Accident Attorney and Child Support Arrears

In a Maryland accident case, The Maryland Court of Appeal determined

that funds received as a part of a settlement in personal injury case are exempt from being executed for a judgment of child support arrearages.

The case is illustrated when the primary custodial parent of two minor children sought to garnish funds received from his ex-wife in a personal injury lawsuit after she failed to pay her child support.
The Circuit Court found, and the Court of Special Appeals affirmed that the funds were exempt from execution on judgment in accordance with Courts and Judicial Proceedings § 11-504(b)(2), which states the following:

(b) The following items are exempt from execution on a judgment:

(2) Money payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings.

This exemption includes but is not limited to money payable on account of judgments, arbitrations, compromises, insurance, benefits, compensation, and relief. Disability income benefits are not exempt if the judgment is for necessities contracted for after the disability is incurred.

 If you have questions regarding enforcement or recovery of child support arrears please feel free to call my. we will we will discuss your case over the phone at no cost. 1-888-760-7339

Transfer of Real Property in a Marital Award in a Divorce in Maryland

In a divorce in Maryland the Court has the ability to divide the marital property of the parties and make an equitable distribution of that property. Pursuant to MD Family Law Article 8-205 when dividing marital property the court has the ability to grant a monetary award or transfer ownership of an interest in property. This transfer of ownership can apply to pensions, retirement plans, or family use personal property, as well as to any real property that was jointly owned by the parties. Pursuant to 8-205(a)(2)(iii)(1) “subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together, by ordering the transfer of ownership of the real property any interest of one of the parties in the real property to the other party if the party to whom the real property is transferred obtains the release of the other party from any lien against the real property.” This statute grants the court the ability to transfer the ownership of real property such as the marital home of the parties or any other property that is owned jointly by the parties to be one parties sole property. However this is subject to the consent of any lienholders and may only be transferred in accordance to any terms in a mortgage or other lien agreement.

Alimony Termination in Divorce in Maryland

In a case recently decided JOHN C. BRADLEY v. SHARON M. BRADLEY, the petitioner Mr. Bradley sought to terminate and indefinite alimony award, which was arrived at thru separation agreement and contain a provision that the indefinite alimony was not subject to further court modification. Mr. Bradley brought his action asserting that the termination of the alimony was necessary to avoid a harsh and unjust result. The provision of the separation agreement provided in pertinent part:

“Husband shall pay to Wife, for her support, the sum of Twenty- Six Thousand Eight Hundred Dollars ($26,800.00) per year accounting from the date hereof, payable in equal monthly installments of Two Thousand Two Hundred and Thirty-Three Dollars ($2,233.33) on the first day of each month, for so long as the parties live separate and apart and until the first to occur of any of the following events: (a) remarriage of Wife, (b) death of either party. The aforesaid provision shall not be subject to modification by any court, unless the Wife becomes disabled, and is unable to perform any duties or earn any income in the teaching and clerical fields. Her disability must be certified by two (2) physicians who are licensed in the State of Maryland, one of whom shall be the Wife’s current treating internist or cardiologist. The parties expressly waive the right ever hereafter to have any court change or make a different provision for the support and maintenance of Wife, except as provided herein, and they further expressly covenant and agree that under no circumstances, except those provided herein, shall either of them hereafter apply to any court for an increase or decrease in the amount of or a modification of the terms of such support. 

 

The husband  subsequently became disabled. Then, pursuant to § 11- 108 of the Family Law Article, which 1 states as follows: “Unless the parties agree otherwise, alimony terminates: (1) on the death of either party (2) on the remarriage of the recipient; or (3) if the court finds that termination is necessary to avoid a harsh and inequitable result.”, The husband sought to extend the courts authority to modify separation agreement, arguing that the failure of the agreement to specifically provide a provision addressing modification in the event of a necessary task to avoid harsh and inequitable result granted the court authority to make the modification. The court declined to extend its authority. Ultimately it is the court's determination that the non-modifiable alimony provision will not be overcome by subsequent harsh inequitable results unless the agreement specifically states that the non-modifiable alimony will be subject to modification in the result of harsh inequitable results.

