Family Law

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123 terms · Maryland

Marriage Requirements in MD

1. License

2. Solemnization

"Between two individuals who are not otherwise prohibited from marrying."

True/False

Failure to obtain a marriage license will render the marriage void.

False

Voidable, not void

Premarital Medical Testing

Not required in MD

Age Restrictions to Marriage:
1) Over _____ without parental consent;
2) Between the ages of ____and ____ with parental consent;
3) Between the ages of ____and ____ absent parental consent but with a certificate of pregnancy or birth from a licensed physician;
4) Age of ____ with parental consent AND a certificate of pregnancy or birth from a licensed physician
5) Under ___, no marriage permitted.

1) 18
2) 16 and 17
3) 16 and 17
4) 15
5) Under 15
Statutory age requirements for marriage have withheld constitutional scrutiny.

True/False

If a minor knowingly violates the age requirements, he may not apply to have the marriage annulled.

True.

Waiting Period for Marriage

Most states impose a waiting period between the date of the marriage and the date of the marriage ceremony:

Maryland: 48 hours between the date of the marriage and the date of the marriage ceremony.

- Marriages must be performed within 6 months after the license becomes effective.
- Can be waived by the court in emergency.

Solemnization

Marriage ceremony, required for a valid marriage.

Maryland: Must be performed in front of a religious official, or clerk/deputy clerk assigned by the county administrative judge.

- No particular words are necessary
- MD does not require witnesses be present

Common-Law Marriage

Not permitted in Maryland, but recognizes common-law marriages from other states as a result of Full Faith and Credit.

If a MD court is determining whether a common-law marriage contracted in another state is valid, the intent of the parties is paramount.

Domestic Partners Defined

1) Two unmarried adults, whether or not of the same sex
2) Who are not related by blood, or in a marriage, civil union, etc. with another
3) Who are in a relationship of interdependence

Domestic Partnerships Requirements in Maryland:

Were established in 2008 and require that parties:

1. Must execute affidavits
2. Provide proof of the relationship

But, there is no state registry for domestic partners

True/False
MD does not allow a pregnant woman to bring an action for a breach of promise to marry.

False, can bring if pregnant.

ENDING A MARRIAGE - 3 ways

1) Annulment
2) Divorce
3) Death

In MD, the _____ court has jurisdiction in an action for divorce, annulment, or alimony.

Circuit

Annulment

When grounds for annulment are proven by clear and convincing evidence, a legal determination is made that the marriage never existed.

Two Grounds for VOID Marriage

1. Bigamy: valid prior existing marriage
2. Incest: prohibited degree of kinship (ancestor, sibling, descendant)

A void marriage is treated as if it never happened.

Court action required for void/voidable marriages?

Void: NO, court action not required.
Voidable: YES, requires a court decree.

Who can file to void a marriage?

Can be filed by a spouse OR third party

Who can file to have a voidable marriage annulled?

Only a spouse can seek a court decree to declare the marriage void.

Contract Based Grounds for VOIDABLE Marriage

1. Age
2. Mental incapacity
3. Intoxication
4. Fraud (has to be something that goes to the essence of marriage....such as desire to have children).
5. Duress

MD - Breach of Promise to Marry

A pregnant woman may bring an action for breach of promise to marry.

Annulment and property distribution

Is treated the same way as divorce for the purposes of equitable property distribution, as well as custody, alimony, etc.

MD - Two types of divorce

1) Absolute: dissolves or terminates the marriage

2) Limited: legal separation

Absolute Divorce

1) A permanent divorce
2) Permits remarriage
3) Terminates property claims.

Eight Grounds for Absolute Divorce

"Seems Almost Every Divorce Inherently Involves Crack"

Separation (1 year) - voluntary or involuntary
Adultery
Excessively Vicious Conduct
Desertion (actual or constructive)
Incarceration
Insanity
Cruelty

Limited Divorce (formerly "Partial Divorce)

1) Court order that allows aggrieved spouse to live separate and apart and receive support (legalizes separation)
2) Not permanent; does not permit remarriage
3) Permits pendente (temporary) relief

Grounds for an Absolute Divorce - No Fault

1) Separation (requires the consent of both parties): Requires that the spouses lived apart, without sexual relations, for 12 consecutive months.

