Marital property Divorce In Maryland

The best way to understand marital property, in my opinion, is to view the issue as follows. Any and all value acquired during marriage is subject to an equitable distribution between the parties. It does not matter how the value is titled. If it is value acquired during marriage it is marital property. Once the court has determined what property is marital property the court then values that property and then the court makes a determination as to what is a fair and equitable distribution of that value. As you can imagine there are multiple areas of disagreement on the issues of marital property. I can tell you any divorce starts with the inventory of assets, liabilities, income, monthly expenses, and some opinion relative to what is in the children's best interest. If you have questions regarding martial property or divorce n Maryland please feel free to call me at 1-888-760-7339. I am more than happy to answer your questions over the phone at no cost to you.

Settlement Agreements in Divorce In Maryland

In a divorce in Maryland the court will recognize the validity of a Settlement Agreement. The applicable Maryland statute on this subject can be found in the family Law article 8-101 and 8-102, which in pertinent part provides that a husband and wife may make a valid and enforceable agreement that relates to alimony, support, property rights, or personal rights. And that such an agreement is not a bar to a divorce no matter when the agreement was executed. It is always advisable to have an attorney review any separation agreement prior to signing the separation agreement. Once the agreement is signed it is subject to the courts authority to enforce the agreement. It is not subject to modification on any issues other than, child custody, visation and child support. If you have questions regarding separation agreements or any other matter affecting divorce in Maryland please feel free to call me at 1-888-760-7339. I am more than happy to answer your questions over the phone at no cost to you.

Living Separate In a Maryland Divorce

Several people have called me in the past weeks asking whether they could file for a divorce against their spouse while they are still living under the same roof. Each has explained to me the financial difficulty of moving. You will find that Maryland has a public policy interest in people being married and remaining married. As such, absent the grounds of divorce of adultery and excessively vicious conduct, Maryland law does require that the parties remain separate and apart for one entire year plus a day before they are eligible to file a complaint for an absolute divorce. It is possible to file a complaint for a limited divorce under constructive desertion while you are still living together with your spouse. This is only necessary to do if you have issues of custody or child support or alimony. Also just to mention it is not necessary to file papers with the court to prove that you are separated. You simply no longer live with your spouse and you are legally separated for purposes of divorce in Maryland.

If you have questions on any issues regarding a divorce in Maryland please feel free to call me at 1-888-760-7339. I am happy to answer your questions for you over the phone at no cost to you.

Grandparent Visitation Divorce in Maryland

Maryland law on grandparent visitation has gone through many changes. Previously a grandparent simply have to petition for reasonable visitation with their grandchild. There were no preconditions to the visitation. The outcome of the trial was solely in the court's discretion and the court decision was guided solely upon determining what was in the child's best interest. See Maryland family law § 9-102. An equity court may:(1)consider a petition for reasonable visitation of a grandchild by a grandparent; and (2)if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent. Case law in Maryland has had a very dramatic impact on section 9-102. It is important to note initially that both parents need to be made a party to the action. Presently a presumption in favor of the parents decision concerning visitation with a third party, including a grandparent, should be considered by the court. The third-party must demonstrate that there will be a current or future detriment to the child absent visitation with the third-party as a prerequisite for application of the best interests analysis.

If you have questions regarding grandparent visitation or any other matter involving personal injury, medical malpractice or family law matters please feel free to call my office at 1-888-760-7339.

Alimony in a Maryland Divorce

There are a few issues involving alimony that may be of some interest. For example although court ordered alimony is always subject to modification however parties can specify in agreements that alimony payments are not subject to further court modification. Unless the parties agree in writing alimony will terminate upon remarriage. The circuit courts have an inherent power to award alimony and the power to reserve the issue of alimony. Alimony payents may retroactively applid to a time prior to the filing of a formal request for a modification of the alimony. Alimony is income to the recipient and a deduction to the payor. Generally speaking alimy is based upon a financial ability to pay alimony and a demonstrated financial need from the person who is seeking alimony.

If you have questions on the issues involving a divorce in Maryland please feel free to call me at 1-888-760-7339. I am happy to answer your questions for you over the phone at no cost to you.

