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.

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

Grounds for Divorce in Maryland Excesively Vicious Conduct

A little more information on this grounds for divorce in Maryland. According to Family Law § 7-103 (a) (7) & (8) the Court may decree an absolute divorce based upon cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable hope of reconciliation or if there is excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.

The Court defined excessively vicious conduct and cruelty in the matter of Das v. Das, 133 Md. App. 1, 754 A.2d 441 (2000). In Das the Court held in pertinent part that cruelty as a cause for divorce includes any conduct on the part of the husband or wife which is calculated to seriously impair the health or permanently destroy the happiness of the other. As such the court continued any misconduct of a husband that endangers, or creates a reasonable apprehension that it will endanger, the wife's safety or health to a degree rendering it physically or mentally impracticable for her to properly discharge the marital duties constitutes cruelty within the meaning of the divorce statute.

Cruelty and Vicious Conduct as a ground for Divorce in Maryland

A grounds for divorce in Maryland does include cruelty or excessively vicious conduct. The court's view point on this issue have changed greatly over the years as to what type conduct will justify the court granting an absolute divorce.

The specific grounds for absolute divorce on cruelty are found in Family Law § 7-103 (a) (7) & (8) the Court may decree an absolute divorce based upon cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable hope of reconciliation or if there is excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.

The Court has addressed this issue in the matter of Das v. Das, 133 Md. App. 1, 754 A.2d 441 (2000), therein the court found a basis for granting the absolute divorce on the grounds of cruelty and excessively vicious conduct. The case provides an excellent outline of the changing nature of the Court’s understanding of cruelty in today’s modern era of enlightenment. In Das the court was persuaded most with the issuance of a protective order and wife’s stated health problems due to stress. The factual basis for granting an absolute divorce in Das was further supported by evidence of the history of violence between Husband and Wife which justified entry of a one-year protective order in January 1998, and also noted this was “one in several cases of domestic violence.” Further the court considered the Wife testimony that husband was “making me stay up all night in order to listen to him, isolating me from my friends and from my family, and not allowing contact as much as possible. Hitting, pinching, pulling hair, etc., were also noted to the point health problems, including cardiac arrhythmia brought on by the “stress of the marriage and the tensions at home.” Wife also spoke about her fear of Husband's taunting questions about what she might do when the protective order expired. The court also noted the fact that the police came to the house.

Military Divorce in Maryland

The military divorce in Maryland has some distinct difference from the civilian divorce in Maryland. Not that the law is different rather the issues are a bit more predictable in the military divorce. For example, the most common questions and conditions I encounter in the military divorce are jurisdiction, custody, what military benefits are included as income for child support purposes, the military pension, stay on litigation, and the 20/20/20 rule. What makes these issues more common place for the military divorce is the obvious situation where people are transient.

Maryland will exercise jurisdiction in your divorce if you or your spouse have resided in Maryland for one year before filing for the divorce.

Modification Of Child Custody in Divorce in Maryland

In a Divorce in Maryland even after the case is done and the judgment of divorce is final the Court still retains the jurisdiction and power to modify custody, child support and visitations. As to custody and visitation, these can be modified by the court on a petition for modification of custody and visitation filed in the jurisdiction where the child presently lives. This is true even if that is not the same location where the divorce decree was entered. However, in order to prevail on the petition for modification you must prove two things. First you must prove there has been a material change of circumstances. Second you must prove it is in the child's best interest to change custody. It is important to prove not just that things have changed like the child is older. Rather you have to prove things have changed in a material way. The court will not allow the non custodial parent to relitigate the same issues over and over see Schaefer v. Cusack 124 Md.App. 288, 722 A.2d 73 Md. App., 1998. As the Maryland divorce court said in Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992), the primary concern to a judge in awarding custody to one parent over the other is the best interests of the child. The courts in a divorce in Maryland have repeatedly stated the list of factors:

“For the purpose of ascertaining what is likely to be in the best interests and welfare of a child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child.”A change in circumstances has been required for a change of custody. In McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991), Judge McAuliffe said for the Court the question of whether there has been a material change in circumstances which relates to the welfare of the child is, however, often of importance in a custody case. The desirability of maintaining stability in the life of a child is well recognized, and a change in custody may disturb that stability.

