Tough economic times are causing couples to be more creative when considering divorce.   Whether the decision to separate and possibly divorce is mutual for both parties or not, the reality is that if either party has to establish another residence to move out of the marital home, this creates a financial burden for the entire family.   Maryland law requires that in order to file for divorce, one of the parties to the divorce must have grounds to assert against the other party.  Grounds for an Absolute Divorce include by way of example and not limitation:

Adultery – Is defined as the act of a married individual having sexual intercourse with a person other than that individual’s spouse.  A Complaint for Divorce may be filed on adultery grounds as soon as the party discovers the adultery.  To obtain a divorce on the grounds of adultery, the complaining party must prove at a minimum a) a public show of affection and b) the opportunity to commit the act.

Cruelty of Treatment – Is defined as a course of conduct that is calculated to seriously impair the health and/or happiness of the other party or a child of the party with no hope of reconciliation.

Excessively Vicious Conduct – Is defined as cruel and excessively viscous actions toward the party or a minor child of the party with no hope of reconciliation.

Insanity – To file for divorce on the grounds of insanity one party must be confined to a mental institution for at least 3 years before a Complaint may be filed and two physicians must certify that the insanity is incurable.

Conviction of a Crime - To file for divorce on this ground one party must be convicted of a felony or misdemeanor, sentenced to serve at least 3 years in prison, and have already served at least 12 months of their sentence.

In order for the court to grant an Absolute Divorce based on one of the grounds above, specific factors must be met Even though a party might believe that one of the specific grounds above exists, that party must prove that ground through evidence submitted to the court.  For example, you may believe that your spouse is cheating, but unless you have sufficient evidence to submit to the court to prove it, you will not be able to proceed on the ground of adultery.

If a party is unable to prove the factors required for one of the grounds above, if none of the grounds above exists, or if a party prefers not to go through the emotional and financial burdens that sometimes accompany the open court trial to prove certain grounds, then a  one year separation period is required by law.

This mandatory one year separation period must be complete prior to filing the Complaint for Absolute Divorce, even if both parties agree and want to divorce.  As with any other ground for divorce, the devil is in the details or facts so to speak, and what constitutes living separate and apart is where couples are getting creative.

An opinion by the Court Special Appeals in the case of Rickets v. Rickets, 380 Md. 230, 844 A.2d 427 (2004) http://www.courts.state.md.us/opinions/coa/2006/136a03.pdf opened the door in some respects to the concept of living separate and apart under the same roof for the purposes of filing for a Limited Divorce.    How far the courts will go to stretch this concept for couples trying to achieve an Absolute Divorce under the same or similar circumstances remains to be seen.   However, as more couples face the reality of not being able to afford the expenses associated with two residences in order  to meet the criteria for living separate and apart, people are getting very creative about dividing the space that exists in their homes.   More and more judges and Domestic Relations Masters are being asked to determine if creative ways of living separate and apart, such as sleeping in separate bed rooms, one party living in a finished basement, one party living on a mother-in-law suite above the garage, or sleeping in a sleeper camper placed on the marital property are sufficient to meet the mandatory one year separation period prior to filing a Complaint for Absolute Divorce.

If you want to know how your idea to live separate and apart may fare in court, or to discuss any other questions you may have regarding divorce or separation, call us to schedule your free consultation.

1. I cannot get alimony if I committed adultery – There are many factors that the court must consider before making a determination regarding alimony such as the age of the parties, their ability to be self-supporting, their education and wage earning capacity, and health.  What led to the end of the marriage, and this is where adultery may be a factor, is only one of the factors that the court must consider along with many others.

2. I will be required to pay alimony if I committed adultery – See above, there is not one factor that carries such weight that it would automatically entitle someone to pay or receive alimony.  However one factor that carries a lot a weight on the issue of alimony issue is income.

3. I should waive child support to keep my spouse from fighting for custody – Your child is entitled to the support, both financial and emotional, of both parents.  This is your child’s right to waive, not yours.  Even if the other parent does not provide emotional support, does not exercise visitation, or is an absentee parent by all accounts, the court will still order that parent to pay child support pursuant to the Maryland Child Support Guidelines.   Although the type of custody or amount of visitation may have an impact on the actual amount of child support ordered, child custody and visitation have no bearing on whether a child should be financially supported by both parents.  Whether a parent is exercising visitation or not a child still needs food, shelter, clothing, and medical care.

