Divorce in Maryland Claiming Counsel Fees

As part of your claim for relief in any contested divorce case you generally always ask the court to award your client counsel fees. I believe this builds in an element of pressure on the other side to force reasonable conduct. Also, there is the obvious need and justification in many cases. So what is the basis for the court to award counsel fees?. You will find the statutory authority in the Family Law Articles at sections 7-107 also 8-214 and again at 11-110. It is necessary to prove two elements to pursue the fees award. Specifically: (1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.

Divorce in Maryland Private School and Child Support

Maryland child support is based upon mandatory guidelines. factors that are considered in determining the amount of child support, include but are not limited to, cost incurred in private school education. Whether this cost should or should not be considered in the child support calculation depends upon the parties agreement or if the parties can not agree, then the court's order. As such the court looks at a number of factors to determine if the private school tuition should be made a part of the child support calculations. The factors can be found in the case of Witt v. Ristaino, 118 Md.App. 155, 701 A.2d 1227 (1997). These factors include (1) “the child's educational history,” (2) “the child's performance while in the private school,” (3) “ family history,” (4) “whether the parents had made the choice to send the child to the school prior to their divorce,” (5) “any particular factor that may exist in a specific case that might impact upon the child's best interests,” and (6) “the parent's ability to pay for the schooling.”

Maryland Child Custody Law

Maryland Child Custody Law revolves around the simple concept of what is in the child's best interest. Custody happens on two different levels, which are themselves further broken down into two levels. You have Legal Custody, further broken into sole and joint, and you have Physical Custody, further broken into sole and shared. It is interesting to note that the Court in Maryland can not enter an order for pendente lite custody when the parties continue to reside together. See Maryland Family Law Article 5-203.

Legal Custody: Sole Legal Custody and Joint Legal Custody. Sole Legal Custody is where only the custodial parent has the right to make the decisions affecting health, education and welfare. Joint Legal Custody is where both parents share equally in decision affecting the health, education and welfare of the minor child.

Physical Custody is more interesting then legal Custody. Physical Custody is where the child lives. Physical Custody is also broken down into two different categories. You have either Sole Physical Custody or Shared Physical Custody. Once a non custodial parent enjoys Shared Physical Custody it means two things (1) he/she has the child with them in excess of 128 over nights per year and (2) the child support obligation is affected by the overnights with the otherwise non custodial parent. You will find many people fight over the 128 overnights. In order for a non custodial parent to reach the 128 number they must establish it is in the child's best interest. The court looks at the factors in a case call Taylor v Taylor to help the judge make the difficult decisions on whether to order sole joint custody or shared physical custody.

Divorce In Maryland

In any divorce in Maryland there are a finite list of issues to be resolved. The issues can be resolved by agreement or the issues can be decided by court order. If you would like to learn more about each of the issues Please feel free to call me. I am happy to discuss the divorce process in Maryland, over the phone at no cost to you. I have outlined the list of issues below for your review.

Jurisdiction and Venue
Grounds for Divorce
Child Custody
Visitation
Child Support
Contribution
Alimony
Marital Property
Marital Debt
Counsel Fees
Suit Money

Gifts and Pre-Marital Assets As Marital Property

The Marital Property Act” (“Act”). Section 8-201 defines marital property:

(e)(1) “Marital property” means the property, however titled, acquired by 1 or both parties during the marriage.

(2) “Marital property” includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement.

(3) Except as provided in paragraph (2) of this subsection, “marital property” does not include property:

(i) acquired before the marriage;

(ii) acquired by inheritance or gift from a third party;

(iii) excluded by valid agreement; or

(iv) directly traceable to any of these sources.

So what about an asset that appreciated during marriage but was acquired by gift or was pre-marital then can the other non owner spouse share in the post marriage appreciation as marital property. Well maybe yes. If either spouse used their efforts to help the asset gain value during marriage, then certainly yes it is marital property. However the value is marital property only to the extent you can prove the efforts produced the specific value. At least as it relates to stocks since it appears not to relate to trailer parks. Additionally or otherwise if the owner spouse was able to re-invest post marriage appreciation, such as for example dividends, from the assets then yes again as long as the non owner spouse can prove they maintained the household expenses which permitted the re-investment. But you can not share if the post marriage appreciation was purely passive. Meaning the assets gained value with no help from anyone or with out reinvestment of money otherwise needed and available to the owner spouse. For more information feel free to call my office or visit http://www.yourmarylandlawyer.com

Child Custody Affecting the Child Support Some Tips

As we know already custody happens on multiple levels. You have legal custody which is sole or joint and you have physical custody which is either sole or shared. Legal custody only affects decision making on issues of health, education and welfare of the child. Physical custody is sole until such time as the non custodial parent has 128 overnights each year when the child is with them. At this point the custody is shared and the child support is thrown into a different mathematical formula for determining the amount to be paid by the non custodial spouse. The effect can be significant in reducing the child support payment. Many people fight in court for the 128. Generally, you can get the 128 with the following visitation schedule. Friday thru Monday morning and two over nights each week. Not easy to do when kids are in school. If that is your situation, then try to pick up the time on school breaks, holidays and during the summer. A major factor the court will look at on this issue is the ability of the parties to communicate. The court looks at the history of communication both before and after the separation.

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Adultery and Proof

I received a call yesterday from a women who wanted a quick divorce. Her husband was willing to admit his adultery and that was the only proof she had. They were prepared with a settlement agreement and now wanted the divorce after only a three week separation. Her question "Can I file now and get the divorce?" Her answer like so many others, maybe. But in this case probably not. In Maryland to divorce on adultery you need to prove predisposition (public affection, generally) and opportunity (lovers in seclusion for a sufficient period of time to do the act). You can get the divorce on the offending parties admission (I did it), only when the case is hotly contested. The admission is evidence in every case. But grounds must be corroborated. An admission such as this can not be the only evidence of the grounds unless the case is hotly contested. In her situation the case was not contested at all. In fact everyone was in agreement and even had the separation agreement signed to prove it. Unfortunately she would have to wait the one year.