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November 26, 2010

Confidential Relationship and Tort Liability Involving Divorcing Spouses

A prior posting, discussed a developing area of law for Maryland Divorce Lawyers resulting from the abolition of interspousal tort immunity in the 2003 opinion in Bozman vs. Bozman. In the 2010 opinion in Lasater vs. Guttman , various theories of tort liability (conversion, intentional infliction of emotional distress and fraud and breach of fiduciary duty) raised by wife were rejected on summary judgment and upheld on appeal. Perhaps the most instructive section of the opinion relates to wife's claim based upon husband's depletion of the parties' marital assets over decades while she occupied a position of trust and confidence in him.

The court distinguished the duties arising from a true fiduciary and those resulting from a confidential relationship. Absent an agreement that actually establishes a fiduciary relationship, for example creation of a partnership, husband and wife will not have a fiduciary relationship. On the other hand, a confidential relationship may be proven to exist, although it is not presumed. The proponent of a confidential relationship must show that he or she was justified in assuming that the other spouse would not act in a manner inconsistent with his or her welfare. Among the factors to be considered are the age, mental condition, education, business experience, state of health and degree of dependence of the spouse in question.

A confidential relationship may be used as an entree to setting aside a particular transaction such as an oppressive separation agreement. However Lasater vs. Guttman makes it clear that it cannot be used to vindicate a history of financial wrongs occurring during the course of a marriage. Such wrong doing will not become an independent cause of action. It will remain only one of many factors subsumed into the equity courts decisions about marital property and spousal support.

July 19, 2010

Non Modifiable Alimony Terminated On Second Attempt

In the law as in other human endeavors, a combination of good judgment and perseverance often pays off. Maryland Divorce Lawyers will recognize that these qualities combined with a bit of luck in the May 2010 ruling that Mr. Andrulonis obtained ending his alimony payments to his ex wife. In 1995 the Circuit Court for Baltimore County entered a judgment for absolute divorce to Joseph and Mary Andrulonis. As part of the judgment, Mr. Andrulonis was ordered to pay alimony in accordance with the separation agreement of the parties. According to the agreement, husband's alimony obligation was "non-modifiable". In 1998 wife remarried. Husband promptly filed a complaint seeking to terminate alimony pursuant to Section 11-108 of Family Law Article. This section provides for termination of alimony in the event of the remarriage of the recipient. The Circuit ruled against Mr. Andrulonis on the grounds that the alimony was "non-modifiable". He appealed to the Court of Special Appeals which affirmed the ruling against him.

Readers of my prior posting, Alimony and Remarriage of Recipient, will recognize immediately that this decision was at odds with the subsequent Court of Appeals 2003 decision in Moore vs. Jacobsen. Relying on this decision, Mr. Andrulonis filed a complaint asking the court to strike the wage withholding order by which alimony was being collected and enter a judgment against Mary for past three years of alimony that had been paid. The defenses that Mary raised included "law of the case" doctrine, collateral estoppels and claim preclusion. These rules generally prevent reopening a disputed issue that a court has wrongly decided in prior litigation. However, the opinion in Andrulonis vs. Andrulonis found public policy exceptions that applied to the facts of this case. While the Court terminated the obligation to pay alimony prospectively, it did not order Mary to repay any of the alimony she had received.

July 5, 2010

Alimony and Remarriage of Recipient

In 2003 the Court of Appeals clarified an issue that had been confusing for Maryland Divorce Lawyers and their clients. The Court of Appeals in Moore vs. Jacobsen considered the effect of wife's remarriage on her right to receive alimony. Section 11-108 of the Family Law Article provides that alimony shall terminate upon marriage of the recipient. However, ex- wife argued that the separation agreement, incorporated into the Decree of Divorce provided that her right to alimony was "non-modifiable". Two of the judges on the Court agreed with her argument that an agreement prohibiting modification should prohibit "the most radical type of modification", termination.

