New Maryland Law Helps Victims of Domestic Violence

May 8, 2013 Leave a comment

Domestic violence is a two way street of co-dependency which boils down to control.  Abusers are trying to control their victim through a variety of manipulative tactics; constant put downs, undermining their abilities, ultimatums, forcing compliance with threats, alienating victims from their support circles, and sometimes even turning the couple’s children against the victim.  Domestic violence often starts with emotional abuse and leaves victims feeling helpless and out of control.

 

In addition to the emotional and physical scars, domestic violence victims are manipulated to believe that they cannot escape their situation.  Without feeling empowered or in control of their own lives, victims of domestic violence are afraid to leave their abusers.  Many laws have been put in place to make it easier for victims of domestic violence to leave their abusers.

There are three types of Domestic Violence Protective Orders (DVPOs); interim, temporary and final. You can file for a DVPO in any district or circuit court in Maryland.  If the clerk’s office is open, you would file with the clerk.  If the clerk’s office is closed, you would file an Interim DVPO with a District Court commissioner.

Under a DVPO the defendant cannot abuse, threaten, contact, or harass anyone in the order, which may include the victim or the victim’s children, family, or friends.  They have to stay away from your children, your workplace or wherever you are staying.  Any DVPO can order the abuser to moveout of the home and can grant you use and possession of the family home under certain conditions, can give you temporary possession of any pet, and give you temporary custody of your children (if the child was there when the abuse happened and if child abuse is suspected as well).  A temporary order the defendant has to surrender any firearms.   A final order can do even more – set up visitation with the children’s best interest in mind, order the abuser to pay for child support and emergency maintenance, use and possession of family vehicle, both you and abuser go to domestic violence counseling, and order the abuser to pay for court costs.  A judge can order any or all of these depending on the facts of your case.

In addition to DVPOs this year the Maryland General Assembly passed two new protection laws to victims of domestic violence that become effective October 1, 2012.

First, victims who are forced to quit their jobs to escape the threat of domestic violence will be eligible for unemployment insurance benefits which are normally only available to terminated employees.  It takes away the hurdle of losing their means of supporting themselves in the short term.

The second law requires judges to report whether or not defendants are found to have had a “domestically-related relationship” with their victims. If they have, a notation will be added to their criminal record that indicates they have committed a domestic violence-related crime. That will be used by law enforcement to monitor domestic violence offenders.

It’s up to judges to determine the extent of the relationship and mark it in criminal records at the time of sentencing, allowing other law enforcement to access information to quickly distinguish whether a crime is domestic violence-related.

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To Marry, or not to Marry? That is the Question

May 8, 2013 Leave a comment

People appear increasingly less willing to take the plunge and tie the knot, meanwhile national marriage statistics continue to take a plunge instead.

 

It is becoming more common for couples to exhibit all of the usual symptoms of a marriage without actually getting married. The causes behind this cultural shift are likely as complicated as the legal ramifications that transpire.  According to the US 2010 Census data, over 7.5 million unmarried couples live together.  Other trends demonstrate that unmarried couples are now more frequently sharing finances, making joint purchases, and starting families. Some couples even go as far as having a wedding reception and wearing wedding rings, but never sign any legal documents.

This issue begs a number of legal questions. Unmarried couples are exposed to a variety of uncertainties typically addressed by traditional marriage. These uncertainties include how to recognize divided or shared property and finances, discretion of care in cases of emergency and other decision making responsibilities between spouses. Additionally, it also leaves a mess of questions to be answered should the couple break up.

A couple that isn’t legally married will not receive any of the benefits that come with marriage, such as various tax breaks and other privileges.  However, there are still several ways an unmarried couple can protect themselves financially and legally.

Legally recognized spouses are usually automatic beneficiaries in estate plans.  An unmarried couple may want to write a will that ensures that their partner will receive property when the other dies. Otherwise, assets may be inherited by closer family members without that being the actual intention of the deceased.

Unmarried couples can consider creating a “living together contract” that outlines property division to avoid court battles in the event of a break up.  A living together contract should include the property or finances that one party had before the relationship began, and those bought, inherited or received during the relationship.  Living together contracts often include a method for resolving disagreements, such as mediation or collaborative law.

In Maryland, a child born during wedlock is presumed to be a legitimate child.  Unmarried couples should consider signing a paternity statement to protect a father’s rights in the event of a break up.

Unlike a marriage, unmarried couples are not responsible for each other’s debt and often enjoy a certain degree of financial independence.  However, this financial independence disappears when unmarried couples sign joint purchase agreements, cosign on a loan, or a partner’s debt is charged to a joint bank account. It is important for these couples to decide how to deal with debt.

