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75 Cards in this Set
- Front
- Back
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Subject Matter Jxdn
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Jxdn over a divorce matter lies in MD circuit court if the grounds for divorce occurred in MD and one of the parties is domiciles in MD (or if grounds occurred outside of MD and one of parties is domiciled in MD for at least one year).
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Concurrent Jxdn
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Generally, family law jxdn is vested in circuit courts, except domestic violence cases (protective orders) can be brought in district courts or circuit courts.
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Venue
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A plaintiff may file a complaint for divorce in the county where the plaintiff resides or where the D resides/is employed/has a place of biz.
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Complaint
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The complaint must allege the grounds for divorce with specificity, sign the complaint, and the grounds must exist at the time of filing.
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Corroboration
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Each element of the grounds must be corroborated by a witness.
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Masters Hearings
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A Master can make findings of fact and conclusions of law, but cannot make orders as to family law issues. They can make recos to the CC judge on uncontested divorces and pendente lite issues (alimony, child support, use and possession), and parties have 10 days to file exceptions to these recos.
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Limited Divorce
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A limited divorce, or a legal separation, is a Court order allowing the aggrieved spouse to live apart and receive support.
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Absolute Divorce
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An absolute divorce legally ends the marriage.
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Full Faith and Credit - Common Law Marriages
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Maryland does not authorize common law marriages but will recognize the common law marriage of a jxdn which permits it.
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Grounds for Limited Divorce
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* Cruelty
* Excessively Vicious Conduct * Desertion (no need to wait 12 mos though) * Voluntary Separation (no need to wait 12 mos) |
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Grounds for Absolute Divorce - "Seems Almost Every Divorce Involves Interesting Conduct"
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* Separation
* Adultery * Excessively Vicious Conduct * Desertion * Incapacity * Incarceration * Cruelty |
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Separation (ground for absolute divorce)
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A couple must live separate and apart without cohabitation for one year before filing for divorce. (Need not be voluntary.)
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Adultery (ground for absolute divorce)
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Adultery involves extra-marital sexual intercourse and requires, at a minimum, proof (with corroboration!) of an inclination and opportunity to commit adultery.
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Excessively Vicious Conduct (ground for limited or absolute divorce)
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Excessively vicious conduct requires conduct by a spouse toward the complaining spouse or minor child which endangers the life, person, or health, making the marriage impossible to maintain.
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Desertion (ground for limited or absolute divorce)
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Desertion is the unjustified separation of one spouse from another with the intent to end the marriage. Actual desertion occurs when the deserting spouse deliberately abandons the complaining spouse. Constructive desertion occurs when the complaining spouse physically leaves having been driven from marriage by the spouse who made continued cohabitation impossible.
For an absolute divorce, desertion must have occurred at least 12 months ago. |
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Insanity (ground for absolute divorce)
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Insanity is a ground for divorce if it is proved that the insane spouse has been confined in an institution or hospital for at least 3 years before filing, there is no hope of recovery, and one of the parties has been a resident of MD for at least 2 yrs before filing.
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Incarceration (ground for absolute divorce)
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Incarceration is a ground for divorce when the defendant spouse has been sentenced to at least 3 years in prison and has already served 1 year.
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Cruelty (ground for limited or absolute divorce)
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Cruelty is conduct toward the complaining spouse or minor child, that endangers the health or safety rendering it physically or mentally impracticable to discharge the marital duties, and there is no hope of reconciliation.
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Voluntary Separation (ground for limited divorce)
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Voluntary separation occurs when both parties voluntarily agree to live separate and apart without cohabitation and there is no reasonable hope of reconciliation.
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Defenses to Divorce
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Condonation
Recrimination (but NOT a bar, just a factor) Collusion Provocation |
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Annulment
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An annulment is a procedure to have a marriage declared void.
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Grounds for Annulment
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-Failure to have license or ceremony
-Bigamy (presumed void) -Consanguinity (presumed void) -Age -Insanity -Intoxication -Duress -Fraud |
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Legal Custody
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Legal custody involves responsibility for "important" decisions.
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Physical Custody
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Physical custody involves the physical responsibility for the child and responsibility for day to day care and decisions.
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Child Custody
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Child custody will be determined considering the best interests of the child. But a parent generally may not take a child away from the other parent absent a court order.
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Child Custody Presumption
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The presumption is that the best interests of the child is for the child to be with a legal or natural parent, but it is rebuttable by 3rd parties who show that the parent is unfit or there are extraordinary circumstances to justify denying custody to the parent. [same for visitation in terms of 3rd parties]
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Apportionment of Joint Custody
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The court must declare how the physical and legal custody is apportioned in each case in which joint custody is awarded.