 

If you have questions regarding your divorce action. Please feel free to call me. I will answer your questions right over the phone at no cost to you. 188-760-7339.

 

 

 

 

Constructive Desertion in a Divorce in Maryland

Constructive Desertion is grounds for both a limited or absolute divorce in Maryland. The elements of a constructive desertion are the petitioning spouse bringing the separation due to the the respondents misconduct. This misconduct can be proven by showing that they were suffering from cruelty that could be in the form of either physical abuse or any other acts that would affect and impair the petitioners health and making living with their spouse intolerable. The petitioning spouse must show that it was necessary for them to leave in order to maintain their health, safety and self respect. When the petitioning spouse can prove the above listed elements they have shown that the other party has constructively deserted them due to the behavior that they have exerted.

Desertion in a Divorce in Maryland

In a divorce in Maryland desertion can be used as a ground for both an Absolute or Limited Divorce. To prove desertion the party asserting that they have been deserted must show that there has been a physical separation, that this separation has been without the consent and against the will of the spouse asserting that they have been deserted, that the separation is without a justification. If there has been an actual desertion the only defense for the party who has left would be that they have a justification for leaving.

Adultery in a Divorce in Maryland

Adultery is one of the few grounds for divorce available where a party is able to file for divorce in Maryland without a waiting period . Adultery is able to be proven through circumstantial evidence however the party who filed must prove that their spouse had the disposition to commit the act of adultery as well as the opportunity to commit the offense. The burden of proving adultery is on the party who has filed for divorce and raised adultery as their grounds for the divorce.

Grounds for an Absolute Divorce

In Maryland an absolute divorce is governed by MD Family Law 7-103. Only an absolute divorce will permit the parties to remarry after the divorce is finalized. In order to be granted an absolute divorce all of the grounds must be satisfied before the party files the complaint for divorce. A 12 month separation is required for either using desertion or constructive desertion as a ground for divorce or for a no fault divorce. The only grounds that do not require separation for 12 months before filing are adultery or cruelty of treatment/excessively vicious conduct.

Voluntary Impoverishment in Calculating Child Support in Maryland

In calculating child support in a divorce in Maryland a party cannot voluntary impoverish themselves.Under MD Family Law 12-205(b) the exceptions for voluntary impoverishment are those individuals who have a physical or mental disability or those who are caring for a child under the age of 2 for whom parents are jointly liable for support. The standard in Maryland is that it is voluntary impoverishment when a party makes a free and conscious choice, that is not compelled by factors outside of their control that renders him/herself without adequate resources. When a party is determined to be voluntary impoverished they are imputed with income as determined by MD Family Law 12-201(1).

Mediation in Divorce in Maryland

Mediation is commonly being resolved to resolve issues of child custody and access in many divorce cases in Maryland. When mediation is ordered by the court in a family law case it is typically used for the parties to come to an agreement on a parenting plan rather than the court arbitrarily deciding what they believe to be in a minor child's best interest. However this parenting plan can be incorporated into a court order so that the parties are legally bound to follow the agreement.

Child Support in Maryland

To establish child support in Maryland uses a formula that is presumed to be correct. This formula looks at each of the parties incomes and only deducts from that income for child support being paid for children from a prior marriage as well is alimony paid in either current or prior cases. Based on the parties income and the number of overnights that the child has with each of the parents (either joint physical custody or sole physical custody) a Basic Child Support Obligation will be determined. From this basic obligation the only expenses that will be added to the obligation are work related child care expenses, the cost of health insurance for the child, the cost of any extraordinary medical expenses, and in limited cases the cost of private school and/or transportation for the child. Based on these numbers the final child support will be determined. The calculation of child support is outlined in Maryland Family Law Article 12-204.

Private School Tuition as part of a Child Support Calculation in Maryland

Private school tuition typically is not included as a cost for the purpose of child support calculations. However in Maryland the Court has the ability to consider certain factors in order to decide whether the child has a particular educational need to attend private school. These factors may include how the child is currently performing in school, whether or not there is a family tradition of attending private school, whether or not the child was already attending private school prior to the divorce, whether or not the parents have the ability to pay, and any other factor that would bear on whether or not it was in the child's best interest
to attend private school.

