Family Law - Md

Front 1

Divorce Jurisdiction

Back 1

MD has jurisdiction where grounds for divorce occurred in MD and one spouse resides there

Front 2

Absolute Divorce

Back 2

Effects a complete severance of the marital bond and entitles both parties to remarry.

Can be Fault or no fault

Front 3

Absolute Divorce - Fault (ACCIDE)

Back 3

ACCIDE

Adultry, Desertion, Certain Criminal Convictions, Insanity, Cruelty to spouse or child, with no reasonable expectation of reconciliation, Excessively vicious conduct towards spouse or child, with no reasonable expection of reconcilition

Front 4

Absolute Divorce - Desertion

Back 4

must be continuous for 12 months. Can be acutal (walking out/disappearing) or constructive (one spouse makes it impossible for the two to live together)

Front 5

Absolute Divorce - Insanity

Back 5

Requires 3 years of institutionalization

Front 6

Absolute Divorce - Cruelty of treatment

Back 6

Conduct seriously imparing health or premanently distroying happiness as to spouse or minor child. Requires conduct intended to destroy health or happniness

Front 7

Absolute Divorce - No Fault

Back 7

- separated by agreement for 12 months, with no reasonable expectation of reconciliation OR

- Separated for two years

Front 8

Limited Divorce - Legal Separation

Back 8

Does not end marriage or divide property

does not provide for support

Front 9

Grounds for limited divorce (CEDS)

Back 9

CEDS

Cruel treatment

Excessively viscious conduct

Desertion

Voluntary Separation

Front 10

Limited Divorce - Cruel Treatment

Back 10

Conduct intended to hearm health or happiness

Front 11

Limited Divorce - Desertion

Back 11

Can be constructive

Conduct that makes continued cohabitation impossible

Conduct that creates reasonable apprehension of bodily harm

Front 12

Custody

Back 12

Court can award custody without divorce proceeding

Custody decisions controlled by best interest of child - material preference

No presumption in favor of joint custody

Front 13

Custody - Best interest Factors

Back 13

Preference of child, if old enough to make rational decision

Character and fitness of parents

Material opportunities

Age, health, and sex of child

Front 14

Custody - Joint Custody Factors

Back 14

Parents ability to work together

Parents fitness

Child's relationship with each parent

Parent's geographical proximity

Front 15

Child Support

Back 15

Child support can be award without divorce

Parents have obligation to support child until age 18 - after 18 if child is disabled

Child support awarded according ot child's best interest

Child support determined in accordance with statutory guidelines

Front 16

Property Division - Absolute Divorce (3 step)

Back 16

1. determine what property is marital property

2. value of marital property

3. determine if equity requires monetary award to one spouse

Front 17

Marital Property

Back 17

Includes all property acquired during the marriage except by gift from 3rd party or inheritance.

Front 18

Marital Property - Lottery Winnings

Back 18

Lottery winnings acquired during marriage generally considered marital property

Front 19

Right to Marry

Back 19

The right to marry is a fundamental right and guaranteed by both the Equal Protection and Due Process Clauses

Front 20

Prenup

Back 20

prenuptional agreements are contracts made by the parties prior to marriage, generally attemptinf to alter or extinguish the spouses property and/or support rights otherwise recognized by law.

Front 21

Legal requirements for marriage -MD

Back 21

Maryland requires that a marriage license be obtained and there there be solemnization (i.e that a civil or religious ceremony take place)

Front 22

Legal Impediments to Marriage (ABCDFS)

Back 22

ABCDFS

1. Age - nonage

2. Bigamy

3. Consent - lack of consent/fraud

4. Dumb - Mental Incapacity

5. Family - Consanguinity and Affinity

6. Sex - Consummate

Front 23

Legal Impediments to Marriage - Nonage

Back 23

Age - nonage: In order to marry without parental consent or medical certification, an individual must be at least 18 years old. An individual uner the age of 15 years may not marry even if pregnant

Front 24

Legal Impediments to Marriage - Bigamy

Back 24

Maryland prohibits an individual from marrying while that indivudal is lawfully married to another.

Bigamy renders the 2nd marriage void, but a decree of annulment should be obtained to establish the legal status of the parties.

Front 25

Legal Impediments to Marriage - Consanguinity and Affinity

Back 25

Maryland prohibits marriage between blood relatives within three degress of direct lineal consinguinity or one degree of collateral consanguinity, as well as within specified degress of affinity. Any marriage in violation of these prohibitions is void.

Front 26

Legal Impediments to Marriage - Mental Incapacity

Back 26

The inability of a party to consent to marriage due to mental incapacity or infirmity will render the marriage nvalid. If a person cannot understand the nature of the marriage contract, he cannot enter into a marriage.

Incapacity may also result if either party is heavily under the influence of alcohol or drugs.

Front 27

Legal Impediments to Marriage - Consent / Fraud

Back 27

In order for fraud to invalidate a marriage the fraud must (1) go to the essence of the marriage contract, affecting the health or well-being of the parties or (2) the representations or acts must have induced the other party to enter into the marriage contract.

Front 28

Legal Impediments to Marriage - Sex/Consummate

Back 28

The ability to consummate the marriage is a requirement for a valid marriage.

Front 29

Annulment

Back 29

Annulment is the legal determination that a marriage did not exist. The ground for annulment must have existed at the time of the marriage ceremony and not arising later.

Front 30

Void Marriage (BCD)

Back 30

A void marriage is one that has no legal effect and therefore a proceeding for annulment ins't necessary.

A void marriage is subject to direct attack during the life of the parties and collateral attack even after the death of one of the parties.

Bigamy - voids the marriage

Consanguinity

Dumb - lack of mental capacity or intent to marry

Front 31

Voidable Marriage (ACID)

Back 31

A voidable marriage is valid unless and until the aggreived party obtains an annulment.

If a voidable marriage is confirmed or ratified by the aggreived party or if one of the parties to the marriage dies, the validity of the marriage may not be questoned or attacked by another person

Nonage

Impotence of the other spose

Capacity to consent

Duress or Fraud

Front 32

Effects of Annulment

Back 32

The courts may divide property and or order support in the case of an annulment.

When a marriage is annulled, the court must declare each child of the marriage to be a legitimate child.

Front 33

Rights of unmarried parties

Back 33

unmarried cohabitants in Maryland generally have no legally recognized status and statutory provisions governing support and property division generally will not be applied to an unmarried couple

Front 34

Obligations incurred before marriage

Back 34

An individual is not liable for any debt contracted by his spouse before the marriage, or any claim or demand against the spouse that arose before the marriage.

Front 35

Custody and Control over Children

Back 35

If both parents are living, competent and have not be found to be unfit, they are entitled to custody of the minor child and to direct his education and medical care. If one parent dies and the remaining parent is competent and not unfit, the remaining parent has these rights, superior to all others.