Settlement Agreements Divorce in Maryland

There are generally two ways to resolve issues that arise in a divorce in Maryland. One is by agreement and the other is to let the court decide. Where possible it is preferred to resolve your issues by agreement. The benefits include controlling, to the extent possible, the outcome of your divorce and it is considerably less expensive than litigating the issues before the court. In the last week I have received several telephone calls from persons, that I was not representing, who have entered into separation agreements and almost immediately had second thoughts about the agreement and wanted to attack the agreement and set it aside. There are several ways to attack an agreement. However I will mention immediately that it is very difficult to attack an agreement and win. Some of the grounds available to attack an agreement include: duress and undue influence, lack of consideration, unjust or in equitable agreement, oppressiveness which shocks the conscience of the court, mutual misunderstanding, improper counseling, material fraud, negligent misrepresentation, and injustice and inequity.

If you have questions regarding your divorce, a separation agreement, or any other matter involving divorce in Maryland please feel free to call me at 1-888-760-7339.

Child Support Overtime Income Divorce in Maryland

As we have discussed child-support in Maryland uses mandatory guidelines to determine the amount of child support to be paid. A question often times arises as to what income is income for purposes of calculating the child-support. There are many issues to consider for example gifts, capital gains, income attributed to a parent and many many other issues. The purpose of this blog entry is to address solely the issue of overtime income for child-support purposes. The court of Special Appeals heard the case of Brown versus Brown and determined that actual income for purposes of determining child support payments is overtime income provided the income is not speculative or uncertain. As such, generally, it is determined that in order to include overtime income as income for child-support the overtime must be a regular part of the parents employment. Typically evidence of the earning history will prove this point. Often times it is necessary to subpoena someone from the payors employment to come to court and offer testimony on the issue of overtime availability. In the case of Johnson v. Johnson the court had the opportunity to visit the issue of a bonus as income for child-support purposes. This issue creates even greater complexity when considering modification delays and the inequity of overpaying in light of the fact that overpayment cannot be reimbursed see Barr versus Barr.

If you have questions regarding Maryland child support please feel free to call me at 1-888-760-7339.

Contempt in Divorce in Maryland Child Support

A child support order in a Maryland divorce action can be enforced by way of contempt. There is a statute of limitations on when the contempt proceeding must be initiated. § 10-102. Statute of limitations for contempt proceeding. A contempt proceeding for failure to make a payment of child or spousal support under a court order shall be brought within 3 years of the date that the payment of support became due. Under section Rule 15-207. Constructive contempt; further proceedings. Subsectio (2) Petitioner's burden of proof.- Subject to subsection (3) of this section, the court may make a finding of contempt if the petitioner proves by clear and convincing evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing. ) When a finding of contempt may not be made.- The court may not make a finding of contempt if the alleged contemnor proves by a preponderance of the evidence that (A) from the date of the support order through the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make payment, or (B) enforcement by contempt is barred by limitations as to each unpaid spousal or child support payment for which the alleged contemnor does not make the proof set forth in subsection (3) (A) of this section.

As such the court only needs to find that there was an order in place that the order was not followed and the person obligated to follow the order had the ability to follow the order. In this circumstance the larger issue is the purge provision of the court's order finding contempt. The purge must be consistent with the contemptuous individuals ability to meet the purge provision.

Use and Possession Affecting Stepchildren Divorce in Maryland

Use and possession in a divorce in Maryland involves the custodial parent having access to use the marital home or personal property acquired during the marriage for the benefit of the minor children in their custody. Often times an issue will arise as to whether or not a child is a child of the family. This occurs in a situation where there is a stepchild for example. Initially, a stepchild was found to be a child of the family the Court of Appeals in Maryland addressed the definition of child of the family to say a child of the family is the natural or adopted child of each of the parties to the divorce litigation. The statute does not include stepchildren within its scope. see Bledsoe 448 A2d 353 (1982).