However, a majority of the Court sided with ex-husband, holding that under the Maryland Family Law statutes termination and modification were not synonymous. Therefore a provision that prohibited the court from modifying alimony under section 11-107 did not preclude termination under section 11-108 on account of a subsequent remarriage. According to the opinion, the parties' agreement can trump section 11-108. However, the agreement must contain express and clear language evidencing the intent of the parties that alimony will continue after remarriage of the recipient spouse. The court reasoned that its ruling would "foster certainty, resolve ambiguity and reduce litigation". For readers who are interested in more information about alimony modification, this topic was discussed in my prior postings, Can Alimony Be Modified in Hard Times and Rehabilitative Alimony, An Opportunity to Become Self Supporting. Another recent posting discusses the use of guidelines in setting the amount and duration of alimony.

June 6, 2010

Alimony Guidelines May Be Consulted By Maryland Courts

In a previous posting to this site, I have explained the desirability of a divorcing couple making a good faith effort to settle their disputes through negotiations leading to a separation agreement. This is often a better alternative than incurring the expense of litigation. In high income areas such as Howard County, Anne Arundel County, Baltimore County and Carroll County, alimony is frequently an issue. However, unlike child support, there have been no guidelines for Maryland Divorce Lawyers and their clients trying to negotiate alimony. This may begin to change. Boemio vs. Boemio, a recent opinion issued by the Maryland Court of Appeals, for the first time, allows judges to utilize alimony guidelines that are consistent with the Maryland alimony statute.

Section 11-106 of the Family Law Article guides and controls the court in crafting the amount and duration of an alimony award. Section 11-106(c) provides guidance on whether indefinite alimony should be awarded. However, these provisions are so general that trial judges are left with a great deal of discretion. As a result, Maryland Divorce Lawyers and their clients have lacked useful tools for predicting what a court might do in deciding an alimony claim.

In Boemio vs. Boemio, the court ruled that it was proper for the trial judge to have consulted guidelines promulgated by the American Academy of Matrimonial Lawyers ("AAML"). It said that a trial judge may choose to consult any guidelines promulgated by reliable and neutral source that do not conflict with or undermine the provisions of the statute. As judges take the opportunity to refer to alimony guidelines in their decisions, in the course of time, this should give divorcing parties a frame of reference in negotiations.

A final word of caution is in order. In the Boemia case, the trial judge referred to the AAML guidelines but did not slavishly follow them. In fact his award of $3,000 was substantially less than the $3,816 indicated by the guidelines.

March 23, 2010

Garnishment of Federal Wages to Enforce of Marital Property and Attorney Fees Awards

In Howard County, Anne Arundel County, Montgomery County and Baltimore County, Maryland Divorce Lawyers encounter many issues relating to federal employment. How to garnish federal wages to collect a debt owed or payments due on account of child support, alimony and other judgments is one such issue. Child support and alimony can also be enforced by using the contempt of court powers. (For information on enforcement using the court's contempt powers in a different context, interested readers should refer to my prior posting on this subject). However garnishment may be the only tool available for collection for other debts such as an award under the marital property law or for attorney's fees. This posting will focus on the use of garnishment for this purpose. It should come as no surprise that the enforcement process is more onerous when the employer is the Federal Government. .

The writ of garnishment is issued by the clerk of the Circuit Court. It orders the employer to withhold wages subject to state and federal limitations on the amount that can be taken out of someone's paycheck. Serving this writ on the employer is ordinarily sufficient. However the Federal Government additionally mandates the service of an application for commercial garnishment.

Federal Law requires sufficient information to enable employing agencies to identify the employee/obligor. Federal Agencies may refuse to process the document without a social security number on the writ and application. Return phone number and fax number should be included. Service of the writ and application must be made on the agent designated by the employing agency. This can be found in 5 CFR parts 581 and 582. Service must be made by registered or certified mail return receipt requested. However, some agencies are accepting service by fax.

Members of active duty military are not subject to garnishment using this procedure. However, their pay can be attached using the military involuntary allotment process using form DD 2653

February 22, 2010

Rehablitative Alimony, An Opportunity To Become Self Supporting

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"

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.

November 5, 2009

Can Alimony Be Modified In Hard Times?

The recent economic turmoil has had a devastating effect on the economic circumstances of many, even in prosperous and economically stable counties like Howard, Carroll, Baltimore and Anne Arundel. As a result, Maryland Divorce lawyers are fielding inquiries about whether alimony awarded in more prosperous times is subject to modification.Section 8-103 of the Family Law Article prohibits a court from modifying any agreement or settlement in which a spouse has expressly waived alimony or any provision for alimony that specifically states that it is not subject to court modification. Also under section section 11-107, temporary alimony can not be extended unless the recipient petitions the court before the period of the award has expired.