Front 36

Custodial Rights

Back 36

There is a prima facie presumption that the child's welfare will be best served in the care of his custody parents rather than in the custody of others, and the burden is the 3rd party to show the contrary.

Front 37

Parental Obligation to Support Child

Back 37

Parents are the joint, natural guardians of their minor children and are jointly and severally responsible for the support, care, nuture, welfare, and education of their children

Front 38

Torts committed against a child

Back 38

Maryland recognizes parent-child immunity which bars a minor child from asserting civil claims against his parent for personal injuries suffered at the hands of the parent.

Front 39

Voluntary Relinquishment of Parental Rights

Back 39

In Maryland, a court has no ability to terminate parental rights other than through a decree of adoption or guardianship. Therefore, a parent may not voluntarily relinquish his parental rights other than in the context of such a proceeding

Front 40

Involuntary Termination

Back 40

Parental rights cannot be terminated without notice and a hearing

The state must prove by clear and convinsing evidence that termination of a parent's rights serves the best interest of the child

Front 41

Divorce Proceeding

Back 41

SMJ - the circuit court has full equity power to confer a divorce and issue orders necessary to protect the interests of the parties.
PJ - PJ over the D is necessary for the court to enter or enforce any decrees.

Domicile/Residency - one spouse must be domiciled in MD. If grounds for divorce occur outside of MD, there is also a 1 year residency requirement.

Venue - Where the D resides and/or works. In the following matters, other venues, in addition to the above, are appropriate:
1. Divorce - County where P Lives

2. Annulment - County where P lives or county where the marriage was performed

3. Child Custody/Support - County where custodial parent lives or where child lives

Front 42

Contents of Divorce Decree

Back 42

A divorce decree and any temporary orders in connection with may include various matters including child support, spousal support, custody and visistation, award of property, etc.

Front 43

Divorce Settlement Agreements

Back 43

A settlement agreement is presumptively valid if it does not show any injustice or inequity on its face. A court may modify provisions of an agreement, particularily with provisions concerning children if modification would be in the best interest of the child.

Front 44

Divorce - Property Division

Back 44

The MPA controls the disposition of property following divorce in MD where the parties cannot reach an agreement.

When the marriage is dissolved, the property interests of the spouses should be adjusted fairly and equitably, with consideation given to the monetary and nonmonetary contributions made by the spouses to the well-being of the family. If there are minor children their well being must be given particular attention.

Front 45

Marital Property (what is not)

Back 45

1. acquired before the marriage

2. acquired by inheritance or gift from a 3rd party

3. excluded by valid agreement

4. directly traceable to any of these sources

Front 46

Non Marital Property

Back 46

Professional degrees and licenses

Personal injury awards (personal injury claims for pain and suffering are not considered marital property)

Social Security benefits

Front 47

Either Maritial or NonMarital Property

Back 47

Maritial Residence / Real property - if held as tenants by the entirety = marital property unless spouses have agreed otherwise

Partnership interest

Front 48

Marital Property

Back 48

Pensions and other retirement accounts

Life insurance policies

Professional practice and good will

Lottery winnings

Irrevocable trusts - created by one spouse for the other during the marriage

Fraudulently transferred or intentionally dissipated property

Commingled property

Stocks and stock options

Front 49

Factors used to determine amount of monetary award

Back 49

1. contributions of each party to the well-being of the family (monetary and nonmonetary)

2. value of all property interests of each party

3. economic circumstances of each party at the time the award is to be made

4. circumstances that contributed to the estangement of the parties

5. Duration of the marriage

6. Age of each party

7. Physical and mental condition of each party

8. How and/or when specific marital property was acquired

Front 50

Attacking Family Law Essay

Back 50

Step 1: Does Court in Maryland have jurisdiction over the issue?

- The circuit court has jurisdiction over divorce and custody

MD has jurisdiction over custody and visitation where prior custody order and child continues to have significant connection to MD. MD also has jurisdiction over custodyand visition where (a) MD is the child's home state, (b) no other state has home jurisdiction over the child (c) the child and at least one parent or parent substitute have significant conncetions with MD, and (d) substantial evidence concerning the case is in MD. A state is a child's home state if the child resided in the state continuously for the 6 months immediately preceeding the filing.

Step 2: Answer the specific questions using IRAC (what are the grounds for the particular issue).

Front 51

What court has jurisdiction over divorce and custody cases?

Back 51

The Circuit Court has jurisdiction over divorce and custody

Front 52

How does jurisdiction in MD apply?

Back 52

MD has jurisdicition over custody and visitation where prior custody order and child continue to have significant connection to MD. MD also has jurisdiction over custody and visistation where (a) MD is the child's home state, (b) no other state has home jurisdiction over the child, (c) the child and at least pne parent or parent substitute have significant connections with MD, and (d) substantial evidence concerning the case is in MD.

Front 53

Before Marriage

Back 53

Gifts - an engagement ring is ordinarily considered a gift in consideration of marriage, unless facts indicate to the contract, such as if the donor should insist "no matter what happens, I want you to have this." Engagement rings must be given back if hte marriage does not take place.

Prenuptial Agreements - Contracts made by the parties prior to marraige and in contemplation of marriage, generally attempting to alter or extinguish the spouses' property and/or support reights otherwise granted by law.

Front 54

Premarital Agreements

Back 54

Premaital agreements are generally valid devices to resolve disputes between spouses in the event of divorce as well as a means for estate planning in the event of death.

Front 55

Getting Married - Legal Requirements

Back 55

Marriage license and ceremony

Front 56

Marriage License

Back 56

Must be issued by the clerk for the county in which the marriage is to be performed.

A license is effective until 6PM on the 2nd calendar day after the license is issued.

Front 57

Marriage Ceremony

Back 57

Must take place within 6 months of the license effective date.

A ceremony must be performed by an offical of a religious order or body authorized by the rules and customs of that order, any clerk, any deputy clerk, or a state or federal judge who is active or retired.

Front 58

Common law marriage

Back 58

MD does not authorized commone law marriage but will recognize a common law marriage of another jurisdiction that permits such marriages. The burden of proof is upon the party asserting the common law marriage to prove the existence of the marriage by clear and convincing evidence.

Front 59

Annulment - Jurisdiction

Back 59

Circuit Court

An action for an annulment may be brought in the county where the D resides, carries on regular business, is employed, or habitually engages in a vocaation, or where the P resiides, or where the marriage ceremony was performed.

Front 60

Defenses to Limited Divorce (ARRC)

Back 60

1. Application to fault divorces

2. Recrimination

3. Reconciliation - neither an unaccepted offer or nor a rejected attempt at reconciliation by a spouse is in and itself a defense or a bar to divorce. A spouse's refusal of an offer of or a rejection of an attemption at reconciliation is not in and itself a ground for divorce.

