Articles Posted in Divorce

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A divorce or separation is much more than two people parting ways, as there are often many other items that arose out of the marriage that must be resolved in order for parties to legally part ways. These items can be addressed in a separation agreement or are eventually resolved in divorce litigation. It is important to consider each of the following items at the beginning stages of pursuing a Maryland divorce:
• Child Custody – If you and your spouse have children, then custody of the children will need to be decided. Custody is comprised of two parts in Maryland, legal custody and physical custody. Legal custody involves decisions regarding the child involving health, education and religion. Physical custody is the time spent with each parent. Both forms of custody can be shared by parents, or awarded to only one parent. For more information see our September 10, 2010 blog.
• Child Access Schedule – Not only does custody of the children need to be decided but also when each parent will have access with the children. You need to consider the school year, summer vacation, holidays and school breaks. Also many parents designate how their children will communicate with the other parents when not in their care • Child Support-Child support is awarded in many cases to account for a difference in time sharing of the children, or a difference in income of the parties. For more information on child support, see our September 11, 2009 blog
• Dependency Exemption for Child(ren)- You need to consider who will designate the children for purposes of the tax dependency. Will you and your spouse alternate, each take one child, etc?
• Health Insurance – You need to consider who will cover the children on their health insurance. Also, if you are currently covered by your spouses insurance, or covering your spouse, will you continue to do so until your divorce is final?
• Uninsured Medical Expenses for Kids-Typically parties may divide this evenly or in proportion to their incomes. If one parent is bearing the whole expense, and it is significant, it will be used for child support calculations.
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As we have previously discussed in our blogs, many family law matters are decided outside of Court, with the assistance of attorneys. However, what happens when the parties, who have employed attorneys to assist in their divorce litigation, decide to take matters into their own hands? As the Maryland Daily Record reported on June 2, 2011, the Baltimore law firm of Tydings and Rosenberg is facing such a situation right now. The firm’s client, Julie Zorzit, after employing the firm to do a substantial amount of work, met privately with her husband, John Zorzit, and waived all rights for her attorney’s fees to be paid by her husband. The firm is now seeking the fees, as Ms. Zorzit can not afford to pay for the work that has already been done, but Mr. Zorzit can. The Circuit Court for Baltimore County denied the firms request for the fees, the case was appealed to the Maryland Court of Appeals, and a decision is awaited.

Many clients inquire as to their rights to have their spouse pay for their attorney fees in their divorce matter. The Maryland Code, Family Law Article § 7-107 provides that “at any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding….[however] before ordering the payment, the court shall consider: (1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” Parties should not rely on the possibility of such an award when employing counsel, as in our experience, attorney fees are often denied. However, there are cases where attorney fees are absolutely justified and the Court makes an appropriate award.
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As many of our clients are aware, going through a divorce process once is enough, let alone having to do it all over again. As the New York Times reported on May 30, 2011 , a New York man, Mr. Steven Simkin, is seeking to revise the divorce settlement him and his wife, Ms. Laura Blank reached in 2006, as the funds he was awarded were lost as a casualty to the Madoff disaster. As we have previously discussed, many parties reach a separation agreement or settlement agreement outside of court which resolves their marital issues.
When the parties reached their settlement in 2006, Ms. Blank chose to keep her funds out of the Madoff account, while Mr. Simkin chose to keep his with Mr. Madoff. Mr. Simkin argues that the settlement agreement, aka a contract, should be voided as the funds with Mr. Madoff did not even exist at the time of the divorce settlement. His argument relies on the “doctrine of “mutual mistake,” a well-established principle that allows for the cancellation of contracts, including divorce agreements, when both parties are innocently mistaken about an essential term. The case is currently with New York’s highest court and it is said that they are divided, as are many attorneys on the issue. The case could not only affect New York law, but the way that marital settlement agreements are handled throughout the country. Those who are against the revision of the agreement believe that it would allow for do-overs whenever an agreement does not go as planned. Many enter into these divorce agreements with no idea what the future holds, but it is a way of making a clean break from your spouse and moving forward.
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Currently, Maryland law regarding divorce involves two different waiting periods in order to obtain a no fault divorce. The one year waiting period applies when BOTH parties are seeking the divorce, i.e. the separation is MUTUAL and voluntary. The two year waiting period applies when only one of the two parties would like the divorce. We had previously discussed this distinction in our October 2010 blog. The Maryland legislature has passed a bill eliminating the two year waiting period, and now no fault divorces can proceed with only a one year separation, eliminating the need for the Court to consider if one or both parties is seeking the divorce for grounds purposes. The Maryland Daily Record reported on April 17, 2011 that this new legislation will go into effect October 1, 2011. The chief sponsor of the bill, Senator Bobby Zirkin believes that the two year separation period is only extending volatile situations and allowing parties to drag the litigation out in order to bargain for those items they want in the divorce. He also believes that this is a step in the right direction in his effort to reduce the waiting period to only six months, as we discussed in our February 17, 2011 blog .

