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What Information is Discoverable in Divorce Litigation in Maryland?
In Maryland, the divorce process typically involves a thorough examination of income, assets, liabilities, and other information. Discovery is the formal legal process of obtaining evidence and information from the opposing party, and it can play a pivotal role in divorce litigation. Understanding what information is discoverable in divorce proceedings in Maryland is essential for anyone navigating this challenging terrain.
Types of Discovery in Maryland Divorce Cases:
In Maryland divorce cases, several methods of discovery are commonly utilized to gather information and evidence. These methods include:
Interrogatories: These are written questions sent by one party to the other, which must be answered within a limited timeframe under oath. These questions can cover various aspects of the marriage, including information related to the children and the parties’ finances, assets, liabilities and other relevant matters.
Requests for Production of Documents: This involves requesting the other party to produce documents relevant to the case within a specified timeframe. These documents can include financial records, bank statements, credit card statements, tax returns, property deeds, and more.
Depositions: This is arranged through a court reporter and involves an attorney taking the sworn testimony of a party or potential witness outside of court prior to a trial. Depositions allow both parties to ask questions directly and can be a powerful tool for uncovering information and assessing the credibility of witnesses.
Requests for Admissions: This method involves asking the other party to admit or deny certain facts relevant to the case. Requests for admissions can help streamline the litigation process by narrowing down contested issues.
Subpoenas: Subpoenas can be issued to third parties, such as banks, employers, or other individuals, compelling them to produce documents and testify at a deposition. The recipient can charge a processing fee, including paralegal time and costs for copying and delivery.
Discoverable Information in Maryland Divorce Cases:
In Maryland, the scope of discoverable information in divorce cases is broad and encompasses various aspects of the marriage and the parties' lives. Some key areas of discoverable information include:
Financial Information: This includes income, assets, debts, expenses, bank accounts, investments, retirement accounts, and any other financial resources owned or controlled by either party.
Real Estate and Personal Property: Information about real estate holdings, including marital homes, vacation properties, rental properties, and personal property such as vehicles, furniture, and valuable assets.
Employment and Income: Details about employment history, current employment status, salary, bonuses, benefits, and any other sources of income, as well as potential for earning income.
Child Custody and Support: Information relevant to child custody and support arrangements, including the best interests of the child, parenting schedules, child care arrangements, private school, health care expenses, and any relevant factors affecting the child's well-being.
Spousal Support: Factors relevant to determining spousal support, including the length of the marriage, the financial needs and resources of each party, standard of living during the marriage, and any other relevant considerations. In Maryland there are no alimony guidelines, and without an agreement between the parties the court will have to determine if there is a need for rehabilitative alimony, which is a set period of time, or indefinite support.
Health and Medical Information: Information about the health and medical history of the parties and any children involved, including insurance coverage, medical expenses, and any special needs or considerations.
Social Media and Electronic Communications: In today's digital age, social media and electronic communications can also be discoverable in divorce cases if they are relevant to the issues involved, such as parenting ability, financial resources, or misconduct.
Limitations and Protections in Discovery:
While discovery in Maryland divorce cases is broad, there are limitations and protections in place to ensure fairness and prevent abuse. For example:
Privileged Information: Certain communications, such as those between spouses or with an attorney, may be protected by privilege and not subject to discovery.
Relevance Requirement: Discovery requests must be reasonably calculated to lead to the discovery of admissible evidence, and parties can object to overly broad or burdensome requests.
Protective Orders: Parties can seek protective orders to limit or restrict discovery in certain circumstances, such as to protect confidential or sensitive information.
Conclusion:
When litigating a divorce case in Maryland, discovery is a critical tool for uncovering information and building a case. From financial records to personal communications, a wide range of information is discoverable in divorce proceedings. Understanding the types of discovery available, the costs involved, and the scope of discoverable information is essential for parties involved in divorce cases to navigate the process effectively. With the guidance of experienced legal counsel, individuals can ensure that their rights are protected and that they have access to the information necessary to achieve a fair and equitable resolution.