Alimony in Maryland

In Maryland there is a rebuttable presumption that when alimony is awarded it will not be awarded indefinitely and will instead be awarded for a period of time that is set by the court. To determine an alimony award there is a two step process governed by MD 11-106, these factors are outlined below. Once the Court looks to these factors to determine if an alimony award should be granted they will then look to the following, in order to determine how much alimony should be awarded and for how long: contributions made by the spouse seeking alimony during the marriage; the income, debts, and property of each party; the circumstances that resulted in the break-up of the marriage; the length of the marriage; the age and health of each of the parties; the standard of living during the marriage; and any award of marital property that has already been determined.

• MD Factors 11-106
• (b) In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:
• (1) the ability of the party seeking alimony to be wholly or partly self-supporting;
• (2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
• (3) the standard of living that the parties established during their marriage;
• (4) the duration of the marriage;
• (5) the contributions, monetary and non-monetary, of each party to the well-being of the family;
• (6) the circumstances that contributed to the estrangement of the parties;
• (7) the age of each party; 
• (8) the physical and mental condition of each party;
• (9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony;
• (10) any agreement between the parties;
• (11) the financial needs and financial resources of each party, including: 
• (i) all income and assets, including property that does not produce income;
• (ii) any award made under §§ 8-205 and 8-208 of this article;
• (iii) the nature and amount of the financial obligations of each party; and
• (iv) the right of each party to receive retirement benefits; and
• (12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur 

Division of Marital Debts in a Divorce in Maryland

In Maryland a Court is not allowed to transfer debts from the name of one party to another. However marital debts are still actively considered in division of marital property because it may reduce the value of a marital asset or may put one party in a much worse off circumstance then the other. Therefore marital debts will be considered for the purposes of determining an alimony award and in determining the equitable distribution of property. However marital debts are only relevant as it affects the distribution and valuing of assets and when deciding whether or not to award alimony or a monetary award. Debts solely in the name of one party that were required acquired during the course of the marriage for the benefit of both parties can not be transferred.

Prenuptial Agreements in Maryland

In order for a prenuptial agreement to be held as valid there are several requirements that must be fulfilled.

• These requirements are that the agreement:
• Is in writing
• That the parties have made full disclosure as to their holdings (either by the parties knowledge through being the one to handle the finances or through disclosure of the assets)
•  The intention of the contract be that it is a full discharge of rights of inheritance and waiver of marital rights upon divorce
• That there has been fair and reasonable consideration
• That each spouse has had the advice of an attorney (or was given the opportunity but chose not to seek the advice of counsel)

To prove that a prenuptial agreement is valid in Maryland the court stated in Cannon v. Cannon, 865 A.2d 563 (2005), that the party seeking to enforce the prenuptial agreement must prove that there was no overreaching by the party. To prove this the party must show that that the agreement was not unfairly disproportionate at the time that it was entered into, or that if there was a substantial waiver of rights that the agreement was procured fairly and entered into voluntarily, freely, and with full knowledge of the meaning and effect of the agreement.

Marital Property Division in a Divorce in Maryland

For division of marital property in Maryland the courts will use an equitable distribution for the division of marital property. The presumption for equitable distribution is that property should be divided 50/50 however there can be arguments that achieving an equitable division requires increasing or reducing one of the party's shares in the property. In Maryland the process of equitable distribution is a three step process. The first step is:  

• Classify property as marital and non-marital 
•    Maryland 
•  All property acquired by the parties during marriage is marital
• Doesn't include property:
• Any property acquired before marriage
• As gifts or inheritance from third party
•  Any property excluded by valid agreement, and
•  Property traceable to any of the above
• A piece of property can be mixed marital/non-marital– to determine this look at the source of the funds 
• Co-mingling of property type
• Mixing non-marital/marital property – marital if proper records aren’t kept to confirm the non-marital nature 
•  Appreciation of Property Value
•  If non-marital property, appreciation that is active is marital
• Spouses contribution to appreciation doesn’t have to be direct (like actual labor for the business) for the appreciation to count as marital property or to have an interest 
• Active Appreciation
•  Increase in value attributable to efforts of one or both spouses – then marital property 
•  Focus on value of the property, not the amount that was paid for it
• Passive Appreciation
•  Value increased due to market forces – non-marital