Stability is not, however, the sole reason for ordinarily requiring proof of a change in circumstances to justify a modification of an existing custody order. A litigious or disappointed parent must not be permitted to relitigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim.

An order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child. As we said in Hardisty v. Salerno, 255 Md. 436, 439, 258 A.2d 209 (1969), ‘while custody decrees are never final in Maryland, any reconsideration of a decree should emphasize changes in circumstances which have occurred subsequent to the last court hearing.’ See Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1266-71 (1982).

I customarily advise my clients, if you are seeking a change in custody things have to have changed. The court generally will not fix it if it is not broken. You have to prove the child is not doing well under the present living arraignments. For example, but not by way of limitation, the grades are slipping, the child is not socializing, not eating, not sleeping, digressing in behavior, the custodial parent is not caring for the child and all this is different then it was when the court originally entered their order. As such it is now in the child's best interest to change the custody.

Divorce in Maryland: Alternative Means of Service of Process

After suit is filed in a divorce matter, service of process must be effected. The purpose of service of process is to give actual notice to the defendant that an action against them has been instituted. This is a due process requirement. Generally this is done by delivering a copy of the summons, complaint, and all other papers filed to the individual, or by leaving a copy of the summons, complaint and all other papers filed at the individual’s dwelling house with a resident of suitable age and discretion, or by certified mail requesting restricted delivery. Maryland Rule 2-121(a).

Occasionally I have represented clients who separated from their spouse years ago and do not know the current whereabouts of the spouse and are therefore unable to effect service of process. When this occurs, a plaintiff spouse may petition the Court and request alternative means of service under Maryland Rule 2-121(c). The Court will require an affidavit asserting good faith efforts to serve the defendant spouse were made pursuant to Maryland Rule 2-121(a) and have not succeeded. Other good faith efforts include publication of notice in newspaper, contacting friends and family members of the defendant spouse, retaining a private investigator and/or tracing companies, searches through social security, birth indexes, skip traces, and MVA records. (Lohman v. Lohman, 331 Md. 113, 626 A.2d 384 Md., 1993.)(In re Thomas J., 132 Md. App. 396, 752 A.2d 699 Md. App., 2000.)

Please feel free to contact me at 1-888-760-7339 should you have any further questions.

Limited Divorce vs Absolute Divorce in Maryland

People call me all the time asking about these two different types of divorce in Maryland. The easiest way to understand the difference is to understand what each divorce type is trying to accomplish. The limited divorce is there to assist people with the issues to be resolved pending the grounds for absolute divorce maturing. So for example if you have children and/or the need for spousal support and you are separated from your spouse and they will not help you or they are fighting with you over the children for custody, then you can file for a limited divorce with out waiting for one year before you can file as required in the absolute divorce. The court will hear those temporary issues and decide on them more quickly with the limited divorce. You are still married with the limited divorce but these temporary issues are resolved. The absolute divorce by contrast is the final resolution of the marriage and address all the issues of your divorce on a permanent basis. Please feel free to call me if you have questions. I am happy to answer for you right over the phone 1-888-760-7339

Divorce in Maryland: The Issue of Commingled Funds

Any property that is acquired during the marriage that cannot be directly traced to a non-marital source is considered marital property. The party who asserts a marital property interest bears the burden of producing evidence of the identity and value of the property. Furthermore, the party attempting to demonstrate that property acquired during the marriage is non-marital must directly trace the property to a non-marital source. Noffsinger v. Noffsinger, 95 Md. App. 265, 620 A.2d 415 Md. App., 1993. Without further evidence or testimony, the mere fact that non-marital funds rested in the same account as marital funds does not compel the conclusion that the funds commingled. The character of the non-marital property may be preserved if its origins can be traced to non-marital property. West's Ann. Md. Code, Family Law, § 8-201(e).