Contact our office at 240-396-4373 to schedule a consultation with one of our experienced attorneys.
About the Author
Jessica Markham is the Managing Attorney of Markham Law Firm, with locations in Bethesda, Maryland and Washington, D.C. Ms. Markham is known for litigating the most difficult custody cases in both Washington D.C. and Maryland, in particular, those involving relocation, alienation, mental health and substance abuse issues. Ms. Markham is also highly sought after for her expertise in retirement divisions, and has authored a book entitled Representing Federal Employees and Their Spouses in Divorce, to be published by the American Bar Association in 2020. Markham Law Firm is the only local firm to receive as many honors and accolades from Washingtonian, Bethesda Magazine, the Daily Record, and US News and World Reports for their expertise in Family Law, contributions to the legal community and dedication to client service
Retroactive Child Support in Maryland and D.C.
Retroactive child support is child support that is awarded for a period of time predating the child support order (i.e. child support payments for the past). Retroactive child support is applicable in both initial child support requests and any subsequent modifications. The laws regarding retroactive child support are different in each state, so it is important to understand what you can and cannot request from the Court.
Retroactive Child Support in D.C.
“In the District of Columbia parents have an unqualified obligation to contribute to the support of their children.” Burnette v. Void, 509 A.2d 606, 608 (D.C. 1986). Child support is a right which belongs to the child. Pursuant to D.C. Code § 16-916.01(v), a judicial officer may award support for a period not to exceed the 24 months preceding the filing of the petition or request for child support. This means that in D.C., a judge may award you retroactive child support to up to two years before when you initially file. In certain special circumstances, a judge may even award retroactive child support beyond the two-year time frame, but only when the parent with the duty to pay support has acted in bad faith or there are other extraordinary circumstances.
In Hight v. Tucker, the D.C. Court of Appeals held that a father who had no legal responsibility to support the child (i.e. paternity had not yet been established) was still required to pay child support retroactively. Hight v. Tucker, 757 A.2d 756, 761 (D.C. 2000). A child has the right to child support and “the legal status of [the child’s] caretaker has no impact on that right.” Id.
Retroactive Child Support in Maryland
In Maryland, the Court may award retroactive child support only to the date of filing the request (either through a complaint for divorce, custody, or solely child support, or any request for modification thereto). M.D. Code, Family Law, § 12-101. This is an important consideration in deciding when to file your request for child support. You will likely not be entitled to any support prior to that date. Similar to D.C., child support is the right of the child and cannot be waived by the parents. “In the case of a child, the obligation of the [parent] to support, imposed by law, cannot be bargained away or waived.” Zouck v. Zouck, 204 Md. 285, 298-99 (1954).
How is Retroactive Child Support Calculated?
In Maryland and D.C., retroactive child support is calculated in roughly the same manner. Retroactive child support is calculated using the parties’ pre-tax income and childcare expenses and the physical custody/visitation arrangement at the time child support should have been paid. The Court will input these numbers into the child support guidelines calculation for their respective jurisdiction. The guidelines calculation will output a monthly child support amount. This number will be multiplied by the number of months for which outstanding child support was owed. The payor may receive credit for amounts previously paid.
Do you have further questions about your claim for retroactive child support? If so, please contact the Markham Law Firm team at 240-396-4373.
Changes to Maryland Child Support Rules
Shared Physical Custody – SB 579
Last month, the Maryland legislature passed a law that changes the way child support is calculated in certain shared custody situations. Under the child support guidelines, child support is calculated depending on the number of overnights the child spends with the non-custodial parent. Currently, when a child spends more than 128 nights, or 35 percent of the year, with the non-custodial parent, a shared physical custody calculation is used. If the child spends fewer than 128 overnights with the non-custodial parent, then a sole physical custody calculation is used.