4. Condonation

Front 61

Alimony

Back 61

The main purpose of alimony in MD is rehabilitation, and the intent is to enable sufficient support over a defined period of time in order to educate and train the economically dependant spouse to become self supporting. The court must consider the income and expenses of the petitioning spouse, as well as the potential for suitable employment through training and other means

Front 62

Alimony Pendente Lite

Back 62

temporary alimony

monetary award to an economically disadvantaged spouse during the pendency of a divorce, alimony, or annulment proceeding, and the award terminates at the end of the litigation

Front 63

Custody - Jurisdiction

Back 63

An action relating to custody, guardianship, maintenance, or child support, may be brough in the county where: (1) the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation; (2) the father, alleged father, or mother of the child resides; of (3) the child resides.

Front 64

Custody - Presumption

Back 64

A presumption exists in favor of a biological parent's right to custody. That presumption can be overcome only by a showing either that the parent is unfit or that exceptional circumstances exist.

Front 65

Child Support

Back 65

Under Maryland law, parents are required to financially support their children until they reach maturity (i.e. the age of 18 or until they finish high school, if 19).

Front 66

Out of Wedlock Children

Back 66

1. right to support

2. Right to inheritance

3. Rights to recover for wrongful death

Front 67

Liabilities

Back 67

1. Torts by a child - child generally liable / parent may beliable

2. Torts against child - parent-child immunity

3. Minor's contractual liabilities - voidable contracts, liability for necessaries

Front 68

Termination of parental rights

Back 68

1. limited voluntary termination

2. involuntary termination

- requirements of notice and hearing

- clear and convincing evidence standard

- factual considerations and findings

Front 69

Divorce proceedings - jurisdiction and venue

Back 69

1. SMJ

- at least 1 party is MD domiciliary

- at least 1 party is MD resident

- Military exception

2. PJ

- MD long arm statute

3. Venue

A P may file a complaint for divorce in the county where he resides, or where the D resides, is regularly employed, or has a place of business

Front 70

Divorce Procedure

Back 70

1. complaint

2. oral testimony

3. corroboratoin

3. financial disclosure for suposal and child support

4. temporary orders

5. award of costs

Front 71

Recrimination

Back 71

Not a bar to divorce

There must be only one guilty party and one innocent spouse who is entiteld to relief. Therefore, where both spouses are guility of fault grounds, the court would deny a divorce to either on the ground of recrimination.

Front 72

2 Methods for Termination of Parental Rights

Back 72

Voluntary: consent of bio parentsInvoluntary: court does it b/c of maltreatment ORwhen 1 natural parent is convicted of a crime of violence against the other natural parent & the parent is sentenced to an unsuspended term of imprisonment of at least 10 years

Front 73

3 Steps in Equitable Division of Marital Property

Back 73

1. Classification: All property owned by either or both spouses is classified as either nonmarital (i.e. separate) or marital property. 2. Valuation: All marital property is valued. 3. Equities: The court balances the equities and---- a. Can make a monetary award to a spouse up to the value of the marital property ---- b. Can transfer an interest in pension, retirement, profit-sharing and deferred compensation plans from one spouse to the other. ---- c. Can determine ownership of property where there is a dispute between the spouses, order the petition and sale of property jointly owned by the spouses, and transfer an interest in family use personal property.

Front 74

Absolute Divorce

Back 74

1. Is permanent;2. Permits remarraige, terminates property claims;3. Permits the court to order alimony, child custody and child support.

Front 75

Adoption

Back 75

A statutory legal action whereby the previous parent-child relationship is terminated and a new parent-child relationship is established. Adoptive parents have all the rights and duties that bio parents had. Once the adoption is complete, a new birth certificate w/ adoptive parents' names is issued for child. The best interest of the child standard is applied in adoption cases.

Front 76

Alienation of Affections

Back 76

MD does not recognize.

Front 77

Alimony

Back 77

Amount of money paid by one spouse for the maintenance of the other spouse pursuant to a complaint for alimony or as part of a decree for annulment or limited or absolute divorce. Generally alimony may not be sought subsequent to the granting of such a decree unless the decree was issued by a court that lacked jurisdiciton over the party seeking alimony, and the party seeking alimony was domiciled in MD at least one year before the decree was issued.

Front 78

Antenuptial Agreement

Back 78

1. Definition: Premarital contract typically providing for the way property will be divided in the event of divorce. 2. Enforceability: The party seeking to enforce the agreement has the burden of proving its validity. This burden can be met by showing that, at the time it was made, the agreement was fair, or that htere was frank, full and truthful disclosure, of the enforcing party's assets. The challenging party's opporutnity to obtain the advice of independent lega l counsel can also strengthen the enforcing party's case. [Note: provisions that waive right to alimony are valid & not void on public policy grounds.]

Front 79

Balancing the Equities

Back 79

The court detemines the amount and method of payment of a monetary award or the terms of a transfer of interst after considering the following factors: 1. The contributions, monetary and nonmonetary, of each party to the well-being of the family; 2. The value of all proeprty interests of each party; 3. The economic circumsntances and the age of each party; 4. The duration of the marriage and the circumstances that contributed to the estrangement of the parties; 5. The physical and mental condition of each party; 6. How and when specific marital property was acquired - including the effort expended by each party. 7. The contribution by either party of nonmarital property used to acquire real property held by the parties as tenants by the entirety. 8. Any award of alimony and any award of other provision with respect to the family use personal property or the family home. 9. Any other factor the court considers necessary or appropriate, such as dissipation of martial funds by one party.

Front 80

Best Interest of Child Standard

Back 80

The standard applied in awarding custody, visitation, and child support is the best interest of the child. Factors considered: 1. Fitness of the parents2. Character/Reputation of the parties3. Desires of the parents & agreements b/t them. 4. Potential for maintaining natural family relations. 5. Preference of child (if child is sufficient age); 6. Material opportunities affecting child's future. 7. The age, health and sex of the child; 8. Residences of parents & oppurtunity for vistation; 9. Length of separation of the parents; 10. Evidence of spousal or child abuse; 11. The existence of a prior voluntary abandonment, or surrender of custody of the child by one of the parties; and12. When adultery of one of the parties is proven, whether that adultery has a detrimental effect on the child. Ordinarily, when there are two or more children of the same parents, the best interest of all such children is served by keeping them together.

Front 81

Breach of Promise to Marry

Back 81

Cause of Action for breach of promise to marry has been abolished, except when the woman bringing the action is pregnant.

Front 82

Child Support: Adjustments to Parents' Actual Monthly Income

Back 82

From each parent's actual monthly income are subtracted the actual cost of health insruance for a child for whom both parents are responsible, and any preexisting reasonable child support obligations. A parent who is awared alimony is required to treat the amount awarded as income. If claims are made for alimony and child support, the alimony must be determined prior to the child support award.

