Adultery: A Crime?

Believe, it or not, in Maryland, adultery is not only a grounds for divorce but it also a crime!  Under Maryland Law, adultery is a misdemeanor that if convicted is punishable by only a $10 fine.  Maryland defines adultery to mean a married person voluntarily engaging in sexual intercourse with a person that is not his or her spouse.  Adultery does not include oral sex or sodomy.  Therefore, the current definition is construed in such a way that adultery can only be committed with members of the opposite sex.  Recently, lawmakers have been working to try to abolish this archaic law but it remains on the books to this day.  According to records, at least three people were charged with adultery in Maryland in 2017.  Since the punishment  is nominal and the crime is rarely enforced, the main effect of adultery being labeled as a crime is that in divorce proceedings, the alleged “cheater” can generally plead the 5th when asked about infidelity.  When proving adultery as a ground for divorce, the accuser is required to prove by clear and convincing evidence that their spouse had a relationship that culminated in sex.  The evidence cannot just be just the accuser’s word or even a spousal admission and must instead be corroborated by someone outside the marriage.  Further if the adultery is “condoned” meaning if the innocent party resumed a sexual relationship with their spouse or continues to cohabitate with their spouse after learning of the adulterous act, adultery cannot be used as a ground for divorce.  The District of Columbia repealed the criminal penalty of adultery in 2003.  

This information is intended for general purposes only and is not a substitute for legal advice applicable to your case.  Consult an attorney with respect to your circumstances.

Do I need to pursue Guardianship over my loved one?

Sometimes the answer to this question is simple, however, more often than not the answer to this question is much more complicated.  The unfortunate truth is that many older adults have long periods towards the end of life where they cannot make decisions for themselves.  

A guardian is a person appointed by the Court to make healthcare or monetary decisions for someone who cannot make these types of decisions because of illness, injury, or disability. A guardianship is a crucial legal tool that allows person(s) to make decisions for the disabled adult.  If the person has an advanced health care directive, medical decision making is already being provided for and a Guardianship of Person would most likely not be necessary. Similarly, if the person has a durable power of attorney for finances a Guardianship of the Property would most likely not be necessary.

An illness, injury or disability can make it impossible for someone to make their own decisions.  Admitting this about your loved one can be difficult.  It helps to think of Guardianships as a way to facilitate the independence of the disabled adult and can often help allow the person to maintain as much self-reliance as possible.  

When becoming a Guardian, you may be tasked with deciding where and how your loved will live, what medical treatment they will receive, whether they should buy or sell their property, and what end of life measures should be taken (to name a few).  The Court is considered the “actual” Guardian with the person appointed as a Guardian acting as mere arm or “agent” for the Court.  A loved one is, in most cases, appointed as Guardian because it is presumed they have the disabled adults’ best interest and personal wishes in mind.  The Court will set the parameters for a Guardianship allowing for certain actions to be taken without Court’s approval whereas major life changes such as changes in level of care from at home to an assisted living facility can only be made by the Court.

When deciding if it’s time to obtain a guardianship, hopefully you’ve had a chance to talk about this with your loved one.  He or she may or may not be capable of providing constructive input.  Once you decide to file for a Guardianship, the Court may appoint an independent attorney to represent the alleged disabled adult in the proceeding. This attorney will meet with your loved and determine if a Guardian is necessary and if you are the best choice to become Guardian.  In addition to this, in Maryland, you must provide the Court with two Certifications from a doctor and/or mental health professional certifying that the alleged disabled is incapacitated.  

Again, we understand how difficult this decision can be.  To further discuss your options and learn more, contact our office at 240-396-4373.

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.

Maryland Legislature Update: Law to Terminate Parental Rights is Signed by Gov. Hogan

Maryland Legislature Update: Law to Terminate Parental Rights is Signed by Gov. Hogan

Earlier this month, Governor Hogan signed the emergency bill which was passed by the Maryland Legislature, which will allow women to petition the courts to terminate the parental rights of the father if the woman became pregnant as a result of sexual assault. The law became effective immediately, so anyone in this situation finally has a means to a resolution. 