Unmarried couples with no intention of marrying might find it helpful to seek the advice of a family law attorney who can help them draft contracts, paternity statements, or create an estate plan to ensure that each partner is treated fairly.

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The Driving Age

May 8, 2013 Leave a comment

When your teenager starts driving it’s a load off your back; no more driving them to school, to the mall, to a friend’s house, or to cheerleading or soccer practice.  But that relief is quickly replaced with a whole new set of worries; car accidents, driving under the influence, staying out too late, or using their cell phone to talk or text while driving.

In the State of Maryland, Teenagers can obtain their drivers permit when they are 15 year and 9 months old.  They can then obtain their full provisional license when they are 16.5 having completed a driver’s education course and their parents’ have verified they have driven 60 hours on the roads in varying weather and light conditions.

As much as parents dream of the day their teenager begins driving, they also dread it. And for a good reason; not only do teenagers have the highest average number of motor vehicle accidents than any other demographic, but car accidents are the leading cause of death among America’s teenagers. On a lighter note, parents also dread the potential doubling of their car insurance rates as they add their sons or daughters to their insurance policies.

Teenage Driving Statistics:

The National Highway Traffic Safety Administration (NHTSA) found that 19 percent of drivers below the age of 20 who were involved in fatal car accidents were distracted by their cell phone.  A recent AllState Foundation survey shows other important teenage driving statistics:

  • 56% use their cell phones while driving
  • 55% exceed the speed limit by more than 10 mph
  • 26% exceed the speed limit by more than 20 mph
  • 44% drive more safely without friends in the car
  • 40% of teen auto deaths occur between the hours of 9pm and 6am

These teenage driving statistics form the basis for many Maryland teenage driving laws. For example, Maryland law prevents a novice driver in the intermediate stage from driving between midnight and 6am.  Maryland law also restricts the number of teenage passengers in a teen motorist’s car.  Beginning drivers can only drive their own siblings in the vehicle and cannot drive other teens in the vehicle until they are 17 or 18 depending on whether they took a driver’s education course. Maryland teenage driving laws are designed to help teenage drivers ease into safe, full-time drivers.

However, the Maryland teenage driving laws are not enough.  Parents need to lead by example and be more involved in teaching their teenagers good driving habits.

The NHTSA is asking parents to monitor the number of teen passengers in the car, encourage seat belt use and establish a parent-child driving agreement that clearly outlines his responsibilities and obligations as a motorist.  Parents of teenage drivers need to learn about the graduated driver licensing laws in their state.  “Rookie Driver” is Maryland’s Graduated Driver Licensing System.

Encourage your teenager to buckle up each and every time he drives, and lay down strict rules about cell phone use while driving.  Even though Maryland is a hands-free state in regards to cell phone use, learners permit holders and drivers under the age of 18 cannot use any form of wireless communication devices even if they are hands-free.  The only exception is if they need to make an emergency call.  We parents need to lead by example and leave our phones off or in the back seat and not give in to the temptation to answer the call or text while in the vehicle.

Lastly, parents are encouraged to have frank conversations about driving under the influence of drugs or alcohol.  It is prohibited for an underage motorist to drive with any amount of alcohol in his system.  Avoidance of such practices is an important, potentially life-saving subject that parents must broach with their teenage driver.

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Wednesday Evening and Every Other Weekend

December 12, 2012 Leave a comment

Child visitation schedules are very important to have when it comes to determining which parent has physical custody of a child at any given time. First you should familiarize yourself with the current family laws of the State of Maryland or contact an experienced family law attorney to determine your rights. The Maryland code, Court Rules and Case Laws are great places to start if you do not have an attorney.

 

The Maryland Court System does not have a preference for any specific parent or gender when making a determination on child custody. The Maryland Courts focus on the “best interests of the child standard” when making visitation and custody decisions.

The court takes into consideration many factors when determining custody and visitation arrangements such as the parents’ capacity to provide for the child, the living arrangements at the parent’s home and the parent’s ability to support the child.  The Maryland court will look at past instances of abuse or domestic violence in visitation and custody cases.  In some instances even grandparents and the children themselves can petition for visitation rights (See Post: Old Enough to Choose).