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The same sex marriage bill passed at the House Judiciary Committee on Friday, March 4, 2011 by a 12-10 vote as the Baltimore Sun reports. This means that the bill will move to the full House of Delegates for debate, which is scheduled to start as early as this Tuesday, March 8, 2011. As we previously blogged, on February 25, 2011 the bill if passed into law would allow same sex couples to wed. Delegates who had previously opposed the bill have expressed that they will vote to pass the bill as they believe it should ultimately be up to the voters to decide. As the Sun reports, if the bill passes in the House of Delegates, “Gov. Martin O’Malley has said he will sign the legislation if it reaches his desk. Opponents could then gather the roughly 55,000 signatures needed to petition the new law to referendum, where voters in the 2012 presidential election will decide whether to repeal it or leave it on the books.

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There is currently legislation pending before the Maryland General Assembly that would create a rebuttable presumption that joint legal and physical custody to each parent for equal periods of time is in the best interest of the child in certain custody proceedings. You can find the pending legislation at the Maryland General Assembly’s website. This bill would require parties in custody proceedings to overcome the statutory presumption that joint custody is in the child’s best interest. This would mean parties would enter a custody hearing on equal footing with respect to having the child in their shared custody and the Judge would have to find that one of the parties met their burden of overcoming the presumption in order to award a party sole physical or legal custody. The presumption aligns with the rights of parents without a custody order, in that parents have equal rights to their children, without a custody order stating otherwise. However, there is currently a great debate among family law attorneys over this pending legislation. Those who propose the bill support fathers’ rights, believe that parents may fight less over custody if the presumption is in place, and believe this takes such an important decision out of the court’s hands. Those who oppose the bill believe that the parties who have to take their custody case to trial should not be the ones who have a presumption of joint custody because they can not get along. Further, they do not believe that this decision should be taken out of the court’s hands, that the other best interest factors will not be considered if the presumption is in place, that those who are awarded joint custody who can not communicate will be back in court again and again, and that the current system is working well.

As we discussed in our October 23, 2009 blog, the current standard that is used when determining custody of a child is the “best interest standard.” This is a standard in which Judges consider a number of factors such as the parents fitness, relationship of child and parents, children’s current environment, ability to maintain natural family relationships, who has been the primary care giver, wishes of child in some circumstances, any agreement the parents have made, prior abandonment of a child by a parent, the age and health of the child, and many, many other factors to determine what custody arrangement would be in the best interest of the child.

For more information on custody please contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

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We discussed the pending same-sex marriage legislation in our February 25, 2011 blog. In our blog we touched briefly on the rights of same sex unwed couples with children and thought the topic could use a little further explanation because there are consequences to not having a legal tie to your child(ren).

Typically, when a same sex couple adopts a child, only one of them actually adopts the child from the agency, country, service, because two people without a legal tie to one another are generally not permitted to adopt a child together. Therefore, only one parent in a same sex unwed relationship is deemed to be the legally recognized parent of the child. This means only that “legal parent” can authorize medical treatments, make medical decisions, consult with therapists, obtain emergency care for the child, obtain school records for the child, make decisions regarding the child’s 504 or IEP plan, meet with teachers, etc. For example, the parent who is not legally recognized as the child’s parent cannot authorize the pediatrician to administer inoculations, tests, draw blood, or prescribe medication. This is obviously a challenge for same sex unwed parents who otherwise share in the day to day parenting responsibilities of the child and are working together as a family unit to raise the child. Some of the difficulties can be cured by subsequent adoption proceedings, powers of attorney, and adding names to birth certificates. However, the costs, time and emotion involved are substantial.
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Maryland law defines dissipation as when “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 (1984). At issue is also whether or not the party spent or depleted the marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of divorce. In a recent opinion by Judge Murphy on behalf of the Court of Appeals the Court faced the question as to who has the burden of proving that the assets had been dissipated. The case, Omayaka v. Omayaka was originally heard by the Circuit Court for Prince George’s County for the final divorce hearing in July 2007. At this hearing the attorney for Mr. Omayaka attempted to prove that the wife had dissipated martial assets. Mr. Omayaka claimed that Mrs. Omayaka had opened up an account in her name only during their marriage and had withdrawn over $80,000.00 from the account since 2005. Mr. Omayaka’s attorney questioned Mrs. Omayaka on what the money was spent on and she stated clothing, food, insurance for the baby, rent, credit card debt, a car loan and the babysitter. At the conclusion of the case the Circuit Court found that there had not been a dissipation of assets because the attorney for Mr. Omayaka had not met the burden of proving that the money was spent for a purpose unrelated to the marriage during a time when the marriage is irretrievably broken. The attorney for Mr. Omayaka filed an appeal based on the contention that he had met his burden of proof showing dissipation of the assets. The Court of Appeals, in its’ opinion, clears up the burden of proof question with the following guide:

The alleging party must first put on a prima facie case that the marital assets were taken by one spouse without agreement with the other spouse. Then, the burden shifts to the alleged spending party to produce evidence that generates a genuine question of fact on the issues of whether the assets were taken without agreement, and/or where the funds are, and or were they used for marital or family expenses. However, the court points out that it is clear that the burden lies on the party who claims that the other party has dissipated marital assets to clearly prove that the funds were spent solely to reduce the money available for equitable distribution.

The Court explains that Mrs. Omayaka’s testimony was sufficient to prove that the funds were spent on the family and Mr. Omayaka’s attorney presented no further evidence to meet his burden otherwise. Therefore, the Court of Appeals found that the Prince George’s County Circuit Court’s ruling was correct, as the burden was not met.

For more information regarding marital property including marital businesses contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

 

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As previously discussed in our August 15, 2009 blog, a divorce in Maryland may be filed on a no-fault basis (mutual and voluntary separation), after a one year separation period. Although parties may agree to file on a no-fault basis, they may not agree on the issues within their divorce, such as custody, property, alimony, etc., which renders the case contested. However, there are many cases where the couples were only married for a brief period of time, or do not have children, where clients come to us with not only a no-fault ground, but also no issues to resolve. They may have worked out a separation agreement before coming to us, or simply have no shared property to dispose of. In these cases, we must file for a divorce just as we would any other, but the courts have procedures in which these cases can be set in for the final divorce hearing much quicker than others. However, before the case can be set in for this hearing, the opposing side must file an Answer that confirms that the case is in fact uncontested and all issues are resolved. The final hearing is also much shorter than a normal hearing.

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Many Maryland divorce attorneys believe that the one year separation period required for a no-fault divorce in Maryland is too long as reported by the Maryland Daily Record on February 14, 2011. For more information on the one year separation period for a divorce see our October 14, 2010 blog and August 19, 2009 blog . A number of attorneys supporting the reduction of this separation period arrived at a state Senate committee hearing last week to support legislation that would reduce the one year separation requirement to six months. Many attorneys feel that if the parties have agreed to split they should be able to do so without having to drag out the process for a full year. However, many of the Senators feel that this separation period validates the sanctity of marriage and gives people the time to think if this is what they truly want. Unfortunately, it has not been our experience that this waiting period helps parties to reconcile. As the Daily Record reports, many states such as Virginia, Delaware and Washington D. C. have only a six month separation period. We have many clients who come to us after a week or two of being separated and the news that they must wait a year to file for an absolute divorce is crushing. However, there are other options for these clients, such as filing for a limited divorce, as describe in our March 19, 2010 blog, or pursuing a separation agreement.

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When meeting with clients initially and discussing the general course of litigation, I will advise them that discovery is part of that process, which usually prompts many questions. First and foremost is what is discovery? Discovery is a litigation tool used to gather and exchange relevant information and potential evidence from and with the opposing side prior to a trial. In a divorce matter it most frequently consists of Interrogatories, Request for Production of Documents, and Depositions of parties and witnesses. However, discovery may also involve Request for Admission of Facts, Notice of Records Depositions, and/oror Mental or physical Examinations of parties. Interrogatories are a list of a maximum of thirty questions usually involving employment history, lifestyle, assets, marital and non-marital property, child rearing responsibilities, and reasons for the dissolution of the marriage. Request for Production of Documents are a list of requests asking for documents from a party. These usually consist of financial documents, employment records, documents regarding the children, documentation of communications with the other party, documentation of expenses/debt and documents regarding the parties’ assets.