Front 83

Child Support: Computation of Child Support Award

Back 83

To calculate the amount of a parent's child support obligation if physical custody is not shared, the parent's adjusted monthly income is divided by both parents' combined adjusted actual monthly income to arrive at the parent's percentage share of the combined incomes, which is then multiplied by the total child support obligation.

Front 84

Child Support: Modification of Support Orders

Back 84

An order for support may be modified upon review or petition. A party must show a material change is circumstances as a threshold requirement for modification of a fixed child support order.

Front 85

Child Support: Presumption of Correctness

Back 85

For child support awards there is a rebuttable presumption that the amount of support resulting from application of the statutory guidelines is correct. The presumption may be rebutted by evidence that hte application of the guidelines woudl be unjust or inappropriate in a particular case. The presence of another child to whom a parent owes a duty of support does not, by itself, serve to rebut the presumption of correctness.

Front 86

Child Support: Tax Consequences of Support

Back 86

-- Child support payments are neither deductible by the payor, nor includible as income to the custodial parent.-- Child Dependency Tax Exemption: The parent who has custody of the child for the greater part of the year automatically gets the child dependency tax exemption unless it is waived in writing. -- Medical Expenses: Deductible by whichever parent pays them.

Front 87

Child Support: Termination of Support

Back 87

--- Child support obligation is generally terminated: 1. when the child is emancipated by reaching age 18, 2. marriage, 3. self-sufficiency, or 4. upon termination of parental rights. -- Parents may agree to extend the obligation to pay child support beyond the child's 18th birthday. -- Court may award child support with respect to an adult handicapped child or a child between the ages of 18 and 19 who is unmarried, enrolled in high school and subject to parental control.

Front 88

Child Support: Total Child Support Obligation

Back 88

The following expenses are added to the basic child support obligation to arrive a the total child support obligation: 1. Child care costs incurred due to the employment or job search of either parent; 2 extraordinary medical expenses3. Expenses for school; and4. Transportation expenses related to the travel of the child between parents' homes.

Front 89

Child Support: Voluntary Impoverishment

Back 89

If a parent voluntary impoverishes himself, the child support obligation may be based on a determination of that parent's potential income. Factors considered in determining whether the parent has voluntarily impoverished himself include: (i) the parent's physical condition; (ii) the parent's level of education; (iii) the time of any change in employment

Front 90

Civil Protection Orders

Back 90

A victim of domestic violence may seek emergency protection through a civil protection order by filing a petition seeking relief from abuse with either the district court, the circuit court, or the district court commissioner, if the the office clerk of both courts are closed. A parent, other relative, or an adult residing in the home may file on behalf of a child victim.

Front 91

Classification of Property - Commingled Property - Source of Funds Rule

Back 91

Commingled Property - Source of Funds Rule: When property is purchased with commingled separate and marital funds, all of the property is considered marital property except that part or percentage that may be traced to a nonmarital source. - Allocates the property between separate and marital interests in proportion to contributions of the separate and marital sources.

Front 92

Classification of Property - Marital Property

Back 92

1. During Marriage: Property acquired by a spouse during the marriage is presumed to be marital property, regardless of how title to the property is held. Includes: - Real property; parternship interest, professional practices, lottery winnings, pensions (including military pensions), life insurance policies, irrevocable trusts, stocks/stock options (even if have not vested), personal injury award or settlement to the extent that it was a reimbursement of medical expenses paid with martial funds, compensation for loss of consortium, or lost wages attributable to any period during the marriage (regardless of whether the injury arose prior to or during the marriage)2. Appreciation in Vaue of Nonmarital Property: Increase is due to the active management of one of the spouses.

Front 93

Classification of Property - Nonmarital Property

Back 93

1. Before Marriage: Property acquired by a spouse before marriage. 2. Gift/Inherentance: Property acquired by a spouse during marriage by gift, bequest, or descent is nonmarital property (unless from 1 spouse to the other). 3. Appreciation in Vaue of Nonmarital Property: Appreciation due to mere possession of the nonmartial property remains nonmarital property.4. Property cannot be transferred to another person. Includes: -- Professional licenses, social security benefits, accrued holiday and vacation rights, a country club membership that is nontransferable & nonrefundable, a property interest that cannot be valued because of its speculative nature (i.e. personal injury claim that has not been filed as a tort action at the time of the divorce); and a property interest that may never vest due to events beyond the control of the spouse (preemptive rights to stock purchase)

Front 94

Common Law Marriage

Back 94

NOT permitted in MD, but MD does recognize common law marriages that are valid where contracted.

Front 95

Computation of Child Support Amount

Back 95

Maryland uses the income shares method for computing the amount of child support. The general procedure is: (i) each parent's actual monthly income is determined; (ii) each parent's actual monthly income is adjusted; (iii) Both parents' adjusted actual monthly incomes are combined; (iv) the basic child support obligation is determined by consulting a statutory chart (which is categorized by the comined adjusted actual monthly income and the number of children who are due support); (v) obligation is adjusted to arrive at the child support oligation of both parents (total child support obligation).

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Criminal Conversion

Back 96

MD does not recognize a cause of action for criminal conversation by a husband based on a wife's adultery. - Note: Tort actions for fraud and the intentional infliction of emotional distress by a husband against a wife based on wife's adulterty & subsequent misrepresentaiton of the parternity of a child born as a consequenc of the adulter are also barred.

Front 97

Defenses to Divorce Actions (3)

Back 97

1. Condonation: Forgiveness for grounds of divorce. It requires knowledge of the misconduct, forgiveness, and resumption of marital relations. It is NOT a complete defense to adultery, but is a factor in determining whether divorce should be granted on that grounds. 2. Recrimination: Showing equal fault exists. It is not a bar to obtaining a divorce on any fault grounds, but is a factor in determining whether divorce should be granted on ground of adultery. 3. Reconciliation: An offer/attempt to resume marital relaitons after agreeing to sepearte. An unaccepted offer/attempt is not, by iteself, a bar to divorce.

Front 98

Definition of Marriage

Back 98

Legal creation of the status of spouse b/t two parties who consent to enter into a relationship. -- Only a marriage between 2 individuals who are NOT otherwise prohibited from marrying is valid in MD.

Front 99

Divorce & Res Judicata

Back 99

Res judicata with respect to a fault grounds is not a bar to either party obtaining absolute divorce on the no-fault ground of a two-year separation.

Front 100

Divorce: Pleading Requirements

Back 100

P Must file a complaint alleging grounds for divorce, which must exist at the time of the filing. Amendment: Complaint may be amended to include additional grounds that have arisen after the filing of the complaint. LImited/Absolute: If a judgment for a limited divorce has been obtained, a party may file a supplemental complaint for an absolute divorce if the ground on which the limited divorce was obtained has matured to a ground for an absolute divorce.

