This is Legal Talk Maryland, hosted by the Maryland Law Firm of Kahn, Smith & Collins, the only legal podcast focused on the issues affecting ordinary people in the State of Maryland. Kahn, Smith & Collins, representing people and labor organizations in the State of Maryland for twenty years, and found on the web at kahnsmith.com.
Andy: This is Legal Talk Maryland Episode 22 and we’re continuing our conversation with David Diggs of Kahn, Smith & Collins. And David, we’re going to pick up where we left off last episode. We’re going to talk about alimony and property split and that sort of thing as it relates to a divorce.
The child support thing seemed pretty clear. There’s a formula, and everybody’s interest is in making sure the kids probably do well, and those are probably a bit easier. This is probably the place where this gets more sketchy, right?
David: I can tell you nobody likes to pay alimony. I’ve never met a single client who enjoyed the alimony aspect of their case. One thing to remember, to further complicate matters, is alimony has to be determined by a court before child support can be determined because alimony affects parties’ incomes. If husband is paying a thousand dollars a month to wife in alimony that reduces his income by a thousand dollars and increase wife’s income by the same thousand dollars, so then we can do the child support calculation.
I mentioned earlier that there is no formula in the law for alimony. I should’ve added there’s a bit of a twist to that. A fairly recent case, within about the last year and not to stray too much, but divorce law is made both by the Legislature and enacting statutes but also by the appellate courts that issue decisions that interpret the law. This was a decision in a case involving Mr. and Ms. Boemio where the Montgomery County Circuit Court said that Ms. Boemio was entitled to I think three thousand dollars a month in alimony.
The judge in that case used an alimony formula proposed by Ms. Boemio’s attorney that was based on a formula used by the American Academy of Matrimonial Lawyers. It’s a very simple formula that takes each party’s income, the duration of the marriage, and gives you an alimony figure.
Most Maryland divorce lawyers agree that the AAML guidelines result in a higher figure than you’re likely to get a court to order. There are lots of other alimony guidelines out there, none have been enacted in Maryland law, but this case stands for the proposition that you can use those calculations as long as the judge still considers the dozen or so factors in the alimony statute.
Andy: So maybe talk us through what are the things that the judge considers and who’s eligible? Is there always alimony in every divorce case? Is it always the wife that gets it? How does that work?
David: There’s certainly not alimony in every divorce case, number one. Number two, it’s not just wives who receive alimony. The statute is gender neutral. There is no difference in the law between who’s entitled to alimony. As a practical matter far more wives receive alimony than husbands.
I mentioned that nobody likes to pay alimony. I can tell you that when I’ve represented women and alimony was a possibility, they were particularly displeased to hear that was a possibility. Frankly, that posture in the negotiation — it’s less likely that a man, even though he’s earning less than a woman, is going to ask for alimony, even though the statute is gender neutral. Those are some of the realities that develop.
Andy: We were talking about alimony. The question is; what are the things that figure into how you get it and what the court’s going to look at?
David: I mentioned the dozen or so factors. I think in the last episode we talked about the most important being the one spouse’s ability to pay and the other spouse’s financial need. The other factors include the ages of the party. Alimony is more likely in a long-term marriage where the recipient spouse is older. Basically it boils down to how likely is the recipient spouse to become self supporting. If they become self supporting that’s great, alimony has done its rehabilitative job.
Alimony can be awarded indefinitely, if number one a spouse can’t be self supporting, whether it’s by the result of age or some sort of medical condition. But even if a spouse is self supporting, alimony can be continued indefinitely if the disparity between the parties’ incomes is unconscionable. It’s hard to predict what might be unconscionability. The case law is all over the place.
In one case you might have a spouse earning a 150 thousand dollars with a spouse earning 50 thousand and the court says that’s unconscionable and awarded indefinite alimony. You can have a higher gap in a shorter marriage and the court not find unconscionability. It really depends upon the case.
Andy: Does this play into the whole idea of continuing a certain standard of living that you’ve become accustomed to? Is that the intent of it?
David: We often hear that. That’s sort of the cocktail party analysis of alimony. There’s nothing in the statute that says either spouse is entitled to the standard of living to which they’ve been accustomed, but that certainly is an overriding theme in a lot of negotiation and litigation. Frankly, divorce changes standards of living. It’s also quite true that statistically men’s standards of living tend to go up after a divorce, and a woman’s standard of living tends to decline after divorce. The argument might be made that not enough alimony is being awarded. Because the statute is so unpredictable, I would say that contributes to the fact that alimony is awarded in a minority of cases.
Andy: You talked a bit about the length of time. How often is it indefinite or is there usually a shorter period it lasts for?
David: There’s usually a shorter period. Again, the indefinite alimony is awarded when a spouse can’t be self supporting, or when there’s this unconscionable disparity in earnings. Then it can be indefinite. Indefinite doesn’t mean forever, it means until a court changes it. If an indefinite alimony is awarded, certainly it’s like child support in that it can be changed at any time upon showing a change of circumstance.
