Material Change of Financial Circumstances Child Support Maryland Divorce

Once the court has entered an order for child support that order is subject to future modification. Pursuant to Maryland Family Law Article section 12-104 the court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a "material" change of circumstances. However the court may not retroactively modify a child support award prior to the date of the filing of the motion for modification. This is a very important point not to miss. As soon as you have a material change in circumstances you must file your motion for modification. The change in circumstances may include things such as the child reaching age of majority, a change of the physical custody, a change of the visitation schedule to exceed 128 overnights per year or may include a change in the income of the parties. For example, if you lose your job file your motion for modification. In the case of Kierein 115 Md App 448 (1997) the court determined that the child support order can only be modify it if there has been a material change in circumstances, needs, and financial conditions of the parties from the period of time immediately preceding when the court last had an opportunity to consider the issue. What qualifies as a material change depends on the facts of each case. In these situations I suggest that my clients, through counsel, for a correspondence to the other party enclosing their income information with proof of income and asked the other side to do the same. The adjustment to the child support order can be done by consent between the parties provided of course the modification still complies with Maryland Child support guidelines. If you are not sure you are entitled to a modification that please feel free to call my office. 1-888-760-7339

Dissipation of marital assets divorce in Maryland

“Dissipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Sharp v. Sharp, 58 Md.App. 386, 401, 473 A.2d 499 (1984). We have defined dissipation as expending marital assets “for the principal purpose of reducing the funds available for equitable distribution.” Jeffcoat v. Jeffcoat, 102 Md.App. 301, 311, 649 A.2d 1137 (1994).

Whether the use of marital property to pay attorney's fees constitutes dissipation.

In the case of Allison v. Allison 160 Md.App. 331, 864 A.2d 191 the Court determined: As a policy matter, attorney's fees should generally be viewed as a legitimate expenditure of marital funds. Since the law permits divorce, the law should permit spouses to spend the funds necessary to pay for legal services in divorce proceedings. Divorcing spouses usually do not have their own separate funds to pay their lawyers, so a rule that condemns the use of marital funds for legal services simply does not make sense. The doctrine of dissipation was developed as a tool to prevent and remedy economic misconduct that could frustrate an equitable distribution of partnership assets. Expenditures for legal services cannot be fairly characterized as economic misconduct. On the contrary, it should be viewed as entirely appropriate for people facing marriage breakdown to obtain the legal advice and assistance needed to equitably distribute marital assets.

Furthermore, it wastes resources to require spouses either to seek court permission before spending marital funds to obtain legal assistance or to seek a preliminary award of fees rather than spending the money necessary to obtain counsel. The doctrine of dissipation should remain available, however, to provide an avenue for redress if one spouse spends an unnecessary or unreasonable amount of marital funds on legal fees.

Defending Contempt in a Maryland Divorce

Whenever an individual violates a provision of a court order their actions may constitute constructive contempt of the court. Typically we frequently see these types of contempt actions when people fail to pay alimony, fail to pay child support, or fail to obey court orders regarding visitation. A proceeding for contempt must be filed in the same court that issued the order. Just the mention, the statute of limitations for filing a contempt proceeding for nonpayment of child support is three years see section 10-102 of the Family Law article.

My best advice first and foremost is to obey all court orders. However there are circumstances where people simply cannot abide by the court order. Circumstances where an individual is required to pay alimony or child support and has lost his job would be a perfect example of that type of circumstance. The argument that would be advanced to the court would illistate he did not have the ability to comply with the court's order through no fault of your own, he lost his job. The judge will not find you in contempt of court unless there is evidence that you willfully, intentionally disobeyed his order. If you can present evidence that you intended to abide by the order but circumstances occurred beyond your control that prevented you from obeying the order then you stand a very good chance of not being found in contempt.

Siblings and Divorce in Maryland

Ordinarily the best interest and welfare of the children of the same parents is best served by keeping them together to grow as brothers and sisters under the same roof. There is no presumption that the best interest of siblings is preserved by keeping the children together. However generally, Maryland divorce law frowns upon division of siblings. There are a number of cases in Maryland divorce law where the Court has determined that the living arrangement which separated the siblings was to remain in tact since the children were driving in that living arrangement. Davis v Davis 280 Md 119 (1977) is an example where the court upheld the division where the youngest child had resided for two years with the mother without her siblings and had adjusted well to that arrangement. In Byrce v Bryce again the court upheld the division of siblings where the 2 older children had been with the mother and the youngest remained with the father.