Alimony New Changes in Divorce in Maryland

The Maryland courts have had the opportunity to consider the issue of whether guidelines as produced by computer programs should be considered by the judge when determining the issue of a person's eligibility for alimony and the duration of the alimony payments. The court addressed this issue in Thomas Boemio v. Cynthia Boemio . The court made clear in their decision that the statutory factors that have always been taken into consideration in determining alimony must still be consulted and must still be followed. However the statute does not preclude a judge from consulting with the computer calculated guidelines. I attended a recent settlement conference in Howard County and the settlement judge specifically requested both parties to submit computer calculated alimony guidelines. Sometimes the legal issues may be as simple as a mathematical formula. Sometimes maybe not. If you have questions regarding alimony in a Maryland divorce please feel free to give my office a call as I am more than happy to discuss those issues with you over the phone at no cost to you. 1-888-760-7339

Enforcing Child Support in Divorce in Maryland

If the court has entered an order requiring the noncustodial parent to pay child support and the noncustodial parent is able to pay the child support however refuses to pay the child support you can seek to enforce the Court's child support order by filing a petition for contempt. Rule 15-207 mandates the procedure to be followed in a civil contempt hearing. Subsection (e) focuses specifically on child or spousal support enforcement actions and provides that the alleged contemnor may be found in contempt upon a showing by clear and convincing evidence that he or she has not paid the amount owed. If the court makes a finding of contempt, it must issue an order specifying the amount of arrearage, the sanction, and how the contempt may be purged. Id. at 15-207(e)(4) (2001). The court may not make a finding of contempt, however, if the alleged contemnor proves that enforcement is barred by limitations or that he or she has never had the ability to pay despite his or her best efforts to obtain the funds necessary. Id. at 15-207(e)(3) (2001). In addition to the safeguards provided by Rule 15-207, the Court of Appeals has held that a court may not incarcerate a civil contemnor unless he or she has the to purge the contempt. As such there are actually two battlegrounds in any civil contempt proceeding. One is the initial finding of contempt and two is proof of the contemnor’s present ability to pay the amount of the purge provision.

Pursuing enforcement of child support orders can be expensive for both parties. Often times the best way to proceed with ensuring that you are paid your child support is to have the child support paid through the Department of Child support enforcement by wage withholding order. Now when the noncustodial parent fails to pay the Department of Child support enforcement will go after him. If you have any questions please feel free to call me at 1-888-760-7339 or visit my website at www.yourmarylandlawyer.com

Restrictions on Visitation Access in Divorce in Maryland

Maryland has declared that a parent's interest in raising a child is a fundamental right that cannot be taken away unless clearly justified. In re Adoption, 103 Md. App 1, 12,651 A 2d 891, 894 (1994). Juxtaposed against this fundamental right is the state's primary obligation to see to the protection of those who cannot protect themselves. Maryland courts have long recognized that under proper circumstances a Maryland court may restrict or deny visitation Painter v. Painter 113 Md. App. 504, 688 A.2d 479 (1997).

To restrict and control access the court must consider the appropriate factors, must make a specific finding of fact on the record stating the reason for its decision, and there must exist a nexus between contact with the parent and harm to the child. If no clear, direct connection is found, then the noncustodial parent's visitation rights cannot be restricted. Boswell v Boswell 118 Md. App. 1, 701 A 2d 1153 (1997), aff’d 352 Md 204, 721 A 2d 662 (1998).

In Boswell, involving a homosexual father, the court focused on non marital sexual relationships affecting visitation restrictions. The restrictions therein prevented visits in the presence of specified persons and at specified times.
In Boswell, the reviewing court initially took note of the trial court's error. Specifically, the trial court failed to articulate any reason for restrictions on access other than what was characterized as the “inappropriateness” of the father’s homosexual relationship. Further the reviewing court took note of the trial court's failure to state on the record the manner in which the children would be harm by the father’s conduct. The court took particular note that the trial court could not have articulated any harmful effect, since there was no evidence to support such a finding. As such there was no showing that the restriction was necessary to prevent any adverse impact on the children. Clearly there was no nexus between conduct and an actual harm or potential harm.

The Court ultimately declared, “restrictions on access cannot be based solely on speculation, inferences, or presumptions about the likelihood of harm unsupported by adequate evidence”.

