Posted on February 25, 2011 in Divorce

Maryland law defines dissipation as when “one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Sharp v. Sharp, 58 Md. App. 386 (1984). At issue is also whether or not the party spent or depleted the marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of divorce. In a recent opinion by Judge Murphy on behalf of the Court of Appeals the Court faced the question as to who has the burden of proving that the assets had been dissipated. The case, Omayaka v. Omayaka was originally heard by the Circuit Court for Prince George’s County for the final divorce hearing in July 2007. At this hearing the attorney for Mr. Omayaka attempted to prove that the wife had dissipated martial assets. Mr. Omayaka claimed that Mrs. Omayaka had opened up an account in her name only during their marriage and had withdrawn over $80,000.00 from the account since 2005. Mr. Omayaka’s attorney questioned Mrs. Omayaka on what the money was spent on and she stated clothing, food, insurance for the baby, rent, credit card debt, a car loan and the babysitter. At the conclusion of the case the Circuit Court found that there had not been a dissipation of assets because the attorney for Mr. Omayaka had not met the burden of proving that the money was spent for a purpose unrelated to the marriage during a time when the marriage is irretrievably broken. The attorney for Mr. Omayaka filed an appeal based on the contention that he had met his burden of proof showing dissipation of the assets. The Court of Appeals, in its’ opinion, clears up the burden of proof question with the following guide:

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 Posted on February 25, 2011 in Same-Sex Marriage

As the Baltimore Sun reports, the Maryland Senate approved the Civil Marriage Protection Act on Thursday, February 25, 2011, which would allow same-sex couples to wed. Although the House of Delegates still needs to pass the Act, the Senate’s passage is still “historic.” We have previously blogged about the issues that surround the recognition of same-sex marriages in Maryland, specifically the Attorney General’s support of recognizing same sex marriages created validly in other states maryland and Maryland lawmakers attempt to block gay marriages. With this Act being passed by the Senate, it is time for us to prepare for changes we may see in our divorce and family law practice with the allowance of same-sex marriage.

The potential changes are vast but include the changes that we will see in custody and visitation law. Often same-sex couples adopt a child, however when couples are not married, only one partner is usually the legally recognized adopted parent. When these relationships end, the child is left with one legal parent and one who is presently recognized as a third party (not a parent) in the State of Maryland. For more information on the third party status that same sex parents currently face see our November 27, 2009 blog. With the passage of this legislation, same-sex couples who marry and adopt a child will both be the legal parents of the child and will be recognized as same should the marital relationship end in separation and/or divorce.

Additionally, same sex couples would be able to enter into pre-nuptial agreements just as heterosexual couples; would be considered a spouse in the event their partner dies, thus entitling them to protections and distribution under our estates and trusts article; will be able to be divorced in the state of Maryland regardless of whether married in Maryland of outside of the State; would able afforded the same protections as heterosexual married individuals in a divorce proceeding, specifically with respect to custody issues, child support issues, alimony issues, marital property awards, division of retirement assets, use and possession of family home and personal property if there is a child, and division of personal property; will be permitted to title their homes as tenants by the entireties, which is a titling only designated to married couples; depending on the employer, married same sex couples would be able to cover their spouse on their health insurance plans; and would be permitted to change their last names upon marriage rather than petitioning the court for a change of name.

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 Posted on February 20, 2011 in Divorce