If you ever have questions regarding, visitation, or custody or child support issues please feel free to give me a call I'm more than happy to answer your questions. 1-888-760-7339

Venue Affecting Divorce in Maryland

Venue refers to what city or county you can use to file your complaint. It is an important issue in divorce cases.It is important due to the pace of getting cases scheduled and the judge's particular orientation on custody issues. Generally as you will see below venue depends on residency and employment issues.

MD Code, Courts and Judicial Proceedings, § 6-201

6-201. In general

(a) Subject to the provisions of §§ 6-202 and 6-203 of this subtitle and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation. In addition, a corporation also may be sued where it maintains its principal offices in the State.


(b) If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a), all may be sued in a county in which any one of them could be sued, or in the county where the cause of action arose.
§ 6-202. Additional actions

In addition to the venue provided in § 6-201 or § 6-203, the following actions may be brought in the indicated county:


(1) Divorce -- Where the plaintiff resides;

Marital Property and Exclusions in Maryland Divorce

When contemplating a divorce in Maryland, the question of "is it marital property" always seems to surface. "Marital" and "nonmarital" are adjectives used to describe time or manner of acquisition by either or both spouses. These words have nothing to do with "ownership", possession, or who uses it most. When a dispute arises between the parties in a Maryland divorce, the court shall determine what is marital property. In a Maryland divorce marital property can result in a monetary award, and hence why this is a hot topic in most Maryland divorce cases. There are things that can be excluded from "marital property". They are, property that was aquired before marriage, any inheritance or gift from a third party, anything that the parties agree to upfront that will not be considered marital property by agreement. If you have any questions regarding a divorce in Maryland, please feel free to call my office.

Child Custody Modification Divorce in Maryland

In a Maryland divorce the issues of child custody, visitation, child support, children's education, and alimony are always subject to further court modification. See family law article section 8-103. It is important to take note that modification of a prior award regarding custody and visitation issues will require proof that there has been a change of circumstances and that the modification being sought is in the child's best interest. Typically, you will find that courts are not anxious to change custody and visitation unless something is wrong with the current situation. It is one of those situations where if it ain't broke don't fix it.

As to child support is important to know that aarrears for child support modification is only retroactive back to the date that you request the modification. And it once again you do need to prove a material change of financial circumstances to justify the modification of the prior child support amount. I've seen countless cases where the payor spouse has lost their job and child support enforcement is continuing to pursue them for a child support payment. If you lose your job go to the circuit court in the county that entered the child support order and file a motion to modify the child support. You can do this on your own. If you have any questions just give my office a call and we will point you in the right direction. 1-888-760-7339

Attorney appointed for child in Maryland divorce

In a Maryland divorce case provisions are made for the appointment of an attorney to represent a minor child if necessary. The rules that govern the appointment of an attorney to represent a minor child are found in Maryland rule 9-205.1. Generally there are three categories of classifications into which an attorney may fall in his or her representation of a minor child.

One such category is the child's best interest attorney. This attorney is appointed by the court and acts in the child's best interest without being bound by the child's directives.

Another category is the child's advocate attorney. This is a court appointed attorney who represents the child much like the attorney would represent an adult and acts in furtherance of the child's directives.

Finally you have the child's privilege attorney. This is a court appointed attorney who is in the case for the purpose of either asserting or waiving the doctor patient privilege. This category of attorney was once known as the Nagle v Hooks attorney.

If you have questions regarding these issues or any other matter affecting a divorce in Maryland.

Please feel free to call my office

Statute of Limitations on Child Support in Maryland

I received many calls every day from people asking if there is a statute of limitations on enforcing child support orders. The most direct way to enforce a child support order is to file a petition for contempt. You should review the Maryland family law article section 10-102. If you decide to proceed in this manner, you have three years from the date of nonpayment to bring your contempt proceeding.

This three-year limitation only applies to contempt proceedings and does not apply to proceeding for judgment for child support arrears. In that case the statute of limitations is 12 years. You can review the case of Miller v. Miller, 70 Md. App 1
(1987. This same 12 year statute of limitations would apply to actions to recover a judgment for medical and dental expenses which a party was obligated to pay in a separation agreement incorporated into a judgment of divorce. Please review the
O'Hearn case 337 Md 292 (1995).

Use and Possession of Property in Maryland

The court is permitted to order that one custodial spouse with a child has the right to possess and use the family home and family use property for a limited time, regardless of how the property is titled. A use and possession order may only be issued in limited circumstances such as part of a divorce or annulment proceeding, temporarily in a pendente lite proceeding, or as the result of a protective order for domestic violence. The court can only award use and possession to a spouse with custody of a natural or adopted child, not a step child. The court may allocate financial responsibility to either or both the parties concerning indebtedness or expenses on the property. This means that the party not granted use and possession may be required to pay all or part of the expenses. The party bearing this financial responsibility has a right to seek contribution.

