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Division of Property in Maryland Divorce

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Marital couples share their lives, including their property, and divorce brings this to an end. Instead of the issue of “ours” or “mine,” which often can be a hotly disputed topic on its own, the parties must prove the title, value and marital interest in all property and assets. Here are some basics about marital property for couples facing a divorce.

What is Marital Property?

Under Maryland family law, the presumption is that all assets acquired during a marriage are the marital property of the couple, whether in one or joint names. This includes the equity in a home, retirement assets, bank accounts and investments, and anything purchased with marital funds. While there are some exceptions, the burden is on the party claiming the non-marital nature of the property to prove that the property is not part of the marital estate.

What is Separate, Non-Marital, Property?

There are three major exceptions to the presumption of assets of either party being marital property. Gifts and inheritance received by one spouse are both non-marital property. Property owned by one party prior to marriage also is non-marital property. Since the burden is on the party claiming that property is non-marital, commingling separate property can change its character and make it all, or partially, joint. For example, if one spouse owns a house prior to marriage, and they use marital property (e.g. employment income) to pay the mortgage, then the other spouse acquires an interest in this property. Similarly, if a spouse had a retirement account prior to marriage, the other spouse is entitled to a share of the account that is funded by income or employment benefits during the marriage. Gifts from one spouse to another are marital property.

Tracing Property

Property ownership disputes in a Maryland divorce often involve property that once was one spouse’s separate, non-marital property, but through commingling, it has led to a claim that it is marital property. In these disputes, the title of the property does not govern the issue of marital interest. For example, one spouse may receive a sum of money as an inheritance and place it into a joint bank account. This commingling creates a burden on the party that inherited the funds to prove they still exist and have not been spent, in whole or in part, while the parties had accessed the account. The receipt of an item of jewelry might be in the name of one spouse, but if it was given as a gift to the other spouse, it is marital property.

Equitable Distribution

When the time comes to divide and account for the marital property in divorce proceedings in Maryland, the court uses the principle of “equitable distribution” to make sure that each party receives their fair share of the marital assets. The court can consider issues like the partial use of non-marital property for the purchase or acquisition of marital property to make its equitable ruling. The court has a wide range of factors to consider in the exercise of its authority to divide and account for marital property – equal division of marital property may be the goal of the parties, but the court is not required to make a 50/50 division of marital property. The court can grant a monetary award to one party to account for the unfairness that title of marital property brings to the outcome. This award can be payable in a lump sum or over time. It can divide pensions based upon marital shares and, in limited circumstances, transfer title to real estate, and order other actions to distribute the personal property of the marital estate. Among the various factors that will be taken into account in the Court’s ruling is the use of the property by the minor children of the family.

Equitable distribution occurs once the parties have established and the court has ruled upon, the title, value and the marital nature of all property. If you are considering a divorce, you need to consider what claims you intend to make over property and how these claims will be addressed by the court. You need to know what steps, if any, you should take in advance of the divorce to protect your assets and maximize your claim to marital property. At Barkley Kennedy, we have decades of experience working with clients to obtain their share of the assets. We have offices in Rockville and Frederick, and we are available for a virtual consultation. Contact us to discuss your ownership rights.

DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.

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Understanding the “Best Interests of the Child” standard of legal review in Maryland Custody Disputes

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In Maryland divorce matters, couples with children often dispute the custody arrangements. The many aspects of raising a child can be a source of disagreement, from physical custody to legal custody, which includes decisions over medical, educational and other important matters. Maryland law is well settled that the “best interests of the child” will determine the court’s decision regarding the custodial rights of each parent. Unlike some other aspects of divorce, the court will consider this standard even in a review and approval of a parenting agreement between the parents, and it can compel a modification of the agreement in some instances, if the court is of the opinion that the best interests of the children are not adequately addressed in the parenting agreement. The “best interests of the child” is a vague directive that has been clarified by the courts, and today, multiple factors are weighed to help the court assess and resolve custody disputes.

Is the Party a Good Parent?

This question is answered by asking even more questions. Is the parent fit? Do they have a good reputation and character? What is their financial status? Can the parent maintain a stable and appropriate home? Will the parent help the child maintain important relationships with the other parent as well as people like siblings and relatives? Does either parent have employment demands that impact their ability to spend meaningful time with the child? Has there been a prior voluntary abandonment or surrender of custody of the child? These questions each need to be answered before the court makes a final determination.