But what about situations where the child spends 127 overnights with the non-custodial parent? This is called the “cliff” model because of the drastic difference in child support calculation between 127 and 128 overnights. The new legislation lowers the “cliff” so that the shared physical custody guidelines are more readily applied and is now accompanied by a “slope” to ease into the shared physical custody guideline calculation.
First, the legislation alters the definition of shared physical custody, so it now applies when a non-custodial parent has the child for at least 92 overnights, or 25 percent of the year. Second, when the child spends between 92 and 109 overnights with the non-custodial parent, or 25 to 30 percent of the year, a shared physical custody adjustment calculation will be used to determine child support. This adjustment acts like a slope to ease child support calculations into shared physical custody. The sole physical custody calculation will be used in cases where the child stays with the non-custodial parent under 25 percent of the time and the shared physical custody calculation will be used where the child stays with the non-custodial parent more than 30 percent of the time.
So, what does this mean for your upcoming child support case? Well, as the child spends more time with the non-custodial parent, between 92 and 109 overnights per year, a new, gradual calculation applies until the overnight amount reaches 110 overnights. At that point, the shared physical custody calculation is applied. For more information on how child support is calculated in Maryland, please check out our previous blog.
This legislation goes into effect on October 1, 2020. For existing child support orders, the passage of this bill does not mean that your child support obligation will change.
Child Support – SB 847
Last month, the Maryland legislature also passed a law that changes child support obligations in certain circumstances, unrelated to timesharing. Effective on October 1, 2021, the child support guidelines will provide judges with more discretion to ensure that after child support is paid, the payor parent still has sufficient income to provide for him or herself and will require judges to make specific findings in cases where there are allegations of voluntary impoverishment.
First, this law gives the court authority to determine whether applying child support guidelines would be unjust or inappropriate by taking into consideration whether the support obligation would leave the payor below 110 percent of the 2019 federal poverty level. In cases where this is true, the court can decline to apply the child support guidelines. If the court declines to apply the child support guidelines, the court must make specific findings that defend the support determination, including how it deviates from the guidelines and why it serves the best interest of the child.
Second, the law indicates circumstances where the court has the authority to decline to establish a child support order. These circumstances are where the payor parent is unemployed, is incarcerated, is permanently disabled, has no financial resources to pay child support, is institutionalized in a psychiatric care facility, or is unable to obtain or maintain employment.
Further, the law establishes that a material change of circumstances exists to modify a current child support order if any of the circumstances outlined above (unemployment, permanent disability, etc.) apply to the payor parent. A “material change of circumstances” is the standard that must be met in order for any modification of child support to be considered in Maryland.
Lastly, where there are allegations that the payor parent is voluntarily impoverished to avoid paying child support, the law requires the court determine the validity of these allegations based on the totality of the circumstances. If the Court determines that there is voluntary impoverishment, then the Court must decide if potential income should be imputed to the payor parent and if so, how much. The Court makes this decision by considering several factors, such as the parent’s age, education, special skills, employment history, etc.… However, if the parent is unable to work due to a physical or mental disability, or is caring for both parties’ young child (under two years of age), then the court may not make a potential income determination for the purposes of child support.
The passage of this bill will not directly affect a child support order that is in effect prior to October 1, 2021. And, the adoption of new legislation does not constitute a basis for a modification of child support.
COVID and the Modification of Child Support
Lost Your Job? Modifying Child Support May Help to Lessen the Blow
As if dealing with the stress of a global pandemic wasn’t enough, people are now forced to face the unfortunate financial consequences of COVID-19. For many this means unemployment (including furlough, permanent lays offs, or underemployment) and if you are also a parent paying child support, this could mean significant challenges in meeting your monthly obligation. That being said, a modification in your child support order might be your next step. Here is what you should know.
1) A modification of child support may be appropriate if circumstances have changed substantially since the last order was entered. Losing a job is a common reason for a reduction in child support, but other reasons could include a reduction in hours or pay rate. Given the uncertainty surrounding when this virus will end, courts may also consider factors which they normally would not.
