka explains which party has the burden of proof, how that burden shifts and which party has the ultimate burden of persuasion. This is the subject of a companion posting on Judge Murphy's opinion.

March 15, 2011

Divorcing Party May Seek Damages For Tortious Conduct By Spouse

The abrogation of inter spousal immunity in Bozman vs. Bozman, has opened up a new set of issues for Maryland Divorce Lawyers and their clients. A party to a divorce, who is also the victim of tortious conduct, may be unable to obtain an adequate remedy under Maryland's laws governing the dispensation of justice in divorce proceedings. Such a party may consider seeking a remedy based on a civil cause of action. In such a dispute, either party would have the right to a trial by jury. A spouse who is the victim of a tort would seek both equitable relief within the context of laws regulating divorce and a judgment in a civil cause of action.

A prior posting discusses claims brought by a pro se lawyer that were soundly rebuffed in Lasater v. Guttman. This is not an invitation to the establishment of new causes of action peculiar to the institution of marriage. However, some well established torts need to be on the check list of Maryland Divorce Lawyers and their clients. Much but not all of the conduct under the definition of domestic violence would form the basis for a civil cause of action. A cause of action for negligent transmission of a sexually transmitted disease was recognized by the Maryland Court of Appeals in B.K. v. N.N.

As tort lawyers know, not every cause of action is worth pursuing. Maryland Divorce Lawyers and their clients will have to run a cost benefit analysis in such circumstances and keep an eye on the limitations period.

March 5, 2011

Same Sex Marriage Battle Takes Shape

As a Maryland divorce and family law attorney and former member of the House of Delegates, the actions of the General Assembly are always of interest. The 2011 session has more than its share of drama. I was surprised by the defeat of Senate Bill 116, the Civil Marriage Protection Act that would have expanded marriage to same sex couples. You can be sure that a bill that came so close to passage in 2011 will be back next year. The battle in the Maryland General Assembley has aroused passion from both sides. The opponents are prepared to take any bill to referendum if and when it is passed.

Article XVI of the Maryland Constitution requires that opponents of a bill obtain signatures of registered voters equal in number to 3% of the number of voters in the last gubernatorial election. This means approximately 55,000 valid signatures would be required. The deadline for filing at least 1/3 of the required signatures would be June 1 following the legislative session in which the bill is passed. The remainder would be due by the 30th of the same month. If the required signatures are obtained, the law would not go into effect until 30 days after it has been approved by a majority of the voters in the next election. Maryland would be the first state to obtain voter approval for same sex marriage.

Maryland courts have refused to wade into this issue. A deeply divided Court of Appeals in Conaway v. Deane held that there is no right to same sex marriage under the Maryland Constitution.

Maryland family law attorneys have some time to ponder best practices as it relates to same sex marriage. There are myriad issues that will arise because such marriages may not be recognized by the federal government and many other states. In a state with a large number of federal and military personnel, Maryland family law practitioners will need to keep a sharp eye on federal employment benefits laws and regulations that are likely to remain in a state of flux.