Family Law

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Family Law
2015-07-20 13:39:04
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  1. Marriage
    • Marriage is a contract between two people who are not otherwise prohibited from marrying.
    • Typically, between two parties who can contract, involves the exchange of consideration in the form of mutual promises, and creates rights and obligations in both parties. Two requirements: (1) license and (2) solemnization.
  2. Marriage: License Requirements
    • Age. No age limitations when 18 or older. If 16-17, requires parental consent or physician’s certificate of pregnancy/birth. If 15, requires parental consent and physician’s certificate of pregnancy/birth. No one under 15 may marry.
    • Parties must not be too closely related by blood or marriage. Relations closer than first cousin forbidden.
    • Parties must be free to marry – not otherwise married
    • Waiting period of 48 hours between issuance and marriage ceremony. Once issued, ceremony must be performed within 6 months.
    • Same sex marriage is legal in Maryland.
  3. Marriage: Ceremony Requirements
    • An official must perform – judge, clerk or religious official.
    • Exchange of vows are required, but require no particular words or form.
    • No requirement for a witness.
  4. Marriage: Common-Law Marriage
    • Common law marriage cannot be formed in MD, but MD will recognize valid-common law marriages entered into in other jurisdictions.
    • Parties must agree that they are married via the present intent to be married, must cohabit and must hold themselves as being married. Can only be entered into if unmarried. If already married, the person must get divorced.
  5. Consequences of Relationship Other Than Marriage
    • Actions for breach of promise to marry (heart balm actions) and other related issues have been abolished except for a pregnant woman.
    • Domestic partnerships can be created between unmarried adults in a committed relationship. These parties must execute affidavits and provide proof of relationship to provide benefits. No state registry.
  6. Marriage: Ending a Marriage
    Annulment: grounds for annulment are things which existed before the marriage took place. To be effectuated, a legal determination must be made by clear and convincing evidence that the marriage never existed.
  7. Marriage: Void Marriage - two reasons
    • Treated as if the marriage never took place or existed.
    • Court action is not required but can be filed by a spouse or a third party.
    • Void for bigamy or incest.
  8. Voidable Marriage - five reasons
    • Requires judicial decree sought by the spouse.
    • Age – under 18 at time and failed to follow statutory requirements.
    • Mental incapacity – person could not understand the nature of marriage and its consequences at the time of marriage. Requires C&C evidence.
    • Intoxication – party was so impaired at the time of the ceremony that it affected the party’s knowing ability to enter the contract.
    • Fraud – must go to the essence of the marriage and conceal something really important at the time of the marriage. Puffery is insufficient to sustain. Guilty party cannot sue.
    • Duress – at the time of the ceremony, the party was threatened in such a way that it was not free will.
    • Remedies: distribution of property, alimony and child support. The legal status of children remain as legitimate children.
  9. Divorce: Generally
    • Divorce is favored over separation.
    • General requirements for divorce. First, the court requires oral testimony and corroboration of the testimony (unless a written separation agreement). Second, the grounds for divorce must exist at the time the complaint is filed.
  10. Divorce: Absolute Divorce
    • Dissolves or terminates the marriage relationship.
    • No-fault grounds for absolute divorce – one year separation where both parties have mutually agreed to separate and live apart in separate homes for at least 12 consecutive months without sexual relations before filing the complaint.
    • Fault grounds for absolute divorce.
    • Adultery: voluntary sexual intercourse between a married person and someone other than the spouse. Can be shown by direct or circumstantial evidence (must show opportunity and disposition, such as public display of affection or gifts given).
    • Desertion: the unjustified actual separation by one spouse for more than twelve consecutive months with the deliberate intent of terminating the marriage. Constructive desertion occurs when a spouse’s conduct makes it impossible for the other to continue to cohabit with safety and self-respect.
    • Criminal conviction with incarceration: when a spouse is convicted of a felony or misdemeanor carrying a sentence of at least three years, and the spouse has served at least 12 months.
    • Insanity: when a spouse has been institutionalized for three years before the complaint is filed. Must have testimony of two doctors that the insanity is incurable, and one party must have lived in MD for at least two years before filing.