Maryland is the 45th state to pass such a law, which has been ten years in the making. 

Maryland Legislature Update: Termination of Parental Rights

For ten years, a bill has been introduced into the Maryland legislature that would allow women who become pregnant as a result of sexual assault to terminate the parental rights of their assailants. 

The woman would need to prove, in short, that the man whose parental rights she is seeking to terminate is the father of her child, that he sexually assaulted her, and that it is in the best interests of the child for the parental rights to be terminated. The proposed burden of proof is “clear and convincing” which is the same standard used throughout family and civil cases, which is lower than the “beyond a reasonable doubt” standard used in criminal court.

Hesitation in passing the bill in the past has come from lawmakers’ constitutional concerns with terminating parental rights if a man has not been convicted of the sexual assault in criminal court.

Currently, the senate has passed one version, and the house has passed a different version.  Now they must reconcile the versions and present it to Governor Hogan. Last year, the legislature was working on reconciling the versions between the two chambers but was unable to do so before the session ended in the summer. Governor Hogan has expressed support for the bill, and many Maryland lawmakers are anxious to see the bill pass this year.

The legislature is still in the early stages of the process. This post will be updated as progress is made.

Is my [blank] marital property?

One question we get regularly, is whether a certain piece of property or account is ‘marital property.’ In order for something to be marital property, generally, it must be property that was acquired during the marriage.  For certain items, such as a house, bank account, car, etc. it is easy to determine whether it is marital property, based on its purchase date, and subsequent change in value, and the reason for the change in value.

For example, if one party owned a house prior to the marriage, but during the marriage the parties jointly put money into renovating the home, thereby increasing its value, that house is partly marital property. But, if one party owned a house prior to the marriage and the value of the home increased solely due to changes in the real estate market, then it is not marital property.

What about things like airline miles, credit card points, retention bonuses, and awards from workers’ compensation claims or personal injury claims? These are generally things that either are received in cash or are used in lieu of cash, so are these marital property, and if so, how is their value determined for purposes of an equitable distribution?

Marital property, if intangible such as airline miles or credit card points, must be transferrable, and must be capable of being converted into a monetary amount. Owners of such accounts must be careful to read the policies of the individual programs to see if points are transferrable. Also, it is best if the parties can agree on a value for these types of accounts or to agree to a work-around if the points are not transferrable.

Awards for personal injury or workers’ compensation claims can be both marital and non-marital property. If any part of the award is for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for the joint loss of consortium, then that part of the award would be considered marital property. Any part of the award that is for compensating something personal to the award recipient, such as compensation for the actual personal injury, those funds are personal to the recipient and therefore not marital property.

Retention bonuses are generally marital property, because their purpose is to be another form of compensation to the employee. This classification of marital property takes into account that the retention bonus is not characterized as compensation on the employee’s pay statement.

As our world becomes more technologically advanced and more property is held only in an intangible, electronic form, lawyers are becoming more creative to find simple solutions to new questions. 

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.

UPDATE: Tax Cuts and Jobs Act

            Friday, December 22, 2017, President Donald Trump signed the Tax Cuts and Jobs Act into law.  On November 3, 2017 we posted about the proposed change to the alimony deduction as written in the first draft of the bill. As a brief recap, prior law allowed the alimony payor to deduct the amount paid from his or her taxable income, meaning the recipient would include the alimony in his/her taxable income. The effect of repealing this section of the law means that the alimony payor will not be able to deduct the amount paid from his or her taxable income.

            The new act still includes a repeal of the alimony deduction provision. However, now, it will not take effect until 2019, meaning that all separation agreements signed and divorce decrees entered on or before December 31, 2018 will not be affected.

            For persons  in 2019 and later seeking modifications of agreements, or decrees executed on or before December 31, 2018, it is presumed that the current tax scheme will still govern. If the parties want the new tax scheme to govern, they must state it explicitly in the modification agreement. 

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