(Used to have voluntary and involuntary 12&24 months) - Changed 2011

Six Fault Grounds for Absolute Divorce - Fault

1. Adultery
2. Excessively Vicious Conduct
3. Desertion
4. Insanity
5. Incarceration
6. Cruelty

Absolute Divorce - Adultery

1) Burden of proof is on the complainant

2) May be proven by direct or circumstantial evidence.

To prove adultery by circumstantial evidence you must show both:

1) OPPORTUNITY (ex: showing that your spouse was seen entering a woman's apartment at 11 P.M. and not coming out until 8 A.M).

2) DISPOSITION (ex: public displays of affection, gifts give, etc.)

Absolute Divorce - Criminal Conviction

When a spouse is convicted of felony or misdemeanor carrying at least a 3 year sentence AND 12 months have already been served.

Absolute Divorce - Cruelty or Excessively Vicious Conduct

Conduct that endangers the life, person, or health of the other party or a minor child. Can be physical violence or mental cruelty.

Can file for immediate divorce without waiting one year, if there is no reasonable expectation of reconciliation.

Absolute Divorce - Desertion (aka abandonment)

Actual: Unjustified actual separation by one spouse for 12 consecutive months, with the deliberate intention of terminating the marriage.

Constructive: Plaintiff spouse is justified in leaving the home due to the misconduct of the other defendant spouse, which makes the marital relationship unbearable.

Absolute Divorce - Constructive Desertion

When one spouse's conduct makes it impossible for the other to continue to cohabit with safety and self-respect.

Example: domestic violence - abuser will be seen as the deserter - must be prolonged and serious abuse

Absolute Divorce - Insanity

Spouse has been institutionalized for 3 years before filing the complaint.

- Must have the testimony of 2 doctors that the insanity is incurable.
- One party has lived in Maryland for at least 2 years before filing.

Limited Divorce

Similar to what other states call a "legal separation"

1) This does not terminate the marital relationship.

2) Parties cannot remarry.

3) It does formalize the separation and may enable the parties to obtain some relief while the separation is going on, i.e. alimony, child support.

The Court can decide about personal property NOT real property.

Grounds for a Limited Divorce

1) Voluntary Separation
2) Cruelty
3) Desertion (Actual and Constructive)
4) Excessively Vicious Conduct

If a party seeking an absolute divorce has __________ to establish the cause of action, the court may grant a limited divorce.

Also, the court may order the parties to participate in good faith efforts of _______ prior to the granting of a limited divorce.

insufficient evidence

reconciliation

Grounds for Limited Divorce - FAULT

1. Desertion (same as absolute divorce desertion, but need not wait 12 months to file)
2. Cruelty
3. Excessively Vicious Conduct

5 Defenses to Fault Divorce

Must be affirmatively pleaded.
1. Recrimination - both parties guilty of the same offense.
2. Connivance - Consent or indifference
3. Condonation - Forgiveness of a spouse
4. Collusion - Both spouses agree to fabricate grounds for divorce
5. Provocation - If misconduct was provoked by moving party
Religion grounds - NOT VALID

Defenses to Fault Divorce - Condonation

Forgiveness of a spouse

Ex: Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then adultery cannot be used as a ground.
In Maryland, however, condonation does not necessarily bar the action for divorce; it now only a "factor for consideration."

Defenses to Fault Divorce - Recrimination

Both parties guilty of the same offense.

Defenses to Fault Divorce - Collusion

Both spouses agree to fabricate grounds for divorce

Defenses to Fault Divorce - Provocation

If misconduct was provoked by moving party

Defenses to Fault Divorce - Connivance

Consent or indifference

Equitable Distribution is

The fair division of property between spouses according to statutory factors under the Marital Property Act, but is not necessarily an equal split.

Factors considered under Marital Property Act

1) Property should be adjusted fairly and equitably
2) Non-monetary and monetary contributions made by the spouses
3) Interests of minor children

Determining Property Distribution three-step process:

1. Classify (marital or non-marital)
2. Value
3. Distribute (based on the basis of the contributions of each party)

Presumption of Tenants by the Entirety

In MD, in the absence of contrary evidence it is presumed that the husband and wife own the family home, furnishings, and household goods as tenants by the entirety.