    • Cruelty or excessively vicious conduct: conduct that endangers the life/person/health of the other spouse or minor children.
  11. Divorce: Limited Divorce
    • Legal separation – “divorce from bed and board” or “legal separation.” Does not terminate the marital relationship and the parties cannot remarry. It formalizes the separation and enables parties to obtain relief such as alimony or child support.
    • No-fault ground by the mutual agreement of the parties to live separate and apart. No cohabitation and no chance of reconciliation. No prescribed waiting period.
    • Fault grounds for limited divorce.
    • Desertion, whether actual or constructive. No prescribed period of time, but requires intent to leave the marriage.
    • Cruelty or excessively vicious conduct.
  12. Divorce: Defenses
    • Recrimination: marital misconduct by both parties.
    • Condonation: waiver or forgiveness of wrongdoing with knowledge of the misconduct and resumption of sexual relations.
    • Connivance: aggrieved spouse consents/permits the marital misconduct
    • Collusion: both parties conspire to fabricate grounds for divorce.
    • Provocation: one party provokes the marital misconduct.
  13. Divorce: Division of Property
    • Marital Property: MD is an equitable distribution state – the fair division of property between spouses according to statutory factors. It is not necessarily an equal split. Applicable only in the absence of an agreement between the parties about how marital property will be divided.
    • Property should be divided in a fair and equitable manner, giving consideration to monetary and non-monetary considerations. The interest of children of the marriage should be given particular and favorite attention.
    • Annulment/divorce: real and personal property. Limited divorce: personal property only.
  14. Classifications of the Spouse's Property
    all property must be marital or non-marital property.
  15. Marital property
    All property acquired during the marriage, all property held as tenants in the entirety (rebuttable presumption), and retirement benefits/wages/salaries/lottery winnings/other accumulations.
  16. Non-marital property
    Property acquired before marriage, property acquired by gift/inheritance received in a party’s sole name, passive increases in non-marital property, property directly traceable to non-marital property, and property excluded by agreement.
  17. Divorce: Source of Funds rule
    If property has been purchased by both marital funds and separate funds, the property will be considered marital property to the extent that marital funds were used. (50% marital funds to purchase --> 50% marital property).
  18. Divorce: Valuation of Property
    • Value is net value – the value minus debt owed.
    • Valuation is made at time of divorce, not separation.
    • Pensions earned during marriage are marital property.
  19. Divorce: Distribution
    • The court considers the following statutory factors when distributing property:
    • (1) economic circumstances of each party,
    • (2) monetary/non-monetary contributions of each party to the family,
    • (3) contributions to help acquire marital property,
    • (4) each party’s contribution to non-marital funds to acquire property as TITE,
    • (5) whether alimony is being awarded and how much,
    • (6) fault/misconduct of the parties,
    • (7) age and physical/mental health of the parties,
    • (8) length of the marriage, and
    • (9) anything else the court finds just and proper in reaching an equitable award.
  20. Divorce: Family use property
    • The custodial spouse and minor children may be awarded use of the family home for up to 3 years. Must be principal residence in MD.
    • Can also include personal property acquired during the marriage which is primarily used for family purposes.
    • Std: in the best interest and welfare of the child.
  21. Divorce: Other property interests
    • Professional licenses or degrees are personal to the holder and not a property interest.
    • Retirement and pension benefits are marital property when acquired during the marriage.
    • Social security is not subject to distribution, but may be considered by the court.
    • Property is not taxed when transferred between two spouses, but may be taxed when sold.
  22. Divorce: Spousal Support and Alimony
    One spouse can be ordered to support the other during the divorce proceedings, legal separation or following divorce. Rehabilitative alimony is favored. A party who wants alimony must seek it in the divorce complaint. Alimony is taxable for the recipient, and deductible for the payor.
  23. Alimony Factors
    • (1) ability to be self-supporting,
    • (2) time needed to obtain suitable employment, including training,
    • (3) standard of living and duration of the marriage,
    • (4) circumstances that led to the dissolution of the marriage (fault),
    • (5) age, mental/physical health of parties,
    • (6) contributions to the marriage,
    • (7) resources and needs of both parties,
    • (8) agreement between the parties,
    • (9) effect on eligibility for medical assistance, and
    • (10) any other factor affecting fairness.