Grounds for Divorce in Maryland

Once you confirm Maryland has jurisdiction over your divorce action you next move to the issue of whether you have grounds to seek a divorce in Maryland. There are multiple grounds for divorce in Maryland. I am writing today only about those that are based on one year and a day separation. Each of these grounds require that you are separate and apart from your spouse for one year and one day before you can file the complaint for absolute divorce. There are two exceptions to this rule. One if your spouse is committing adultery and two if your spouse is treating you with excessively vicious conduct. The grounds that are available to you under the one year rule are desertion, constructive desertion and mutual and voluntary agreement to separate. Each requires this one year and one day separation for the entire year and a day, uninterrupted and continuously, without any hope of getting back together. Once you spearate you are legally separated. There is nothing to file with the court to make you more legally separated. Once you separate you have separated for purposes of the one year and a day requirements. If you have questions please feel free to call 1-888-760-7339.

Divorce in Maryland Income Defined

For Maryland child support issues income is defined as follows:

(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

Default Judgment and Child Support in Maryland Divorce

Occasionally I have a case where the plaintiff is the non custodial parent and seeks a divorce from the other. However, once served the custodial spouse fails to file any answer. As such naturally we move forward with the request to the court to enter a default judgment. Recently I have this very case. Once we arrived at the master's hearing on the default, as expected the issue of child support was addressed. Testimony before the master established my client's income and the custodial parents income was reduced to minimum wage as no one knew her income. You will not divorce in Maryland with out child support being ordered.

Divorce in Maryland

In any divorce in Maryland the court will consider extraordinary medical expenses as part of the child support obligation. I receive several calls on this issue each week from people interested to know if braces are included. The answer is yes braces are included. So having said that, extraordinary medical expenses are defined: Extraordinary medical expenses
(g)(1) "Extraordinary medical expenses" means uninsured expenses over $100 for a single illness or condition.
(2) "Extraordinary medical expenses" includes uninsured, reasonable, and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, treatment for any chronic health problem, and professional counseling or psychiatric therapy for diagnosed mental disorders.

Additionally, just to mention the list of added cost in determining the child support amount also include actual child care expenses incurred due to either parent's employment, FL § 12-204(g); extraordinary medical expenses, FL § 12-204(h); special or private school expenses, FL § 12-204(i)(1); expenses for transportation of the child between the parents' homes, FL § 12-204(i)(2); expenses related to medical support, FL § 12-101(d); and a requirement that a parent include the child in that parent's health insurance coverage, FL § 12-102(b). That is the extent of payments that are child support, or are in the nature of child support, under Maryland law.

Divorce In Maryland The Finite List of Issues

Divorce in Maryland revolves around a finite list of issues to be resolved. The issues can be resolved by agreement between the parties or if the parties can not agree then the court will decide the issues for the parties. I have outlined in brief the list of issues. You can following the links to more detailed information or if you prefer you can call my office. We will discuss the issues over the phone at not cost to you.

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

Marriage Type Relationship Affecting Alimony in a Maryland Divorce

As we see in Whittington v. Whittington 172 Md.App. 317, 914 A.2d 212 Md.App.,2007 living in marriage type relationship is a factor the court can consider in modifying a post divorce award of alimony to the financially dependant spouse. So how does the Maryland divorce court define marriage type relationship see Fisher v. Fisher75 Md.App. 193, 540 A.2d 1165Md.App.,1988 although there is obviously no single mold into which all marriages (and therefore all “marriage-type relationships”) will fit, we think that the term envisions at least the normally accepted attributes of a marriage-a common residence which each party regards as his or her home, a common household to which each contributes, and a personal relationship that is more than casual and has significant meaning to each. These things are measured, of course, by living arrangements, by shared assets and expenses, and by how the parties and the community view their relationship.

Indefinite Alimony In a Maryland Divorce

Does a marriage type relationship outside and during the marriage as well as post divorce affect the alimony payment? The Maryland courts had stated that circumstance is a factor for the court to consider in awarding alimony and presumably continuing alimony post divorce see Whittington v. Whittington 172 Md.App. 317, 914 A.2d 212 Md.App.,2007.

By way of history the essential purpose of alimony was changed with the adoption of the Maryland Alimony Act in 1980. The principal function of alimony once had been maintenance of the dependent spouse's standard of living. However, when the Act was passed that function became rehabilitation of the economically dependent spouse. Karmand v. Karmand, 145 Md.App. 317, 327, 802 A.2d 1106 (2002). As such the law generally favors fixed-term or so-called rehabilitative alimony,’ rather than indefinite alimony.” Simonds v. Simonds, 165 Md.App. 591, 605, 886 A.2d 158 (2005)

There are of course exceptions to favoring fixed alimony. They are found in section 11-106(c) of the Family Law Article. First, the court has discretion to award indefinite alimony if, “due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting. And second, the court may award indefinite alimony upon a finding that, “even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.”

