Divorce in Maryland – No Cohabitation During the Process

As readers of this blog know, we have some celebrity-loving folks here at the law firm who are always happy to keep us informed about the latest happenings in celebrity family law! A divorce that had been brewing prior to the holidays exploded on TMZ and Twitter when famous former football player Deion Sanders filed for divorce from his wife Pilar after 12 years of marriage, reality shows, and a handful of kids!

First, Pillar claimed she found out about the divorce filing via the celebrity news website TMZ.com. Then Deion’s daughter from another mother called out Pilar on Twitter accusing her of being a bad wife, step-mom and person. Now comes news that while the divorce is on the 20 yard line, Mr. and Mrs. Sanders have decided to continue living together in their ginormous Texas mansion. The mansion is so big that Deion rides a scooter to get around in it!

So while it may be cost-effective to continue to live under the same roof while working through the divorce process, in Maryland this type of living arrangement doesn’t work. No matter the state of the couple’s finances – and in this economy and housing market it isn’t surprising if it’s dismal – a divorcing couple cannot cohabitate. In order to meet the requirements for an absolute divorce, a couple must not live under the same roof for a period of one year uninterrupted. (The same is true about sexual relations.) If at any point during the one year separation the parties do spend the night together then the one year separation period starts again.

So Pilar and Deion Sanders may never even see each other in their reportedly 30,000 square foot mansion, but if they were in Maryland they would not be separated under the eyes of a family law judge. No cohabitation is a hard and fast rule in Maryland family law if a couple wants to divorce.

How Do I Prove Adultery to Get Out of this Marriage Now?

In Maryland’s marital law, a “final” divorce is called an Absolute Divorce. We’ve discussed the quirky Limited vs Absolute Divorce issue in other articles on this blog – click here and here. But one thing that is required in order to obtain either type of divorce is a one-year separation. Unless, it’s an Absolute Divorce and there has been adultery (and some other events we’ve discussed here, here, here and here).

So if you were married in Maryland and you want to get an Absolute Divorce without waiting for the one year separation period, here’s what you need to do to prove adultery:

The law recognizes that acts of adultery usually occur secretly; therefore, it does not require first-hand proof of the actual act of intercourse in order to establish the ground of adultery.  Absent such first-hand evidence, the law requires that only two elements be shown:  (1) disposition and (2) opportunity.  That is, the party need only show that the other party has the disposition, or personal character, that allows him or her to commit such an act, and that the party had the opportunity to commit the act.

So what do you do when both spouses have committed adultery? That’s called Recrimination:

Recrimination occurs when both parties commit adultery, and the question arises whether both are thereby prohibited from obtaining a divorce on the ground of adultery.  The law states that recrimination is not a bar to a claim for divorce based on adultery, but it will be a factor that the court will consider.

How about in situations where one spouse committed adultery but the other spouse showed forgiveness in order to keep the marriage together? That’s called Condonation:

Condonation occurs when one party learns that the other spouse has committed adultery but forgives the other spouse or continues to reside with the other spouse as husband or wife.  As with recrimination, condonation is not a bar to a claim for divorce based on adultery, but it will be a factor that the court will consider.  The court may conclude that, if the parties continued their marital relationship for a substantial period of time after disclosure of the adultery, then the adultery could not have been the real cause of the subsequent breakup of the relationship.

So adultery is grounds for an Absolute Divorce in Maryland, but it does take some effort to show that to the Courts. But if a couple is moving quickly to end the marriage, adultery can eliminate the need for the required one year separation. One side note about the quirky Maryland marital law – adultery is not a ground that is available for obtaining a Limited Divorce.

Voluntary Separation in Maryland

In many divorce cases, the couple agrees to separate as the first step to dissolve the marital union. In Maryland, the couple can choose to voluntarily separate or one party may not, but there are certain requirements they must meet in order to legally separate:

Maryland law defines separation as the condition in which two spouses refrain from BOTH (1) sleeping under the same roof, which generally means in the same building, AND (2) engaging in sexual intercourse. At any point in which two spouses sleep under the same roof even once, even if they sleep in separate rooms, or engage in sexual intercourse, the separation stops and starts over.

