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MSBA
United States District Court for the District of Maryland
AILA 2024 Member
ABA
Bar Association of Montgomery County, Maryland

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The Maryland Court of Special Appeals recently determined in Dapp v. Dapp that certain retirement benefits may not be assigned or split in a divorce agreement. The case arose from a dispute between a couple who married in 1968. Amtrak employed the husband starting in 1981 and the couple separated about five years later. Two years after the couple separated, the wife was granted a divorce. The judgment of divorce incorporated the couple’s Marital Separation and Property Settlement Agreement.

The Agreement mutually waived alimony and other spousal support, but one paragraph provided that if the wife did not remarry within five years of the divorce, she would be entitled to half of the husband’s pension accrued with Amtrak. The wife did not remarry.

The husband had worked for Amtrak for 88 months before the divorce and 243 months after it. When he retired, he started to receive monthly retirement benefits as required by the Railroad Retirement Act (RRA) of 1974. $1950 of that monthly sum was “Tier 1” benefits. The Tier 1 benefits that the RRA provides are structured to substitute for Social Security benefits. $1163.13 was “Tier II benefits” and supplemental annuity payments. Mr. Dapp did not inform Mrs. Dapp of his retirement when he retired and she did not receive any retirement benefits.

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In a recent case, a Maryland appellate court looked at whether it retained jurisdiction over a custody dispute of a girl who lived all her life in Florida. The case arose from a marriage in 1997. The couple lived in Maryland until the woman became pregnant, at which point, the couple separated. The mother gave birth to her daughter in Florida in 2006. They divorced in 2008, agreeing that the mother would be the primary physical custodian, but the father would be allowed liberal visitation.

The mother raised her daughter in Florida with the help of her parents. In 2011, the mother was detained for shoplifting. The officers found a bottle of hydrocodone on her; it was labeled with a prescription for someone else. The mother was arrested for theft and drug trafficking.

The father decided to take the daughter to Maryland. He filed an emergency motion for custody, in which he stated his belief that the mother was using drugs and would probably take her daughter to Switzerland, where the mother was a citizen. The court granted him sole custody on a temporary basis. Continue reading

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In the case In re Victoria C., the Maryland Court of Special Appeals considered the question of sibling visitation by an adult sibling. The girl in question was born in 1993 and became an adult while the instant case was pending. Her mother passed away and her father married her stepmother in 2005. She has two half-brothers who are small children and an older brother. She lived with her father from birth until her father was accused of abuse, at which point she was sent to live with her mother’s sister in Texas in 2009, for one year before returning.

Upon her return from Texas, George wouldn’t allow his daughter to live with his family. She was taken into the custody of the county’s social services department. The court judged her a child in need of assistance (CINA) in 2010. Continue reading

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In Tshiani v. Tshiani, a Maryland appellate court ruled on the question of whether the trial court was right to recognize a marriage that occurred in the Democratic Republic of Congo, formerly Zaire (hereafter “Congo”). In that case, both the husband and wife were from the Congo.

The wife was 18 and her husband was 35 when they met. They married five months later. However, the husband was not actually present at the marriage because he was on assignment in a different country. His cousin stood in for him at the wedding. They followed the customs of the Congo.

After the wedding, they lived together in Virginia and then Maryland and represented themselves as husband and wife. They bought property in Maryland 1994 and had three kids. They renewed their vows later that year, obtaining a proof of marriage from the Congolese embassy. Continue reading

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Recently, our office assisted a client in drafting and finalizing a prenuptial agreement between him and his fiancée.   While our office has drafted prenuptial agreements and voluntary separation agreements for many of our clients, this client’s situation was a bit unusual.  He needed the agreement negotiated and signed within a few days because he and his fiancée were planning to get married in less than two weeks.

Our client’s family had been encouraging him to speak with an attorney about drafting a prenuptial agreement for several months, but our client waited until just before his wedding to finally seek legal advice.  Once he came in for his initial consultation, our office strongly advised him that his family was right – he should enter into a prenuptial agreement with his fiancée to ensure all his rights were protected if they were to ever divorce.

Our client earned a substantial yearly income working for the government.  Additionally, he owned his own business in Washington DC, had a substantial retirement account, owned several automobiles, and had almost no debt to his name.   In contrast, his fiancée was in the US on a student visa, she was not employed, she had several student loans, and she owned no property other than one automobile which was over a decade old.

