Mutual Consent in Maryland doesn’t need to be a Mystery

Up until 2015, Marylanders looking for an absolute divorce could only choose from a small number of immediate divorce conditions or separate for at least 12 months before filing. Mutual consent divorce is a new third option that forgoes the year of waiting and allows for immediate filing.

Who Qualifies for a Mutual Consent Divorce in Maryland?

Maryland couples who do not share a minor child can file for mutual consent divorce. If you have minor children from previous relationships, you can still file for a mutual consent divorce. Once you decide to divorce, you must make a separation agreement that resolves the division of all marital property, pensions and alimony (whether by a mutual waiver or specific amounts and durations). Both parties must sign the document and file it with the Court, along with their complaint based on mutual consent. The Court will set a hearing date that both parties must attend.

How is Mutual Consent Divorce a Better Option?

Previously, couples who didn’t share children needed to maintain two residences for at least a year before filing for divorce. The process could be costly and impractical, especially since the couple already discussed their issues and decided to formally divorce. With mutual consent divorce, you can cohabitate throughout the divorce period, and even afterwards, without it ever entering into the legal equation. Mutual consent divorce gives you more freedom and can save you a lot of financial stress.

Are There Any Bumps in the Road?

Mutual consent divorce might sound too simple to be true. While the process can be smooth, the division of marital property and alimony agreement can add a lot of time to the equation. Be sure to use an attorney you trust and carefully assess all shared property and assets before agreeing, even verbally, to anything. If you are ready to get the mutual consent divorce process started, Lebovitz Law is here to help. Contact us today at (410) 828-0680.

Don’t Forget Your Security Deposit

Getting your security deposit back shouldn’t be a hassle…
but what if it is?

security-deposit
Moving out can be an exciting but stressful time. Even after the actual moving part is over, there can sometimes be problems.  One common problem is the landlord’s failure to send back the security deposit. When you’ve done all that was required as far as cleaning, shampooing carpets, scrubbing surfaces and removing all personal items…you expect to receive that security deposit. What happens if your landlord doesn’t send it?

Security Deposit 101

The security deposit is given to the landlord during the move-in and leasing process. It’s typically used to cover unpaid rent, replace broken items within the rental property and repair any damages.

How Do You Get the Security Deposit Back?

First things first, sit down with your lease to make sure that you are properly meeting all of the terms and conditions before moving out. All property that was in the apartment when you arrived, like light fixtures and appliances, must remain. The property should be in good physical condition. Anything classified as wear and tear won’t be charged for, but wear and tear can be a broad designation depending on your landlord. Make sure that you give sufficient notice, according to the terms in your lease, for moving out to avoid additional fees or losing a portion of your security deposit. If your lease was over one year, you are entitled to interest on the security deposit, which your landlord should keep in a separate bank account without any co-mingling of funds.

What if There Are Damages?

If there are damages in your apartment, make sure that you ask for an itemized list so that you know what you’ll be paying for. Damages do not typically exceed the actual cost of repair, even on items that are pricey to replace like carpet.

The Deposit Timeline

Typically, a deposit is returned in full or returned with a list of itemized deductions. The state of Maryland requires all landlords to return the security deposit within 45 days of the move out date.  Always leave a forwarding address with your landlord so that he or she has somewhere to send the security deposit, as all that’s needed is to mail the check to the last known address (which might not be where you’re headed).

I Never Got My Deposit!

If you still haven’t received a deposit or explanation for the lack of check, complete the following steps:

  • Complete a Request for Return of Security Deposit form, typically available through a local or state tenants’ association or lawyer
  • Send the Request to your landlord via certified mail and request a receipt of delivery
  • Allow one week to hear a response from your landlord
  • If it has been over 45 days, Maryland law allows for you to deny repair costs, damages, or deductions other than unpaid rent, including damages up to three times the amount of any unpaid rent and attorney’s fees.

If you are struggling with retrieving your security deposit, Lebovitz Law is here to help. Contact us today at (410) 828-0680.

Wells Fargo Terminates Ocwen from Mortgage Servicing Deal

Wells Fargo Terminates Ocwen from Mortgage Servicing Deal.

New Protective Order Laws

Peace and Protective Orders are civil orders issued by a judge that Orders one person to refrain from committing certain acts against others. The relationship between the Petitioner (person seeking protection) and the Respondent (person alleged to have committed the prohibited act) determines the type of Petition to be filed. Protective Orders generally apply to people in domestic relationships, such as spouses, boyfriends/girlfriends, children, relatives. Peace Orders are for other persons like neighbors, coworkers, other third parties who harass or are doing something that threatens the Petitioner.

On October 1, 2014, Maryland will relax the burden of proof required by a Petitioner seeking a Final Protection Order in a domestic violence case. The current standard of proof requires the Petitioner to prove by clear and convincing evidence. The new standard will lower the threshold to a less rigid preponderance of the evidence standard. This will result in making Protective Orders more accessible and attainable as most situations involve a “he said, she said” situation with little physical proof of a threat of eminent bodily harm.

Only time will tell whether this lower standard of proof will result in a greater number of Final Protective Orders.

Validity of Agreements

At Maslan, Maslan & Rothwell, P.A., we are not afraid to take on difficult cases and potentially create new law. A client contacted our office from another state that was facing potential child support arrears in excess of $70,000 and unpaid alimony in excess of $40,000. His ex wife claimed he was in contempt of a marital settlement and divorce decree that required him to pay child support and permanent alimony. He presented counsel with a signed agreement whereby his ex wife agreed to waive her permanent alimony award and future child support payments in exchange for him not exercising his visitation rights.