The Specific Child

The court will evaluate the needs of each individual child in weighing and evaluating custodial matters, including their age, sex and health, and in some cases their stated preferences. The court will also look at the child’s relationship with each parent, the number of other children in the household and the potential disruption of the child’s social and school life. Since all these issues vary with each child, the court will make separate determinations with each child in a divorce situation, though it is rare for the courts to order significantly different custody arrangements for siblings.

Coparenting Possibilities

Maryland law prefers to avoid denying a parent some form of custodial access to their child. To this end, a court will consider whether the parents have reached a prior agreement or have expressed a willingness to share custody. Maryland courts usually refer to the situation of both parents having significant time with the children as “shared custody”. The use of the word “joint” is usually associated with the decision-making authority of the parents, such as “joint legal custody”. If shared physical custody and joint legal custody is awarded, the court tailors the order based on the apparent capacity of the parents to communicate productively and to reach shared decisions affecting the child’s welfare. Before concluding that shared physical custody is in the child’s best interests, the court will look at details like the geographic location of each parent and the opportunity for quality time with each parent.

Additional Considerations

In addition to the other categories, the courts look at specific facts that can impact the best interest of the child. For example, the length of separation of the parents may already have had an impact on the child. In addition, custodial rights can impact state and federal assistance and other benefits. Notwithstanding the specific enumerations of the factors the court should consider, the courts will invariably look at any other issues that it determines may be relevant to the best interests of the child.

The Maryland Family Court judge or magistrate making custody decisions in a divorce must balance the facts with the nuances of the personalities and relationships involved. This assessment occurs for every request for custody, and the court will scrutinize the asking parent to see if they are sincere or if there is some other motivation for the request. That being said, the court is interested in making sure that the child has an ongoing relationship with both parents. With the knowledge that these many issues will be weighed by the court, it is important that divorcing parties address them in any custodial agreement they might attempt to reach. If you have concerns about your custodial rights in a Maryland divorce, contact Barkley & Kennedy to set up an appointment. We have raised our own children and have handled numerous custody disputes. We can assist in making you a better parent and having a successful outcome in your custody case. As well, hopefully, we can assist in reducing the negative impact of a custody dispute on your child. We have offices in Rockville and Frederick, and we also work with clients virtually.

DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.

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Understanding the Maryland Parent Planning Tool

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Effective January 2020, the Maryland court created new rules that parties seeking to establish or modify custody of a child must jointly complete and file a form called the Maryland Parent Planning Tool. This form and instructions on how to complete it are given to the parties at the first hearing in a family law matter such as divorce. The deadline to file a Planning Tool with the court is on either a date set by the court; 10 days before a scheduled settlement conference (if there is one); or 20 days before the trial date. If the parties cannot reach an agreement, they are required to complete and file a Joint Statement of the Parties Concerning Decision Making Authority and Parenting Time that clarifies all points of agreement and dispute that the parties were able to reach.

By requiring the parties to cooperate on a plan, the Maryland Courts have several goals:

Parenting plans are a guide for how parties will handle child-related issues. With a parenting plan, parties – not the court – decide what is best for their family after considering the child’s unique needs. While parenting plans are child-focused, they also foster collaborative co-parenting, ensure the child’s continued relationships with each party, and give each party a chance to come up with solutions to problems. The goal is to provide predictability and structure for how the family will function when parties do not live together.

For the court, parenting plans provide insight into the family dynamic and help make child custody orders and modifications uniform and equitable.

The Planning Tool addresses dozens of issues about the children. It guides the parties through these issues, designating authority for decision making, and allocating rights and responsibilities in areas such as education, health, and vacations. It specifically addresses dispute resolution questions, including the possibility of agreeing to mediation before taking a dispute back to the court.

While thorough, the document concludes with the advice that each of the parties has the right to review the document with an attorney before signing it. An attorney with experience in custodial matters can help a party consider their unique circumstances and propose additional or alternate terms to make sure that their rights are preserved.

Counsel can address issues like appropriate boundaries, the co-parenting process, the pros and cons of a specific proposal, and important ways to make sure that the ultimate parenting plan is followed.

