Recently in Separation Agreements Category

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.

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.

April 18, 2010

Separation and Divorce, A Time To Think About Your Will

Maryland Divorce Lawyers and their clients need to keep in mind issues related to estate planning that may or may not be impacted by separation and divorce. A recent decision by the Maryland Court of Appeals in
Friedman vs. Hannan interpreted Section 4-105 of Estates and Trusts Article. This section provides that upon divorce, provisions of a will relating to a former spouse and only the provisions relating to the former spouse are revoked. The decedent, James Patrick Hannan had made a will while married but divorced before his death. The question involved bequests he made to immediate family members of his wife.

The court upheld the decision of courts below in invalidating the bequests. It held that the effect of divorce on bequests to a spouse's relatives must be handled on a case by case basis. In this case, the decedent had not formed a close personal relationship with wife's relatives. In making its ruling, the court noted that many divorces are acrimonious "with acrimony spilling over to the former spouse's family". The court also noted that the ruling might have been different had there been evidence of a "close personal relationship" with the decedent.

Individuals who are separated but not yet divorced need to keep in mind that Section
4-105 is not triggered until a final divorce decree is entered. A spouse can take under a will despite the separation. Furthermore unless there is a waiver of rights, such as usually occurs in a separation agreement, the surviving spouse can not be totally cut out of the will. He or she is eligible for a minimum share of the decedent spouse's estate. That issue can be complex and is the subject of a prior posting.


January 17, 2010

Government Pension and Right of Survivorship In Divorce

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.


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 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.