Absent such a prohibition, a court may modify alimony in appropriate cases. First of all there must be a change of circumstances that is material or substantial. The court will not allow either party to litigate an issue that was or could have been litigated at the time of the original award. section 11-107 provides that the court may extend the period for temporary alimony if circumstances arise during the period that would lead to a "harsh and inequitable result without an extension". Such modification could include making an award of indefinite duration. The same section of law also authorizes the court to modify the amount of alimony "on petition of either circumstances and justice require."

Any individual hit by the economic downturn, who is the subject of a prior alimony award not subject to a prohibition against modification, may be well advised to review his or her economic situation with an experienced Maryland Divorce Lawyer.

section 11-107.pdf

November 2, 2009

Right Against Self Incrimination in Divorce Dispute Should Be Carefully Invoked

The fifth amendment to the U.S. Constitution gives every individual the right against self incrimination. While this right is typically invoked in criminal proceedings and Congressional hearings, it is also seen in civil cases including divorce proceedings. Maryland Divorce Lawyers know that the right to refuse to testify frequently arises in cases involving adultery. Pursuant to Section 10-501 of the Maryland Criminal Code, adultery is a misdemeanor punishable by a fine of up to $10. This ancient state law gives errant spouses an alternative to admitting adultery or committing perjury.

Unlike the criminal law arena, the court may draw an adverse inference from the invocation of the refusal to testify. This can be costly in a marital property dispute. In Turner vs. Turner, there was evidence that husband had used illegal drugs and was involved with another women during the marriage. He invoked the right not to answer questions relating to his withdrawal of funds from a joint bank account of husband and wife. Wife claimed that he had dissipated these funds. The trial court agreed and her award under the Marital Property Act was augmented as a result. This decision was upheld on appeal. In part the appellate court upheld the ruling on the grounds that it was appropriate to draw an adverse inference from husband's decision to plead the fifth.

The take away from this opinion is that murderers, rapists and other felons can invoke the privilege without consequence. Parties to divorce are well advised to think strategically. It may be a way of avoiding embarrassing testimony but can be costly.

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.


September 2, 2009

Indefinite Alimony Requirements Reviewed in Recent Opinion

A Court of Special Appeals decision on the issue of indefinite alimony has caught my attention. Alimony is an issue that depends on the trial judge evaluating the facts and exercising considerable discretion. In Lee vs. Andochick, an award of indefinite alimony was reversed. Since trial judges do not often get reversed on an issue over which they have so much discretion, it is worth taking a careful look at this opinion.

The best way to put the opinion in Lee vs. Andochick in perspective is to review Maryland's alimony statute enacted almost thirty years ago. In 1980 the Maryland Legislature revolutionized the concept of alimony. The new concept was to rehabilitate the dependent spouse to become economically self supporting. If the spouse seeking alimony is unable to support her or himself and if the other party has an ability to pay, alimony may be awarded based upon twelve factors listed in the statute. The award is usually to be considered "rehabilitative" and therefore will end after a specific period of time. In exceptional circumstances, alimony can be awarded for an indefinite period of time if (i) due to age, illness, or disability, a spouse cannot reasonably be expected to become self supporting or (ii) even after the party seeking alimony has made as much progress toward becoming self supporting as can reasonably be expected, the respective living standards of the parties will be unconscionably disparate. Like many indefinite alimony cases,Lee vs. Andochickwas fought on the issue of "unconscionable disparity."

Mr. Lee was employed by a brokerage firm and earned at the time of trial, $1.7 Million per year. Wife, a dentist earned $267,000. Therefore, husband earned over 600% of wife's income. The parties lived a lavish life style, enjoying extraordinary vacations, traveling on a private jet and a great deal of household help and assistance. The Appeals Court remanded the case to the trial court because it had not articulated how the parties' standards of living would be unconsciously disparate. It focused on the heavy debt that husband had accrued, amount of child support and payments he was to make as part of the marital property award. This opinion reminds me as a Maryland Divorce Attorney, that indefinite alimony requires a fact intensive inquiry that does not end with establishing disparate income. Furthermore, unconscionable disparity must be evaluated in the context of both the child support and marital property awards.
Lee vs. Andochick