When the parties cannot agree, the Parenting Tool helps each party and their attorney to focus on specific disputes and develop the factual predicate for a specific proposal. In reaching a conclusion to the custody questions – through mediation, settlement conference or trial – the Parenting Tool shapes a critical process to make sure that the right matters are addressed.

Due to COVID-19 closures, the Circuit Courts in Maryland have fallen behind on hearings, which means that not all family law matters require the parties to prepare and submit the Parenting Tool or the Joint Statement. For divorces in Rockville, the Montgomery County Circuit Court Family Department oversees these matters, and it is holding a mix of online hearings and hearings in court subject to masking and other safety precautions. If you are unsure whether your case requires this tool, you should confer with counsel. Given the possibility of a deadline to file prior to a hearing, check with counsel as soon as possible.

If you are presently considering or involved in a case in which child custody is an issue, contact the experienced family law attorneys at Barkley & Kennedy, for a consultation.

DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.

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Bankruptcy and Divorce in Maryland

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Family financial strife clearly impacts marital harmony, and loss of family harmony can have implications for the family finances. Couples fight about money, and unhappiness can lead to spending money to fill a void. When a marriage is nearing its end, debt of either or both spouses can also have reached a tipping point where protective legal measures are necessary. But which comes first? Divorce law and bankruptcy law both impact the personal and marital assets, debts and finances of a couple, and the interrelationship can be complex and confusing. Here are a few important points to consider.

Timing Between Divorce and Bankruptcy is Situation Specific

There is no one rule for which to file first – divorce or bankruptcy. Instead, there are a variety of considerations. For example, who is filing? Is it one spouse, both spouses as a couple or both spouses for separate debt? The cost of a bankruptcy can be lowered if a couple agrees to wait to divorce until they have filed a joint bankruptcy petition and resolved their collective debt together. However, if one of the spouses qualifies for full discharge under Chapter 7, and the other spouse does not because of the “means test”, then it might make sense to wait until after the divorce or the parties are separated to file a petition in bankruptcy. On the other hand, the joint titling of assets as husband and wife may allow for dramatically greater protection of assets when only one spouse files bankruptcy while married. As a result, substantial equity in a jointly owned home may be protected if only one spouse files for bankruptcy before the divorce decree is entered.

Another consideration is urgency. Are there creditors pursuing collections efforts including legal action or foreclosure? They may not be willing to wait until a divorce is finalized, and an immediate bankruptcy petition will trigger an automatic stay on all the creditor’s actions. This will help protect both separate and jointly owned assets. On the other hand, existing debt can reduce alimony obligations, so it may make sense for a spouse to hold off until the divorce has been finalized before getting the debt discharged.

The goal in deciding the sequence should be the preservation of as many assets as possible, so careful review of assets and debts needs to happen before deciding. Understanding the rules in both bankruptcy and family court with respect to ownership interests and allocation of assets and liabilities will help guide the decision.

Bankruptcy Won’t Discharge Support Obligations

Once a divorce decree is entered, awarding support for children and/or alimony for the other spouse, bankruptcy cannot be used to get out from under these obligations. As creditors of the debtor, spouses, and children get preferential treatment in bankruptcy. In fact, while other creditors may have to wait until the bankruptcy process is complete to figure out if and when they might get paid, spouses can go ahead with some aspects of divorce proceedings in state family court, although the treatment of the automatic stay of bankruptcy varies from county to county in Maryland.

The Role of the Former Spouse in a Bankruptcy

If a couple has divorced, there is a high likelihood of acrimony between them if the divorce was a prolonged, stressful process. This may lead a former spouse to intervene in a debtor’s bankruptcy to speak to the debtor’s character, their possible wrongdoing, or identify assets and obligations that the debtor has failed to report. This impulse is not necessarily a good idea. As we noted above, the debtor’s support obligations cannot be discharged in bankruptcy, any move to increase the debtor’s debts, minimize their assets or possibly prevent the resolution of the bankruptcy through a discharge or a plan will only interfere with the debtor’s ability to meet their support obligations.

However, the non-filing former spouse should still be alert. While support obligations are not dischargeable in bankruptcy, property claims, such as a monetary award can be discharged in Chapter 13 bankruptcies, but not in Chapter 7 bankruptcies. Additionally, if a couple had a joint credit card and either spouse files bankruptcy,  the non-filing spouse may find themselves pursued by the credit card company notwithstanding a divorce agreement to the contrary.  So, a former spouse should be attentive to the proceedings of an ex filing a petition for bankruptcy, particularly given the fact that deadlines for creditors to assert their rights come to pass quickly.