Qualified Domestic Relations Orders in Maryland

A Qualified Domestic Relations Order (QDRO) is an order by the court to modify the payee of a pension plan. The court has the power to transfer interests in pensions, retirement plans, profit-sharing, or deferred compensation. A QDRO must be prepared which meets the specific requirements outlined in the Employee Retirement Income Security Act (ERISA). A QDRO is a means for a spouse to claim an interest in a participant’s retirement benefits through a state court order enforceable under federal law. A QDRO must set forth the name and last known mailing address of the plan participant and the alternate payee, the amount or percentage of benefits going to the alternate payee, and the number of payments to which the plan applies. Benefits provided under a QDRO are considered income to the actual recipient.

Adultery as a Ground for Divorce in Maryland

Adultery is voluntary sexual intercourse between a married party and someone other than the spouse of the married party. The aggrieved spouse may file for an absolute divorce immediately on the ground of adultery without waiting for any separation time period to expire. Adultery is difficult to prove because of its private nature, so circumstantial evidence is permissible. This circumstantial evidence must show BOTH opportunity on the part of the defendant and paramour to commit adultery AND disposition to commit the adultery. An example of disposition is public displays of affection between the paramour and the defendant.

Proof Of Separation in a Maryland Divorce

Maryland requires the parties live separate and apart for one year before they are eligible to file a complaint for absolute divorce in all but two grounds for divorce. The exceptions being adultery and excessively vicious conduct. Proof of this separation typically is some fact witness who says I know he/she moved on such a day because (fill in the blanks), ie: I helped them move, they moved in with me, etc.. That same witness can also be used to offer the testimony that the separation has remained continuous and uninterrupted for the entire 12 months. other evidence is also available for example post office mail changes, driver license changes, leases, and any other evidence on point to show the date you and your spouse separated.

Custody Rights in a Divorce in Maryland

I receive many calls each day from parents asking what rights they have to the care and custody of their children. In a divorce in Maryland each parent has an equal right to the care and custody of their child until a court orders otherwise. See Maryland Family Law Statute 5-203

The parents are the joint natural guardians of their minor child.
(2) A parent is the sole natural guardian of the minor child if the other parent:
(i) dies;
(ii) abandons the family; or
(iii) is incapable of acting as a parent.
(1) are jointly and severally responsible for the child's support, care, nurture, welfare, and education; and
(2) have the same powers and duties in relation to the child. (d)(1) If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents.
(2) Neither parent is presumed to have any right to custody that is superior to the right of the other parent.

How to Make Non Marital Property Marital

Marital property in a divorce in Maryland is defined essentially as all value acquired during marriage. The definition excludes values existing before marriage, gifts received and inheritances of value. Even those values which appear non marital may be converted to marital property by the conduct of either of the parties. For example suppose wife owes a rental property before marriage. However, during marriage the husband works on the property to improve the property. In this example the value increased by the personal efforts of the husband become marital property. The same is true of marital income diverted to improve the property. The increased value attributed to the spending of marital income is now marital property.

The trick to the uncovering of the marital property in any case is to first identify the property and work backwards to see how the present value was acquired. Title does not matter at all in the equation. Look to person efforts and financial contributions made by either party to the acquisition of the value.

A Sample Complaint for Absolute Divorce in Maryland

This is a sample complaint for an absolute divorce in Maryland based upon a mutual and voluntary agreement to separate. There are several other grounds for divorce that you can plead. I am offering the sample only as a general outline. Your case may have difference facts and different prays for relief.


IN THE CIRCUIT COURT OF MARYLAND FOR xxxxxxxxxxxxxxx COUNTY
CASE NO.:

xxxxxxxxxxxxxxxx
xxxxxxxxxxxxxx
xxxxxxxxxxxxx
*
Plaintiff

v.
*
xxxxxxxxxxxxx
xxxxxxxxxxxxx

xxxxxxxxxxxxx

Defendant

**********************************************

COMPLAINT FOR ABSOLUTE DIVORCE

XXXXXXXXXXXXX , Plaintiff, by Keith Blair Bartnik, his/her attorney, respectfully represents unto Your Honor:


1. That Plaintiff is an adult and is a resident of XXXXXXX County, State of Maryland; that Defendant is an adult and is a resident of XXXXXXXXX County, State of Maryland; that both parties have been residents of the State of Maryland for more than one (1) year prior to the filing of this Complaint.