4. If I move out of my marital home then I have given up my rights to it – If you are on the Deed to your home then you still own it no matter where you live; this is the case for married and non-married people alike.    If you are married, then even if you are not on the Deed to the home, you likely still have a marital property interest in the home.   There are many factors that go into determining what your actual property interest may be, however, moving out of your house does not change the nature of your ownership interest.

5. I do not need an attorney if my spouse and I reach an agreement on all of our property and custody issues – Although it is always best to try and come to an agreement on as many issues as possible to avoid the expense of litigation even if the parties reach an agreement on all issues it is still better to have an attorney at least draft the agreement.  People often ask me, do I need a lawyer?  I give them this analogy; I do not need a plumber to replace my hot water heater.  I can do it myself, and did, but because I only knew the basics when I failed to use the correct fittings and sealant and everything started leaking, I called the plumber to fix it.  Unfortunately for divorce there are certain issues that if overlooked or not properly addressed at the time of divorce cannot be “fixed”.   People come in weekly and ask me if there is anything I can do to “fix” their separation agreement or to “fix” a particular issue regarding alimony, health insurance, mortgage interest deductions, financial liability on a loan, transfer of pensions or other retirement, and so on.   Unfortunately about 8 times out of 10 there is absolutely nothing I or anyone else will be able to do to “fix” their problem.

During the course of the Discovery process, you will be served with Requests for Production of Documents which consist of one or more written requests to provide access to documents or things. Often times, the Requests are served at the same time as Interrogatories (see article #2 in this series for more information on Interrogatories). A party has 30 days from the date of receipt to respond to Requests.

Requests for Production of Documents are used strategically, just like Interrogatories. You may be asked to provide copies of pay stubs to help the other side make their case for a certain amount of child support or alimony. You may be asked to provide hotel invoices or credit card receipts if there is question about an affair. It is not uncommon to be asked to provide three years of bank statements, or medical documents that may be related to your fitness as a parent or ability to be gainfully employed. You will be asked to provide any document you refer to in other pleadings or in your responses to Interrogatories. Looking over the list of Requests can be very overwhelming, but it is critical that you respond with accurate information. While you are not required to use an attorney, legal advice can be especially helpful in organizing and providing an appropriate response to these Requests. Failure to respond within 30 days may result in court sanctions that can limit your ability to fully plead your case.

There are three ways to respond to Requests for Production of Documents:

1.  Provide the actual documents or property for review. You can certainly go through the list of Requests, gather up all the documents, and plop them in the mail addressed to the opposing party. It is a lot of work on your end, but in most cases the other side does have the right to look at whatever they have requested. Whenever possible, you should retain a copy of the documents you provide, so you can be sure there is no foul play if they introduce the documents in court.

2.   Provide access to the actual documents for review. In some circumstances, there are either too many documents or the property requested is simply too cumbersome to actually deliver to the opposing party. Such a situation does not excuse you from giving the requesting party access to the things they’ve requested. You may, however, respond to the Requests with a date, time, and location that all documents and property will be available for review. You must provide a reasonable amount of time for the opposing party to gather the information they seek.

3.   Refuse to provide the actual documents or access to the documents. There are instances where it is within your rights to refuse to provide certain documents or property. For instance, if you are asked to provide emails that implicate you in a drug deal, you are not obligated to provide such emails because you have a right not to incriminate yourself. In these circumstances you may respond, within the 30 day time frame, with a refusal to provide certain documents as well as the reason that you refuse. Keep in mind that refusing to provide some documents does not get you out of providing the remaining requested documents.

This is the third in an ongoing series about Discovery. For the next few weeks, we will go more in-depth about this very important process. As always, we here at Delaney & Keffler, LLC will take the time to fully explain the Discovery process and help you obtain beneficial information. Contact us today at 410-535-3476 (FIRM) or welcome@delaneykeffler.com for a free consultation.

Several bills have recently been enacted by Maryland’s General Assembly that substantively amend several statutory provisions related to Protective Orders and Peace Orders in Maryland.

Courts and Judicial Proceedings, Section 3–1510 and Family Law, Section 4–512 as they relate to the shielding of records regarding peace orders and protective orders  have been amended to limit the circumstances under which a court is required to order shielding of records related to a peace order or domestic violence protective order proceeding by specifying that the requirement applies if (1) a final peace order or protective order has not been previously issued against the respondent in a proceeding between the petitioner and the respondent and (2) an interim or temporary peace order or protective order against the respondent is not pending at the time of the hearing on the shielding request.