Under the Alimony Act, an award of alimony ceases, automatically, upon the remarriage of the recipient. However, the Act does not provide that alimony cannot be awarded, or, if awarded, terminates, or must be terminated, if the recipient lives in a “marriage type relationship” with another person. That circumstance is relevant according to the Whittington court as a consideration of the financial status of the party requesting the award. Additionally it also is relevant to whether the post-divorce disparity in the parties' standards of living is or is not conscionable.

Divorce In Maryland. Can I Force My Spouse Out of the House?

I receive maybe 25 calls a week on this subject. The answer is maybe and it depends.

If there is an act of violence or the threat of violence, then yes you can force your spouse out of the house under the Maryland Domestic Violence Statue.

Also, obviously the answer is yes if your spouse simply agrees to leave.

However, will Maryland law order your spouse from the home, absent violence. The answer appears to be no. Assume you have a spouse and a minor child. Your spouse will not leave. What can you do to get them out of the house? Will Maryland Divorce law help you in this situation? In a typical custody battle, the court can award use and possession when the parties are separated. This use and possession order will keep your spouse out of the home. However if the spouse refuses to leave then what? It is true that parties can pursue a limited divorce in Maryland based upon constructive desertion and still live under the same roof. This is a recent and some what dramatic change of position for the courts in Maryland. See Ricketts v Ricketts. Oddly Maryland Family Law Article 5-203 states the court does not have the power to award custody to either party when the parties are not separated. This was addressed by the Ricketts court and it was determined that 5-203 must be read in conjunction with § 1-201(a) and (b). The ultimate conclusion of the court is the trial court, in short, has the jurisdiction and power to determine the custody, visitation, and support even when the parties continue to live together. You will note Ricketts did not mention the right to order use and possession. As such the court will grant you custody and support but still will not order your spouse out. This decision makes sense when you realize Maryland public policy as reflected in Maryland divorce law wants marriages to survive and families to stay together.

Child Custody Factors in Maryland Divorce

As we know custody in a Maryland Divorce occurs on two different levels. There is legal custody and physical custody. Before a judge makes a determination as to what is in the child's best interest the judge will consider a number of factors on both of these issues. As to physical custody: The factors a judge considers as to physical custody are as follows:1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties, 4) potentiality of maintaining natural family relations, 5) preference of the child, 6) material opportunities affecting the future life of the child; 7) age, health and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender.

While the court considers all the above factors, it will generally not weigh any one to the exclusion of all others. The court should examine the totality of the situation in the alternative environments and avoid focusing on any single factor such as the financial situation.

In my experience the judge will reward reasonable behavior by a parent in promoting the relationship between the child and the otherwise non custodial parent. Oddly the best way to win the war is not to battle. That does not mean go to war unprepared. And this does not apply to every case. There are circumstances where a parent actually does cause harm to the child. In this case there must be contact that is controlled. However, you must think in terms of what is best for the child. Understand judges generally believe that a child benefits from both parents being involved in their lives. The party that promotes relationships and encourages contact, tempered by reasonable decision making, is far ahead in the custody battle.

Child Custody in a Maryland Divorce

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 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.

Please feel free to call me to discuss your custody case. I am more then happy to talk with you over the phone at no cost to you and answer any questions you may have regarding a divorce in Maryland. 1-888-760-7339.

Alimony in maryland divorce

Alimony may be obtained in: (1) Complaint for Support; (2) Limited Divorce; or (3) Absolute Divorce.
Alimony can be: (1) Temporary; (2) Rehabilitative; or (3) Indefinite.
Alimony is subject to modification if: (1) a separation agreement does not say it is “not subject to modification” and (2) it is awarded and the party seeking to modify does so during the term of the alimony and can show a material change of circumstances.
For many years alimony was awarded only to a wife, but Family Law § 11-101(b) now provides, "The court may award alimony to either party." This change in language was in accordance with the Equal Rights Amendment, adopted in 1972. In Bricker v. Bricker, the court used the descriptive designations "economically dependent spouse" and "economically independent spouse" to identify the parties. Following tentative beginnings, alimony law has developed with alarming speed. By the late 1970s the case law had exploded. The aim of an alimony award was to assure suitable maintenance for the economically dependent spouse.
The courts established factors to be considered in making awards.
FACTORS:
(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 nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties; (see Caccamise 747 A.2d 221 Trial court, in the exercise of its judgment, after considering statutory factors, may award alimony to the "guilty" party).
(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.