The Boswell Court recognized it is not necessary for a court to sit idly by and wait until a child is actually harmed before placing restrictions on visitation. However there must be sound evidence demonstrating that a child is likely to be harmed down the road. The need for a factual finding of harm to the child requires that the court focus on evidence-based factors and not on stereotypical presumptions of future harm. Therefore, before the court restricts the noncustodial parent’s visitation, it must make specific factual findings based on sound evidence in the record. If the court does not make these factual findings, instead basing its ruling on personal bias or stereotypical beliefs, then such findings may be clearly erroneous and the order may be reversed. In addition, if the trial court relies on abstract presumptions, rather than sound principles of law, and abuse of discretion may be found.

Maryland law has made clear restrictions on access cannot be based solely on speculation, inferences, or presumptions about the likelihood of harm unsupported by adequate evidence.

It is erroneous fact finding and abuse of discretion to require supervised visitation as necessary to prevent a harm or potential harm that is not supported by sound fact finding.

When a Court is permitted to place restrictions or limitations on visitation they must be reasonable, and must bear a reasonable relationship to the harm they seek to prevent. An “abuse of discretion" is said to occur "where no reasonable person would take the view adopted by the [trial] court," when the ruling is "clearly untenable, unfairly depriving a litigant of a substantial right ……..." North v North 102 Md App. 1, 648 A 2d 1025 (1994).

How To File For Divorce in Maryland

As an overview on how to file for divorce in Maryland is important to first verify that Maryland has jurisdiction in your case. One or the other of the parties must reside in Maryland for at least one year prior to filing a complaint for absolute divorce in Maryland. Once you are confident you have this jurisdictional issue resolved the process is fairly straightforward. You must identify which issues you will need the court to address. There is a finite list of issues to be dealt with in any divorce in Maryland. You will file your complaint for absolute divorce in the county where your spouse lives or works or if you are a Maryland resident you may also file in the county where you live. You can secure the complaint forms at the circuit court in which ever of the counties or cities you will be filing. If you are seeking child support or alimony it will be necessary to file a financial statement with your complaint. Once you have filed the complaint the court will take approximately 2 weeks to process your paperwork and will return your paperwork to you with a summons. You then will have to serve your paperwork and the summons on your spouse. Once your spouse receives the paperwork and the summons, depending upon where they are served or reside, they will have a period of time to file an answer. If they should fail to file an answer you will asked the court to enter a default judgment against them. If you have questions about this process please feel free to give me a call I am happy to into your questions for you right over the phone at no cost to you 1-888-760-7339.

Child Support Arrears in Maryland

The Court of Appeals in Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC determined that personal injury recovery is exempt from attachment to pay child support arrears. The case originates when the payor spouse received settlement funds arising from her personal injury case. Her former husband and custodian of the minor children learned of her recovery and sought to attach the funds in support of a judgment he had received for child support arrears. The court determined that the former wife's personal injury recovery is exempt as moneys payable in the event of sickness, accident, personal injury, or death.

Child Support Overpayment Divorce in Maryland

There are occasionally those situations where the payor spouse has made in overpayment of his child support obligation. For example, when incomes have changed and a motion for modification of the child support has been filed based upon that material change of financial circumstances however the hearing is not until several months later. In that circumstance the spouse who is paying the child support may be paying an amount in excess of what Maryland Child support guidelines might otherwise require. As such, it would seem to make sense that the spouse who has overpaid would be entitled to reimbursement for the overpayment. In a divorce in Maryland the spouse who has overpaid the child support amount is not entitled to restitution or reimbursement for the overpayment. The Maryland court addressed this issue in KRIKSTAN v. KRIKSTAN 90 Md.App. 462 601 A.2d 1127. Therein the Appellant complains that the court erred in ordering her to reimburse appellee for the overpayment of support. For several reasons the court determined that they need not address this issue at length. However, for the benefit of the court on remand, the court noted that appellee has "no right to restitution or recoupment following a modification of child support." Holbrook, 132 Md. App. at 70, 750 A.2d 724; see Tanis, 110 Md.App. at 570-71, 678 A.2d 88; Krikston, 90 Md.App. at 473, 601 A.2d 1127.

In Barr v. Barr, 58 Md.App. 569, 588, 473 A.2d 1300 (1984), the court explained that child support is the obligation of a parent to a child, not to the other parent. Therefore, a parent who "overpays" has no absolute right to recoupment. The concern, of course, is that such a requirement ultimately could deprive the child of benefits already received.