As previously discussed in our August 15, 2009 blog, a divorce in Maryland may be filed on a no-fault basis (mutual and voluntary separation), after a one year separation period. Although parties may agree to file on a no-fault basis, they may not agree on the issues within their divorce, such as custody, property, alimony, etc., which renders the case contested. However, there are many cases where the couples were only married for a brief period of time, or do not have children, where clients come to us with not only a no-fault ground, but also no issues to resolve. They may have worked out a separation agreement before coming to us, or simply have no shared property to dispose of. In these cases, we must file for a divorce just as we would any other, but the courts have procedures in which these cases can be set in for the final divorce hearing much quicker than others. However, before the case can be set in for this hearing, the opposing side must file an Answer that confirms that the case is in fact uncontested and all issues are resolved. The final hearing is also much shorter than a normal hearing.
Even in an uncontested divorce that has been filed on a mutual and voluntary basis, the party must still prove the grounds for divorce. In Maryland, you must still have a corroborating witness at the hearing to testify that you and your spouse have lived separate and apart without cohabitation and without the resumption of the marital relationship (including sexual relations) for one year (or two in a two year separation ground), and there is no hope or expectation of reconciliation in your marriage. The witnessfurther needs to corroborate that the separation was in fact a mutual and voluntary one on the part of both husband and wife. The Maryland Code, Family Law § 7-101(b) states, “a court may not enter a decree of divorce on the uncorroborated testimony of the party who is seeking the divorce.” We have had many clients ask why when they have such a simple, issue free divorce they still have to jump through so many hoops. Unfortunately, even in what can be called a “simple divorce”, you still must meet the filing requirements and present the court with the evidence that is statutorily required to prove you are entitled to obtain a divorce.
For more information regarding Maryland divorce proceedings contact an experienced Maryland Divorce Attorney.

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 Posted on February 17, 2011 in Divorce

Many Maryland divorce attorneys believe that the one year separation period required for a no-fault divorce in Maryland is too long as reported by the Maryland Daily Record on February 14, 2011. For more information on the one year separation period for a divorce see our October 14, 2010 blog and August 19, 2009 blog . A number of attorneys supporting the reduction of this separation period arrived at a state Senate committee hearing last week to support legislation that would reduce the one year separation requirement to six months. Many attorneys feel that if the parties have agreed to split they should be able to do so without having to drag out the process for a full year. However, many of the Senators feel that this separation period validates the sanctity of marriage and gives people the time to think if this is what they truly want. Unfortunately, it has not been our experience that this waiting period helps parties to reconcile. As the Daily Record reports, many states such as Virginia, Delaware and Washington D. C. have only a six month separation period. We have many clients who come to us after a week or two of being separated and the news that they must wait a year to file for an absolute divorce is crushing. However, there are other options for these clients, such as filing for a limited divorce, as describe in our March 19, 2010 blog, or pursuing a separation agreement.
For more information regarding Maryland divorce proceedings contact an experienced Maryland Divorce Attorney.

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 Posted on December 17, 2010 in Child Abuse

https://www.silvermanthompson.com/lawyer-attorney-1300820.htmlBaltimore Maryland Criminal Attorneys have witnessed a troubling trend in Baltimore City pretrial bail rulings for criminal defendants over the past year or two. Both District Court and Circuit Judges have seemingly been locked in a competition with one another to out “tough” one another on bail rulings and the result has been a many fold increase in the bail amounts that has put the city way out of the mainstream on this issue. I’m not just referring to defendants who are charged with murder or rape or defendants with long and violent criminal records. I’m talking about first offenders in misdemeanor cases or garden variety felony cases such as burglary or parental discipline type physical child abuse cases (this was known as a spanking when I was a kid) being held without bail or on bails set so high that they are the functional equivalent of no bail.

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 Posted on December 15, 2010 in Child Custody

When meeting with clients initially and discussing the general course of litigation, I will advise them that discovery is part of that process, which usually prompts many questions. First and foremost is what is discovery? Discovery is a litigation tool used to gather and exchange relevant information and potential evidence from and with the opposing side prior to a trial. In a divorce matter it most frequently consists of Interrogatories, Request for Production of Documents, and Depositions of parties and witnesses. However, discovery may also involve Request for Admission of Facts, Notice of Records Depositions, and/oror Mental or physical Examinations of parties. Interrogatories are a list of a maximum of thirty questions usually involving employment history, lifestyle, assets, marital and non-marital property, child rearing responsibilities, and reasons for the dissolution of the marriage. Request for Production of Documents are a list of requests asking for documents from a party. These usually consist of financial documents, employment records, documents regarding the children, documentation of communications with the other party, documentation of expenses/debt and documents regarding the parties’ assets.

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 Posted on December 13, 2010 in Divorce

It is a situation in which many individuals seeking a divorce find themselves. They have high value assets to chase in their divorce proceedings, but no money to afford an attorney to do so. As the New York Times Reported on December 4, 2010 , a California based company, Balance Point is funding divorces for those who can not afford to do so. However, they take a percentage of their client’s winnings, so the cases that they accept are those where high value assets are involved. As the New York Times reports, “the number of companies investing in divorce is small – Balance Point is one of the few that do it exclusively. But other businesses are gearing up. A New York start-up, Churchill Divorce Finance, also is planning to enter the business.”

