The misinformation that clients receive from family members, friends, even their dentist  never ceases to amaze.  There are many misconceptions regarding divorce laws, child custody, child support, property division, alimony, etc.  Some folks make catastrophic decisions based upon this misinformation.  Below are some frequently asked questions.  With this primer, we hope to educate reader regarding the basics of Maryland Divorce Law.

1. What are the reasons or “grounds” for divorce in Maryland?
In order to file for a divorce “grounds” must exist, that is there must be some change in the marital relationship which allows the court to become involved.  A final or “absolute” divorce may be granted on the following grounds:

1. adultery;
2. desertion, if it has continued for a year;
3. voluntary separation, for one year or more;
4. conviction of certain felonies or misdemeanors;
5. two-year separation, regardless of fault;
6. insanity, if the spouse has been committed for three years;  and
7. cruelty of treatment or excessively vicious conduct, if there is no hope of reconciliation.

A change to these grounds was enacted by the legislature in the 2011 session and takes affect October 1, 2011.  As of that date, a spouse will be eligible for a divorce following twelve (12) months of separation, regardless of fault.  With this change in the law, most divorces will be granted on this new one year statutory ground.

It is also possible that the time requirement for a divorce based on a mutual and voluntary separation may be eventually reduced to six (6) months in order that Maryland may come into alignment with the majority of states which allow a divorce after a shorter period of separation.

If there are no grounds upon which an Absolute Divorce may be granted, a spouse may require court intervention to address emergency issues related to custody and/or support.  In such an event, the court may decree a LIMITED divorce on the following grounds:

1. cruelty of treatment toward a spouse or child;
2. excessively vicious conduct toward a spouse or child;
3. desertion; and,
4. voluntary separation.

Once there exist grounds for divorce, whether Limited or Absolute, the court may award custody, set support levels and resolve certain property disputes.

2. How does a court determine which parent will receive custody of the children?
Custody will be awarded based upon the court’s estimation of what is in the child’s best interests.  Judges agree that custody cases are among the most difficult to decide.  There is seldom any easy answer when two fit parents disagree about what custody arrangement will best suit their children.  Custody cases tend to be time-consuming, expensive and emotionally wrenching.  The multitude of intangible factors that the court will consider are ofttimes ambiguous.  At the bottom line, what is in the child’s best interests equals the judge’s best guess.

3. What is Joint Custody?
Joint custody is commonly misunderstood because it embodies two separate concepts — “legal” and “physical” custody.  In bygone years, one parent normally had full “custody” of the minor child and the other parent had visitation rights.  The custodial parent had the right and obligation to make long-range decisions involving education, health, religious training, discipline and other matters of major significance.

Joint legal custody theoretically means that each parent has an equal voice in making the long-range plans and decisions and that neither parent’s rights are superior to the others in the decision-making process.  In practice it means what the parties and/or court say it means.

Joint physical custody is, in reality, divided or shared custody, with the child in the physical custody of each parent for periods of time which may or may not be on an even basis.   This sharing of physical custody may affect child support payments.  If the “other” parent has the child for 35% of the overnights in a year, a different formula will be used for calculating support, resulting in a lower award.

In determining whether a case is proper for joint custody, the court will consider  numerous factors, the most important of which are:

1. capacity of parents to communicate and to reach shared decisions;
2. willingness of parents to share custody;
3. fitness of parents;
4. relationship established between the child and each parent;
5. preference of the child;
6. potential disruption of child’s social and school life; and,
7. geographic proximity of parental homes.

The factors enumerated above are not intended to be all inclusive but merely act as guides for the trial court when faced with the issue of joint custody.  The “other factors” to be considered may be as diverse and numerous as the thousands of cases which are filed each year in Maryland.

4. What is Marital Property?
Marital property means all property acquired by one or both parties during the marriage and includes any homes held jointly by the parties.  Marital property does not include property:

1. acquired before the marriage;
2. acquired by inheritance or gift from a third party;
3. excluded by valid agreement;  or
4. directly traceable to any of these sources.

