Posts Tagged ‘family law’

With This Ring I Thee Enter Into a Prenuptial Agreement

Diamonds, dresses, flowers, and caterers are what couples typically discuss when they decide to get married; but, let me tell you what the topics turn to when couples decide to get divorced; alimony, marital property, and “equitable” division of assets.

Couples can avoid all of the emotional stress and pomp and circumstance of a formal wedding by simply running off to a Las Vegas and seeking a drive through chapel.  This alternative to a traditional wedding is arguably cheaper, more adventurous, and possibly even more fun.

Like the Vegas alternative to a formal wedding, there is a cheaper, easier, and less traumatic alternative to divorce litigation; a prenuptial agreement.  Everyone thinks that prenuptial agreement is a dirty word, well, two dirty words.  I promise you that there are much dirtier words in the arena of domestic law, including attorneys fees, alimony, dissipation of martial assets, and bankruptcy to name but a few.

A common misconception about prenuptial agreements is that they are only for people who have previously been married and have a lot of assets or professional football players, actors, rock stars, i.e. the very wealthy.  This is simply not correct.  Prenuptial agreements are just as helpful to couples who have minimal pre-marital asset or pre-marital debt obligations going into a marriage because no one can know how long the parties will be married or what the parties may acquire while they are married and if those pre-marital assets or pre-marital debts become comingled with other marital property or marital debt then problems may arise.

A prenuptial agreement can even be helpful to a couple that has no pre-marital assets or debts.  Consider the young soon to be wife who forgoes her education and career to stay home and take care of the household and children?  Should she not be entitled to some percentage of her husband’s annual income for until she can take the necessary steps to become financially independent in the event of divorce?  Most people, though likely not to include her husband, would agree that she is entitled to alimony.  Regardless of anyone’s opinion, alimony is provided for by statute in Maryland.  Rather than take this matter before the court in litigation, the parties could have a prenuptial agreement to state that by agreement of the parties wife will discontinue her graduate school program to be a full-time stay at home mother until the youngest child of the parties is school-aged and if the parties divorce prior to this occurring then in addition to any child support payable to wife, wife shall be entitled to 20% of husband’s gross annual income, averaged over the previous 3 tax years.

Or again for our couple with no pre-marital assets, the agreement could be as simple as the parties hereto have no previously acquired non-martial assets and therefore they agree that all personal property, real property, bank accounts, stocks and retirement funds acquired during their marriage shall be marital property and shall be divided equitably, 50% to each party, in the event the parties should divorce.   I assume that there may be a couple of folks out there, maybe even family law attorneys, who know a little something about the Maryland Marital Property Act who are asking well what good does that do since the law provides for an equitable distribution of marital property anyway?  What the Maryland Marital Property Act actually says is that all property determined to be marital property is subject to equitable division by the court.  Let me assure you that equitable does not mean equal 50/50 shares in the minds of most parties who are going through a divorce.

If you are mature and compatible enough to contemplate entering into marriage then you should be able to have a frank discussion about what is reasonable in the event your marriage ends.  If a couple cannot even discuss the topic of a prenuptial agreement, well, need I say more?

This is the first article in an ongoing series about different types of domestic law agreements. The next article will discuss separation agreements.  As always, we here at Delaney & Keffler, LLC will provide you will practical solutions to real world problems and help you to protect your assets and your legal rights. Contact us today at 410-535-3476 (FIRM) or for a free consultation.


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: The Final Frontier

In our previous article on alimony we discussed the first six statutory factors a Master or Judge must consider when making a determination regarding alimony.  To continue our discussion on the remaining six statutory factors, let’s revisit our friends Jack and Jill.   To refresh your memory:

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 was a homemaker for the entire 30 year marriage. Jill is now 47 and has no practical or marketable skills.

The remaining six factors set forth in Maryland Code §11-106(b) are presented below.

            (7)      The age of each party.

In the case of Jack and Jill, they are both in their late 40’s, really the prime of their working life. However, if Jack was 45 and Jill was 65, the court may reach a different decision about what constitutes a reasonable alimony award because Jill’s age, among other factors, may hinder her ability to become gainfully employed.

            (8)      The physical and mental condition of each party.

            In our original example, Jack and Jill are both in good health and have skills that could lead to a fulfilling career and adequate income. Consider how that picture would change if Jack is diagnosed with early onset Alzheimer’s during the couple’s separation. Instead of being able to provide ample income to continue to support Jill, Jack may soon become dependent on somebody, possibly Jill, to support him. 