Front 101

Divorce: Testimony Requirements

Back 101

ORal testimony by the plaintiff generally must be corroborated by oral testimony of another witness before the court will grant a judgment for divorce.

Front 102

Domestic Violence Defined

Back 102

Abusive behavior that triggers

Front 103

Domestic Violence Definition

Back 103

Abusive behavior that triggers the right to seek a civil protection order includes: 1. an act that causes serious bodily harm; 2. an act that places a victim in fear of imminent serious bodily harm;3. A criminal assault;4. A rape or sexual offense, or an attempted rape or sexual offense;5. False imprisonment; 6. Criminal stalking7. If the victim is a child -> child abuse.

Front 104

Enforcement of Child Support/Alimony

Back 104

Seek enforcement of the order by a variety of means, including: 1. Garnishment of wages; 2. Garnishment of bank accounts3. Property lein4. Proeprty seizure5. Contempt sanctions6. Interception of income tax refunds or lottery prize payments; and 7. Suspension of an occupational or driving licenses. An order for spousal or child support constitutes an immediate and continuing withholding order on the earnings of the obligor - may be enforced by service of the order on the obligor's employer.

Front 105

Enforcement: Sanctions for Violating Custody or Visitation Order

Back 105

Any person who fails to comply with a visitation or custody order may be liable for civil contempt. Sanctions may include: 1. Termination of custody/visitation2. A fine3. Incarceration and a posting of security

Front 106

Extension or Modification of Alimony

Back 106

An alimony award may be extended if:1. Circumstances arise during the alimony period that would lead to a harsh/inequitbale result without an extension; or 2. The court may also modify the amount of the award as circumstances require. (extend or rehabilitative to permanent) NOTE: A self-induced reduction in income by the payor spouse is NOT sufficient to have alimony reduced. (i.e. can't quit job).

Front 107

Factors Considered for Involuntary TPR

Back 107

Must be shown by clear & convincing evidence:1. Reunification factors: availability of & cooperation with services, maintaining contact with the children; i.e., Is if feasible to reunify this family?2. Feelings of kid & his/her bonds w/parents and other individuals, whether kid has been abused or neglected, or will be subjected to further neglect or abuse3. Criminal conduct and drug abuse by parents4. TPR of kid's sibling

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Factors to be Considered In Determining Alimony Award

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Factors considered in determining the nature, amount and manner of alimony payments are: 1. The ability of the payee spouse to be self-supporting; 2. The time necessary for the payee spouse to gain sufficient training to find suitable employment; 3. The standard of living established during the marriage; 4. The duration of the marriage and the age of each party; 5. The circumstances that contributed to ther parties' estrangement; 6. The physical and mental condition of each party; 7. The ability of the payor spouse to meet his own needs while meeting the needs of the payee spouse; 8. Any agreement between the parties; and9. The financial needs and resources of each party.

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Family Law Issues that Can be Raised in Circuit Court

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1. Divorce or Annulment;2. Enforcement of Separatio nAgreements3. Division of Property4. Spousal and child support5. Child custody and visitation; and6. Award of reasonable and necessary counsel fees

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Family Use Property

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The court may award use of the family home and family use property to the custodial parent and parties' children for up to three years.

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Federal Legislation (FFCCSOA & CSRA)

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The Full Faith and Credit for Child Support Orders Act (FFCCSOA): Requires courts to recognize support orders of other courts Child Support Recovery Act (CSRA): Provides a criminal penalty for willful failure to pay support obligation owed to a child residing out of state.

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Federal Parental Kidnapping Prevention Act

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Child custody orders do NOT meet the final order test for full faith and credit because they are subject to modification. The Parental Kidnapping Prevention Act was enacted to mandate that full faith and credit be given to child custody awards if the Act's jurisdictional standards are met. The jurisdictional standards are set forth in the PKPA are substantially the same as those in the UCCJA, except that a state may not assume jurisdiction under the best interest of the child standard if another state is the child's home state. When the two statutes are in conflict, the PKPA prevails over UCCJA.

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Final Protection Order

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The court must hold a protection hearing not more than 7 days after the temporary order is served on the alleged abuser.If the court finds by clear and convincing evidence that the abuse occured, or the alleged abuser consents to the entry of a protective order, the court may issue a final protection orderThe court may grant a final protection order which intially cannot exceed 12 months, but after a hearing may be extended for an addional 6 montsh.

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Grounds for Absolute Divorce

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Fault Grounds:1. Cruelty of Treatment: toward the complaing party or minor child. No reasonable expectation of reconciliation.2. Excessively vicious conduct: toward the complaing party or minor child. No reasonable expectation of reconciliation.3. Desertion: Actual or constructive desertion for a continuous period of 12 months or more prior to filign the divorce.4. Adultery (voluntary sexual intercourse of a married person with someone other than her spouse). It is often proved by circumstantial evidence indicating parties had oppurtunity and disposition to commit adulter.--- Fifth Amendment Privilege: Since adulter is still a crime in MD a party can invoke the privilege against self-incrimination when asked about adulterous acts. When making a child custody determination - court can draw an adverse inference from refusal to answer and give it appropriate weight.5. Conviction of Crime: If spouse has been sentenced to imprisonment for 3+ years (or indeterminate sentence) and has served 12 months of that sentence.6. Insanity or Serious Mental Disorder: If (i) there has been confinement to a mental institution for at least 3 years before filing the complaint; (ii) at least two psychiatrists testify the insanity is incurable and there is no hope of recovery; and (iii) one of the parties has been an MD resident for at least two years. No Fault Grounds:1. Voluntary and Mutual One year separation: Parties have lived separate and apart for at least one year and the marriage is irretriveably broken.2. Two-Year separation.

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Grounds for Limited Divorce

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Fault Grounds:1. Cruetly of treatment toward the complaing party or minor child of the complaining party (any conduct calculated to seriously impair the health or permanent destroy the happiness of the other party).2. Excessively vicious conduct toward the complaing party or minor child.3. Desertion: Willful absence from the marital home without reasonable cause and with the intent to end the marriage.-- Constructive Desertion: When one spouse is so absive that it is ipossible for the other to remain in marital home. [Abusive spouse is deemedto have deserted the marriage] No-Fault Grounds:1. Voluntary and mutual separation - if there is an (i) an express or implied mutal agreement to separate/end the marriage; (ii) parties are living separate and apart without cohabitation; and (iii) no reasonable expectation of recociliation.

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Interference with Vistitation Rights

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If the custodial parent unjustifiably denies or interferes with the noncustodial parent's visitation rights, the noncustodial parent may file a petition with the court seeking to reschedule the visitation and modify custody or vistation rights to ensure compliance.

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Interim Protection Order

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When the petition is filed with the district court commissioner, the commissioner may issue an interim protection order. It is effective until the earlier of the temporary protection order hearing or the end of the second business day that the office of the clerk of the ditrict court is open following the issuance of the temporary protection order.