Marital Property

1. All property acquired during the marriage
2. Retirement benefits, wages, salaries, lottery winnings, all accumulations of wealth
3. Property held as tenants by the entirety

Non-Marital Property

1) Acquired before the marriage
2) Gift or inheritance
3) Passive increases in the above
4) Property excluded by agreement

Source of Funds Rule

used to decide ownership of disputed property (except for real property held by tenants by the entirety).

If property has been purchased with both marital funds and separate funds:

the property will be considered marital property except for the portion that can be directly traced to non-marital (sole) funds.

The party asserting that the property is non-marital has the burden of tracing the property directly to a non-marital source.

Valuation of property happens

As of the date of divorce, not separation.

But if the property was acquired after separation, without contribution from the other spouse, it will not be considered in the valuation (may still be considered in distribution).

Debt not directly attributable to the acquisition of marital property is ______ debt, even if it occurred during the marriage.

non-marital

- Not considered in the valuation process
- Ex: Home equity loan taken out to pay for child's tuition

Statutory Factors Considered in Distribution of Property

1. Economic circumstances
2. Fault
3. Age
4. Length of marriage
5. Any factor that the court finds just and proper in reaching an equitable award

Family Use Property

Custodial spouse and minor child may be awarded use of family home for up to 3 years. The purpose is to permit continuity of the child's environment.

1) Home must be a primary residence in MD
2) Includes: cars, furniture, household goods acquired during the marriage primarily used for a family purpose.

Distribution of Property - Professional Licenses or Degrees

Maryland, following the majority rule, considers professional license or degree as personal to the holder and not a property interest subject to equitable distribution.

Distribution of Property - Retirement or Pension Benefits

are marital property to the extent that they were acquired during the marriage.

- Distributions of a pension or retirement benefit may be made through the execution of a Qualified Domestic Relations Order.

Distribution of Property - Social Security Benefits

not subject to equitable distribution but can be considered as a factor in determining a monetary award.

Distribution of Property - Tax Consequences:

Property is not taxed when transferring between spouses - may be taxed when the property is sold.

SPOUSAL SUPPORT: Factors to be considered for alimony

1. Ability to be self supporting
2. Standard of living and duration of marriage
3. Age
4. Health
5. Contributions to the marriage
6. Resources and needs of both parties
7. Time needed to obtain suitable employment
8. Agreement (if any) between the parties
9. ANY OTHER factor AFFECTING FAIRNESS

"New Alimony Act"

In 1980, with the enactment of the "New Alimony Act", Maryland changed the function of alimony from a permanent award viewpoint to a rehabilitation viewpoint.

Maryland has a preference for short-term obligations intended to only last until the receiving spouse becomes self-supporting, even if it results in a reduced standard of living.

Temporary Alimony (Pendente lite)

Temporary alimony awarded to the economically disadvantaged spouse during the pendency of the proceedings.

- This is awarded regardless of fault or success on the merits.

In order to be awarded Temporary Alimony (Pendente lite) the spouse seeking support must prove 4 things:

Requirements:
1. Proof of marriage
2. Proof that divorce action pending
3. Need of the dependent spouse
4. Proof that the party has the ability to pay

Rehabilitative Alimony

In Maryland, alimony is presumed to be rehabilitative in nature.

1. Awarded for a specific amount of time to allow receiving spouse to become self supporting
2. Court looks at statutory factors.

Indefinite Alimony - Awarded in two situations:

1) Unlikely that the recipient spouse will become self-supportive

2) If rehabilitative were awarded there would then be an unconscionable disparity in the standard of living between the parties.
Look for EXTREME differences in incomes and the lifestyles of the parties even after the recipient spouse becomes self-supporting.

Modification of Alimony

Requires a change in circumstances which would cause an inequitable result without extension or modification.

Ex: Loss of job, health problems, or the supported spouse's inability to reach the previously determined level of income to be self-supporting

Party cannot quit job voluntarily and claim change in circumstances warranting modification downward.

Alimony Terminates

1) On the date specified by the court
2) On the death of either party
3) On the remarriage of the recipient
4) When termination is necessary, bases on the court's determination, to avoid a harsh and inequitable result.