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In March 2013, the Maryland Court of Appeals issued an opinion in the divorce and child custody case of Reichert v. Hornbeck that illustrated the broad leeway courts have in making child custody determinations. The case arose out of the rocky romantic relationship that ensued when Jeffrey, a recent law school graduate, met Sarah, who was preparing to go to law school. The couple broke up after three years. They reunited in 2008 and got engaged. By then, Jeffrey had moved up the corporate legal ladder. Sarah had also succeeded professionally, earning about $120,000 a year at a firm.  However, she later left her firm for a new job that paid only $68,340 a year.

Jeffrey and Sarah moved into a three-story rental in Baltimore and got married. During their honeymoon however, they experienced the same kind of conflict they had in the earlier incarnation of their relationship.  These issues continued through the rest of their marriage. Continue reading

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In 2012, Governor O’Malley led a campaign for the legalization of same-sex marriage. This led to the General Assembly passing a law permitting same sex marriage in February 2012. 52.5% of Maryland voters approved the law in a referendum on November 6, 2012. This was the first time marriage rights have been given to same-sex couples through a popular vote. It was a particularly significant change because Maryland was the first state to specifically define marriage as a union between a man and a woman in the early 1970s. The law took effect on January 1, 2013.

In 2007, the court found that the statutory ban on gay marriage was constitutional. However, last year, the Maryland Court of Appeals issued a decision in the case Port v. Cowan, which suggested the tides of opinion were changing.

Port v. Cowan arose when two women, Jessica Port and Virginia Anne Cowan, married in California in 2008 at a time when California recognized domestic same-sex marriages. The couple separated voluntarily for more than a year. About two years later, Port filed for divorce in the Circuit Court for Prince George’s County where she lived then. Cowan did not contest the divorce. Continue reading

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The Maryland Court of Appeal recently considered constitutional questions in the context of the independent adoption process in In Re: Adoption of Sean. Moira M. and William H. dated from April 2008 to November 2008. On June 16, 2009, Moira M. gave birth to a baby, Sean. The next month Moira filed a complaint against William H.  Stating that he was the natural father of Sean, Moira’s complaint sought sole custody.

In his answer, William H. denied that he was the natural father. He set forth  no objection to Moira M. having sole custody. Meanwhile, Moira M. married Jeffrey Craig K., a man she had been dating, during the fall of 2009. The suit was dismissed in 2010 by agreement.

In March 2011, Jeffrey Craig K. filed a Petition for Stepparent Adoption of a Minor and Change of Name. He announced that he planned to continue to live with Sean’s mother. He also said the natural father had not been identified nor come forward. The Petition claimed that even if William H. was Sean’s natural father, he had “abandoned his parental rights” by denying Sean was his son in the answer to Moira’s earlier complaint, not participating as Sean’s father, and not attempting to support Sean.

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Recently, our office assisted a Dad who wanted to obtain sole residential and sole legal custody of his two young children.  He was a young father, only 21 years old, but he had already demonstrated a level a maturity of someone much older.  He had been taking care of the children for about a year with little to no support or even contact from the children’s mother.

The Dad, acting on his own without the assistance of an attorney, filed for custody with the Circuit Court for Montgomery County, MD.  When he filed for custody, he never anticipated that the children’s mother would fight him. However, that is exactly what happened.  After being served, the children’s mother hired an attorney, who immediately opposed the Dad’s request for sole custody and filed for joint custody on the mother’s behalf.

By the time the Dad had saved a little money to hire an attorney and had sought assistance from our experienced family law attorneys, the custody merits trial was less than one week away.  The Dad came to our office petrified and nervous that he was going to lose custody of his children.  He believed that the Court would favor the mother solely because she was the mother and she would automatically get joint custody even if that wasn’t in the best interest of the children.

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In the recent case Bradley v. Bradley, the Maryland Court of Appeals considered the questions raised when a woman sued a man she believed to be her husband for intentional negligent misrepresentation. Mr. Bradley and Ms. Bradley met in 2003 at Kennedy Krieger Institute. Ms. Bradley was responsible for Mr. Bradley’s son and was often in contact with Mr. Bradley who was then married with three kids. The next year, Mr. Bradley told Ms. Bradley that he had separated from his wife and started divorce proceedings. They commenced a long extramarital affair.

In 2006, after claiming that there had been various problems in the divorce proceedings, Mr. Bradley announced that his divorce was final. He proposed to Ms. Bradley. In 2007, the couple married in Las Vegas, Nevada. Ms. Bradley experienced two incidents of battery by Mr. Bradley before she checked previous domestic violence cases to see what his history was. The records revealed that Mr. Bradley’s divorce was not listed. Mr. Bradley confessed he had never obtained the divorce from his first wife. He and Ms. Bradley separated. Continue reading

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