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Joint Custody

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There is no presumption in favor of joint legal or physical custody. The court consideres, among other things: -- (i) capacity of parents to communicate & reach shared deicisions affecting the child's welfare; -- (ii) willingness of the parents to share custody; -- (iii) fitness of the parents; -- (iv) relationship b/t the child and each parent; -- (v) the preference of the child-- (vi) potential disruption of child's social & school life. -- (vii) the geographical proximity of the parental homes; -- (viii) the demands of parental employment-- (ix) the age and number of children-- (x) sincerity of the request-- (xi) the financial status of the parents; and -- (xii) the impact on the state or federal assistance.

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Lack of PJ over D?

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1. Lack of PJ over D - MD court CAN grant divorce. However, can't decide D's alimony or marital property rights.

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Limited Divorce

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1. Legalizes the parties separation.2. Permits the court to order alimony, child custody and child support; and3. DOES NOT permit remarriage or resolve all property claims.

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Long Arm Statute in Support Actions

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Under the long arm statute, MD courts have PJ over nonresident defendants who are personally served with process in actions for child support and alimony if:(i) the P residents in MD at the time the suit is filed, AND(ii) MD was the matrimonial domicle of the parties immediately BEFORE their separation; OR the payment obligation arose under MD laws or under an agreement executed by one of the parties.

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Marriage Ceremony

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Marriage must be solemnized by designated court officials, or by an official of a religious group authorized by the rules and customs of that group to perform a marriage.

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Marriage License Requirements

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1. Age of Parties: Parties must be 18 years old of age. Under 15 -- Cannot marry. And, If one party is 16 or 17 years of age - requires parental consent, or a physician's certificate stating that the female is pregnant, or given birth. If one of the parties is age 15, both parental consent and a physician's certificate are required. 2. Relationship: No license will be issued to applicants within the prohibited degrees of consanguinity (relation by blood) or affinity (relationship by marriage). 3. Timing Isses: A license is NOT effective until 6 A.a. on the second calendar day after license is issued. Valid for 6 months. 4. Failure to obtain: Does not render an otherwise valid marriage void, but it may be punishable by a $100 fine.

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Modification of Custody Orders

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To secure a modification of a child custody order, the moving party MUST first show there has been a material change in circumstances. Then, the modification must be shown to be in the best interests of the child. NOTES: -- A change in custody triggered by the relocation of the custodial parent DOES NOT violate the relocating parent's constituional right to travel, if the custody change is in th ebest interst of the child. -- Upon the death of the custodial parent, custody reverts to the surviving parent, who becomes the sole natural guardian of the parents' minor children.

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Out-of-State Custody Decrees

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An out-of-state custody decree is enforceable if a certified copy of the decree is filed with the clerk of the court. An out-of-state decree may be modified if the foreign court declines jurisdiction, the new court has proper jurisdiction under the UCCJA, and the out-of-state party is given 20 days' notice prior to any hearing.

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Out-of-State Protection Order

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A protection order issued by the court of another state can be enforced in MD. A MD law enforcement officer may arrest the abuser when: 1. Officer has probably cause to believe that the order has been violated; AND2. The person who obtained the order has filed a copy of the order withthe local district or circuit court and shows a copy of the order to the officer.

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Out-of-State Support Actions

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A spousal or child support obligation determined in one state can be enforced in another state under the Uniform Interstate Family Support Act (UIFSA).

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Peace Orders

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A recent victim of assult, rape, false imprisonment, harrassment, stalking, trespass, or malicious destriction of property by a nonfamily memberb may seek emergency protection through a peace order, which is similar to a protection order

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Post-Divorce Alimony Awards

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Alimiony may be awarded after the granting of an annulment or divorce if: -- i. the court granting the divorce resereved judgment on the issue of alimony; OR-- ii. the annulment or divorce was issued by a court that lacked jurisdiction over the party seeking alimony, and the party seeking alimony was domiciled in MD at least one year before the granting of the annulment or divorce.

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Postnuptial Agreements - Effect on Divorce Proceedings

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1. NOT a bar to an action for a limited/absolute divorce. 2. Role Regarding Testimony: When a party seeks an absolute divorce on the grounds of voluntary separation, the separation agreement can constitue full corroboration of the plaintiff's testimony that seperation was voluntary. Therefore, agreement must state that the spouse voluntarily agreed to seperate and must be executed under oath before the divorce application is filed. 3.

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Postnuptial Agreements - Enforcement

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Merged Agreement: If the agreement is merged into the divorce judgment, the agreement may be enforced only by a contempt action. Incoporated/Not Merged: Can be enforced as an independent contract (i.e. breach of K) as well as through court's contempt powers.

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Postnuptial Agreements - Modification

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A provision in a postnuptial agreement that involves an ongoing obligation may be modified upon petition. Child Support: A party cannot restrict the ability of the court ot modify custody/child support which are govered by the best interest of the child standard. Alimony/Spousal Support: to prevent court modification of alimony/spousal support terms, the agreement must contain an express waiver of support specifically state that terms dealing with alimony/spousal support CANNOT be modified.

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Postnuptial Agreements - Validity

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Spouses can make valid/enforceable agreement settling alimony, support, property, and/or personal rights. BUT, duty to support minor children cannot be bargained away/waved by the parent as a part of a postnupial agreement. Presumptively Valid: 1. If NOT unjust on its face; OR 2. If merged/incorporated into a divorce judgement. Burden Of Proof: Pprty seeking to set aside theagreement generally has the burden of proving that it is invalid and unenfoceable. Contract: Postnuptial agreement is a contract and is subject to contract rules (i.e. statute of frauds). Can be rescinded/modified based on unconscionality, duress, fraud, or undue influence.

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Preference for Which Type of Alimony?

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Rehabilitative alimony is favored because the primary function of alimony in MD is to permit the economically dependent spouse to becom self-supporting. Permanent alimony will be awarded only if (i) due to age, illness, or disabilty, the party seeking alimony cannot reasonably be expected to become self-supporting, or (ii) even after the party seeking support hasmade as much prgress as possible, the respective living standards of the parties will be unconscionably disproportionate.

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Presumptions of Custody: Favor one parent? Parent vs. Third-Party?

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1. There is no presumption that one parent has a superior right to custody of the children. 2. Between a parent and a third party there is a presumption in favor of parental custody. This presumption can be rebutted by establisshing by a preponderance of teh evidence, the parent's lack of fitness to be a parent, or exception circumstances injurious to the child.

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Property Division - Equitable Distribution

Back 136

MD is an equitable distribution state. Upon divorce, a MD court ensures the equitable, but not necessarily equal, distribution of martial property between the spouses.

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Rebuttable presumption regarding child support

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Tehre is a rebuttable presumption that a child is the marital child of a couple who is married at the time of conception. Even if the husband is NOT the father of the child, he may be required to pay child support under the doctrine of equitable estoppel if he represented that he would provide for the child, his wife relied on that representation, and she suffered an economic detriment as a consequence of the reliance.

