Maryland Divorce Lawyer Blog

Maryland Court Reviews Father’s Efforts to Modify Child Custody Arrangement

August 18, 2014 | by Anthony A. Fatemi, LLC

By its very nature, divorce divides a couple. Throughout the proceedings, spouses are expected to address and resolve many emotionally charged issues, such as child custody, visitation, division of property, spousal support, and many other significant matters. While many divorce cases are fraught with contentious conduct on behalf of one or both spouses, there are ways to approach a case with an eye toward moving the process along efficiently and amicably, while protecting one’s interests. One of the best ways to accomplish this goal is to consult with an experienced Maryland family law attorney, whose primary purpose is to resolve your divorce case as smoothly as possible, while aggressively protecting your interests.

In a recent case, described by the court as “particularly acrimonious,” the father attempted to modify an existing child custody order and objected to the “best interest attorney” or “BIA” whom the court appointed to represent his children in the proceeding. Here, the parties first separated and then ultimately divorced in February 2012. The divorce judgment incorporated prior written agreements, including a “parenting agreement” that granted the mother sole legal and primary physical custody of the children. The father was granted visitation rights. With respect to the children and their interaction with one another, the court pointed out that before and immediately after the divorce neither party behaved “admirably.” The husband claimed that the wife obstructed his visitation rights.

In July 2012, the husband sought a modification of the custody order, requesting sole custody of the children. He also began to withhold his alimony and child support payments and instead to apply them to the mortgage payments on the family residence. The wife sought to hold him in contempt for redirecting the payments and further asked the court to appoint a BIA to represent their children. The state of Maryland provides guidelines for court-appointed lawyers who represent children in child custody matters. Ultimately, the BIA recommended that the father’s custody petition be dismissed. The father sought to disqualify the children’s BIA and then changed his custody request, asking instead for sole legal custody while his wife retains physical custody. Continue reading

Maryland Court Addresses Allocation of Retirement Benefits in Divorce

July 30, 2014 | by Anthony A. Fatemi, LLC

One of the most significant financial aspects of a divorce is the division of marital property. Under Maryland law, courts have the authority to identify marital property, assess its value, transfer ownership between the parties, and issue a monetary award in order to even out the rights of the parties. Depending on the case and the nature of the relationship between the spouses, the couple may be able to enter into an agreement specifying the allocation of property, instead of relying on the court to do so. In any case, because this part of the divorce proceeding can significantly affect the parties’ lifestyle going forward, it is important to consult with an experienced Maryland attorney as early in the process as possible.

One of the items subject to property division in divorce is a spouse’s interest in retirement plan benefits earned during the marriage. In a recent divorce case, the couple entered into a property settlement agreement that included a clause allocating future benefits from the retirement plan sponsored by the husband’s employer. The agreement incorrectly implied that the plan was governed by federal law (ERISA), even though it was exempt from that law, and further stated that the divorce judgment would serve as a QDRO (a Qualified Domestic Relations Order). Neither party took any steps to obtain a QDRO for submission to the pension plan.

The husband remarried and designated his new wife as the beneficiary under the retirement plan. Upon the husband’s death, a dispute arose between the former wife and the second wife as to the entitlement of the retirement benefits. In accordance with the property settlement agreement, the former wife applied to the pension plan for a portion of the benefits that accrued during the marriage. The pension plan rejected her request, arguing that it never received a QDRO indicating that the ex-wife was a beneficiary of the husband’s death benefits. Next, she filed a complaint against the current wife, alleging that she had been unjustly enriched by receiving all of the pension and death benefits. Furthermore, she requested the imposition of a constructive trust on the portion of the pension and death benefits that the second wife received. Continue reading

Case Summary: Client saves substantial money in attorney’s fees after attorneys successfully negotiate a partial Voluntary Separation and Property Settlement Agreement

July 19, 2014 | by Anthony A. Fatemi, LLC

Recently a potential client came to our office to discuss his options for seeking a divorce. In Maryland, there are several grounds for an absolute divorce including a one (1) year separation, desertion (actual and construction), insanity, conviction of a crime, cruelty of treatment / excessively vicious conduct, and adultery. During the consultation, our family law attorney obtained information about the marriage, the reason for separation, the length of separation, etc. to determine what ground(s) may be applicable in this case.

Unfortunately, the potential client was not yet eligible to file a Complaint for Absolute Divorce because the applicable grounds in his case all required that he and his wife be separated for at least twelve (12) months prior to filing the Complaint. However, just because he couldn’t file his Complaint yet didn’t mean our family law attorneys weren’t able to start helping him with his case immediately. Our attorneys suggested entering in to negotiations to try and reach a type of agreement called a Voluntary Separation and Property Settlement.

