Posts Tagged ‘adultery’

Maryland Law Must Adapt to Same Sex Marriage

For more than ten years legislators in Maryland have kicked around the idea of legalizing same sex marriage, prohibiting same sex marriage, and providing for domestic partnerships. During the 2012 legislative session Maryland’s General Assembly passed a bill allowing same-sex marriages and the bill was signed into law by the governor. The law then went to the voters of Maryland as a referendum in November 2012 to determine if it would be upheld and it was.

However, the legalization of same-sex marriage in Maryland is only the beginning of the issue, not the end. Maryland law will need to catch up to accommodate this recent change, leaving judges in the meantime on their own to interpret and apply the statutes currently in existence to the new situations that are beginning to occur. For example, due to the current statutory definition of sexual intercourse in Maryland, sexual relations between same-sex partners, even if one of the partners is married to someone else, do not meet the statutory definition of adultery!

Maryland has recognized legal same-sex marriages performed in other states for some time; therefore it is not as if there is no legal precedence available. However a case that was recently filed in the Circuit Court for Calvert County highlights how a seemingly typical issue that often arises can become hotly contested matter, giving rise to compelling legal briefs, oral arguments, and much consideration prior to a judge’s ruling.

In the above referenced case a Calvert County judge had to issue a ruling on whether a California court order finding the non-biological same-sex partner (who was married to the biological mother of the child) to be the “presumptive parent” for the purposes of establishing custody of a child was entitled to Full Faith and Credit (valid) in Maryland. The answers seems simple because under the legal doctrine of comity a valid court order entered in one state is generally valid in another state; this is also commonly referred to as legal reciprocity. In this case however biological mother argued that Maryland law does not have a statute that recognizes a “presumptive parent”, or de facto parent, and that in order to have standing to sue for custody in Maryland the person must be the legal parent of the child or must have adopted the child. If the person is not the legal or adoptive parent of the child then they must proceed as a third-partyunder Maryland law.

The legal relevance is that in Maryland custody cases a third-party (non-parent) must prove that both biological parents are unfit or that exceptional circumstances exist before a best interest of the child analysis can even begin. In other words, you have to clear a huge hurdle before you can even be in the race. In the referenced case, biological mother’s argument was that non-biological mother could be nothing more than a third-party under Maryland law. If the judge agreed with this argument, then non-biological mother would have an additional burden of proving biological mother unfit or that exceptional circumstances existed prior to the court allowing the case to proceed to the required best interest of the child analysis. However, the Calvert County judge did not agree with biological mother’s argument and instead ruled that the California Order is valid in Maryland.

As always, we here at Delaney & Keffler, LLC will keep up with legal developments and changes in the law to help you understand, assert and protect your legal rights. Contact us today at 410-535-3476 (FIRM) or for a free consultation.

Alimony Matters

In Maryland, Alimony determinations are based on Maryland Code, Maryland case law, and Judges may also consider guidelines such as those set forth by the American Academy of Matrimonial Lawyers or the Kaufman Center for Family Law. While none of these sources provides a strict mathematical formula, they do go a long way in offing guidelines for determining Alimony awards.

Maryland Code §11-106 (b) sets forth twelve statutory factors that a Master or Judge must consider when ruling on an alimony issue. The first six factors are presented below; the remaining six factors will be discussed in a future article.

(1)   The ability of the party seeking alimony to be wholly or partly self-supporting.

For example, Jack and Jill married when they were ages 18 and 17 respectively, and have been married for 30 years. Jack finished college and medical school, and is a well-respected neurosurgeon. Meanwhile, Jill gave birth to their first child when she was 18.  Jill never finished high school or received any advanced skills training, and she has been a homemaker for the entire 30 year marriage. Jill is now 47 and has no practical or marketable skills. Under this factor a Judge would need to consider whether given Jill’s age, lack of formal education and training, and lack of employment history, if it is even possible for Jill to obtain an income that will afford her any level of financial stability, much less how long it will take her to reach that level. 

(2)   The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment.

Let’s imagine that instead of being a homemaker, Jill had worked for 20 years as a nurse. She retired about 10 years ago, but may be able to re-enter the nursing workforce. The parties would need to present evidence regarding the need and ability for Jill to update her nursing qualifications in order to become gainfully employed as well as how long it may take her to update her qualifications and what amount of salary she may be able to earn upon her reentry into the workforce. 

(3)   The standard of living that the parties established during the marriage.

Consider the original scenario: Jack is a neurosurgeon, and Jill is a homemaker. Assume Jack earned $600,000 per year, which allowed the couple to live in a beautiful mansion with a full staff, own a vacation villa, travel on three extended vacations yearly, and wear the best designer label clothing. The parties have lived this way for the last 18 years, since Jack finished his residency. A court will take this standard of living into account when deciding what kind of alimony award Jill needs to maintain a reasonably comparable standard of living.

(4)   The duration of the marriage.

Again, let’s look at the original scenario. A 30 year marriage is no small accomplishment. The court is likely to find that Jill is entitled to a greater alimony award for her 30 year marriage than she would be if, all other factors remaining the same, her marriage lasted only four years.

(5)   The contributions, monetary and nonmonetary, of each party to the well-being of the family.

Under our original scenario, Jack’s monetary contributions should be fairly easy to track. Jill, however, should not feel like her 30 years as a homemaker have no value to the marriage.  While nonmonetary contributions can be more difficult to prove, the courts absolutely assign value to serving as a primary caretaker for the couple’s children, work Jill did to maintain the home, clerical support Jill may have provided to Jack’s medical office, etc.  If Jill was not there to care for the family and household, Jack may not have been able to take the time and training necessary to achieve his medical degree and accompanying salary.  

(6)   The circumstances that contributed to the estrangement of the parties.

 There is no way for a court to assign an accurate monetary value to fault. The system does, however, allow the parties to present reasons why they should, or should not, be entitled to a certain alimony award in the name of fairness. First, let’s assume that Jack came home from work one day and announced that he has been having an affair with his secretary, and he is done with the marriage. The court may find that Jill is entitled to a greater alimony award because she had no way of preparing for the breakdown of her marriage. Consider, instead, that one day Jill informs Jack that she is in love with their cabana boy, and that they are running off to the Caribbean together.  If Jack presents this information to the court, he may have reduced alimony payments because Jill brought the divorce on herself, through no fault of Jack

Clients often ask me how marital fault factors into a divorce in Maryland; without a doubt, Maryland Code §11-106 (b) (6) – The circumstances that contributed to the estrangement of the parties – is a prime example of how fault can be a factor. 

This is the third article in an ongoing series about Alimony. The fourth article will continue with the next six alimony award considerations in the Maryland Code. As always, we here at Delaney & Keffler, LLC will take the time to fully explain Alimony, and help you obtain beneficial information. Contact us today at 410-535-3476 (FIRM) or for a free consultation.

Tough Economic Times are Causing Creative Divorce

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) 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.

    Five Myths about Divorce

    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.