2. That the parties were married in a xxxxxxxxx ceremony on the day of , , in , State of Maryland, in accordance with the laws of that State.

3. That XXXXXXX children were born as a result of said marriage; namely, ,
that said children are in the care and custody of xxxxxx . That xxxxx is not a fit person to have custody of said children.

4. That the parties have acquired and accumulated property during their marriage
to each other and is "marital property", the same not having been acquired by an inheritance or gift from a third party, and is not excluded by a valid agreement nor is it directly traceable to any of these sources.

5. That the parties have acquired and accumulated marital debt during the
marriage to each other and is "marital debt".

6. That there are no other suit and or cases involving these parties.

7. That the parties are presently living separate and apart and have voluntarily lived separate and apart from one another without cohabitation from XXXXXXXXX to the date of the filing of this Complaint; that said separation is beyond any reasonable expectation of reconciliation.

WHEREFORE, Plaintiff request the following relief:

That Plaintiff be granted an absolute divorce from the Defendant.

That Plaintiff be awarded temporary and/or permanent custody of the minor children of the parties.

That the Defendant be ordered to pay to the Plaintiff a reasonable sum for temporary and permanent child support and child care.

That the Defendant be ordered to pay the cost of health insurance for Plaintiff and
the minor child(ren) of the parties.

That the Court determine the ownership of all personal property and real property regardless of how titled.

That the residence of the parties be declared a family home.

That the Plaintiff be granted a use and possession order of said family home for the benefit of the minor child(ren) both pendente lite and for a period of not less than three years from the date of divorce.

That the Defendant be ordered to pay all or part of the mortgage payments/rent,
all or any part of the indebtedness related to the property, the cost of any maintenance, insurance, assessments and taxes, and any other similar expenses in connection with the property.

That the Defendant be restrained from entering upon the family home property in violation of the use and possession order.

That the furniture and furnishings in said residence be declared family use personal property both pendente lite and for a period of not less than three years from the date of divorce.

That the family use car be declared family use personal property both
pendente lite and for a period of not less than three years from the date of divorce.

That the Defendant be ordered to pay to the Plaintiff Pendente lite and permanent alimony.

That the Court make a determination of all marital property of the parties.

That the Court determine the value of all marital property of the parties.

That the Court make a monetary award to the Plaintiff after adjusting the parties'
equities in the marital property.

That such monetary award in favor of Plaintiff be reduced to a judgment together with interest in Plaintiff’s favor.

That the Court order a sale in lieu of partition of all real and person property
determined to be jointly owned and not determined to be family home or family
use personal property and divide the proceeds.

That the Defendant be enjoined from disposing of or otherwise encumbering any of the property marital property or property acquired during separation.

That the Court order the real and personal marital property to constitute lis pendens with respect to all real and personal property.

That the Defendant be ordered to pay to the Plaintiff suit money and court costs,
including a reasonable contribution toward Plaintiff's attorney's fees in connection with
legal services for the benefit of said child(ren) and attorney's fees for the Plaintiff, and
that such order be reduced to Judgment in favor of Keith Blair Bartnik, P.A..

That the Plaintiff be granted the use of her maiden name.

That the Court enter an Order as justice may require both pendente and permanent

That the Court grant such other and further relief as the Plaintiff’s cause may require.


______________________________
Plaintiff

How To File For Divorce In Maryland

The very first step before filing for divorce in Maryland is to confirm you have the correct jurisdiction. Secondly you need to verify you have a grounds for divorce. Once these are verified and you are confident you have the correct location (jurisdiction) and you have a grounds for divorce, then you are ready to draft the pleadings. The pleadings themselves are to follow specific outlines. The rules for pleadings are found in RULE 1-301. FORM OF COURT PAPERS. A pleading is to have

Caption and Titling. Every pleading and paper filed shall contain a caption setting forth (1) the parties or, where appropriate, the matter, (2) the name of the court, (3) the assigned docket reference, and (4) a brief descriptive title of the pleading or paper which indicates its nature.

An original pleading shall contain the names and addresses, including zip code, of all parties to the action if the names and addresses are known to the person filing the pleading. If the address of a party is unknown, the pleading shall so state.

Regardless of the nature of the action, the party bringing an action shall be called the plaintiff and the party against whom the action is brought shall be called the defendant.

Annulment in Maryland

Annulment is the legal determination that a marriage did not exist, as distinguished from divorce, which is a legal determination that a marriage existed, but is terminated. There are eight grounds for annulment in Maryland. These grounds include failure to have a license or a civil/religious ceremony, bigamy, consanguinity, age, insanity, intoxication, duress or fraud. If the facts of your situation do not fit in any of these grounds then your marriage must be terminated through the divorce process.