Courts and Judicial Proceedings, Section 3–1508 related to penalties has been amended to increase the penalties for a second or subsequent offense for violating an interim, temporary, or final peace order. With this amendment a second or subsequent violation of a peace order is subject to maximum penalties of imprisonment for one year and/or a $2,500 fine. The current statutory penalties for violation of a peace order of a fine not exceeding $1,000 or imprisonment not exceeding 90 days or both, still apply, but now to a first violation only.

Basically the amendment to the law makes the expanded penalties for violations of peace orders consistent with the penalties for violations of protective orders.

Courts and Judicial Proceedings, Section 3–1505(f) and Section 3–1506(a) related to peace orders have been amended to authorize judges, for good cause shown, to extend the term of a final peace order for an additional six months after (1) giving notice to the petitioner and the respondent and (2) a hearing.

As always, we here at Delaney & Keffler, LLC will take the time to fully explain this matter in detail with regards to your case.  Contact us today at 410-535-3476 (FIRM) or welcome@delaneykeffler.com for a free consultation.

If signed into law by Maryland Governor Martin O’Malley, House Bill 407 will amend sections of the Family Law Article related to the issuance of protective orders to authorize a District Court Commissioner, when issuing an interim protective order, or a court, when issuing a temporary or final protective order, to award temporary possession of any pet of a person eligible for relief or a respondent.

This amendment will provide much needed protection for pets that may become prime targets for the anger, violence, and desires for revenge that unfortunately often accompany situations were domestic related violence is present

As always, we here at Delaney & Keffler, LLC will take the time to fully explain this matter in detail with regards to your case.  Contact us today at 410-535-3476 (FIRM) or welcome@delaneykeffler.com for a free consultation.

Child support in Maryland, as in all other states, is calculated using very specific criteria in an attempt to create consistency regarding the amount of support paid. This requirement is mandated by federal law.

Some state laws only consider the income of the non-custodial parent; Maryland law however, considers the income of both the custodial and non-custodial parent and unlike some other states, Maryland uses gross and not net income to calculate child support.  Being unemployed or underemployed does not excuse a parent’s obligation to support their children in Maryland.  Judges are allowed to impute income to parents who are found to be purposely avoiding employment (voluntarily impoverishment) in an attempt to keep their child support obligation lower.

The Maryland Child Support Guidelines allow work related child care expenses to be factored into the calculation of child support.   However, if the child is under two years of age, then the custodial parent may be allowed to stay home and care for the child.  This is due to the considerable cost of childcare for infants.  However, having an infant child is not an automatic exemption from the requirement to be employed.  If a parent prior to the birth of the child was making substantial income that would enable him or her to afford the infant childcare and still contribute financially to the family and they chose not to return to work, then the court could impute their previous income for the purposes of determining child support.

Maryland law allows deductions for any alimony that is being paid and also allows a deduction for child support that has been ordered in another case for another child.   These deductions are only considered if they are court ordered vs. voluntary and are actually being paid.

Maryland also allows a credit for the cost of health insurance to the parent who is providing coverage for the child.   The credit is for the cost to insure the child only, not the entire premium on the plan. Extraordinary medical expenses will be taken into consideration as well.  In Maryland extraordinary medical expenses are treatments, procedures, medical devices, prescriptions, and the like that cost One Hundred Dollars ($100.00) or more for a single occurrence.

Other expenses that are given consideration in Maryland include, the cost of transportation, especially if the non-custodial parent lives out of state; school expenses and tuition, especially if the child has attended a private or other non-publically funded institution; and, expenses for activities, such as dance, football, music lessons, and the like, particularly if these are activities that the child is already involved in and should be able to continue.

Fortunately, or unfortunately, Maryland law also takes into account the amount of time that the child spends with the non-custodial parent.  The more overnights a non-custodial parent has with the child, the less their child support obligation may be.   This factor can lead to custody and visitation becoming an issue once this fact is discovered as parents and attorneys literally count overnights in an attempt to increase or reduce child support.

As always, we here at Delaney & Keffler, LLC will take the time to fully explain the calculation of child support in your case.  Contact us today at 410-535-3476 (FIRM) or welcome@delaneykeffler.com for a free consultation.