Debt and family strife are both enormously stressful situations. Resolving these issues through the mechanisms of divorce and bankruptcy can be the right course of action. However, given the complexity of both areas of law, it is important to understand how your particular circumstances can impact the outcome of the proceedings. Contact Barkley & Kennedy for a consultation on your best course of action.

DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.

broken heart

Getting a Civil Protective Order in a Divorce

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Violence is often an issue in divorce cases. Whether the problem is ongoing, or it is triggered by the initiation of divorce proceedings, spouses find themselves in fear for their safety and looking for a solution. In Maryland, a Civil Protective Order (CPO) can be obtained to shield a person from their abusive spouse. If issued, a CPO can dramatically alter the course of divorce proceedings, so it is important to understand the process, options and implications of a CPO.

The CPO Process

There are multiple steps to obtaining a CPO. A victim of domestic violence, conscious of an immediate, appropriate need begins by filing a petition for a Temporary Protective Order (TPO) with the Maryland District Court in the county where the divorce is pending. If applying after court hours, a person can file for an Interim Protective Order with the District Court Commissioners Office, which is immediately effective but will be promptly reviewed by a judge to determine whether to issue a TPO, which is usually granted. A TPO can address issues including, but not limited to:

  • Ordering the abuser to stop the abuse;
  • Ordering the abuser to stay away from locations such as home, work and school;
  • Ordering the abuser to leave the marital home; or
  • Awarding temporary custody of children and family pet.

As part of TPO, the judge will set a hearing within 7-10 days to determine whether to issue a CPO. The TPO is effective immediately, and it will remain in effect until the hearing on the CPO. Law enforcement will serve the TPO on the abuser.

At the hearing on the CPO, the judge can issue an order that lasts up to one year. To qualify for that order, the victim has to show by a preponderance of the evidence that the abuse occurred and there is a need for the relief being sought. The petitioner is required to attend this hearing for it to become a CPO, and the abuser has the right to attend to present evidence or enter a consent order. Without a consent order, the judge will examine evidence in the form of testimony of both the parties, police reports, photographs, threatening communications, and witness testimony. The CPO can last for up to a year, and in addition to the forms of relief available in a TPO, a CPO can include an order for financial support, possession of a jointly owned vehicle, and other relief the Court may deem appropriate to the situation.

Considerations and Consequences

Before pursuing a CPO, some thought should be given to possible consequences.  Both the TPO and the CPO provide for heightened awareness by the police of issues regarding the parties and the street address to facilitate immediate requests for police involvement. Any violations of either order are the basis for criminal charges independent of the initial basis for the orders. For some people, the driving force behind the petition is an event that occurred well before the petition is filed. A victim’s fear may be legitimate, but a judge may question the need for a CPO if there is no evidence of abuse in the recent past. Similarly, if an alleged perpetrator fails to respond to the court summons for the hearing on the CPO, and it is granted, the order may set the stage for a final divorce decree that is distinctly favorable to the victim in terms of support, custody, and division or use of assets.

Even if the alleged abuser appears, when a person becomes subject to a CPO, it may alter the outcome of divorce proceedings. A person subject to a CPO now has a record that is shared with law enforcement, including ICE, which may impact the ability of the person subject to the protective order to return to the country after leaving if they are not a US citizen. While no victim should have to live in fear, pursuing a CPO can make the divorce much more contentious. This translates into expense, increased hostility, and possibly a prolonged process. Because of this effect, if a divorce has already been filed and both sides have retained counsel, it is advisable to consider the option of entering into an agreement that can be approved by the Court as a Consent Order that doesn’t create a record of determination of abuse but provides the protection of a CPO. (i.e. there is no admission of abuse).

Are you considering a divorce where there are issues of abuse? Confer with counsel to decide the best way to proceed. Contact Barkley & Kennedy

If you are in fear of imminent danger and you need assistance, contact the Maryland Network Against Domestic Violence for help in your location.

DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.