2) A modification of child support is only valid through a court order or formal agreement. For these reasons, you should never unilaterally lower or stop paying your obligations.
3) Child support payments can be deducted automatically from your unemployment benefits. If you cannot find another job, you may want to consider filing for unemployment as a way to ensure you do not default on your payments.
4) If you cannot pay your child support, you should either immediately consult with an attorney and/or immediately file a pro se motion to modify. If you do not, a court can find that you are in arrears of payment and accordingly order you to pay anything owed pursuant to the last order. Even with court closures, you can still file a motion which will toll the accrual of your arrears.
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How is child support determined in Maryland?
Knowing what can be included in child support payments and how it is divided can save you from bearing unanticipated costs. In Maryland, child support is governed by the Maryland Child Support Guidelines. Included in the guidelines is the formula on how to determine the basic amount of child support due, what type of added expenses can be included on top of the basic obligation, and how to divide the child support between the parents.
The guidelines provide a table that reflects how much basic child support is due per child depending on the combined actual income of the parents. However, if the combined monthly income of the parents are above the guidelines, currently $15,000.00, then the court has more discretion in setting the basic amount of child support. Furthermore, the court has the ability to set child support not just based on actual income, but the court could also impute income onto a parent based on historical or projected income. The support calculated pursuant to the child support guidelines is presumptive, but not mandatory.
Different types of costs that can be tacked on top of the basic child support to be split between the parents. Generally, the following expenses can be added on top of the basic obligation: the cost of maintaining health insurance for the child, extraordinary medical expenses, and work-related child care. Costs incurred to maintain health insurance and unreimbursed medical expenses over $100 are normally added on top of the basic child support. The court can also add on child care costs if they find it a necessary expense due to the employment or job search of either parent. Extra costs incurred from regular extracurricular activities are generally not added onto the child support.
The court usually follows the guidelines closely but could depart from it if there is a showing of outside or special circumstances that would make following the guidelines inappropriate. If you find yourself outside the scope of the guidelines based on your income, consult an attorney to learn more about what child support would be appropriate in your specific circumstances.
Modifications of Child Support
Are you currently paying child support? If there has been any change in circumstance that could potentially lower the amount of child support you are paying, then you should act sooner rather than later to preserve your rights. There are two mistakes that parties often make when paying child support.
We frequently have clients consult with us that have overpaid child support for many months or even years. They wait to consult with an attorney, and then seek what is known as “recoupment” of the funds they overpaid. While recoupment is a legal term, it is rarely seen. Recoupment means that the child support payee is ordered to pay you back for any overpayment. Unfortunately, the courts rarely order recoupment because if they often find that the money “overpaid” was used for the benefit of the children. So even if you feel that you have overpaid, it will be an uphill battle to see that money again and it is better to fix the problem before it occurs.
The other mistake people make is that if they feel they are overpaying child support, they will either go ahead and begin paying a lower amount unilaterally or stop paying child support all together, without seeking a court order. The problem is that when this issue eventually gets to Court, the Court will likely assess arrears calculated pursuant to the last child support order. For example, if at the time of the last order, it was agreed that you would pay $1,000 per month for child support, and then a year later you unilaterally begin paying $500 per month, and then you end up in Court a year later, you may be ordered to pay $6,000 in arrears ($500 x 12 months).
The moral of the story is that if for any reason you believe that you should be paying less in child support than you are currently paying, you should either immediately consult with an attorney and/or immediately file a pro se motion to modify child support. Some common reasons why child support may decrease are as follows: 1) your salary decreased; 2) one or more of your children are no longer in daycare; 3) a change in health insurance cost, and 4) one or more of your children is emancipated (in Maryland, he/she has reached the age of 18 and/or has graduated high school, but is not yet 19). If any of these things have happened to you or anything else that you believe is significant, contact an attorney.
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