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.

New Maryland Law Helps Victims of Domestic Violence

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.

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

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.

The Driving Age

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.

Wednesday Evening and Every Other Weekend

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.