 

 

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Potential Pitfalls in Mutual Consent Divorce

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Since 2015, Maryland has had a “no fault” divorce law called mutual consent divorce. The process is simpler and streamlined. It removes many of the complexities and costs of a contested divorce, and it doesn’t require the married couple to live apart for a year or meet other challenging standards for granting a divorce in Maryland. However, like any other legal proceeding, there are potential complications and risks associated with mutual consent divorce. In addition to consulting with an attorney, here are some specific items to consider.

1. A Mutual Consent Divorce Has to be “Mutual”

While the streamlined process of a mutual consent divorce may seem preferable, if one of the spouses does not want to cooperate, they can prevent it from happening. Under the law, the initial filing must specify the grounds for divorce, so if one spouse files on a basis other than mutual consent, then that party has to agree to amend the papers to be able to proceed as a mutual consent divorce. Furthermore, a mutual consent divorce requires a settlement agreement signed by both parties. Finally, mutual consent requires that neither party object to the agreement prior to the final hearing.

2. The Mutual Consent Settlement Agreement Has to Meet Certain Standards

In order to be accepted by the court, a mutual consent divorce settlement agreement has to resolve all issues relating to:

  1. alimony;
  2. the distribution of property, and
  3. the care, custody, access, and support of minor or dependent children.

The settlement agreement submitted to the court can resolve alimony however the parties wish, but both questions of property and children are subject to standards set by Maryland law. In particular, the parties are required to complete a detailed financial worksheet to comply with Maryland child support guidelines and attach that worksheet to the settlement agreement filed with the court. The Family Court judge will review the settlement agreement and make an independent determination that it meets the best interests of any minor or dependent children.

In addition to the legal standards, there are specific rules regarding the form of the divorce documents filed with the court, the timing of certain notice periods, and the requirements to be met before the court will set a final hearing. Failure to follow these rules can slow down or prevent the divorce from happening.

3. A Settlement Agreement May Not be Enough

A mutual consent divorce settlement agreement will be accepted by the court if it meets the criteria discussed above. However, these terms may leave many issues unresolved. Questions about business ownership, taxes, insurance, and complicated questions about child support like special needs and higher education are not required to be addressed, but they can be a source of major conflict if they are not resolved in the settlement agreement. It is worth consulting with an experienced family law attorney to work through your particular facts and circumstances to make sure that critical matters are resolved at the time of the divorce.

The mutual consent divorce law significantly eases the divorce process for married couples in Maryland. However, it still isn’t “easy”. Cooperation, compliance with the law, and tackling all the issues between a couple are each necessary. If you are considering a divorce in Maryland, and you want to know more about mutual consent and other options, contact Barkley & Kennedy for a no-charge 30-minute consultation.

DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.

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Tips for Individuals Who are Filing for Divorce After the Age of 50

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Going through a divorce can be difficult for any couple, regardless of their ages. But, divorcing after you have spent 20+ years with the same person and reaching a point in your life where you simply want to be settled can be extremely difficult for many to accept. Many individuals who are 50 or older and have recently divorced find themselves lost as they spent a good portion of their life with this one person. These Individuals have established routines, managed their finances, and developed a lifestyle with their partner whom they thought they would be married to for the rest of their life but will soon be disconnected from. Read more

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What are the Steps in a Child Custody Case in Maryland?

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Child custody is one of the most complicated aspects of any divorce and the process is often harder on the children than it is on the parents. When a divorce is contested, child custody is frequently more difficult to resolve as the parties find it hard to  agree on how their parenting time is going to be divided.  If a divorce is uncontested and the parties are able to agree on the other issues,  they generally have a greater chance of  establishing a child custody plan that works for both parties and the children. Read more

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How Can Infidelity Affect My Divorce?

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Many marriages fail for numerous reasons, infidelity, also referred to as adultery, being one of the most common.  While some couples are successful in working through the loss of trust, others cannot stand to endure the stress and pain the infidelity has brought to the marriage and choose to divorce. Adultery as an issue in a divorce creates a more complex set of issues both as to financial issues as well as custody if minor children are involved. Read more

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How Does Property Division in Divorce Work?

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Property Division in Divorce

Divorces usually involve property division. With a few important exceptions, all the property that was acquired during a marriage is considered marital property in Maryland. Marital property normally includes such things as houses, cars, furniture, personal property, stocks, bonds, jewelry, bank accounts, pensions, retirement plans, 401k accounts and IRA’s. It generally does not include the value of professional degrees/licenses. Read more