Maryland Divorce Lawyer Blog

Published on: September 25, 2009

Maryland Final Protective Order – Dismissal

I recently represented a Respondent (the person against whom the protective order has been filed) in a Final Protective Order hearing in the Circuit Court for Baltimore County, where the Petitioner alleged that he was placed in fear of serious imminent bodily harm by his wife, the Respondent. When representing the Respondent in such a proceeding it is imperative to know what the other side must prove in order to have a final order granted by the Court and how to gather evidence to refute those allegations. In this case, it was the husband’s burden to prove by clear and convincing evidence the alleged abuse had occurred (see August 16, 2009 blog for specific statutory criteria). By the nature of the protective order process, there often is not enough time in between a client coming in to meet with you to represent them and the Final Hearing date, which can impede obtaining necessary information in a complicated matter. In this situation, although time was an issue, I was able to obtain the 911 calls, the transcript of the Temporary Protective Order hearing, and issue subpoenas to various witnesses, which included friends, family members, police officers, therapists and physicians.

In this particular case, the Husband’s Petition was dismissed at the conclusion of his case after the Court heard argument on my oral Motion for Judgment. Pursuant to Maryland Rule 2-519, when a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. In non-legal jargon, the Court, in my case, concluded that even after looking at all of the evidence presented by the Petitioner/Husband, in the light most favorable to him, there was still not enough evidence to meet the legal standard to enter the Final Protective Order, all before I had to put on a single witness. Albeit, the preparation still paid off in the cross examination of the Petitoner.
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Published on: September 11, 2009

How is Child Support Calculated in Maryland – Just the Basics?

By Monica Scherer

A common inquiry for Maryland divorce lawyers is how child support is calculated with questions such as, is it based on the custody arrangement, the amount of income of the parties, are the parent’s expenses taken into consideration, and what about expenses associated with the child? The answer, for the most part is all of the above, with the exception of the parent’s expenses, which are generally not taken into consideration unless it is an above the child support guidelines case. The Maryland legislature has enacted guidelines which provide a standard formula for calculating child support. The Maryland Code, Family Law § 12-204 provides that child support shall be calculated based on the parties combined adjusted actual income combined with the number of children the parties share. Not only do the guidelines take into account the parties’ gross income (not net income), but also any health insurance costs the parties are paying for the child or the children, costs of work-related child care either party may be paying for the child or the children, extraordinary medical expenses paid for the child or the children, and existing prior child support obligations.

The guidelines are also based on the custody arrangement the parties have with the child or children. At the present time, if the mother or father has sole physical custody (less than 128 nights with non-custodial parent) than the Maryland child support guidelines will provide for more support for that parent. If the mother and father share physical custody of the child or children (child spends more than 128 nights with each parent) the child support guidelines will provide for less child support to the party seeking it. If one of the parties to the case is unemployed or earning less than their potential(not due to disability, illness or a child under the age of two belonging to the parties) the court may find them to be voluntary impoverishing themselves, and may determine child support based on their potential income. If the parties combined adjusted actual income is over $10,000 a month, the Court has the ability to award child support based on need. The statutory child support guidelines cease providing a sum for support above and beyond a combined monthly income of $10,000.00. However, courts often extrapolate the child support guideline past the $10,000.00 figure and base an award on that number or at the very least take the extrapolated child support guideline into consideration.
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Published on: August 31, 2009

Maryland Child Support Modifications

By Monica Scherer

With the economic downturn, more and more clients are filing for modification of their child support obligation, in an attempt to decrease the amount they owe every month. In fact, according to the Associated Press The Maryland Child Support Enforcement Administration has seen an 18 percent increase over the last year in requests for child support modifications.

In accordance with Section 12-104 of the Family Law Article, Annotated Code of Maryland, “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.” Courts have held that an involuntary loss of employment is a material change in circumstances. However, it is up to the parent who is seeking to reduce their payment to file for a modification, and child support is not decreased until an order is in place (not simply because a Motion was filed). Many clients who are paying child support and suffer loss of a job, incarceration or a decrease in income do not file a motion to modify their child support with the court, because they may not be aware of this option or they wait to file and end up with a huge arrearage situation (past due child support). If child support is in fact modified, the Court may only make the new amount retroactive to the date of the filing, not back to the date of the loss of employment, incarceration or decreased income. If a modification of child support is the best course of action, it is important to move quickly to maximize the potential benefit.
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Published on: August 19, 2009

Non-Marital Funds Used to Purchase the Marital Home: What Happens to Those Funds In a Maryland Divorce?

By Monica Scherer

With more and more Maryland couples coming to a marriage with substantial assets, those couples have property disposition issues at the time of divorce. For example, I am frequently asked what happens to the marital home that is titled as tenants by the entirety, but that one spouse contributed a substantial amount of non-marital money towards (for instance, one spouse sold a home that was acquired before the marriage and never lived in by the parties, and used those proceeds for part or all of the down payment on the marital home). Clients ask is this home then marital or non-marital, and can I get all of the non-marital money I back that I put into the home? The answer is it depends.