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Modification of Custody Order
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A court maintains continuing jxdn over children, and a modification is proper if there is a material change in circumstances which could adversely impact the child.
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Mediation of Custody and Visitation Disputes
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If custody or visitation of children is at issue, the court must determine if mediation is appropriate; if it is, court may stay proceedings and order and add'l 2 sessions. Mediation is NOT appropriate if genuine issue of physical or sexual abuse of party or child.
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Child Custody Factors
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-fitness of parents
-desire of natural parents/agreements -preference of child -residences -length of separation -age, health, sex of child |
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Sole or Joint Custody Factors
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-desire of parents
-ability of parents to communicate and agree -preference of child -relationship of child with each parent -disruption to child -age and number of children/siblings -geography -fitness of parents -demands of parental employment -financial status of parents |
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Custody Jxdn: Uniform Child Custody Jxdn and Enforcement Act
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The UCCJEA seeks to prevent jxdn'al conflicts over and relitigation of custody decisions - full faith and credit.
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Visitation
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The non-custodial parent must be provided reasonable visitation, except if court has reasonable grounds to believe that abuse or neglect is likely to occur if visitation rights are granted to that party. The Court may also grant supervised visitation.
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Child Support
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Parents are jointly and severally responsible for the support, care, nurture, welfare and education of the children. Child support is an amount of money to be paid by the non-custodial parent to the custodial parent for the maintenance of a biological or adopted child who is a minor or dependent handicapped adult.
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Paternity - Child Support
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To obtain child support, paternity must be acknowledged, established by a paternity test/action, or by proof that the child was conceived during the marriage (rebuttable presumption).
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Duration and Termination of Child Support
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Duration and termination of child support continues until the child becomes 18 yrs (or 19 if still in high school), child becomes emancipated, child becomes self-supporting, or the payor dies.
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Maryland Child Support Guidelines
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The Court must use the MD Child Support Guidelines to determine the correct amount of child support; these guidelines provide schedules generally based on income. Health insurance may be ordered.
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Voluntary Impoverishment
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Voluntary impoverishment will be found where a party has voluntarily and illegitimately reduced his or her income, and if found, will support a denial of a modification in an award of child support.
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Modification of Child Support
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A modification of child support may be awarded if there is a material change of circumstances, but subject to the best interests of the child. An agreement that child support is non-modifiable will NOT be enforced.
Defense: voluntary impoverishment |
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Enforcement of Support Orders
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-income or wage withholding
-civil contempt action (can incarcerate!) -criminal nonsupport action -tax intercept -suspension or denial of occupational licenses -suspension of driver's license -liens on real and personal property |
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Alimony
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Alimony will be awarded on the basis of need if one spouse requires economic assistance after the divorce. In MD, alimony is presumed to be rehabilitative.
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Alimony Agreements
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If parties express agree that alimony is non-modifiable or waive alimony, Court must honor.
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Pendente Lite
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Pendente Lite proceedings allow for alimony and child support during the pendency of a divorce, alimony, child support or annulment proceeding.
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Permanent Alimony
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Not favored in MD, but the court may award if it finds that one spouse will not be self-supporting or there is unconscionable disparity.
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Rehabilitative Alimony
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Rehabilitative alimony is presumed in MD, allowing an economically dependent spouse to become self-supporting.
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Rehabilitative Alimony - Factors (court MUST consider all)
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-ability to be self-supporting
-time necessary to gain sufficient education or training -standard of living parties established during marriage -age -physical and mental condition -financial ability of party to meet needs, and own needs -agreement -duration of marriage -contributions -circumstances that led to estrangement |
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Modification to Award of Alimony
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The court may modify the alimony award "as circumstances and justice requires" unless express agreement that alimony is non-modifiable/waiver.
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Extension of Alimony
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The court may grant a petition for extension if changed circumstances would lead to a harsh and inequitable result without the extension.
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Property Disposition - generally
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MD is an equitable distribution state, where the key policy is fair and equitable distribution of marital property considering both monetary and nonmonetary contributions to the family.
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Transfer of Ownership of Property
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The Court can only transfer ownership of:
-family home titled in name of both spouses -family use personal property -interest pensions/retirement/profit sharing/deferred compensation plans |
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Marital Property
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Marital property includes all property, however titled, acquired during the marriage, but does not include gifts between spouses, inheritance or gift by 3rd parties, and excluded by agreement. Property that is owned as T/E, regardless of source, is MP.
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Use and Possession
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The Court may award use and possession of family home and family use personal property to parent awarded custody of child for up to 3 years.
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Source of Funds
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If a party asserts that property is nonmarital, the court will trace the disputed property to the source of funds for its acquisition.