Setting Aside a Settlement Agreement in Maryland

Often times a Husband and Wife will enter into an Agreement relating to custody, visitation, child support, alimony, and property rights. If approved by the Court, the Agreement will be enforced. However the Court can refuse to enforce an Agreement using contract principles of law. The Court will generally set aside an Agreement based upon three types of circumstances. The first circumstance is unconscionability, which occurs when the terms contained within the Agreement are so inequitable and unjust as to “shock the conscience” of the Court. The second circumstance is duress, where one side involuntarily accepted terms, had no alternative and did so because of coercive acts of the other. The third and final circumstance is fraud, where an intent to deceive must be proven.

Child Custody Lawyer in Maryland

In Maryland the biological parent has rights to the care and custody of their child that are superior to any non biological persons. In fact in the event of a custody dispute the non biological party must prove the biological parent is unfit or there are exceptional circumstances affecting the best interest of the child as a threshold to the court ordering them to have custody. See Ross v Pick, 199 Md 341 86 A 2d 463 (1952). If you have encountered this situation where someone is trying to win custody over you for the care of your child, call me I am happy to discuss the case with you over the phone at no cost to you. 1-888-760-7339

Talaq Divorce Not Recognized in Maryland

The Court of Appeals in Maryland had the opportunity to address the issue of a talaq divorce issued at the Pakistani embassy in DC. The case is reported in Aleem v Aleem 404 Md 404, 947 A 2d 489 (2008). The Maryland court determined in this instance that the Pakistani law permitting the divorce and subsequent property distribution was in conflict with Maryland public policy as that policy impacts property distribution. At issue was the husband's million dollar pension, which had the Maryland court not interceded would have remained his sole possession post the talaq divorce.

Driver’s license and Divorce in Maryland

Can they really take my drivers license? The answer is yes.
The Child Support Enforcement division may notify the Motor Vehicle Administration of any obligor who is 60 days or more out of compliance with the most recent order of the court in making child support payments if:
(i) the Administration has accepted an assignment of support under or
(ii) the recipient of support payments has filed an application for support enforcement services with the Administration.
Upon notification by the Administration under this subsection, the Motor Vehicle Administration:
(i) shall suspend the obligor's license or privilege to drive in the State; and
(ii) may issue a work-restricted license or work-restricted privilege to drive in the State.
Conditions for reinstatement of obligor's license
If after information about an obligor is supplied to the Motor Vehicle Administration the obligor's arrearage is paid in full, the obligor has demonstrated good faith by paying the ordered amount of support for 6 consecutive months, or the Administration finds that one of the grounds exist the Administration shall notify the Motor Vehicle Administration to reinstate the obligor's license or privilege to drive.

Material Change to Justify Modification of Child Support

There are some points of interest relative to child support modifications. If the child support was initially the result of a Court Order you can seek a modification upon a show of material change in financial circumstances. Generally any increase or decrease in the child support amount (not necessarily a decrease or increase in the income) that would increase or decrease the child support by 25% is a material change of financial circumstances. If however the child support was arrived at by agreement between the parties and that agreement was later incorporated in the judgment of divorce, then the child support can be modified only upon the showing of (1) that the modification of the child support is in the child(ren) best interest and (2) that the new proposed child support figure is in the child(ren) best interest. I have located cases in Maryland where the Court has reduced the child support as it was in the kids best interest. Mostly the cases revolve around a changed circumstance of course and the impact of the change circumstances on the payer's ability to maintain visitation and or relationships with the children. Apparently Maryland will forgo money in exchange for fostering relationships and quality contact between parent and child.

Child Support Modification in Maryland Divorce

I have been receiving several calls each day from non custodial parents who have unfortunately lost their employment in this recession. Each wants to know what they should do to change the child support obligation since they are no longer earning wages. It is important to note initially that the child support modification is retroactive only back to the date you seek a modification. This means you must file the motion to modify child support immediately. Once this is done I suggest a consent agreement. We normally pursue this with a letter to the custodial spouse outlining you are no longer employed. If unemployment is being pursued this is income for child support purposes. If there is no unemployment money and no other income and you are actively trying to find a job then unfortunately everyone suffers until new employment is secured. There is no point in everyone running to court to prove you are not working. The simplest solution is enter into a consent agreement with the agreement to share income information the minute you secure new employment. At that point the child support can be recalculated and the child support restarted as normal. If you have any questions on child support issues, please visit my web page or feel free to call me. 1-888-760-7339