Problems arise with respect to “mixed” property, which is both marital and non-marital.  For example, Mrs. Smith may have purchased the house ten years prior to the Smiths’ marriage.  After they married, however, the Smiths both contributed to mortgage payments.  The court must determine the marital and non-marital values of the home and make a monetary award based upon the marital value.

5. How is property divided upon divorce?
In Maryland, property acquired during a marriage is divided according to the terms of the “Marital Property Act.”  This may be done by way of a monetary award.  The monetary award is designed to accomplish a fair division of the marital property where division according to title may be less than fair.  Toward this objective, the Marital Property Act, requires that a three-step process occur:

1. The court shall determine which property is marital property.
2. The court shall then determine the value of all marital property.
3. The court may make a monetary award as an adjustment of the parties’ equities and rights.

In other words, if Mr. and Mrs. Jones are divorcing and their home, worth $100,000, is in Mrs. Jones’ name alone, the court may order her to pay a sum to her husband to offset the inequities of title.  Often the court may award $50,000.00 under these circumstances, but equity does not always mean equal.  The court’s “monetary award” may be more or less, depending upon the statutory factors considered as the court adjusts the unfairness that results from the house being solely in a single spouse’s name.

6. Is alimony always awarded to the wife in a divorce?
In the not too distant past, husbands who found themselves in Divorce Court were often ordered to pay their wives alimony or spousal support for as long as they both lived or until the wife remarried.The amount would be sufficient to support the jilted spouse “in the manner to which she had become accustomed.” Today, however, alimony is awarded in a decided minority of cases and, with the passage of the Maryland Equal Rights Amendment in 1973, women are no longer the exclusive recipients. Theoretically, men are equally entitled to alimony, although, in practice, the court  seldom grants it.

The current alimony law was passed in 1980.  Courts are required to consider about one dozen specific factors in arriving at a fair award, including:

1. financial needs and resources;
2. age and physical and mental condition;
3. factors contributing to the breakup of the marriage;
4. contributions (financially and otherwise) to the marriage;
5. duration of the marriage;
6. standard of living established during the marriage;
7. the ability of the party seeking alimony to become self-supporting; and
8. the length of time required to obtain the training and education necessary to find suitable employment.

These two final factors focus on the rehabilitative nature of alimony and require that the “economically dependent spouse” (a gender-neutral term) attempt to secure gainful employment.  Alimony usually will be limited to the period which the court estimates will be required for the spouse to become self-sufficient.

In very few cases, indefinite or permanent alimony may be awarded, but only when:

1. the dependent spouse has made as much progress as can be expected toward becoming self-supporting and the parties’ standard of living remains “unconscionably disparate;” or
2. due to age, illness or disability, the dependent spouse is unable to become self-supporting

These factors are found generally in longer marriages and particularly in those where one spouse has been a homemaker rather than a wage earner.

7. How does the court establish the amount of child support?
Prior to 1989, child support awards were unpredictable and often varied from county to county and judge to judge.  Amounts were set on the basis of sworn financial statements, an arrangement which encouraged individuals to inflate their expenses and liabilities and minimize their income and assets.

Approximately 22 years ago, Maryland introduced statutory guidelines, mathematical formulae which are used to calculated support obligations.  This has lent much needed uniformity to child support disputes.  In applying the formula, judges consider each party’s gross income and other factors allowed by law.  The formula produces a “total child support obligation” and the non-custodial parent pays his or her proportionate amount.  The incentive to “fudge” on financial statements has been lessened.

For example, we know that if the father of a ten-year-old earns $95,000.00 per year and the mother earns $50,000.00, the father’s child support payments will be $1,026.00 per month or a little more than $100.00 per week.  Child support obligations are greater when day care, private school and extraordinary medical expenses are factored into the equation.