At trial, the ex wife admitted that there was an agreement but the court was concerned about Maryland Family Law Article 12-104(b) Modification of Child Support and the case of Harvey v. Marshall, 389 Md. 243, 884 A.2d. 1171 (2005) which provided that “the court may not retroactively modify a child support award prior to the date of filing of the motion for modification.” This statute and case stand for the proposition that 12-104 provides for a prohibition against retroactivity modifying or eliminating arrearages for child support.

In Maryland it is also well settled law that child support is absolute and cannot be waived by parents by an agreement. It is an alienable right enjoyed by the child for which not form of contract between the parents, nor change of domestic circumstances of either of them may effect.. Weaver v. Garrett, 13 Md.App. 283, 287, 282 A.2d., 509, 411 (1971).

The client had the signed agreement but was unrepresented by counsel and never filed a motion to modify the child support or alimony in the case. The Office of Child Support Enforcement started to collect child support, some years after the agreement was signed and had set a nominal amount of arrears. The client paid what was requested and the case was marked as closed when the minor child reached the age of majority at 18.

The ex wife presented no evidence at trial on what happened with the office of child support enforcement and the issue of arrears. She offered no testimony to contradict or challenge what the father had paid. The Court found that it was not terribly difficult to find a binding agreement between Mother and Father regarding alimony. The Court stated that the Court was not persuaded of any fraud or duress on Father’s part in getting mother to sign the agreement. The contract was supported by consideration, ie you stay away from child and I waive alimony. Mother did nothing after the agreement was signed.

The Court struggled with the child support issue. The Mother presented no evidence of any action for years to collect the claimed obligations of Father. She filed no contempt actions, and no explanation why the office of child support enforcement closed their file. The court stated that must be persuaded by the evidence and at least by a preponderance of same that father still owes years and years of back child support. The Court stated it was not persuaded by the evidence presented by Mother. The Court stated that there were too many unanswered questions and too many years which have ensued to find for the Mother.

This case was proof that a client with a simple agreement and a great story can be helped. The attorneys at Maslan, Maslan & Rothwell, P.A., have the experience and knowledge to present cases like this one in the Maryland Courts and achieve good results.

Alimony

In general, there are four types of alimony:

  • Temporary Alimony: Support ordered when the parties are separated prior to divorce. Also called alimony pendente lite which is Latin meaning “pending the suit”.
  • Rehabilitative Alimony: Support given to a lesser earning spouse for a period of time necessary to acquire work outside the home and become self sufficient.
  • Permanent Alimony: Support paid to the lesser earning spouse until the death of the payor, the death of the recipient, or the remarriage of the recipient.
  • Reimbursement Alimony: Support given as a reimbursement for expenses incurred by a spouse during the marriage (like educational expenses).

Alimony is considered a controversial area of the law due to the lack of a convincing legal theory as to why a spouse should continue to support a former spouse after the marriage has ended.  The fairness of permanent alimony in America has been questioned and the rise of an alimony reform movement has been documented in several recent articles in The Wall Street Journal, The New York Times, The Boston Globe, ABC News,and the Huffington Post and on National Public Radio. Alimony is considered one of the greatest sources of litigation in family law cases. Eighty percent of divorce cases involve a request for modification of alimony. The unpredictability of alimony awards makes settlement of this issue difficult. Divorce law in the U.S. was based on English Common Law, at a time when a woman gave up her personal property rights on marriage. Upon separation from marriage, the husband retained the right to the wife’s property, but, in exchange, had an ongoing responsibility to support the wife after dissolution of the marriage.  Alimony continued after Married Women’s Property Acts (1848), permitted divorced women to regain the property they owned before marriage, and disputed the notion that the support after divorce should not be necessary.

Prenup: Romance Killer or Responsible Legal Tool

When your partner suggests a prenuptial agreement, you might feel like they are saying “I have doubts about your true agenda as well as our ability to make this marriage work for the long haul”.   Because a prenuptial agreement only becomes valid during a divorce, broaching the subject can feel like a romance killer for the newly engaged couple.

 

But prenuptial agreements do not have to be romance killers.  Couples who are pragmatic about finances tend to have the most long lasting marriages!  Unfortunately, the harsh reality is that over half of marriages end in divorce.  Divorce can be stressful, exhausting and expensive.  A prenuptial agreement is a legal agreement that defines the nature and scope of each spouse’s assets, anticipated assets and marital property in the case of a divorce.  A prenuptial agreement can make the division of marital property much smoother during divorce proceedings.

A prenuptial agreement has the reputation of being utilized by very wealthy men with trophy housewives.  That reputation is changing.  We live in a world where men are stay-at-home dads, women are corporate executives, divorces and second marriages are common, same sex marriage is legal and people are entering into marriages with monumental student loan debt.  Nowadays modern marriages are just as much about a romantic union as they are a financial union.  Prenuptial agreements help ensure the financial well-being of a modern marriage as well as make divorce less stressful.

Prenuptial agreements define the division of marital property in the case of a divorce.  Marital property can be tangible and intangible assets as well as debts.

  • If your spouse pursues secondary education and acquires debt, a prenuptial agreement can define that debt as individual debt.
  • If you plan on giving up your career to be a stay-at-home mom or dad, then a prenuptial agreement can compensate you for sacrificing years of work experience.
  • If during the marriage you have started your own business and it has become very profitable, a prenuptial agreement can limit a former spouse’s financial interest or control of the business.
  • If you have children from a first marriage, a prenuptial agreement can help protect their inheritance rights.

One of their main drawbacks is that you cannot predict the future.  Circumstances may change and what seemed like a fair division of marital property when the prenuptial agreement was signed could turn out to be a huge burden.  Another disadvantage to prenuptial agreements is that they are usually created during an engagement.   At this time it is hard for couples to imagine the marriage ever ending. This often results in one or both partners being very lenient in the prenuptial agreement terms and not looking after their best interest.