Termination of Alimony - cohabitation of a supported spouse, without remarriage (ex: living with boyfriend/girlfriend)

Termination or modification is NOT automatic.
- Court considers factors relating to the length and stability of the relationship.

Divorce - Jurisdiction Requirements

Circuit Court

Court needs both subject matter jurisdiction and personal jurisdiction over the parties

Each element of the grounds for divorce must be __________ by a witness.

corroborated

Divorce - Residency Requirements

1) If the cause of action/grounds for divorce arose in Maryland and one of the parties is a Maryland resident, then there is no residency requirement.

2) If the cause of action/grounds for divorce did not arise in Maryland, then one of the parties must have been a resident for at least 1 YEAR

3) If the cause of action is based on insanity, there is a two year residency requirement.

Divorce - Venue

May be filed in the county where:

1) The PLAINTIFF resides OR
2) Where the DEFENDANT resides or works

(normal venue rules)

Divorce - Out of State Defendant

If the only thing the plaintiff wants is a divorce, then it is NOT necessary to get long-arm personal jurisdiction over the defendant in another state.

- Personal jurisdiction over the defendant IS REQUIRED to decide child support, alimony, and rights regarding property located outside the state of Maryland.

Although there is no legal right to counsel of indigent parties in divorce proceedings, in Maryland the court has the discretion to award _______ fees and costs when specific issues are litigated.

attorney's

There is a _______ presumption that a child conceived during a marriage is the child of that woman and her husband.

rebuttable

In a paternity action, there is no right to a _____ trial and a trial must be held after ________.

jury
the child's birth

The right to receive child support belongs to

the child and the parent cannot waive it.

The payment of child support is entirely separate from ______, which cannot be withheld for non-payment of child support.

visitation

Child support - Tax Consequences

Not taxed and not deductible

Child Support - Amount Owed

Child support guidelines MUST be used to calculate the amount of child support owed.

- Other additional expenses can be ordered, for pre/post natal expenses, extraordinary medical expenses, health insurance, daycare or educational costs, i.e., private school tuition.

The concept behind the child support guidelines is

that the child should enjoy the same standard of living as would be if the parents were still together.

Modification of Child Support

Must show material change in circumstances in the child's needs or parents' ability to pay, making it in the best interest of the child to change the amount.

Child Support - voluntary impoverishment

If a party voluntarily quits a job, income can be imputed. If the Court does impute income to the party, it can base child support on the party's potential income.

Child Support - Termination

Age 18 OR graduation from high school (whichever is later)

Child Support - Disabled Children

Entitled to support through adulthood

Enforcement of spousal and child support orders is done through

1) Contempt orders - civil and criminal

2) Income withholding

3) Tax refund withholding

UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA)

Simplifies the collection of child support and alimony across state lines.
(When the child lives in a different state than the parent who is obligated to pay child support.)

UIFSA - Jurisdiction

Lies in the jurisdiction where UIFSA action was filed. That first state retains continuing exclusive jurisdiction over the child support order.

- This jurisdiction continues until all parties move out of state or the child no longer has a significant connection to the state.

Home State

Jurisdiction for matters of child support/alimony lies in the state where the UIFSA action was filed.

Legal Custody

Right of the parent to make major decisions, as opposed to day-to-day decisions, regarding the minor child.

Ex: Health, education, religion

Joint Custody

Both parents having legal and physical custody.

- Does not necessarily require an equal amount of time-sharing

MD - Joint Custody
Is there a presumption of joint custody?

There is no presumption of joint custody

Maryland can hear an initial custody determination if:

1. Home state of the child for 6 MONTHS or since birth

2. Was the home state within the past six months, child is absent, but one parent remains

The standard for determining child custody is

the best interests of the child.

Best Interests of the Child - Factors Relating to the Parents

1) Character, reputation, and fitness of the parties

2) Desire of natural parents

3) Willingness to promote a relationship with the non-custodial parent

4) Distance between the residences of the parents and the opportunity for visitation

5) Whether either party had previously voluntarily abandoned or surrendered custody of the child

Best Interests of the Child - Factors Relating to the Family

1) Potential for maintaining natural family relations

2) The length of the parties' separation

Best Interests of the Child - Factors Relating to the Child

1) Age, health, and sex of child

2) Wishes of the child, if of mature age

3) Any material opportunities affecting the child's future life

Biological parents are presumed to be the best custodians unless

they are unfit or upon a showing of exceptional circumstances.