  24. Alimony: Alimony pendente lite
    • Temporary alimony payments while the divorce proceeds.
    • Requires (1) proof of marriage, (2) proof that divorce action is pending, (3) need for the alimony, and (4) proof that the party has the ability to pay. Awarded regardless of fault or success on the merits.
  25. Alimony: Rehabilitative alimony
    • Alimony awarded for a specific amount of time to allow the receiving spouse to become self-supporting.
    • Looks at the statutory alimony factors.
  26. Alimony: Indefinite alimony
    • Permanent award of alimony.
    • Disfavored, but permitted when (1) unlikely that the spouse will ever become self-supporting, or (2) unconscionable disparity in standard of living between the spouses after rehabilitative is awarded.
  27. Alimony: Modification of alimony
    • An extension or change in the alimony.
    • Requires a change in circumstances which would cause an inequitable result in its absence.
    • The agreement must expressly allow modification, which can be precluded by the agreement.
    • A party is not allowed to quit their job voluntarily and claim a change in circumstances warranting modification for lesser payments.
  28. Alimony: Termination of alimony
    When alimony ends. Unless expressly agreed to otherwise, alimony terminates on (1) date set by court, (2) death of either party or (3) remarriage of recipient. Cohabitation without remarriage, termination or modification is possible grounds for modification.
  29. Alimony: Jurisdiction
    • Residency requirements: Generally, one resident must have lived in MD for at least one year to sue for marriage. When cause of action/grounds for divorce arose in MD and one party is a MD resident, no minimum residency requirement.
    • Venue: proper venue is in the country where the defendant works or lives, or the county where the plaintiff lives.
    • Personal jurisdiction: ex parte divorces are divorces with out-of-state defendants. Personal jurisdiction required to decide child support, alimony and rights outside of MD, but it is not required to get a divorce.
  30. Divorce: Foreign Country Divorces
    Foreign country divorces are not necessarily entitled to full faith and credit by MD.
  31. Divorce: Indigent Parties
    Indigent parties are not entitled to representation, but the state must waive filing fees.
  32. Child Support: Basics
    • Both parents have a duty to their biological children.
    • Right to receive child support belongs to the child and the parents cannot waive it.
    • The right to receive child support exists independent of visitation rights.
    • Tax Consequences: child support is not taxed as income for the recipient and is not deductible for the payor. Any payment not deemed alimony is treated as child support.
  33. Child Support:Paternity Actions
    • In child support, paternity must be established or acknowledged because parents have a duty to pay.
    • If parents are married, rebuttable marital presumption of paternity for children born during the marriage, but no presumption for children born outside of wedlock.
    • Paternity can be proven by an acknowledgment in writing of paternity, or paternity test when in best interest of the child.
  34. Child Support: Amount of Support
    • Child support is a regular ongoing payment with other additional expenses to be paid for pre/post-natal expenses, extraordinary medical expenses, health insurance, day-care/education costs.
    • The court uses Child Support Guidelines. MD uses income-sharing in child support. Each child should enjoy the same lifestyle as if the parents were still together. This is the floor; parties can agree to more. Income applies to a certain point, but the court may exceed it in its discretion.
    • Income can be imputed in the event of voluntary impoverishment – looks at a party’s potential income.
  35. Modification of Child Support:
    Requires a material change in circumstances in either (1) child’s needs or (2) parent’s ability to pay, making it in the best interest and welfare of the child. Amount can only be change prospectively.
  36. Ways to Enforce Support Orders
    • Standard way to enforce is to allow for income withholding.
    • Additional remedies include contempt, seizure of tax refund, suspension of driver’s license, denial of passport, and seizure of property.
  37. Civil contempt
    • Court puts non-paying parent in jail until the parent pays the child support.
    • Requires C&C evidence.
  38. Criminal contempt
    • Fine and imprisonment as punishment for a willful failure to pay.