Many clients question why these documents need to be exchanged as they feel it is an invasion of their privacy. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets or have withheld discoverable information from the other. Further, client’s must know that if you or the opposing party makes a request or raises a particular issue in a matter, then the issue must be explored. The old adage “what is good for the goose is good for the gander”, often applies in these situations. If a document is requested that is particularly confidential in nature or for some reason should not be turned over to opposing counsel, clients can seek protection of that document by filing a motion with the court. If the opposing side is not turning over their documents and answers in a timely fashion then one may file a motion with the court asking them to compel these documents or to prohibit that party from entering any evidence regarding same at trial. If a party tries to introduce a document at trial that was not turned over to the other side prior to the hearing then the Judge may prohibit it from being entered into evidence. The discovery process is governed by the Maryland Rules commencing with Rule 2-401. Clients should also understand that while all pleadings in a matter are filed with the court, the discovery requests and responses are not. The court will not see the Answers to Interrogatories or Responses to Request for Production of Documents unless they are admitted in evidence at a trial.
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It is a situation in which many individuals seeking a divorce find themselves. They have high value assets to chase in their divorce proceedings, but no money to afford an attorney to do so. As the New York Times Reported on December 4, 2010 , a California based company, Balance Point is funding divorces for those who can not afford to do so. However, they take a percentage of their client’s winnings, so the cases that they accept are those where high value assets are involved. As the New York Times reports, “the number of companies investing in divorce is small – Balance Point is one of the few that do it exclusively. But other businesses are gearing up. A New York start-up, Churchill Divorce Finance, also is planning to enter the business.”

The Maryland Lawyers’ Rules of Professional Conduct Rule 1.5 prohibits attorneys from taking divorce cases on a contingency fee basis, meaning to take a percentage (as is often seen in personal injury and medical malpractice cases) of their client’s ultimate share of the marital estate as their form of compensation.
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While your spouse’s substance abuse issues may not affect you nearly as much since you have separated, they certainly will continue to affect your children. Unfortunately, many clients are faced with these issues. It is important to address all substance abuse concerns at the beginning of a matter, by bringing it to your attorney or the court’s attention. In many Maryland counties the Court, when requested, will order a substance abuse evaluation of the parties. Be aware that if you request an evaluation of your spouse, the Court will often order that the evaluation be performed on both parties. The evaluation will most likely consist of an interview including substance abuse history, and treatment and also in some cases urinalysis or other form of drug/alcohol screen. If a party asks, and the Court feels is it necessary, continuing drug screens of a party may be ordered. This allows for the party to gain visitation or custody with their child or children after maintaining positive results. If a custody evaluation is performed in a matter the evaluator will also utilize the information gained from drug screens or a substance abuse evaluation to assist them in making their recommendation.
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As reported in our September 30, 2010 blog , there are two parts to custody in the State of Maryland, legal custody and physical custody. Legal custody is the ability to make decisions regarding the child’s health, education, religion and other matters of significant importance. Legal custody can be awarded solely to one parent or jointly to both parents (there are also variations on joint legal custody, such as having one parent as a tie breaker or a requirement to mediate when parents cannot reach a joint decision or assigning each parent sole legal decision making with respect to different issues, ie Mom makes the decisions on education and Dad makes the decisions on health matters and the parents have joint legal custody on religious issues). Maryland courts have held that the strongest factor in determining whether to award joint legal custody is the ability of the parents to communicate with each other regarding the children.

Many clients have questions as to exactly how a joint legal custody situation should operate. Questions such as, “if a doctor makes a recommendation for my child, I do not have to check with the other parent first, right?”, or “do I need to relay all information regarding my child to the other parent?” We tell clients that they can not take a doctors recommendation as the final decision without first discussing it with the other parent, unless it is an emergency situation. Ideally, the parents should attend the medical appointment together so decisions can be reached while with the doctor and the parents are hearing the same information from the doctor. In a joint legal custody situation, ALL decisions regarding the child’s health, education, and religion, whether it be the choice to administer a certain prescription medication, decisions regarding a child’s I.E.P., where the child will attend school, etc. must be discussed with the other parent and a joint decision must be reached.
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Maryland Offices:
Downtown Baltimore Office
400 E Pratt St Suite 900
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Office: (410) 385-2225 Toll Free: (800) 385-2243 Fax: (410) 547-2432 Email: firm@silvermanthompson.com
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1 W Pennsylvania Ave #905
Towson, MD 21204
Phone: (410) 494-7100 Email: firm@silvermanthompson.com
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By Appointment Only
1775 I St NW #1150
Washington, DC 20006
Phone: (202) 921-2225 Phone: (202) 539-2444
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40 Exchange Pl #1800
New York, NY 10005
Toll Free: (800) 385-2243
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