The second step is for the court to value the property

• Value the Property, MD 8-204
• Court determines value
• (a) Except as provided in subsection (b) of this section, the court shall determine the value of all marital property.
• Value of pension, retirement, profit sharing, or deferred compensation
•  (b)(1) The court need not determine the value of a pension, retirement, profit sharing, or deferred compensation plan, unless a party has given notice in accordance with paragraph (2) of this subsection that the party objects to a distribution of retirement benefits on an “if, as, and when” basis.
•  (2) If a party objects to the distribution of retirement benefits on an “if, as, and when” basis and intends to present evidence of the value of the benefits, the party shall give written notice at least 60 days before the date the joint statement of the parties concerning marital and non-marital property is required to be filed under the Maryland Rules. If notice is not given in accordance with this paragraph, any objection to a distribution on an “if, as, and when” basis shall be deemed to be waived unless good cause is shown

The final step is for the court to divide the property:

• The Court Divides the property using statutory factors outlined in MD 8-205
•  Grant of award or transfer ownership of an interest in property
• (a)(1) Subject to the provisions of subsection (b) of this section, after the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.
•  (2) The court may transfer ownership of an interest in: 
•  (i) a pension, retirement, profit sharing, or deferred compensation plan, from one party to either or both parties;
•  (ii) subject to the consent of any lien holders, family use personal property, from one or both parties to either or both parties; and
• (iii) subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together, by:
• 1. ordering the transfer of ownership of the real property or any interest of one of the parties in the real property to the other party if the party to whom the real property is transferred obtains the release of the other party from any lien against the real property;
• 2. authorizing one party to purchase the interest of the other party in the real property, in accordance with the terms and conditions ordered by the court; or
•  3. Both

The courts goal in dividing marital property is to compensate for the investment in marriage instead of the emphasis that is placed on need that is used in determining alimony awards. 

Determining what is Income for the Purpose of Calculating Child Support in Maryland

In order to calculate child support in Maryland one must first determine the amount of income of the party paying support. To determine what is income one must look to MD 12-201 of the Family Law Code.
This says:

Actual income

• (b)(1) “Actual income” means income from any source.
• (2) For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “actual income” means gross receipts minus ordinary and necessary expenses required to produce income.
• (3) “Actual income” includes:
• (i) salaries;
• (ii) wages;
• (iii) commissions;
• (iv) bonuses;
• (v) dividend income;
• (vi) pension income;
• (vii) interest income;
• (viii) trust income;
• (ix) annuity income;
• (x) Social Security benefits;
• (xi) workers' compensation benefits;
• (xii) unemployment insurance benefits;
• (xiii) disability insurance benefits;
• (xiv) for the obligor, any third party payment paid to or for a minor child as a result of the obligor's disability, retirement, or other compensable claim;
• (xv) alimony or maintenance received; and
• (xvi) expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business to the extent the reimbursements or payments reduce the parent's personal living expenses.
• (4) Based on the circumstances of the case, the court may consider the following items as actual income:
• (i) severance pay;
• (ii) capital gains;
• (iii) gifts; or
• (iv) prizes.
• (5) “Actual income” does not include benefits received from means-tested public assistance programs, including temporary cash assistance, Supplemental Security Income, food stamps, and transitional emergency, medical, and housing assistance.

Income

• (h) “Income” means:
• (1) actual income of a parent, if the parent is employed to full capacity; or
• (2) potential income of a parent, if the parent is voluntarily impoverished.

Potential income

• (l) “Potential income” means income attributed to a parent determined by the parent's employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community.

From this definition of income money made from working overtime could be determined to be income however this would be determined based on the courts discretion, which would look to the amount of overtime worked and how readily overtime is available to the party. Income can also be based on continuing payments such as grants for education, unemployment benefits, disability payments, etc. If a party who is ordered to pay child support is not currently employed the court can impute an income on that is determined based on the factors outlined in 12-201(l).