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78 Cards in this Set
- Front
- Back
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SMJ for family law
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MD courts of equity (i.e., the circuit courts) have jur over actions involving divorce, annulment, child custody, or visitation rights.
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SMJ for divorce
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"if ground for divorce happened in MD, @ least one spouse must be domiciled in MD at the time the complain is filed.
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PJ issues in family law
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"1. lack of PJ over a D in a divorce action: even though no PJ over a D in a divorce action, MD court still has pwr to grant a divorce, BUT a decree by such a court can't distinguish the D's alimony or marital property rights.
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Venue: general rule & family law extras
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"1. gen venue: action must be filed in a county where the D resides, carries on a reg business, is employed, or habitually engages in a vocation
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Procedures: issues that may be raised in a matrimonial action
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"MUST be brought in circuit court.
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special pleading requirements in family law actions
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"1. each party (even those represented by an attorney) must sign each pleading filed by that party.
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recovery of litigation costs
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"• Attorney's fees & other litigation costs may be recoverable from the other party in action for (i) divorce, (ii) property disposition, (ii) alimony, (iv) child support, and (v) child custody and visitation.
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definition of marriage
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"the legal creation of the status of husband and wife between 2 parties who consent to enter into the relationship. Only valid if between a man and a woman.
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antenuptial agreements and burdens of proof
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"A premarital K typ. providing for the way property will be divided in the even of a divorce
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marriage license
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"1. Parties must be of age (18 yrs). If one party is 16 or 17 yrs old, no license unless parental consent OR a dr's certificate stating that the female is pregnant or has given birth. If one of the parties is 15, both parental consent AND a dr's certificate are required. No marriage if under 15.
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Common Law marriages
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A CL marriage arises, w/out a ceremony, by agreement of the parties and cohabitation. MD does not permit common law marriages, but MD does recognize CL marriages that are valid where contracted.
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COA's related to marriage no longer recognized in MD
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"1. breach of promise to marry, except where woman bringing action is pregnant
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Annulment
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termination of a marriage that was void or voidable from its inception -- est. that a marriage never existed. BUT, children of an annulled marriage are considered marital children. Ct. granting annulment has all the pwrs of a court granting divorce
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void marriages
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"Grounds: a marriage is void, if at the time of marriage:
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voidable marriages
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"Grounds: voidable if at the time of the marriage:
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types of divorce
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"imited divorce- legalizes parties' separation and permits court to order alimony, child custody & child support
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pleading & testimony requirements
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"• π must file a complaint alleging grounds for divorce, which must exist at the time of filing
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Desertion
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The willful absence from the marital home w/out reasonable cause and with intent to end the marriage. Constructive desertion occurs when one spouse is so abusive that it is impossible for the other to remain in the marital home. In these cases, the abusive spouse is deemed to have deserted the marriage even when it is the other spouse who actually leaves.
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Limited divorce
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"Grounds:
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Absolute divorce
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"Grounds:
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Adultery
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The voluntary sexual intercourse of a married person w/someone other than her spouse. Is a ground for divorce. Often proved by circumstantial evidence indicating that the parties had the opportunity & the disposition to commit adultery. B/c it’s still a crime in MD, a party can invoke the 5th Am privilege against self-incrimination when asked about adulterous acts. However, when making a child custody determination, a court can draw an adverse inference from a refusal to answer and given appropriate weight.
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Defenses to divorce actions
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"• Condonation – forgiveness of grounds for divorce. Requires knowledge of the misconduct, forgiveness, and resumption of marital relations. Not a complete defense to adultery, but is a factor in determining whether the divorce should be granted on that ground.
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Postnuptial agreements
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"• H&W can make valid & enforceable agreement that settles issues of alimony, support, property and/or personal rights. But, other parent can NOT waive/bargain away the duty to support a person’s minor children, and NO waiver of marital misconduct as a ground for divorce
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Modification & enforcement of postnuptial agreements
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"• Modification – upon petition, can modify a provision involving an ongoing obligation (e.g., monthly support payments). A party can NOT restrict ability of court to modify custody/child support, which are governed by the best interest of the child standard. To prevent court modification of alimony or spousal support terms, the agreement must contain an express waiver of support or specifically state that terms dealing with alimony or spousal support cannot be modified
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Equitable distribution of marital property between the spouses
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"1. All property owned by either/both spouses is classified as either nonmarital (i.e., separate) or marital property.
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Classification of property
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"Property acquired by a spouse before marriage is nonmarital. Generally property acquired by a spouse during the marriage is presumed to be marital property, regardless of how title to the property is held.
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Classification of an increase in value of nonmarital property
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"Ask: what caused the increase?