A prolonged and voluntary separation is the most common form of exceptional circumstances.

De Facto Parents

Stepparents and non-biological same-sex parents are NOT automatically recognized as having rights to access to a child, but the court will consider factors relating to the child and his relationship with the person seeking access in making a decision.

NOTE: first there has to be an unfit biological parent.

Visitation may be awarded to third parties, including grandparents, if:

1. There is a threshold showing of parental unfitness
AND
2. It would be in the best interest of the child.

Two Ways to Terminate Parental Rights

1. Voluntary - by consent
2. Involuntary - by court order

Judicial standard for termination of parental rights

Clear and convincing evidence

Because the termination of parental rights has constitutional implication, it is considered an extreme remedy.

When can a court terminate parental rights?

1. In an abuse, neglect, or dependency case

2. When parent convicted of crime of violence against other parent with sentence of at least 10 years.

Maryland permits adoptions via three avenues:

1) Through the Dept of Social Services
2) Private agency adoptions
3) Independent adoptions

Any adult may petition to adopt another _____ or _____.

adult or child

Once the adoption has been completed, a new __________ with the adoptive parents' names is issued for the child.

birth certificate

Equitable Adoption

Permits a child to be recognized for some purposes based upon the conduct of the parents. Such as treating a child like your own.

(Usually comes up in an estate and inheritance situation)

Four types of protective orders:

1) Interim

2) Temporary

3) Final

4) Permanent

Which court(s) have jurisdiction over protective orders?

District & Circuit - Concurrent

(majority are filed in district)

Protection Orders can be filed by

By anyone involved in a close family relationship (as defined by statute).

Permanent Protective Orders are Available when:

if respondent convicted of abuse and served at least five years in prison.

Interim Protective Orders

1) Hearing - Ex parte, before Court Commissioner

2) Available - only when the courts are closed.

3) Standard - reasonable grounds to believe abuse occurred.

4) Duration - Expires within 48 hours after issuance or when the Temporary Protective Order Hearing takes place.

5) Relief available - No contact, vacate residence, child custody decided, seizure of weapons, prohibited presence from certain locations

Temporary Protective Orders

1) Hearing - Ex parte, before a judge

2) Standard - Preponderance of the evidence that there is reasonable grounds to believe that abuse has occurred (petitioner must testify under oath).

3) Duration - 7 days, but can be extended to a maximum of 6 Months

4) Relief available - No contact, vacate residence, child custody decided, seizure of weapons, prohibited presence from certain locations.

Final Protective Orders

1) Hearing - NOT Ex parte, before a judge. Heard within 7 days after temporary order granted

2) Standard - Petitioner must prove abuse by clear and convincing evidence.

3) Duration - Up to 1 YEAR, may be extended in limited circumstances up to 2 years.

4) Relief available - Same as for temporary order plus child support, visitation schedule, use of vehicle, counseling.

Permanent Protective Order

When the respondent was convicted of and served at least 5 years for an act of abuse that lead to a final protective order, and the respondent is being release from incarceration.

Peace Order

In Maryland, Peace Orders were established to fill a gap in the domestic violence law and provide protection for persons who are ineligible for relief, such as a non-cohabiting girlfriend.

What court has jurisdiction for a peace order?

District ONLY

Requirements to get a Peace Order issued

Establish by clear and convincing evidence that the respondent committed an enumerated act and is likely to commit a prohibited act in the future.

- Must file within 30 days of the act upon which the order is based
- A peace order issued after a final hearing will not exceed a period of 6 months

Some acts justifying the issuance of a Peace Order

1) Any act that causes the petitioner to be in fear of serious bodily harm

2) Assault in any degree

3) Any sexual offense

4) False imprisonment

5) Harassment

6) Stalking or trespass

7) Malicious destruction of property

Child abduction by non-custodial care taker:

Must return child within 48 hours or face criminal penalties.

After a spouse has been missing ___ years may marry after a court rules the absent spouse is dead.

7

How are lottery winnings distributed?

Monetary awards are equitable and based on a number of factors including, how and when the marital property was acquired.

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