    • Trial by jury required to prove that failure to pay is not willful.
    • Defendant is entitled to constitutional protections.
    • Requires proof beyond a reasonable doubt.
    • Punishable by imprisonment by 3 months.
  39. Child Support: Uniform Interstate Family Support Act (UIFSA)
    • Simplification of collection of child support and alimony payments across state borders.
    • Initial determination: jurisdiction lies in the home state where the action was filed. That first state retains continuing exclusive jurisdiction over the child support order. Requires proper service in-state or through long-arm statute. If unavailable, procedure exists to transfer the petition to the state of the non-custodial parent.
    • Modification: home/initiating state maintains exclusive continuing jurisdiction to enforce an order until both the parties and the child move out of state or consent to jurisdiction in another state. Prevents forum shopping and inconsistent orders.
    • Enforcement in Another State: a child support order can be registered in any state where the obligor has income or property.
  40. Child Support: Full Faith and Credit Child Support Act
    If state who decides the matter had SMJ and PJ, the order will be treated and enforced as a final order in any other state.
  41. Child Custody: Two types
    • Legal custody: the right to make decisions for the child
    • Physical Custody: the right to have the child live with a parent.
    • Joint custody: when both parents have legal and physical custody of the child. Need not be 50/50 split. No presumption of joint custody in MD.
  42. Child Custody: Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): federal law which determines the location of child custody cases.
    • Initial determination: MD can hear the case when it is the home state for six months or since birth, or it was the child’s home state within the past six month and one parent still remains.
    • Exclusive continuing jurisdiction: until the parties do not reside in the state or the child lacks significant connection to the state.
    • Enforcement of another state’s order requires (1) registration of a certified copy of the custody order and (2) a court order which will grant the petitioner’s request --- absent the respondent’s assertion of a defense.
  43. Child Custody: Best Interest and Welfare of the Child Standard
    Biological parents are presumed to be the best custodians unless they are unfit to parent or other exceptional circumstances exist that would make award of custody detrimental to the best interest of the child.
  44. Child’s Factors - BIWC
    courts consider the age/sex/health of the child, the child’s special needs, opportunities affecting the child’s future, and the wishes of a mature child (age 12 or older) are given particular but not decisive weight.
  45. Parent’s Factors - BIWC
    • Character and fitness, wishes, agreement, distance between parties, the length of separation, and prior negative issues like domestic violence or abandonment of children.
    • Parent’s willingness to cooperate is the most important factor in determining custody.
  46. Additional considerations - BIWC
    Additional considerations include keeping siblings together, parental employment obligations, geographic locations and other practicalities.
  47. Child Custody: De facto parents and child advocate attorneys
    • Stepparents and non-biological same-sex parents are not automatically recognized as having rights of access to the child, but their relationship will be considered when the court makes custody decisions.
    • A child advocate attorney could be appointed for a child in hotly-contested cases.
  48. Visitation: Noncustodial parents and third parties
    • Are entitled to reasonable visitation. This may be restricted but only when in the best interest of the child.
    • Third parties can be given visitation rights if there is a showing of parental unfitness or exceptional circumstances – both must be in best interest of the child.
  49. Visitation: Enforcement
    Refusal to comply with a custody/visitation order can be remedied by contempt or change in custody, and may be enforced through contempt, award of reasonable attorney’s fees or fines. Registration makes the order enforceable in other states.
  50. Visitation: Modification
    A party seeking modification of a custody order has the burden of proving a material change in circumstances which make it in the best interest of the child to change the order.
  51. Visitation: Relocation
    • May trigger reevaluation of custody if it is shown to be in the best interest of the child.
    • Relocation requests must consider constitutional right to travel.
    • Child’s interest is considered as well.
  52. Marital Agreements: Prenuptial Agreements
    • Contracts made before the marriage which dictate the awards of property and spousal support in the event of divorce or death.
    • Marriage itself can be the valid consideration for entering into the agreement and signing the prenup.
    • Signing a prenup can be condition of marriage.