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Comingled property
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Source of funds rule. When property is purchased w/comingled separate and marital funds, all of the property is considered martial property except that part or percentage that may be traced to a nonmarital source. This “source of funds” rule essentially allocates the property between separate and marital interests in proportion to the contributions of the separate and marital sources
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Marital property
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"Almost all types of property can be classified as marital property, including:
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Nonmarital property
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"The following property cannot be marital property b/c it cannot be transferred to another person:
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Valuation of marital property
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"• Marital debt directly traceable to the acquisition of the marital property should be deducted to determine the value of the property
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Balancing the equities – factors a court considers before determining the amt & method of payment of a monetary award or the terms of a transfer of interest
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"1. The contribution, monetary and nonmonetary, of each party to the well-being of the family
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Tax consequences of equitable distribution
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Equitable distribution payments aren’t taxable as ordinary income to the receiving spouse or deductible by the paying spouse. Property transfers between the divorcing spouses are tax free. 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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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 the parties’ children for up to 3 years.
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Alimony
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"An amount of $ paid by one spouse for the maintenance of the other spouse pursuant to a complaint for alimony or as party of a decree for annulment or limited or absolute divorce.
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Types of alimony
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"1. Alimony Pendente Lite – temporary alimony paid to sustain an economically dependent spouse during the course of the litigation. Stops at the end of the ligation, which gen includes any appeal process.
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Factors considered in determining the nature, amount, and manner of alimony payments
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"1. The ability of the payee spouse to be self-supporting
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Post-divorce alimony awards
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Alimony may be awarded after the granting of an annulment/divorce if: (i) the court granting the divorce reserved judgment on the issue of alimony, or (ii) the annulment/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 1 yr before the granting of the annulment/divorce.
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Extension or modification of the Awards
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An alimony award may be extended if circumstances arise during the alimony period that would lead to a harsh and inequitable result w/out an extension. The court may also modify the amount of the award as circumstances require & may modify alimony retroactively. Can even convert rehabilitative alimony into indefinite alimony, if warranted.
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Payor spouse quits his job
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A self-reduction in income by the payor spouse isn’t sufficient to have alimony reduced
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Termination of alimony
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Unless parties agrees otherwise, it terminates on the death of either party, the remarriage of the recipient, a finding that it’s necessary to avoid an inequitable result, or the expiration of the time period for which it was awarded. Cohabitation by the recipient w/a 3rd party doesn’t automatically terminate a support obligation. Once alimony has been terminated, a former spouse may apply for reinstatement if she experiences unforeseen difficulties.
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Tax consequences of alimony
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Generally alimony payments taxed as ordinary income to the recipient & are deductible to the payor.
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Child support
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$ paid to custodial parent for care of child (minor or handicapped adult, or who is unmarried, enrolled in high school, subject to parental control and between the ages of 18-19. Rebuttable presumption that a child is the marital child of a couple who is married @ the time of conception. Even if the husband isn’t 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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Computation of support
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"Income shares method
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Calculating the child support obligation where a parent voluntarily impoverishes himself
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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) his physical condition; (ii) his level of education; (iii) timing of any change in employment or financial position relative to the divorce proceedings; (iv) the relationship of the parties prior to divorce proceedings; (v) his efforts to find and retain employment, (vii) whether he has ever withheld support; (viii) his work history; and (ix) the job market in his community.
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Adjustments to parents’ actual monthly income
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Subtracted: actual cost of health insurance for a child for whom both parents are responsible, any preexisting reasonable child support obligations. If claims are made for alimony and child support, the alimony must be determined prior to the child support award
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Total child support obligation – expenses added to the basic child support obligation to arrive at the total child support obligation
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(i) child care costs incurred due to the employment or job search of either parent; (ii) extraordinary medical expenses; (iii) expenses for school; and (iv) transportation expenses related to the travel of the kid between the parents’ homes.
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Computation of child support award
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If physical custody is not shared, the parent’s adjusted monthly income is divided by both parents’ combined adjusted monthly income to arrive at the parent’s percentage share of the combined incomes, which is then multiplied by the total child support obligation.
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Presumption of correctness for child support awards
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Presumption that amt of support resulting from application of the statutory guidelines is correct. May be rebutted by evidence that application of the guidelines would be unjust or inappropriate in a particular case. The presence of another child to whom a parent owes a duty of support (e.g., from a previous marriage) doesn’t, by itself, serve to rebut presumption of correctness
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Modification of support orders
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Can be modified upon review or petition. Must show a material change in circumstances as a threshold requirement for modification of a fixed child support order. E.g., change regarding employment, inflation, income, children growing older, retirement, disabling illness, etc.
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Taxation of child support
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Child support payments are neither includible in the income of the custodial parent nor deductible by the payor parent
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Termination of child support
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Unless court orders or parties agree otherwise, child support ends when the kid is emancipated by reaching 18, marriage, or self-sufficiency, or upon termination of parental rights.
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Enforcement of orders of support
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Garnishment of wages; property seizure; contempt sanctions; property lien; garnishment of bank accounts; denial or suspension of a driving license; interception of an income tax refund or lottery payment; UIFSA (uniform interstate family support act – allows enforcement of spousal/child support obligation in another state); FFCCSOA (full faith and credit for child support orders act – requires courts to recognize support orders of other courts); CRSA (child support recovery act -- criminal penalty for willful failure to pay support to out of state kid)
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Types of custody
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"Legal custody - right to make major decisions affecting the child’s life, or physical custody – actual, physical possession and control of the child; or both.