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Commingled Property
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When a party commingles income from nonmarital sources with marital income, and money used to acquire property or reduce marital debt during the marriage cannot be traced to a nonmarital source, then all the property is considered MP.
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Valuation of a Pension
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Valuing a pension as MP is based on "if, how, and when" the pensioner receives the pension
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Valuation
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Valuation of all MP is an accounting for source of funds, appreciation, and marital debt (subtracted), and is valued at the date of the divorce order (not separation). Parties must submit a Joint Statement of Marital and Non-Marital Property.
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Classification
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Classification is the 1st step in property disposition, where the court classifies whether property is marital or non-marital.
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Distribution
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Equitably distributing the marital property between the parties may involve an award of money or transfer of ownership of MP, or both.
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Monetary Award
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A monetary award where money is paid by one party to the other to achieve fairness may be ordered by the court upon distribution.
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Monetary Award - Factors (main)
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-Contribution
-How and when specific property was acquired -economic circumstances of parties -award of alimony/use & possession -ANY other factor |
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Contribution
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One spouse seeking reimbursement for expenses paid that contributed to the increased value of a marital asset, awarded at distribution.
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QDRO
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A qualified domestic relations order permits a spouse to claim an interest in a participant's retirement benefits, and the order by the court modifies the payee of the pension plan.
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Settlement Agreements
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Settlement agreements between the spouses can be set aside by the court based on standard K principles, which include:
-Breach of a fiduciary relationship (reliance on good faith of dominant party to protect their interest) -Unconscionability -Duress -Fraud (where intent to deceive is proven) |
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Property Settlements
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A property settlement which is approved, incorporated or merged into the judgment maybe be modified (after enrolled) only on proof of fraud, mistake or irregularity.
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Prenuptial Agreement
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An agreement btw 2 people who intend to marry which sets forth the parties' rights with respect to property, in the event of the termination of the marriage by death or divorce.
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Prenuptial Agreement - Factors for Validity
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-Fair and equitable
-Disclosure of assets -Entered into freely, voluntarily -Independent legal advice sought by each party -Cannot violate important public policies (e.g. waiving alimony or child support) |
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Civil Protection Order
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A civil protection order is a procedure to protect certain persons from household violence; can obtain in either district or circuit court; those eligible include certain relatives of, certain household members with, and even co-habitants (living together for at least 90 days within year before filing), with the abuser.
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Civil Protection Order - Types
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4 types:
-interim protective order -temporary protective order -final protective order -permanent protective order |
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Interim Protective Order
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An IPO is available only when courts are closed, before police commissioner, where there are reasonable grounds to believe abuse occurred, and expires in 48 hours. Relief available includes prohibiting further abuse or contact, stay away from person in all environments, vacate/award use and possession, grant temporary custody of children or a pet, and the court must order respondent to surrender/refrain from possession of firearms.
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Temporary Protective Order
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A TPO is applied for before a judge, where reasonable grounds to believe abuse occurred, and last for 7 days after issuance (but can be extended up to 6 months). Relief available includes prohibiting further abuse or contact, stay away from person in all environments, vacate/award use and possession, grant temporary custody of children or a pet, and the court must order respondent to surrender/refrain from possession of firearms.
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Final Protective Order
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A FPO hearing is not exparte (must be held within 7 days after respondent served), before a judge, where there is clear and convincing evidence of abuse, and can last up to 1 yr after issuance, or 2 yrs in limited circumstances. Relief available is same as IPO or TPO, as well as emergency family maintenance, alimony, temporary visitation schedule, and order counseling.
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Permanent Protective Order
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A PPO is available after a previous FPO was ordered, the victim of the abuse is requesting a new FPO, and when the respondent was convicted of and served at least 5 yrs of imprisonment for attempted murder, 1st degree assault, or 1st/2nd degree rape or sex offenses. Relief is limited to refraining from abuse, threats, or contacting petitioner (if included in previous FPO). Duration is permanent!
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Peace Order
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A peace order is similar to a domestic violence protective order, and permits a court to order protective-type relief against a person for committing certain criminal or harmful act against another's person or property, where the act occurred within 30 days of filing. But this may not be obtained by someone eligible for relief under a domestic violence protective order. (i.e. boyfriend/girlfriend that does not live with abuser)
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Child Abuse and Neglect
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Children found to be the subject of abuse or neglect are deemed Children in Need of Assistance, or if less serious, Children in Need of Supervision, and is adjudicated by the Juvenile Division of the Circuit Court.
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Child Abduction
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Child abduction is a crime, and occurs when a non-custodial caretaker takes a child away; s/he must return the child within 48 hours of demand by custodial parent or face criminal penalties.
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