If Dr. Jones is paying two thousand dollars a month in alimony for ten years and then he retires, that’s an opportunity to look at alimony. I would say that because it’s unpredictable on the recipient’s end, and because the possibility of indefinite alimony on the paying spouse’s end, it tends to bring folks together and they tend to agree on a more limited period of time. Again, nobody likes to pay alimony. It may lead one spouse to be more generous in property distribution in order to avoid an alimony payment.
Andy: So I guess the other question about this, and this will play into child support I guess as well; we talk about change of circumstances. The person that’s paying alimony decides one day my life has changed to the point where I can’t afford to do this anymore, I can’t live anywhere near where I used to, and they decide I’m not paying that anymore. Or you have some sort of payment issue. What does the court do? Are people still put in jail for not paying that stuff? What are the ramifications?
David: In both a child support and alimony case, there’s a concept known as voluntary impoverishment. If the spouse that’s paying decides I don’t want to pay anymore, I’m quitting my job at Google or wherever, where I’m making a lot of money and I’m not paying it, I’m going to hike the Appalachian Trail, a court is likely to say you can’t quit your job. You voluntarily impoverished yourself. We’re going to require you continue to pay.
The more difficult case is where folks lose jobs through no fault of their own. That’s a kind of change in circumstance that can allow a court to recalculate child support or alimony.
The real difficult cases, the one in between those two where you’re not sure whether a spouse is doing all they can to be as fully employed as possible, in that case you’ll have the spouse who is seeking the change saying I got downgraded through no fault of my own and the spouse is seeking to maintain the status quo in the payments saying no, he took these steps in order to avoid his responsibility.
Andy: What happens in the end when that person doesn’t pay? What recourse does the court have and what do they do?
David: There are usually two possible avenues of addressing that. If there’s a court order that says payment is to be made, failure to make payment can be addressed with a petition for contempt. In other words, Ms. Jones isn’t receiving her alimony payments anymore from Dr. Jones. He’s in contempt of the court order of January 5th of 2008 that required him to make those payments. Court, bring him in and have him show why he shouldn’t be held in contempt.
Usually the contempt is just a way to compel payment. You asked earlier whether folks still get incarcerated for these things. Usually not, but certainly in an extreme case where they just refuse to pay we do see folks jailed for limited periods of time. Usually they tend to come up with the money. If they don’t come up with the money at that point it shows they didn’t have it to begin with, and they’re usually not incarcerated very long at that point.
Andy: I guess the other thing you used to hear, and I haven’t heard it as much lately, but maybe it’s I haven’t been paying attention. You used to hear about people leaving the state, moving, going to other places to avoid those responsibilities. How do things work interstate and what are the issues there?
David: It still happens. You may not hear about it as much because I think the states are working better together. Each state has an office of child support enforcement. Also in the modern age it’s harder to hide. It’s not only that a spouse might move to avoid a financial obligation, they might move with children and try to hide them. Those are really tough cases. I have an ongoing case now where I represent a wonderful gentleman who’s fighting in Trinidad because his wife took the children to Trinidad.
The courts in Maryland have given him custody but he’s trying to get Trinidad to recognize his parental rights. That’s a particularly difficult case when we’re talking international. There are laws that apply internationally; unfortunately the Hague Convention which addresses these situations doesn’t apply between Trinidad and the United States. It applies between the United States and most other nations, but not all. There are very difficult cases.
Back to the case where someone leaves state; a Maryland child support order, alimony order can be enrolled in the other state and the same collection procedure we talked about, whether it’s filing a petition for contempt, or even filing a breach of contract action if the parties had a separation agreement; those can all be used interstate as well as within Maryland.
Andy: I guess the last question on that is the enforcement actions and all of that, are they affected by like if someone files bankruptcy? Does that change any of this? How does that play into it?
David: Child support and alimony are not dischargeable in bankruptcy. You still have those obligations. The step to take is to have those obligations reduced if circumstances have changed.
Andy: By the court.
David: Yes.
Andy: I guess the other thing you hear with respect to alimony and child support payments is some linking of those payments to the parental visitation rights. Is there any right on the part of the parent who is receiving alimony and child support and hasn’t gotten it, to somehow terminate or cause problems with visitation? Or contrary to that, if the parent who is expecting visitation rights isn’t getting what they think is appropriate, can they withhold payments as a result of that?
David: Generally speaking no, they’re independent rights. The right to child support is independent of the right to visitation. As a practical matter, it certainly happens. You’re not getting to see Suzy unless you pay me the support, you dead beat. That happens in reality but it’s not endorsed under the law. I would tell a client that you should let him see the child and let’s go about collecting what you’re entitled to.
Or conversely, you should continue to pay it and if you’re being denied access you should address that in the courts. When folks take the law into their own hands in those circumstances, it can get messy quickly, and you’re probably not doing the children a service in that circumstance.
Andy: Very good. We were going to talk about property but I think we’re at the end of this episode so we’ll make the next episode specifically about property and we’ll go into that in more depth. Thanks David.
As always, none of the content of this program should be considered legal advice. Please seek an attorney for specific legal guidance relating to your individual circumstances. This podcast does not create an attorney/client relationship between Kahn, Smith & Collins, and any individual.
