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.

Copy Right 2007 Your Maryland Lawyer and Maryland Divorce Lawyer

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.

Amazing New Developement

Case: Robert M. Ricketts Jr. v. Mary C. Ricketts, CA No. 136. Opinion byBell, C. J. Filed July 28, 2006. Issue: Can a husband maintain an action fora limited divorce based on constructive desertion based on lack of maritalrelations where the parties continue to live under the same roof, inseparate bedrooms and without cohabitation? May a complaint for custody andvisitation be maintained?

Holding: Yes; judgment reversed and case remanded.The circuit court should not have dismissed the husband's complaint, asconstructive desertion may occur where both parties continue to live underthe same roof. Further, the circuit court has jurisdiction and power todetermine the custody, visitation and support of the children. Counsel:Richard D. Rosenthal for appellant; William P. Englehart Jr. for appellee.

This is a significant departure in Maryland Divorce cases as generally most judges will not entertain a hearing on limited divorce when the parties are still under the same roof. Now according to this case Maryland Judges can entertain the limited divorce when constructive desertion is the grounds.

Alimony In Maryland

Alimony: The claim for alimony is based upon financial need of the party requesting alimony and the financial ability of the other party to pay. Alimony can be either temporary, permanent or indefinite. Typically, in Maryland the Court's will award alimony as rehabilitative alimony. This means the award will be designed to give the non-financially dominant spouse some amount of money for a specific period of time in an effort to allow that spouse to make the adjustment from married to single.

The Law Offices Of Keith Blair Bartnik, P.A.

Keith Blair Bartnik, P.A., is a Maryland attorney dedicated to providing the highest quality legal service to his clients. This Maryland lawyer has represented clients in all manner of personal injury, automobile accidents, divorce, workers' compensation injuries and criminal law matters. Personal injury cases have ranged from soft tissue injuries, to death cases, and serious, permanent injury cases. There is no greater tragedy then the loss of a child as a result of the careless acts of a negligent driver. Mr. Bartnik has represented families suffering these horrible damages. The same sense of devastation is often true of the serious permanent injuries. Mr. Bartnik has experience representing people whose lives have been changed as a result of the careless conduct of negligent drivers. Additionally, Mr. Bartnik has an extensive background in representing clients in work related injuries and workers' compensation claims, encompassing both unintended injury and occupational decease.
Mr. Bartnik's practice also encompasses Maryland family law matters involving custody, visitation, child support, divorce, marital property and alimony. When you are able to resolve the issues of your divorce by agreement we have the experience and know how to be sure your rights and interest are protected. If you have to go to Court to resolve the issues Mr. Bartnik's trial experience will be your best asset.
I am more then happy to discuss your case over the phone. And I will do so at no cost to you. Please feel free to call. 1-888-760-7339