Courts may consider certain additional factors and deviate from the guidelines.  Child support will be reduced if alimony or health insurance is paid.  Other expenses such as mortgage payments, assumption of marital debt and college education might reduce payments.  Lastly, if a parent has the ability and opportunity to work but chooses not to do so, he or she is said to be “voluntarily impoverished.”  The court will attribute “potential income” to this parent, i.e., an amount which he or she should be earning.

A different formula will be used where the non-custodial or visiting spouse has the child for more than 35% of the overnights in a given year.  This formula results in a lower level of support, due to the presumption that the parent having “shared physical custody” will bear some of the burden for direct expenses.  With our hypothetical father earning $95,000.00 and mother at $50,000.00, the monthly child support obligation is reduced from $1,026.00 to $715.00, if the father has his child for 35% of the overnights.  The figure is $368.00 per month if the parents evenly divide overnights.

8. I have more questions.  What do I do now?
These questions are but a few that arise when marriages falter.  There are other important issues to be addressed in any divorce.  Obviously, if you find yourself contemplating separation or divorce, you will have many questions.  You should consult with an attorney who is familiar with this area of the law and who will assist you in making informed decisions.

If you need further information regarding this subject, please feel free to contact:

David V. Diggs at Kahn, Smith & Collins, P.A., (410) 244-1010.

You may also e-mail Mr. Diggs at diggs@kahnsmith.com.

This article is reproduced with the permission of the Maryland Bar Journal published by the Maryland State Bar Association. Maryland Bar Journal

PDF of Original Published Article

The Separation of Powers Redux – Thoughts about the Receded Scope of Judicial Review

By Joel Smith

Maryland Aviation Admin. v. Noland, 386 Md. 556 (2005) has prompted debate about the proper scope of judicial review in contested cases decided by government agencies.  Noland is uncomfortably at odds with the separation of powers doctrine under Maryland law.  The Court of Appeals has remarked in other opinions, “Our own cases have never interpreted the separation of powers doctrine embedded in Article 8 of the Maryland Declaration of Rights as imposing a complete separation between the branches of government.”  Department of Transportation v. Armacost, 311 Md. 64, 80 (1987).  The Court wrote in Department of Natural Resources v. Linchester, 274 Md. 211, 220 (1975), that within administrative agencies there is “some mingling, blending and overlapping of the legislative, executive and judicial functions.”  This overlap, the Court wrote, is permissible “as the separation of powers concept may constitutionally encompass a sensible degree of elasticity and should not be applied with doctrinaire rigor.”  Id.

Just as in civil actions, contested cases heard by administrative agencies require separate findings as to breach and penalty.  Noland narrowed judicial review of the penalties imposed by administrative agencies and the Office of Administrative Hearings, saying that the separation of powers between the Executive Branch and the Judiciary permits only limited review of “Executive” decisions about penalties.  The Noland decision relied on Sadler v. Dimensions Healthcare Corp., 378 Md. 509 (2003), where the Court of Appeals had, in the words of the Court, “emphasized that ‘judicial review of the actions of an administrative agency is restricted primarily because of the fundamental doctrine of separation of powers as set forth in Article 8 of the Declaration of Rights of the Maryland Constitution.’” Noland, 378 Md. at 573 n.3.  The concept that Noland claimed to borrow from Sadler is that the Courts must tread lightly when sitting in review of Executive branch actions.  The Court’s holding in Noland, however, is an expansive statement balanced on a thin reed.

[Read more...]

Keith Zimmerman

Kahn, Smith & Collins, P.A.

Weingarten Rights Generally

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In NLRB vs. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689 (1975), the U.S. Supreme Court affirmed the rights of unionized employees to have a union representative present during investigatory interviews.  According to the Court, these rights arise as a corollary to the proper functioning of the National Labor Relations Act (NLRA).  The rights flow from NLRA § 7’s guarantee of the right of employees to act “in concert for mutual aid and protection.”  Denial of this right violates NLRA § 8 (a)(1).

The rights established by the Court have become known simply as Weingarten rights.  In short, employees have Weingarten rights only during investigatory interviews.  An investigatory interview occurs when a supervisor or management representative questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.  If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. [Read more...]