Creating a child visitation schedule can be hard to do during a time when emotions are high, especially during a divorce.  You don’t have to work with the other parent on coming up with a visitation schedule but it is in your child’s best interest to do so. Only the parents know the intricacies of their own schedules and an in-depth knowledge of their children’s needs.  It is best for the parents to make a determination without the courts when making a visitation schedule. Otherwise a judge (a complete stranger) will make these important decisions for the parents.

Setting aside your differences to create an effective visitation schedule is something that most parents do for the sake of their children. However, if you are unable to reconcile differences a court officer or mediator will make the decision for you based on the best interest of the child.  When making a visitation schedule try to think about all of the aspects of your child’s life from daily activities to special circumstances. If you make a schedule so that your child’s needs are met, then you will have a schedule that benefits your situation.

Even though Maryland doesn’t have a standard visitation schedule some counties have guidelines which can help you make a decision.  A common visitation schedule provides that the non-custodial parent who lives less than an hour away from the custodial parent can have the children every other weekend from 7 pm on Friday to 7 pm on Sunday.  Usually a visitation schedule will grant the non-custodial parent one evening during the week with the child as well. The residential visitation schedule should closely resemble the type of custody the parents have. The courts look at the current schedule of the parties to maintain the status quo.

In addition to the normal weekly visitation schedule parents should also consider holiday schedules and vacation schedules.

A holiday visitation schedule should include provisions for your child time to spend time with each of you on holidays and other special days. Many parents rotate the holidays, alternating them every year.  But for parents whose professions are in healthcare or retail, rotating holidays isn’t always an option as many of these parents often have to work on holidays or have limited time off during holidays.   Always create the holiday visitation schedule as you see fit, allow for exceptions and be flexible.

Remember other holidays and special days like Mother’s Day, Father’s Day, birthdays, three day weekends such as Memorial and Labor Day, Fourth of July and any other special days you would like. Be sure to specify the times that the holiday visitation begins and ends in the schedule. The holiday schedule replaces the regular visitation schedule.

A visitation schedule should also permit your child to have extended time with each of you during school breaks and the parents’ personal vacation times. The vacation schedule can be less date specific, since the exact dates of personal vacation time may vary.  A work-at-home mom or a father who is a school teacher may have more flexibility in summer vacations than a parent who works in an office.  Visitation schedules can include instructions for out of state travel and guidelines for giving advanced notice to each parent about vacation times.

Lastly, you may want to create some rules that help you follow the visitation schedule.  For example how you’ll exchange the child for visitation, how you’ll make changes to the schedule, or how you’ll handle emergency events.  Basically, you just need to make sure that your custody schedule is in the best interest of the child. It is always best to work with an experienced divorce/family law attorney who can help you understand how custody, visitation, child support and other child related laws apply during your divorce.  With decades of experience in divorce law Maslan, Maslan & Rothwell can help you personalize a visitation schedule that works best for your situation.

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Maryland extends protections for victims of domestic violence

October 29, 2012 Leave a comment

The Maryland General Assembly passed laws this year that become effective October 1, 2012. These laws added two new protections to victims of domestic violence.

First, victims who are forced to leave their employment to escape the threat of domestic violence will be eligible for unemployment insurance benefits. This law makes it easier for victims to come forward to challenge their abusers. It takes away the hurdle of losing their means of supporting themselves in the short term and allows them to apply for unemployment benefits.

Normally, someone must be laid off or the position terminated prior to applying for unemployment. This new law removes a hurdle for victims of domestic violence as it prevents employers from denying benefits if the victim voluntarily quits a position.

The second law requires judges to report whether or not defendants are found to have had a “domestically-related relationship” with their victims. If they have, a notation will be added to their criminal record that indicates they have committed a domestic violence-related crime. That will be used by law enforcement to monitor domestic violence offenders.

It’s up to judges to determine the extent of the relationship and mark it in criminal records at the time of sentencing, allowing other law enforcement to access information to quickly distinguish whether a crime is domestic violence-related.

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How to get custody of child when other parent leaves the state with the child

September 23, 2012 Leave a comment

All states in the United States of America follow the Uniform Child Custody Jurisdiction and Enforcement Act. Each state has its own version of this law codified in its own statutes.

In the State of Maryland,  this act is found in Family Law Article  § 9.5-201, initial state child custody law. This law provides that

(a) Except as otherwise provided in § 9.5-204 of this subtitle, a court of this State has jurisdiction to make an initial child custody determination only if:

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) a court of another state does not have jurisdiction under item (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 9.5-207 or § 9.5-208 of this subtitle.