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Uniform Child Custody Jurisdiction and Enforcement Act
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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 another state has jur to hear a child custody matter the UCCJEA, which MD has adopted, controls
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Purposes of the UCCJEA
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To avoid jurisdictional disputes w/courts of other states in matters of child custody and visitation, promote interstate cooperation, and to facilitate the interstate enforcement of custody & visitation orders
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Initial Custody Determination – Primary Test
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"Home State Test -- Home State Jurisdiction – court has jur to initially enter/modify a child custody/visitation order if the state
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Initial Custody Determination – when “home state rule” does not apply
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Where the Home State Rule does not apply – a court has jur to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction and (i) the kid and at least 1 parent (or person acting as a parent) have a significant connection with the state, and (ii) substantial evidence concerning the kid is available in the state. Also, a court has jur to enter or modify a child custody or visitation order if no other state has jurisdiction under another test
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Exclusive continuing jurisdiction
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"Court that made the initial child custody/visitation determination has exclusive continuing jurisdiction over the matter until the court determines that:
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When a court having jurisdiction under UCCJEA may decline to exercise its jurisdiction
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If it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum. Also, a court may decline to exercise jurisdiction if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (e.g., wrongfully taking the child from another state
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Temporary emergency jurisdiction
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If child has been abandoned or it is necessary in an emergency to protect the child b/c the child or her sibling or parent is subjected to or threatened with abuse
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Enforcement of another state’s order
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A custody/visitation order of one state can be registered in another state & enforced in that state in the same manner as one of its own orders. Also, the court can order the respondent to appear in person and ward immediate physical possession of the kid to the petitioner. The court may issue a warrant to take physical possession of the kid if he is imminently likely to suffer serious physical harm or be removed from the state. 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 reasonable belief that the person holding the child has violated a criminal statute
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Factors considered in making best interest determination in custody/visitation/child support case
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"1. Fitness of the parents
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Relation-related considerations in custody determinations
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No presumption that one parent has superior right to custody of the children. Ordinarily, when there are 2 or more kids of the same parents, the best interest of all such kids is served by keeping them together. Between a parent & a 3rd party (e.g., a stepfather), there is a presumption in favor of parental custody. This presumption can be rebutted by establishing, by a preponderance of the evidence, the parent’s lack of fitness to be a parent or exceptional circumstances injurious to the child.
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Joint custody considerations
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"No presumption if favor of joint legal/physical custody. Court considers, among other things:
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Visitation determination
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Standard is best interest of the child. When sole custody is awarded to one parent, the other party is usually given reasonable visitation rights. Visitation schedules depend on such factors as the age of the kid and the geographical proximity of the custodial and noncustodial parents.
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Visitation & independent support of duty
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A custodial parent can’t withhold visitation from a noncustodial parent b/c of failure to pay support
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Limitations on visitation 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. Absolute denial of visitation is rare; usually in these cases, the court will restrict visitation, such as by authorizing supervised visitation only
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Interference with visitation 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 visitation rights to ensure compliance.
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Visitation by 3rd parties
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"Traditionally, MD hasn’t placed a restriction on the type of relationship that a person must have w/a child to petition for visitation rights. By statute, grandparents may petition for visitation rights @ any time. Also, nonadoptive stepparents may be granted visitation upon termination of marriage.
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Modification of custody orders
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Must show that there has been a material change in circumstances. Once this is established, the modification must be shown to be in the best interests of the child. A change in custody triggered by the relocation of the custodial parent doesn’t violate the relocating parent’s constitutional right to travel if the custody change is in the best interests 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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Enforcement of child custody
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Civil contempt sanctions, including termination of custody or visitation, a fine, incarceration, and a posting of security
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Out-of-state custody decrees
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Enforceable if a certified copy of the decree is filed with the clerk of the court. Can be modified if the foreign court declines jurisdiction, the new court has proper jurisdiction under the UCCJA, and the out-of-state party gets 20 days’ notice prior to any hearing.
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Federal parental kidnapping prevention act
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Child custody orders don’t meet the final order test for full faith & credit b/c they are subject to modification. The PKPA mandates that full faith and credit be given to child custody awards if the act’s jurisdictional standards are met. Essentially the same jurisdictional standards as the UCCJA, except that a state can’t assume jurisdiction under the best interest of the child standard if another state is the kid’s home state. If the UCCJA and the PKPA are in conflict, the PKPA prevails.
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A victim of domestic violence may seek protection from future violence through a court order. Abusive behavior that triggers this right includes:
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"• An act that causes serious bodily harm
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Establishing an act that places a V in fear of imminent bodily harm
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Reasonableness of the fear judged by an individualized objective standard, i.e., the reasonableness of the fear perceived by a reasonable person standing in the V’s shoes
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V’s that may seek protection include
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"• Current or former spouse of the abuser
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Civil protection orders
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