    • Enforceable when valid – MD courts consider (1) full disclosure of finances, (2) fair terms re- health, wealth and age, and (3) voluntary nature of agreement, including opportunity to consult independent counsel.
  53. Marital Agreements: Separation Agreements
    • Contracts relating to custody, support and property made by spouses who intend to divorce.
    • Entered into after marriage but before divorce. These agreements may be merged into the final judgment of divorce, provided full and fair disclosure and the consent of the parties.
  54. Marital Agreements: Post-nuptial Agreements
    • An agreement that upon divorce settles support and property issues.
    • Must designate marital and non-marital property. Presumed valid absent inequity or injustice.
    • Can be vacated upon contract principles, such as unconscionable (fair and equitable), duress or fraud.
    • BOP on party seeking to vacate.
  55. Marital Agreements: When they can be modified
    • Provisions affecting children are always modifiable if in best interest of child.
    • Spousal support may be modified unless prevented in the agreement.
  56. Marital Agreements: Enforcement
    • After merger and incorporation into a divorce decree, the agreement can be enforced as a court order, and the party must have the court use its contempt power.
    • If the agreement is incorporated but not merged, it can be enforcement through contract law or court’s contempt power.
  57. Adoption: Termination of Parental Rights
    • Adoption terminates the previous parent-child relationship and creates a new one, resulting in a new birth certificate. Any adult can petition to adopt. Singles can adopt. The records are sealed and confidential.
    • Determined by what is in the best interest in the child.
  58. Adoption: Voluntary
    • Biological/adoptive parents can consent to the adoption of a child.
    • Reviewed by court under best interest of the child standard.
  59. Adoption: Involuntary
    • Only achieved through a court proceeding.
    • Can be terminated in an abuse, neglect or dependency case.
    • Termination also occurs when one parent is convicted of a crime of violence against the other parent with a sentence of at least 10 years.
    • Health and safety of the child are the primary considerations.
    • Courts also consider availability of services, agreement and cooperation with social services, payment of support, maintaining contact with the children.
    • Feelings of the child are also consideration, along with any past, present or risk of future neglect or abuse.
  60. Adoption: Legal effect
    The adoptive parents have all the rights and responsibilities of biological parents, and the child enjoys the same status that the biological child will have.
  61. Adoption: Open Adoption
    MD allows visitation between biological parents and the child after adoption if all parties agree and it is in the best interest of the child.
  62. Adoption: Equitable Adoption
    MD law allows a child to be recognized for some purposes based upon the conduct of parents – see: estates and inheritance.
  63. Abuse: Protection Orders
    • Actions can be filed by anyone involved in a close family relationship as defined by statute.
    • Protection orders are designed to protect parties from abuse -– behavior that causes reasonable fear of harm, sexual offenses, stalking or false imprisonment.
  64. Abuse: Temporary Ex Parte Protective Orders
    • Petitioner must prove by preponderance of the evidence that there are reasonable grounds to believe that abuse has occurred.
    • Effective for 7 days, but can be extended.
    • Respondent must be served notice but need not be present.
    • Relief available includes no contact, abuser vacates residence, child custody decided, seizure of weapons, and presence prohibited from certain locations.
  65. Abuse: Final Protective Orders
    • Once an ex parte order is granted, a final order must be heard within 7 days.
    • Petitioner must prove abuse occurred by clear and convincing evidence.
    • Good for one year, but may be extended for six months.
    • Relief available includes child support, visitation schedule, use of vehicle and counseling in addition to ex parte relief.
    • Violation of protective orders can result in contempt, fines, criminal penalties and incarceration.
    • Can be made permanent.
  66. Abuse: Peace Orders
    • Allow for protection of non-family members.
    • Similar relief available as in protective orders.
    • Standard is clear and convincing evidence.
  67. Statute of Limitations for Court Orders (Family Law).
    A recipient of child support or alimony has twelve years from the due date of the individual payment to bring suit.
  68. Award of Attorney's Fees
    • A party who fails to pay court-ordered child support or alimony may be sanctioned with the payment of attorney's fees. 
    • Court considers  (1) the financial needs and resources of both parties, and (2) whether there is substantial justification for bringing the action.