In essence, if you have had primary physical custody of your child/children for more than 6 months prior to the other parent taking the child/children out of the current state, then you have the right to file for custody in your current state to ultimately attempt to force the other parent to return the child. If the other parent attempts to file for custody in another state, you first must file in your home state and then hire an attorney in the other state to file a motion under the Uniform Child Custody Jurisdiction and Enforcement Act to have the custody case in the other state dismissed. Or in the alternative to request a conference between your home state and the other state to determine which state has jurisdiction over the custody of your child/children.

This situation can be stressful and it is strongly advised to contact an attorney to help you navigate through this process.

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Does Bankruptcy filing by one party hault multiparty litigation?

August 3, 2012 1 Comment

Answer: No.

In the case of multiple Defendants, the underlying litigation is not brought to a halt because the automatic stay does not apply to non-debtors.  See 11 U.S.C. 362(a) (1).  A “debtor” is defined in 11 U.S.C. 101(13).  This stay forces the Plaintiff to file a claim against the bankruptcy estate in bankruptcy court and to continue to litigate the case in the original court.  This simultaneous litigation of the same case in two different courts can be time consuming and confusing.

The foregoing general rule about the automatic stay is applicable to the more common chapter 7 and 11 bankruptcies.  The stay may be extended to codebtors with regard to certain consumer claims in cases under bankruptcy chapters 12 and 13.

In order to avoid litigating in two places, most Plaintiff’s attorneys try to get the bankruptcy stay lifted and get the case sent (to the extent that there is insurance coverage only), back to the initial court.

Just like before, if the Plaintiff files a Motion to Lift the Automatic Stay the court will decide the issue by considering several factors.  The Bankruptcy Court will balance the hardship of requiring the debtor to appear and employ counsel in a non-bankruptcy forum against the hardship caused to other parties if they are required to conduct both bankruptcy and non-bankruptcy litigation.

 

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Race to File for Custody

July 23, 2012 Leave a comment

Do you have a child and recently ended a relationship with the other parent?
If so, then you have a custody problem. There is no custody order to enforce and you are in a gray area with custody rights only as strong as your current agreement with the other parent. It is strongly suggested that you do your best to work with the other parent to develop a parenting agreement to govern custody and visitation between both parents. But if you cannot agree with each other, one of you must file for custody in Maryland and seek protection from the courts to get a hearing to have a judge hear your case to grant you the custody arrangement you are looking for as well as much need child support to help pay your monthly expenses including health and child care issues.
The problem is that with no specific court order, the police will not get involved as there is no court order to enforce.
It is strongly recommended that you do your best to get along with the other parent as any custody fights may result in either parent withholding the child from the other parent and lead to distrust between both parents. This is never in the best interest of the child. This also may lead to each parent snatching the child from the other parent.
Contact an attorney or licensed mediator to attempt to work out a parenting plan.

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Defining Alimony and Child Support

July 5, 2012 16 Comments

Going through a divorce is a challenging and emotional experience.

You’re dealing with a multitude of emotions that create stress. On top of this, the question of money looms like a storm cloud. While terms like spousal support, alimony and equitable distribution of property are commonplace in our society, the fact remains that not many people have a firm grasp on what they entail.

Before learning how spousal support and alimony are awarded, it’s a good idea to contact a divorce lawyer who can guide you through this process. In Baltimore, there are lawyers who are in solo practice, or part of a legal group or firm, that handle divorce proceedings.

Before you settle on a lawyer, do your research. There are a variety of websites that provide insight on individual lawyers, and you can also check with organizations such as the Baltimore County Bar Association or the Maryland State Bar Association. Don’t forget to ask for referrals when you’re interviewing a divorce lawyer.

Under Maryland Law, you must first look, at Family Law, § 11-106, Amount of award, duration. This section contains all of the factors that the Circuit Courts of Maryland consider when making a determination of whether to enter an alimony award and for how long. Maryland does not recognize spousal support like other states. In Maryland, you may request alimony pendent lite, (pending litigation). You may file for a limited divorce, after you have separated but have not been living separate and apart for more than a year. You may request a hearing on alimony prior to the grounds for divorce are litigated.
At this hearing, the courts consider the following factors:

In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:

(1) the ability of the party seeking alimony to be wholly or partly self-supporting;

(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;

(3) the standard of living that the parties established during their marriage;

(4) the duration of the marriage;

(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;

(6) the circumstances that contributed to the estrangement of the parties;

(7) the age of each party;

(8) the physical and mental condition of each party;

(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;

(10) any agreement between the parties;

(11) the financial needs and financial resources of each party, including:

(i) all income and assets, including property that does not produce income;

(ii) any award made under §§ 8-205 and 8-208 of this article;

(iii) the nature and amount of the financial obligations of each party; and

(iv) the right of each party to receive retirement benefits; and

(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.