In accordance with Section 8-201 of the Family Law Article, Annotated Code of Maryland, “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.” Therefore, even if non-martial funds are used to purchase the marital home, if it is titled as tenants by the entirety (T by E) both spouses are equal owners of the home and it is marital property. Under this scenario, Maryland case law precludes the court from employing a “source of funds” theory as it may with other types of marital property. However, the court may utilize Section 8-205 of the Family Law Article to “reimburse” a spouse by way of a monetary award. This is not an automatic refund to the contributing spouse and by current Maryland case law cannot be when non-marital funds are used to purchase a home titled as tenants by the entirety, but the court may use the monetary award to correct inequities in the way which martial property is titled.

A three-step analysis is to be used when determining a monetary award in a Maryland divorce proceeding: (1) the trial court must first determine whether each piece of property owned by the parties is marital or non-marital, (2) the court must then determine the value of all marital property, and (3) the court may then make a monetary award as an adjustment of the parties’ equities and rights in the marital property. Oftentimes the biggest dispute arises over whether property is marital or not and in some case, partial marital and partial non-marital. If the home is titled T by E it is marital property. However, I have had cases where the home was owned prior to marriage by one spouse, the deed was changed at some point during the marriage to reflect a T by E ownership interest, and the Court found it was partly marital and partly non-marital.

Once the court applies the three step analysis, it then needs to take into consideration a number of other factors. Specifically, Section 8-205 of the Family Law Article, states that the court shall determine the amount and the method of payment of a monetary award, after considering each of the following factors: (1) the contributions, monetary and non-monetary, of each party to the well-being of the family; (2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property or interest in property was acquired, including the effort expended by each party in accumulating the marital property or the interest in property, or both; (9) the contribution by either party of property to the acquisition of real property held by the parties as tenants by the entirety; (10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and (11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property, or both. What this means is that even if the court determines the home is marital, there is a non-marital monetary contribution by one spouse, a monetary award is still not automatic. While the court must apply and take into consideration the required factors, the Court has discretion when applying those factors as to whether or not a monetary award should in fact be granted.
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Published on: August 18, 2009

Consequences of Violating Maryland Visitation Orders

By Monica Scherer

Many non-custodial parents (parents without primary physical custody) are left wondering what to do after being denied scheduled visitation with their child. As of July 1, 2009, those parents may not only have two, but three avenues to pursue.

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Published on: August 16, 2009

Maryland Protective Orders – Interim vs. Temporary vs. Final

By Monica Scherer

In the wake of the recent legislation signed by Governor O’Malley mandating Judges to order the surrender firearms as part of a final protective order, and authorizing Judges to order the surrender of firearms as part of a temporary protective order, it is helpful to differentiate between the two, and in addition explain the interim protective order.

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Published on: August 15, 2009

Jon and Kate Gosselin File For a “No-Fault” Divorce

By Monica Scherer

In light of the Jon and Kate’s recent news and Kate Gosselin’s filing for a no-fault divorce, I have received many questions asking what is a “no-fault” divorce? Although the Gosselin’s divorce proceedings will be held in Pennsylvania, the law in Pennsylvania is similar to Maryland, in that a party filing for divorce may elect to proceed on fault (contested) or no-fault (uncontested) based grounds.

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Published on: August 14, 2009

Common Law Marriage in Maryland…or NOT in Maryland

By Monica Scherer

As a practicing family law attorney in Maryland, I am often asked if Jack and Jill who have been living together for ten years now in the State of Maryland, but have never had a lawful marriage ceremony, are legally married under the doctrine of common law marriage? The answer is no, Maryland does not recognize common law marriages. Therefore, if Jack wanted to end his relationship with Jill, no legal action would be required on his part. Also, if Jill wanted to inherit from Jack, or participate in his health benefits, this may pose a problem as they are not married under the laws of the State of Maryland.

A common law marriage, by definition, is a marriage formed between two individuals who have lived together for a specified amount of time, rather than participating in a lawful ceremony. However, the parties must be of the legal age to be married, must mutually intend to take on the status of husband and wife, and must not only live together, but represent to the community that they are husband and wife.

Although Maryland does not recognize common law marriage, it will accept as a legal marriage a common law marriage validly entered into in another state. These marriages will be treated just like any other valid marriage in the Maryland court system, requiring a filing for divorce when one party wants to terminate the relationship.
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Published on: August 11, 2009

Recent Maryland Court of Special Appeals Decision Rules that Parents Do Not Need to Show a Material Change in Circumstances in Order to Modify Visitation with Third Parties

By Monica Scherer

On June 3, 2009, in the case of Barrett v. Ayres, the Maryland Court of Special Appeals found that Sharon Barrett did not need to show a material change in circumstances in order to modify the current set visitation schedule between her daughter and her daughter’s paternal grandparents, Bryan and Helen Ayres. Sharon Barrett had agreed to a visitation schedule between her daughter and the Ayres after her husband was seriously injured in a car accident in 2004. However, the relationship had become strained and Sharon believed that it was no longer in her daughter’s best interest to visit with her grandparents. The Court stated a parent’s decision that their child’s visitation with a third party should be modified is a material change in and of itself. The burden then shifts to the third party to establish that the parent is unfit or other exceptional circumstances exist. In this case the grandparents now have the burden to prove the parents are unfit or exceptional circumstances exist.

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