The Maryland Lawyers’ Rules of Professional Conduct Rule 1.5 prohibits attorneys from taking divorce cases on a contingency fee basis, meaning to take a percentage (as is often seen in personal injury and medical malpractice cases) of their client’s ultimate share of the marital estate as their form of compensation.

For more information, contact Monica Scherer, Esq. at 410-625-4740

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 Posted on December 01, 2010 in Child Custody

While your spouse’s substance abuse issues may not affect you nearly as much since you have separated, they certainly will continue to affect your children. Unfortunately, many clients are faced with these issues. It is important to address all substance abuse concerns at the beginning of a matter, by bringing it to your attorney or the court’s attention. In many Maryland counties the Court, when requested, will order a substance abuse evaluation of the parties. Be aware that if you request an evaluation of your spouse, the Court will often order that the evaluation be performed on both parties. The evaluation will most likely consist of an interview including substance abuse history, and treatment and also in some cases urinalysis or other form of drug/alcohol screen. If a party asks, and the Court feels is it necessary, continuing drug screens of a party may be ordered. This allows for the party to gain visitation or custody with their child or children after maintaining positive results. If a custody evaluation is performed in a matter the evaluator will also utilize the information gained from drug screens or a substance abuse evaluation to assist them in making their recommendation.

For parties who resolve their matter outside of a Maryland court proceeding, they still can address substance abuse issues by incorporating language in their separation agreement, parenting plan or Consent Order that allows for continued monitoring of the other parent. For instance, they may require the parent to undergo monthly drug screens and forward to them the results in order to maintain the access or custody schedule. If substance abuse is no longer a problem, but has been in the past, they may consider incorporating language that allows for testing or treatment upon suspicion of a recurrence of a substance abuse issue, ie relapse. For instance, an agreement may have language that states that upon suspicion of drug or alcohol use during visitation, the party may withhold all visitations from the using parent until a negative drug screen is provided. Parties may also add language that requires a parent to submit to a breathalyzer before driving the children in a vehicle or exercising visitation at all, if alcohol use has been suspected.

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 Posted on November 30, 2010 in Controlled Dangerous Substances (CDS)

As an Experienced Baltimore Maryland Criminal Defense Attorney I have often written about the mistakes that are made by inexperienced attorneys when representing people in criminal cases. I often pose the question, “did you hire the right lawyer to represent you?”. In many of my previous postings I have written about cases in which the criminal defendant has hired an attorney who was in reality a domestic (divorce/child custody) attorney, an accident attorney or a general practitioner, who had claimed to be experienced in criminal defense. Upon closer inspection of his or her case history, these claims turned out to be false.

Recently I have become aware of several instances of poor representation in cases where the criminal defendant hires an attorney who sends him an unsolicited letter shortly after they are charged in a criminal case. These “letter lawyers” as they are known, very often offer legal services at well below the customary fee charged by experienced criminal lawyers. The reason for this in most instances is that the attorneys sending these letters are inexperienced (many are just out of law school) and are unable to attract criminal clients any other way. Truly experienced criminal defense attorneys are able to get most of their clients from referrals from past satisfied clients or from people who do the necessary research to find a qualified lawyer to represent them. And as the old adage goes, “you get what you pay for”, as very often these inexperienced attorneys do what one would expect from an inexperienced attorney and that is, they make mistakes.

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 Posted on November 30, 2010 in Child Custody

As reported in our September 30, 2010 blog , there are two parts to custody in the State of Maryland, legal custody and physical custody. Legal custody is the ability to make decisions regarding the child’s health, education, religion and other matters of significant importance. Legal custody can be awarded solely to one parent or jointly to both parents (there are also variations on joint legal custody, such as having one parent as a tie breaker or a requirement to mediate when parents cannot reach a joint decision or assigning each parent sole legal decision making with respect to different issues, ie Mom makes the decisions on education and Dad makes the decisions on health matters and the parents have joint legal custody on religious issues). Maryland courts have held that the strongest factor in determining whether to award joint legal custody is the ability of the parents to communicate with each other regarding the children.

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