A Voluntary Separation and Property Settlement Agreement can be a global agreement, which means the agreement resolves all outstanding issues related to the Parties divorce. Or, it can only resolve some issues leaving the remaining contested issues for the Court to decide – this is called a partial agreements. Issues that are commonly covered by a Voluntary Separation and Property Settlement Agreement include the grounds for divorce, alimony / spousal support, custody, child support, and division of marital property.

Maryland Court Reviews Statutory Factors in Determining Alimony

July 16, 2014 | by Anthony A. Fatemi, LLC

When a couple decides to divorce, there are many important issues to address and resolve before the parties can move forward with their respective lives. Many of these matters involve important financial considerations, such as the amount and duration of alimony payments. Fortunately, Maryland law provides some guidance for courts to use when determining the question of alimony. But each divorce case presents a unique set of facts that tend to influence whether and to what extent a court will order alimony to one spouse or the other. If you are considering a divorce, it is important to protect your financial interests at the earliest stage in the process, and consult with an experienced family law attorney who is familiar with the laws affecting Maryland families.

In a recent divorce case, the court of appeals addressed many issues raised separately by both spouses. One of the items on appeal concerned the amount of alimony awarded to the wife. Here, the parties graduated from Yale Law School in the early 1980s. They each had jobs at prestigious law firms and got married in 1989. The wife became pregnant in 1990 and stopped working to take care of their twin boys. When she stopped working, her annual salary was $120,000. They had a third child in 1994. The husband continued to work and was earning over $800,000 per year by 2010. The family lived an affluent lifestyle. In 2010, however, the couple separated, and both parties filed for divorce.

After a five-day trial, the court issued multiple awards, one pertaining to alimony. After reviewing the evidence, the court found that the wife’s earning capacity was based on her salary from over 20 years earlier and that the husband failed to produce evidence to support his claim that the wife could earn between $30,000 and $40,000 per year. Further, the trial court determined that the wife’s monthly, unearned income was $5,813, and her expenses totaled $15,812, leaving her with a significant deficit. The court ultimately awarded the wife $14,191 in monthly alimony payments. The husband appealed the award, arguing, among other things, that the trial court erred when it failed to impute any earned income to the wife. Continue reading

Why Establish Paternity in Maryland?

June 20, 2014 | by Anthony A. Fatemi, LLC

When a married couple has a baby in Maryland, each person in the couple is automatically viewed as being the legal parents of the baby. They automatically have the rights and obligations of parenthood. However, when a couple is not married, only the mother is automatically recognized as a parent with the attendant responsibilities and rights. Further action needs to be taken to establish paternity.

Establishing paternity is an important step to claiming the rights and responsibilities of fatherhood in Maryland. The court will not order custody, visitation, or child support unless paternity is established either because the father admits paternity or someone else proves he is the father. There are four ways to establish paternity. In addition to being married before the child’s birth, a couple can establish paternity by having the father and mother marry after the baby is born with the father verbally acknowledging the baby is his, the parents signing an Affidavit of Parentage and having the father’s name added to the birth certificate, or bringing a lawsuit to establish paternity.

Going to court is the most difficult of these options. However, you should not sign an affidavit if you are an alleged father with doubts about paternity. The affidavit is legally binding. By signing the affidavit, the father gets the right to go to court and ask for custody or visitation. Continue reading

Maryland Wife Entitled to Recalculation of Pension

June 17, 2014 | by Anthony A. Fatemi, LLC

Calculation of pension division can be challenging. Typically a formula called “the Bangs formula” is used, but application of the formula can be complicated. In a 2010 case, a husband and wife divorced and reached a settlement agreement about all child custody, child support, and property division issues. The agreement was incorporated into the judgment of absolute divorce. The wife appealed with regard to the post-judgment entry of orders related to domestic relations and the husband’s pension. She claimed that her share of the pension was miscalculated.

The couple had married in 2000 and had a child two years later. They divorced after seven years. Before they married, the husband was in the Maryland National Guard, and he was serving on reserve status when they married. During the marriage, he worked as a paramedic for a city and had to contribute 6% of his salary to the Fire & Police Employees’ Retirement System. Later he became full-time in the army and served full time from then on, although he was on a paid military leave of absence at the time of the appeal. Meanwhile, the wife was a pharmacist employed by CVS.

