Maryland Divorce Attorney Blog

In previous a Maryland Divorce Lawyer post, I have offered a menu of issues that need to be resolved in order to successfully negotiate a Separation Agreement. This is the key to minimizing legal expenses in your divorce. In situations involving a pension plan that is part of the Marital Property, the right of survivorship and who bears the cost of electing the right of survivorship needs to be considered.

Many defined benefit pension plans allow the participant to take a reduced monthly benefit in exchange for providing continued benefits to a spouse following the death of the participant. Known as the right of survivorship, this is typical of many pension plans including federal, state and local government plans. Because so many residents in the Howard County, Anne Arundel County, and Baltimore County area are government employees, this is an important issue frequently encountered by central Maryland Divorce Lawyers. The parties can share the reduction in the benefits pro rata or have the spouse who will benefit bear the full reduction in monthly benefits. It is usually advisable to resolve the issue in a clear and unambiguous fashion.

In the absence of a Separation Agreement by the parties, this is one of many issues that are left to the discretion of the judge based on all the facts and circumstances of the case. Ordinarily if you enter into a Separation Agreement you are compromising important issues in order to avoid litigation. It is not usually a preferred result to enter into a Separation Agreement that is unclear on this or any other point and end up in litigation over what the parties intended.

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.

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.