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October 15, 2012

International Aspects of Maryland Child Support

If you are involved in a child support case that is international in nature, searching for a Family Law attorney in the Maryland counties of Howard, Anne Arundel, Baltimore and Montgomery Counties can be a challenge. You want an attorney with experience and demonstrated skills. It has been estimated by the Federal Commissioner of the Office of Child Support that less than one percent of child support cases in state courts are international in nature. However, these important types of cases are growing in number and complexity.

International child support cases often involve substantial sums. They may require careful analysis of state, federal and foreign law. Often times, judges, who infrequently see international child support cases, need briefs from experienced legal counsel that apply the applicable laws to the facts of an individual case. For child support lawyers in locations like Howard, Anne Arundel, Baltimore and Montgomery Counties, changing demographics means more of these international child support cases. Another driver is that International mechanisms for establishing and enforcing child support orders are being strengthened.

The Office of Child Support Enforcement, an Office of the Administration for Children & Families in the U. S. Department of Health and Human Resources has responsibilities in this arena. A list of Foreign Reciprocation Nations can be found on its website at the Office of Child Support Enforcement website. Each of the Canadian provinces is separately listed because each operates under its own set of laws, courts and procedures, just as each of the U.S. states do. For each of these countries, the Office of Child Support Enforcement includes official reference documents that contain a wealth of information about child support laws and practice in each jurisdiction. For example, Maryland law does not normally provide for child support to support a child attending college, unless the parents have an agreement. On the other hand, an important issue in a case that my office has been working on, is that child support in a Canadian province may continue through graduate school. Similarly, the case workers guide to processing cases with the United Kingdom reveals that support can continue in Great Britain until a child finishes full time education. The case worker guides found on this website can provide a wealth of information such as whether there is a statute of limitations in claiming past due child support or claiming paternity, when and whether health care expenses can be added to child support calculations, whether child support be awarded for the period before it is claimed, how and when child support be modified This is an important source of information for individuals against whom child support is being claimed and persons seeking child support with an international aspect.

In some instances we have worked effectively with counsel in foreign jurisdictions. In other instances international cases have been successfully resolved with advocacy based upon state and federal law. Readers may also be interested in my prior posting on an international case involving a Pakistan divorce decree. There is also a prior posting describing a recent international child support case in which I submitted a memorandum of fact and law that convinced not only the presiding Master in Chancery but opposing counsel for the Office of Child Support Enforcement. This memorandum is attached to my website page on my International Aspects of Family Law page practice.

July 9, 2011

International Recovery of Child Support

Howard County Maryland has a diverse population from all over the world. In order to effectively serve these clients, Maryland Divorce and Family Law Lawyers need to stay abreast of international law issues. My previous postings have discussed international child kidnapping issues and a recent Court of Appeals opinion refusing to recognize a decree of divorce entered under the law of Pakistan that discriminates on the basis on gender.

One recent lawsuit in my practice involved various international agreements for the collection and enforcement of child support. These include the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance that has been ratified by the United States Senate. It also includes various agreements that have been negotiated between the United States State Department and various foreign nations. The list of reciprocating nations can be found on the website of the Office of Child Support Enforcement, Administration for Children and Families, U.S. Department of Health and Human Services.

The treaty and laws of most foreign nations recognizes personal jurisdiction over individuals under circumstances that would violate fundamental principles of due process under the United States Constitution. The format of this site does not permit a complete discussion of how the conflict of laws should be resolved. However, the leading case on due process issues involving family matters is Kulko v. Superior Court of California . My memorandum explains these issues in detail and was found to be persuasive by the Office of Child Support Enforcement and the Circuit Court for Howard County. It is posted in full as a part of my law office website discussion of the International Aspects of Family Law.

April 11, 2011

Right To A Paternity Test

A recent opinion by the Court of Special Appeals provides Maryland Family Law lawyers further guidance on the right of an alleged father to obtain genetic testing as a matter of right. A previous posting discussed the holding in Duckworth v.Kamp. In that case the court held that when a child is born during a marriage, the court must not order genetic testing without determining that such testing would be in the best interest of the child. On the other hand, in Corbett v.Mulligan the child was born after the parties were divorced. The court ruled that the alleged father had an absolute right to demand testing. Such testing must be ordered without regard to whether it was in the best interest of the child

The court's opinion explains the policy distinction between the two cases. In recent years, the federal government has required states to provide alleged fathers the right to genetic testing as a condition of federal funding. Maryland has complied. However the right is limited to "putative fathers". The phrase is interpreted to mean an "alleged biological father of a child born out of wedlock". The court explained that if mandatory testing could be invoked every time an individual seeks to establish paternity of a child born during a marriage the consequences to intact families could be devastating. Without regard to a child's best interest, courts would be forced to order genetic testing of every child whose paternity is merely questioned. The court concluded that this was never intended by the legislature in enacting sections 5-1002 and 5-1029 of the Family Law Article.