The husband filed for divorce, and the wife filed a counter-complaint in 2006. During a merits hearing, the parties entered into an agreement. The parties agreed that the wife had an “if-as-when interest” in half of the marital share of the fire department benefits and the military pension. The court advised that the pension rights were set based on the number of months of the marriage, so as the pension rights increased, the wife’s share would not necessarily increase. The husband expressed he understood. Divorce was granted, and qualified domestic relation orders were supposed to be submitted. However, the parties could not reach agreement about the terms of the orders for the city pension and military pension. The wife filed a motion with regard to these orders, and the husband filed oppositions. Continue reading

Calculating Child Support in Maryland

June 16, 2014 | by Anthony A. Fatemi, LLC

Parents cannot make agreements not to support their children in Maryland. Parents are legally obligated to support their child in an amount proportionate to their gross earnings. In making determinations about children and child support, the court looks at the child’s best interest. The Child Support Guidelines tell parents how child support is calculated in Maryland. A child support formula is used for the calculation unless the court is persuaded by one of the parties that the guidelines are unfair.

This formula is applied so that the person with primary physical custody of the child or children receives child support from the non-custodial parent. If the parents share physical custody such that each parent keeps the children for more than 35% of the year, the issue of child support may be decided differently.

The guidelines provide multiple factors for the court to determine child support. This includes both parents’ actual monthly income. This includes workers’ compensation benefits, alimony, and other income. It doesn’t include certain types of governmental assistance like food stamps or Supplemental Security income. The guidelines also look at each parent’s adjusted actual income, where pre-existing child support is subtracted from the adjusted actual income. Continue reading

Jurisdiction in Maryland Child Custody Cases

June 7, 2014 | by Anthony A. Fatemi, LLC

Who decides custody if two parents or two other people with an interest in custody of a child live in two different states? Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court in a child’s home state has exclusive jurisdiction to initially determine child custody. What is a home state? A home state for children over the age of six months is a state where the child lived with a parent or person in the role of a parent for six consecutive months or more immediately before the child custody proceeding.

In a recent case, an appellate court considered whether a seven-year-old boy’s visit to Maryland was a temporary absence after the visit interrupted his 17-month residence in Indiana. The court looked at the mother’s intent to change homes from Indiana to Maryland.

The case arose when the boy’s maternal grandparents, who were Maryland residents, sued for custody of the boy. The parents were Indiana residents, and they were named as defendants. The boy was born in Indiana to Jennifer Bornman and Edward Wright. He lived in Indiana until he was about 18 months old. In 2006, he and his parents moved to Maryland. They lived with Bornman’s parents. In a few weeks, his father moved back to Indiana. Continue reading

Failure to Pay Child Support in Maryland

May 22, 2014 | by Anthony A. Fatemi, LLC

Failure to pay child support can result in serious consequences. Maryland has a strong policy disfavoring those who avoid their child support obligations. However, there are a number of technical rules and time limitations that apply in order to compel a parent to pay child support arrearages.

In a 2009 case, a circuit court found a man in constructive civil contempt for failing to pay child support that had been ordered in 1987. Before the contempt finding, the man had asked the petition for civil contempt to be dismissed. He argued that the Department of Human Resources had not properly served him with the paperwork.

The case arose when a baby was born in 1983. Four years later, the baby’s mother filed a petition to establish the baby’s paternity and claimed that the man was the baby’s father. He responded by entering into a consent paternity degree that obligated him to pay $20 per week in child support. The decree also required him to obtain consent to leave the state, report address changes to the Bureau of Support Enforcement, and to appear in response to any related notices. Continue reading

What Happens to the Family Home During Divorce in Maryland?

May 17, 2014 | by Anthony A. Fatemi, LLC

In a 2008 case, a husband and wife were married in North Carolina in 1994 and had two kids. The wife filed for limited divorce in 2005. The case was tried in 2006-2007. In 2007, a judgment of absolute divorce was granted on the grounds that the wife had committed adultery.

Among other things, the wife was awarded sole legal and physical custody of the children and the husband was ordered to pay child support. The husband was found in contempt for failing to pay child support previously ordered. The judge also granted the wife use and possession of the family home for two years.

The husband appealed on five grounds. One of these grounds was that the judge should not have treated the house at Alfreton Court as the family home under Family Law Article § 8-201. The judge awarded the use and possession of the residence to the wife and children under § 8-208(a), which provided that in the context of divorce, regardless of how the family home was owned or titled or leased, the judge could give one party sole possession of the property. Continue reading