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Recovery of Litigation Costs

Back 138

Attorney's Fees & Costs may be recoverable from the other party in an action for: 1. Divorce; 2. Property disposition; 3. Alimony; 4. Child support; 5. Child custody and vistation. Considerations: 1. Financial resources and needs of the parties; 2. Whether there was substantial justification for prosecuting/defending the action. If there was no susbtantial justification for proseucitng or defending the action- court MUST order payment of litigations costs. Note: A separation agreement may include a provision for one party to pay attorneys' fees incurred by the other. However, the party seeking such fees bears the burden of establishing that the fees are reasonable.

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Referral to Masters

Back 139

1. A matrimonial action may be referred to a master to hold a hearing. 2. Master must provide written recommendations. 3. A party has 10 days after the recommendations are served/placed on the record to file exceptions to the recommendations. The court must then rule on the exceptions.

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Relief Granted by Final Protection Orders

Back 140

Relief may include an order that the alleged abuser:1. Refrain from further abuse of or contact w/ the victim. 2. Vacate the joint residence3.Stay away from the victim's residence, school, place of employment, or child care provider. 4. Pay emergency fmiliy maintence5. Participate in a counseling program.

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Safe Abandonment of a Newborn?

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The mother of a newborn, or person acting with her approval, who wishes to abandon the baby, may leave the baby with a responsible adult withiout incurring civil liability, or being subect to criminal prosecution. This action must be taken within 10 days of the birth of the baby, and the baby must be unharmed.

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SMJ: Domicile?

Back 142

Ground For Divorce IN MD: At least one spouse must be domiciled in MD at the time the complaint is filed. Ground For Divorce OUTSIDE MD: At least one spouse must be domiciled in MD for a minimum of one year prior to the filing of the complaint.

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SMJ: Which MD Court?

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MD Courts of Equity (Circuit Courts): Jurisdiction over an action involving divorce, annulment, alimony, child custody, or visitation rights. Note: The circuit court has full equity power, including the power to issue injunctions, to set aside transfers of assets, and to compel an accounting.

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Special Pleading Requirements in Family Court Actions

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1. Signature: Each party (even if represented by an attorney) is required to sign each pleading filed by that party.2. Complaint:-- Must allege grounds for divorce.-- If child involved: Must contain info regarding the child's wheareabouts; any other custody proceedings involving the child; or any information regarding another person who is not a party who either has physical custody of the child or claims custody/visitation rights.3. Financial Statement: Parties to a family law action may be required to file a current financial statement and.or a Joint Statement of Property.

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Support Of Destitute Parent or Adult Child

Back 145

1. A destitute parent: May file a complaint with the state's attorney indicating that the adult child has/or is able to earn a means to provide the parent with necessary food, shelter, care, and clothing. 2. A destitute adult child: May file a similar complaint against a parent. Conviction of such nonsupport can result in a fine of up to $1,000 or up to one year in prison or both.

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Tax consequences of alimony

Back 146

Generally alimony payments are taxed as ordinary income to the recipient and are deductible by the payor

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Tax Consequences of Equitable Distribution

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Property transfers between divorcing spouses are tax free. NOT taxable as ordinary income to the receiving spouse or deductible by the payins spouse. The recipient takes the transferor's basis in the transferred property. The untaxed gain at the time of transfer may be taxable when the recipient later sells the property.

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Temporary Protection Order

Back 148

The court must hold a hearing on the petition for a temporary protection order. This hearing may be conducted ex parte. The court may grant relief for up to 30 days if the court finds that there are reasonable grounds to believe that a victim has been abused.

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Termination of Alimony

Back 149

Unless the parties agree otherwise, alimony terminates upon:1. Death of either party;2. Remarriage of the recipient;3. A finding that is necessary to avoid an inequitable result; or4. Expiration of the time period for which it was awarded.

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Termination of Marriage: Annulment

Back 150

Annulment: Is the termination of a marriage that was void or voidable from its inception Note: Despite teh fact that an annulment establishes that a marriage never existed, children of an annulled marriage are considered marital children.

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Termination of Marriage: Annulment: Void Marriages

Back 151

A marriage is void, unless confirmed by cohabitation following removal of the impediment, if at the time of marriage:1. Bigamy: One or both parties had a valid prior existing marriage.2. Incest: The parties wer within the prohibited degrees of consequenity.3. Capacity: One or both parties lacked mental capcity or intent to marry. Note: subject to attack AFTER death of one of the parties.

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Termination of Marriage: Annulment: Voidable Marriages

Back 152

If both parties are still living and have not confirmed the marriage after removal of the impediment, the marriage is voidable if at the time of the marriage: 1. Age: a. Either party was under age 15; b. Either party was age 15 and did not have parental consent AND a physician's certificate; or c. Either party was age 16 or 17 and did not have parental consent OR a physician's certificate.2. Capacity: Either party was under the influence of liquor drugs.3. Fraud/Duress/Coercion: One party used fraud/duress/coearcion on the other party.4. Blood relation: Parties were too closely related by blood marriage, but not so closely to render the marriage void. Note: NOT subject to attack AFTER death of one of the parties.

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Timing: enforcement of support order

Back 153

Order for support by contempt: Must be filed within 3 years from the date that each installment sought to enforced comes due. Enforcement by other means is subject to the gernal 12-year statute of limintaitons.

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Types of Alimony (3)

Back 154

1. Alimony Pendente Lite: Temporary alimony paid to sustain an economically dependent spouse during the course of litigation. It terminates at the end of the litigation, which generally includes any appeal process. 2. Permanent or Indefinite Alimony: Permanent alimony is an award providing for periodic payment of money at predetermined intervals for an indefinite period of time. It may end upon the remarriage of the recipiemnt or death of either party. 3. Rehabilitative Alimony: Consists of payments ordered for a definite period to allow an economically dependent spouse to develop income-earning skills and become self-supporting.

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Types of Custody

Back 155

1. Legal Custody: Right to make major decisions affecting the child's life. 2. Physical Custody: The actual, physical possession and control of the child. -- Note: Joint custody can mean joint legal custody, joint physical custody, or both.

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UCCJEA: Enforcement of Another State's Order

Back 156

1. A custody or vistation order of one state can be registered in another state and enforced in that state in the same manner as one of its own orders. 2. Court can order the respondent to appear in person and award immediate physical possession of the child to the petitioner 3. Court may issue a warrant to take physical posession of the child if the child is imminently likely to suffer serious physical harm, or be removed from the state. 4. A prosecutor, law enforcement officer, or other public official may take any lawful action to locate a child, obtain the return of a child, or enforce a custody or visitation order when requested by a court, or if there is a reasonable belief that the person holding the child has violated a criminal statute.