            (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.

Judges don’t play Robin Hood, out to steal from the rich to pay the poor. Assume Jack makes $250,000 per year as a neurosurgeon, and Jill requests $75,000 in yearly alimony. Before the court can award Jill that amount (or any amount, actually), the Judge or Master must consider the financial impact on Jack, as well as on Jill. If such a high award would make Jack unable to meet his existing financial obligations or would put Jill in a significantly more comfortable financial position than Jack, the court is not likely to award Jill her requested amount of alimony. 

            (10)      Any agreement between the parties.

            Perhaps Jack has decided he would like to marry his young receptionist. After delivering the news to a devastated Jill, he asks her for an easy divorce and tells her that she will never have to worry about finances, promising her $100,000 per year for life. After making the promise, Jack visited his financial advisor to make sure he could afford this pay-off, and drafted an agreement which he presented to Jill. Jill signed the agreement, and each kept a copy. If Jack tries later to modify the Agreement (most likely because it cuts into the funds new receptionist wife thought she would have to spend) will the Agreement weigh into a Judge or Master’s decision to modify the alimony award?  Most definitely!  It will be given a lot of weight because it appears to have been made after Jack’s careful consideration and Jill has acted in reliance of the agreement by giving Jack an easy divorce.

This factor number 10 also covers any prenuptial and antenuptial agreement that the parties may have entered into regarding a specific amount or term for spousal support (alimony).  

            (11)      The financial needs and financial resources of each party, including:

                  (i)      all income and assets, including property that does not produce income;

            For example, during the divorce hearing, it comes out that Jill actually owns two townhomes that are in rentable condition, but have remained vacant for the last 10 years. The Judge or Master can consider the value of these homes, even though they are not currently producing any income, when deciding the most equitable alimony award.

                (ii)      the potential income from a non-monetary award or property disposition;

                If Jill decides that she would rather give the townhomes to Jack as part of the couple’s negotiated property settlement, the court may impute rental income to Jack which could result in a larger alimony award for Jill.

                  (iii)      the nature and amount of the financial obligations of each party;

                Suppose Jack has annual malpractice insurance costing $100,000, and he pays $75,000 for his business mortgage, in addition to $25,000 for the couple’s home mortgage and another $25,000 for assorted financial obligations. Jack’s $250,000 annual salary now looks more like $25,000 of take home pay—not such big bucks. A Judge or Master will take Jack’s financial obligations into account before awarding Jill an alimony amount that could leave Jack unable to meet his existing obligations.

                  (iv)      the right of each party to receive retirement benefits.

            Both Jack and Jill are probably around 20 years away from retirement in our given scenario. Having never worked outside the home, Jill has not had an opportunity to contribute to a retirement account. Jack, on the other hand, may have hundreds of thousands of dollars saved in a retirement account. While Jill is likely entitled to a portion of Jack’s retirement benefits to the extent that they are marital property, Jill’s future ability to save for retirement is probably not nearly as great as Jack’s. A Judge or Master will certainly consider the implications of retirement funds on the parties’ lives as they move forward and age.

            (12)      Whether the award would cause a spouse from whom alimony is sought and who is a resident of a nursing home or similar institution to become eligible for medical assistance earlier than would otherwise occur.

            Assume that during the couple’s separation Jack is in an accident that leaves him partially paralyzed, requiring enough medical care that he moves into a long-term nursing facility. Even though Jack has always been the breadwinner, his new circumstances may have a great impact on the couple’s financial future. A Judge or Master would need to consider the reasonableness of Jill receiving alimony from Jack, now that Jack will need to expend considerable funds to pay for his around the clock nursing care while not becoming a burden on state funded programs. 

            As you can see, alimony is about as far away from a simple calculation as it can be. If you believe you are entitled to alimony, or may have a spouse seek alimony from you, it is crucial that you consult with an attorney. An attorney will be able to discuss how the specific factors of your particular situation may impact an alimony determination.

This is the final article in an ongoing series about Alimony. The previous articles can be found on our blog at 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.

Several New Laws Will Impact Domestic Violence Statutes

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 for a free consultation.

New Domestic Violence Law Amendment Provides Protections for Pets

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 for a free consultation.

How Much Will I Pay For Child Support?

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 for a free consultation.