Award for indefinite period

The court may award alimony for an indefinite period, if the court finds that:

(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or

(2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.

The Maryland Courts favor rehabilitative alimony or short term alimony that will last for a period of years to allow a spouse to receive training or additional skills in which to achieve or start a career in which they can support themselves.

Unfortunately, there is no set formula in which attorneys or the spouses can use to predict the amount and duration of any alimony award. Alimony awards are fact specific and differ for most everyone.

When determining the division of your marital assets, the court looks at all of your property accumulated during the marriage. This would normally include real property (houses) pensions, cars, bank accounts and furniture. Essentially, virtually anything of value.

The marital estate may be examined by the court before determining how all of the assets will be divided. Remember that the court will base part of its decision on whether or not one spouse will be forced to liquidate assets in order to maintain a reasonable lifestyle. Maryland attempts to divide the marital property fairly and evenly except in cases of large disparities of income. Maryland also only takes into consideration the net asset value of all marital property. If the spouses marital debt exceeds their asset value, then the courts will consider the spouses insolvent and not divide the marital debt.
Temporary spousal support (Alimony, Pendente Lite and child support are usually provided while a divorce case is pending. This ensures that a spouse who might not be employed, and any children, is receiving the proper amount of income and benefits while the other details of a divorce are being worked out.

Another route you may experience is for the court to order support be paid retroactive to the date the divorce complaint was filed. It’s best to confer with a divorce lawyer about a retroactive spousal support payment and how it may affect you. Alimony and child support are crucial parts to any divorce. A divorce lawyer is key in making sure you – and your children – receive the proper amount of compensation to continue to live the lives you were accustomed to.

While divorce isn’t an enjoyable experience, hiring a competent divorce attorney, and knowing what is rightfully yours in regard to alimony, can help ensure a future that is free of financial worry.

This entry was posted on Thursday, May 10th, 2012 at 3:57 pm and is filed under Baltimore City Lawyer Resources. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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Old Enough to Choose

July 5, 2012 1 Comment

Divorce is never an easy process. There are many issues to consider and stress to decide whether it is worth pursuing. There are many people involved including children, siblings, elder parents and family members who may be residing in the same household or may be required to help provide child care for children. The stakes are much higher when the parties are unable to agree on a parenting plan or visitation schedule especially when young children are involved.

When parents are considering a divorce, one of the first questions they have concerning children is, “What age can my child decide what parent he or she wants to live with?”

While on the surface it’s a simple question, the complexities of the answer will affect everyone involved.

In the case of a divorce, the court takes into consideration every possible factor, including the child’s preference for custody. However, it’s key to remember that the court’s main goal is the “overall best interest of the child.” And not the best wishes or intentions of the parents.

In many cases, the courts treat the minor children as too immature or incompetent to know what is in their best interest, which means the court does not recognize them when it comes to making decisions.

This means that there is no magic number or specific age when a minor can decide which parent to live with. Instead, it’s up to the judge or the court to decide the best course of action.

Remember that the courts and judges do not necessarily want to make these decisions because they don’t know every detail of a family’s dynamics. In addition, the court would want to leave this decision to the mother and father. Each case is fact specific and there is no magic formula. The judges make it clear to both parents to attempt to set aside any anger or animosity they have for one another and attempt to reach a parenting plan that is in the best interests of the minor children. This is very difficult. However, the court is quick to point out that is always in the parents best interest to decide compared to relying upon a complete stranger (the judge) to make a final decision that may not be in anyone’s best interest or work within the confines of either parties work schedules.

While there is no magic number, it’s correct to say that the older the child, the more impact he or she will have on the judge or the court. Forcing a child to remain in a situation where he or she clearly does not want to be is what the court is trying to avoid.

When making this kind of decision, the judge will review a wide range of criteria, some of which are listed here. As always, check with your lawyer when discussing this subject.

What is the environment like in each situation?
Is one parent or the other swaying the child?
Will the move negatively affect other family members?
Does the child show maturity and intellectual development?
How stable is the parent the child wants to be with?

Divorce is a complicated process, and when children are involved, the process becomes even more complex. The judge and the court are charged by the law to ensure that children receive the very best care and are raised in the correct environment.

Discuss the facts with your divorce lawyer, and don’t forget that custody of your children brings with it a great amount of commitment. In the end, the decision will have lasting effects on everyone involved.

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