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UCCJEA: Exclusive Continuing Jurisdiction

Back 157

The court that made the intial child custody or vistiation determination has EXCLUSIVE CONTINUING JURISDICTION over the matter until the court determines that: (i) neither the child, nor the child's parents (or person acting as parents) continue to reside in the state; OR(ii) the child no longer has a significant connection with the state (i.e. close relationship with parent who lives in state) and substantial evidence relating to the matter is no longer available in the state.

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UCCJEA: Initial Custody Determination

Back 158

1. Primary Test - Home State Jurisdiction: A court has jurisdiction to intially enter or modify a child custody or vistiation order if the state:--- (i) is the child's home state (state in which the child lived with a parent/guardian for at least 6 consecutive months immediately before the commendment of the proceeding. If less than 6 months old - then state where child has lived since birth), or--- (ii) was the child's home state within the past six months and the child is absent from the state, but a parent, or person acting as a parent continues to live in the state. 2. When "Home State" Rule Does Not Apply: A court has jurisdiction to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction, and: --- (i) the child and at least one parent (or person acting as parent) have a significant connection with the state; and --- (ii) substantial evidence concerning the child is available in the state. Note: a court has jursdiction to enter/modify a child custody or vistiation order if no other state has jurisdiciton under another test.

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UCCJEA: Temporary Emergency Jurisdiciton - Abandonment or Abuse

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1. Where the child has been abandoned; or2. Where necessary in an emergency to protect the child because the child, or her sibling, or parent is subjected to or threatened with abuse.

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UCCJEA: When Court May Decline Jurisdiciton

Back 160

1. A court that has jurisdiciton under one of the above tests may delicne to exercise its jurisdiction if it determines that it is an inconvenient forum under the circumstances and that court in another state is a more appropriate forum. 2. Court may decline to exercise jurisdcition if the party seeking to invoke the court's jurisdiciton has engaged in unjustfiable conduct (i.e. wrongfully taking the child from another state).

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Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Back 161

What: In all states, divorce courts are authorized to make custody awards. In MD, the circuit court has jurisdiction to hear child custody cases. If there is a question as to whether a MD court or a court in anotehr state has jurisdiction to hear a child custody matter, the UCCJEA, controls. Purpose: To avoid jurisdiction disputes, promote interstate cooperation, and strengthen enforcement procedures of custody/vistation orders.

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Valid Marrige in MD

Back 162

Parties must obtain a marriage license & mariage must be solemnized.

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Valuation of Marital Property: Spending prior to divorce

Back 163

Property is usually valued as of the date of the divorce, not the date of separation. Marital property that has been expended prior to the date of the divorce is generally excluded from marital property. Exception: Property dissipated by one spouse for that spouse's own benefit after the marriage has irreconcilably broken down is included in the valuation of the marital of the marital property. The burden is on the parties to provide the information necessary to value the marital property.

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Valuation of Marital Property: Martial Debt

Back 164

Marital debt: Directly traceable to the acquistion of marital property should be deducted to determine the value of property.

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Venue - General Rule & Additional Rule

Back 165

Generally an action must be filed in a county where:1. The D resides; 2. The D is employeed; or 3. The D habitually engages in a vocation. Additional Rules:- Divorce Action: where the plaintiff resides.- Annulment Action: May be brought where the P resides or where the marriage ceremony was performed.- Action Relating to Custody, Guardianship, Maintenance, or Support of a Child: May be brought where a parent of the child resides or where the child resides. NOTE: The defense of lack of proper venue is waived unless a defendent asserts it in a preliminary motion filed before an answer to the complaint is file.

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Victims that may seek protection from domestic violence

Back 166

Victims that may seek protection from domestic violence: 1. The current/former spouse of the abuser2. A cohabitant of the abuser3. A person related to the abuser by blood, marriage, or adoption4. A parent, stepparent, child, or stepchild of the abuser or a victim who resides, or resided with the abuser or the victim for at least 90 days within the one-year period before the filing of the petition5. A vulnerable adult.6. A person who has a child in common with the abuser.

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Violation of Order

Back 167

May result in finding of contempt and a criminal prosecution for a misdemeanor. An abuser whose incarceration is sought through a contempt proceeding is entitled to an attorney

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Visitation - Standard for determining vistation?

Back 168

The standard for permitting vistitaion is the best interest of the child. NOTE: When sole custody is awarded to one parent, the other party is usually given reasonable visitation rights. Visitation schedules depend upon such factors as the age of the child and the geographical proximity of the custodial/noncustodial parents.

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Visitation by Third Parties

Back 169

Traditionally, MD has not placed a restriction on the type of relationship that a person must have with a child to petition visitation rights. By statute: 1. Grandparents may petition for visitation rights at any time. 2. Nonadoptive stepparents may be granted visitation upon the termination of marriage. NOTE: SCOTUS has held that as long as a parent is fit, that parent's determination as to the appropriateness of nonparent vistiation must be given "special weight" A judge may not override a fit parent's decision regarding 3rd-party visitation merely because he feels a "better" decision coudl be made, or that visitation would be in the best interest of the child. As a result MD has rules in one case that its statute was unconstitutionally applied when a trial court ordered a fit mother to permit the parents of her child's deceased father to visit the child.

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Visitation is Independent of Support Duty

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A custodial parent MAY NOT withhold visitaiton from anoncustodial parent because of failure to pay child support.

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Visitation Limitations Imposed for Misconduct

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A court may limit or deny visitation if it has reasonable grounds to believe that the child has been abused or neglected by the noncustodial parent. Note: Absolute denial of vistation is rare; usually in these cases, the court will restrict visitation, such as by authorizing supervised visitation only.

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What is Child Support?

Back 172

Child support is an amount of money paid by the noncustodial parent to the custodial parent for the maintenance of biological or adopted child who is either a minor, handicapped adult, or is between the ages of 18 and 19 and unmarried, enrolled in high schoool, and subject to parental control.

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Who Can Adopt? Who Can You Adopt?

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In Maryland, any adult may petition a court to adopt an adult or child. The adoption of an adult has the same statutory effect as the adoption of a child. A court may not deny a petition on the sole basis that the petitioner is single or without a spouse

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Subject Matter Jxdn

Back 174

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

Back 175

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

Back 176

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

Back 177

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

Back 178

Each element of the grounds must be corroborated by a witness.

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Masters Hearings

Back 179

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

Back 180

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

Back 181

An absolute divorce legally ends the marriage.

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Full Faith and Credit - Common Law Marriages

Back 182

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

Back 183

* 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"

Back 184

* Separation* Adultery* Excessively Vicious Conduct* Desertion* Incapacity* Incarceration* Cruelty

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Separation (ground for absolute divorce)

Back 185

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)

Back 186

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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CondonationRecrimination (but NOT a bar, just a factor)CollusionProvocation

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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.