May 11, 2010

Maryland's New Child Support Guidelines Take Effect October 1st

As anticipated in a posting last year, the 2010 legislative session has resulted in legislation to modify the Child Support Guidelines. For Maryland Family Law Attorneys and most of their clients in high income counties such as, Anne Arundel County, Baltimore County, Carroll County and Howard County this will translate into increased child support awards. House Bill 500 ,which is the first upward adjustment in the guidelines since they were adopted over 20 years ago will become effective on October 1, 2010. Until then the existing guidelines will remain in effect.

The existing guidelines go up to a combined adjusted annual income of $10,000 per month. Currently at that level, the "basic child support amount is $1040, $1616 and $2026 for parents with 1, 2 and 3 children respectively. For example, if a mother had custody and had no income these would be the basic child support obligation of a father earning $120, 00 per year. Under the new law, basic child support would increase to $1271, $1811 and $2101 respectively.

Beginning October 1, 2010, the new guidelines will be used to establish pendent lite and permanent support and to modify existing child support orders. However, existing child support orders can be modified only if there has been a material change of circumstances. The bill expressly provides that the adoption of the new guidelines is not a material change of circumstances for purposes of modification of child support.

The new guidelines go up to a combined adjusted actual income of $15,000. For couples with combined income above that level the law continues to gives substantially more discretion to the court in setting the support level.

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

January 31, 2010

Is Genetic Testing In The Child's Best Interest ?

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 of a child born during a marriage, the court must first determine that testing is in the best interest of the child.

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.

August 23, 2009

Child Support Calculations Guidance in Fluctuating Income Cases

Divorce cases in high income counties such as Howard, Montgomery, Anne Arundel, Carroll and Baltimore frequently involve setting support based on parental incomes that fluctuates substantially. This is occurring more frequently in the current roller coaster economy. A recent opinion provides guidance on how the courts should deal with the ups and downs of parental income in calculating child support.

_sweet_girl.jpgThe decision in Lorincz vs. Lorincz involved a mother who left a graduate program at Hopkins School of Medicine to attend law school. One of the issues in that opinion arose because she earned $36,424 during the summer as an associate in a New York Law Firm but had no income during the 9 months of law school. The trial court had calculated child support by chopping up the year into two parts, one during mother's high income summer months and second during her nine months in school. On appeal, that approach was rejected. Instead, the Court of Special Appeals ruled that child support payments should have been computed based on mother's annualized income. According to the opinion, when calculation child support, "per annum analysis remains a safe harbor."

While the facts of Lorincz are unusual, the opinion addresses an issue that occurs frequently in diverse cases involving once a year bonuses, profit sharing, capital gains, and income from commissions or profits from closely held businesses. It may also have some applicability to executives who experience temporary unemployment. It is more apt to be applied in cases involving higher income parents who are not living "hand to mouth". While a "per annum analysis" does not appear to be the only possible approach, the opinion clearly demonstrates that in many cases, periods of high and low income cannot be "hermetically sealed off" from each other in calculating child support.

August 11, 2009

20th Anniversary Of Maryland Child Support Guidelines Portends Update

Efforts to update Maryland's Child Support Guidelines will be redoubled in the 2010 legislative session. As a Maryland Child Support Attorney and former member of the Maryland House of Delegates who served on the Judiciary Committee when they were enacted, I can attest to the fact that the original guidelines bill was passed with no significant opposition. However, determined efforts to modernize the guidelines in the 2009 legislative session did not fair as well. Some opponents seem to be concerned about raising child support obligations in an economic downturn. Proponents of updating the guidelines contend that current law does not reflect more recent estimates of child rearing costs.The House Judiciary Committee is hoping to hear this Fall from an expert who has studied this issue.In part there may be an impact from over 20 years of inflation. For any given income level a greater share of the expenses are non discretionary. This might justify a greater share of income being apportioned to the children of the household.

There can be no dispute about another limitation of the current guidelines. They are based on a schedule in the statute that applies only to combined parental income up to $10,000 per month. In cases involving higher combined incomes, the court typically extrapolates child care expenses and apportions them based on the "Income Shared" methodology. While this may lead to a satisfactory result, it means that child support awards are less predictable in higher income counties such as Howard, Baltimore, Montgomery and Anne Arundel.

My experience in the legislature tells me that pressure will continue to build on members of the House Judiciary and Senate Judicial Proceedings Committees during the 2010 legislative session, scheduled from January to April. Any true reform bill would pass overwhelmingly on the floor of both the House and Senate. Therefore legislative action to update Maryland's child support guidelines can be expected as they pass their 20th anniversary. If a new law is enacted, it is likely that the legislature will set an effective date and establish other provisions designed to protect the courts' dockets from a flood of requests to modify existing orders.