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.

When Dissipation Ain't

A very interesting case in Maryland Divorce law that addressed among other issues the matter of a party using marital property, in this case the husband's 401k to pay his counsel fees. As events unfolded in this case the husband actually used the 401k proceeds to pay his counsel fees and a portion of his wife's counsel fees as ordered by the court. The Maryland court determined that the use of marital property to pay reasonable and necessary counsel fees is not a dissipation of marital assets. As such tell your client from now on to stop paying you with their credit cards and start paying you from marital assets. The net effect is the other spouse is also paying you. See Allison v. Allison 160 Md.App. 331, 864 A.2d 191.

All Is Well That Ends

I told you I would follow up on the domestic violence hearing results that had me working on Memorial Day. We won as expected. The case was in the District Court for Baltimore County. The counsel on the other side of the issue attributed the results to the pick of the judge. But I believe any judge would have seen it the way I did. A bruise, the size of a dime, on a 2 year old with no indication of how the bruise got there. As the judge said if everytime one of my kids got a bruise I was investigated by CPS my kids would have been taken away from me. I have some good stuff on my webpage on DV and children testifying. http://www.yourmarylandlawyer.com/Dom%20Violence.htm

It Ain't a Chore If It's Fun Hun

Hello Everyone. I trust you enjoyed the Memorial Day weekend and everyone is safe. I worked most of the day on Memorial Day to prepare for a domestic violence trial on Tuesday morning. This is a case that justice demands I win. Don't worry about my domestic life. I cooked chicken and ribs on Sunday and had a great time with my family around the pool. However, I simply can not sit by and watch as someone tries to use our system of justice as a tool to gain advantage in a custody battle. So I put in the extra time on Monday. Besides all I missed at home was cutting the grass. My Domestic violence case involves a 2 year old child that the x husband claims is being abused by the x wife, my client, since he noticed a bruise on the child's thigh. Yep a bruise the size of a dime on the child's thigh. He admits in his petition he has no idea how the bruise got there, only that is appeared when the child was with the mom. I am sure the case will take about 2 or 3 hours in trial. This is now the second domestic violence petition from the same x husband against the same x wife. The first one as dismissed on the day of trial. I'll let you know how it turns out. Stay tuned.

Uniform Child Custody Act

I have been receiving a lot of calls lately on the subject of one parent leaving the state, Maryland, and relocating in another state with the kids. The questions generally revolve around what state will not have jurisdiction over the custody issues. As life has unfolded the states have adopted the Uniform Child Custody Act. Essentially the act says the state where the kids have lived for the 6 months immedicately prior to the filing of a petition on the issue of custody and visitation will be the state that has jurisdiction. The law makers figure this makes sense since that is the state where all the witnesses and evidence will be generally.

Pre-Marital Financial Contribution to Real Property

Normally Maryland is a Source of the Funds Theory state. Meaning if you had pre-marital money and used it to purchase marital assets, you could get a return of your non-marital investment. This all changes when you are involved in real property that is owed tenants by the entirety's. In this case all the money is marital no matter where the funds originated, and you have to argue for an equitable distribution of the non-marital money. See Gordon v Gordon. This is a subtle but important variation.

Financial Statements

It is often overlooked but could not be more important. I inherited a case from an attorney when her client became dissatisfied with her services. When this gentlemen came to my office he was days before the hearing on pendente lite issues. The financial statement the former attorney had assisted in preparing was inaccurate in terms of expenses and income. For this particular client the impact could have been devastating as he is self employed. The monthly income identified by the former attorney had the client earning $10,000.00 a month. When in fact that figure accounted in large part for payment of his over head cost for the business. You must be extremely causious with financial statements. They are evidence in each case. Be sure the numbers are accurate and verified.