A legally sufficient separation is important because that is how a couple qualifies (barring other issues) for an Absolute Divorce. In Maryland, there’s a quirky marital law issue that distinguishes between an “Absolute Divorce” and a “Limited Divorce”. What’s the difference? Our family law attorney Patrick Crawford answers the question:

An Absolute Divorce is a real divorce.  It is what people think of when they think of divorce, and it is what people who want to get divorced want.  An Absolute Divorce is the real McCoy.  When two people are granted an Absolute Divorce, they are no longer married, all property issues and alimony issues have been addressed, child custody and child support issues have also been addressed, and the parties are free to marry other people.

A Limited Divorce, by contrast, is not a real divorce.  It is not what people think of as a divorce. And when parties receive a Limited Divorce, they are still married!!  That’s right.  People who receive a Limited Divorce remain married and cannot marry other people.

When a couple doesn’t mutually agree to separate with an intent to dissolve the marriage, there used to be a provision in Maryland’s marital law that required the separation to be ongoing and uninterrupted for TWO years before an Absolute Divorce could be granted. This requirement has now been obviated, and whether the separation was voluntary and mutual or one-sided and without intent to end the marriage, it doesn’t matter. The fact is when a couple has lived apart and abstained from sexual relations for one continuous year that is enough to satisfy the separation required for an Absolute Divorce. So we think we no longer need to call it a voluntary separation in Maryland because a separation is a separation in order to qualify for a divorce.

The 10-Year Rule in California Divorces – Vanessa Bryant Waited for It

As readers of this blog know, we have some very celebrity-interested folks in our law firm! No surprise given that just about every week there’s some family law related celebrity story to read about and cover. Perhaps it’s a bit like rubber-necking a car accident, but really, how could we not cover some of the salacious stuff that makes up a Hollywood-style divorce?

This week’s big divorce news comes from a Hollywood sports superstar and not an actor and it’s the NBA Lakers’ Kobe Bryant. Kobe burst on the scene when he was but a teenager, and has played basketball for the LA Lakers his entire career. He really is a Michael Jordan type of superstar and winning is his game. But, Kobe just lost in the game of marriage as his wife of a decade, Vanessa, filed for divorce this month.

There has never been any lack of interest in the Kobe and Vanessa Bryant marriage starting at its beginning when she was but a teenager herself! It seemed a bit scandalous at the time that Kobe, already a budding NBA star, would choose a 17 year old to date, and then married her at 19 but who can argue with young love? Then came the rape scandal in Colorado when Kobe was accused of attacking a hotel worker to which he claimed consensual albeit rough sex as his defense. The case never went to trial and Vanessa stood by her man while wearing a $4 million purple diamond “I’m sorry for cheating” ring she received from Kobe. So did marital bliss follow that transgression?

No is the quick answer. The couple did have two daughters, and Vanessa did regularly attend the Lakers’ games and watched them win championship after championship, but it seems that Kobe never fully gave up his penchants for having affairs. The gossip columns have linked him with everyone from Playboy Playmates to Kim Kardashian’s best friend. Who knows the real truth of the matter but what we do know is that as soon as the Bryant marriage hit the 10 year mark, Vanessa filed for divorce.

What’s so special about 10 years in California divorce law? It’s all about the alimony (spousal support). In California, a marriage that lasts 10 years or longer is considered long-term, and the non-monied spouse is entitled to spousal support for life or until remarriage. This is a very important fact for many (mostly women) spouses who relied on the monied spouse for financial support during the marriage to still have financial support after the divorce. In Kobe and Vanessa’s divorce, we’re talking about millions of dollars. But just imagine a more “normal” case where a long-term marriage ends and the non-monied spouse can rely on $1,500 a month of spousal support for as long as she/he “needs” it? That’s a very important economic consideration for most people, and that’s why some speculate that it’s just plain foolish to file for divorce before hitting the 10 year mark in California. Vanessa Bryant is clearly no fool!

What About Child Support Payments When My Ex is Unemployed?

Unfortunately, this is often a problem at one time or another in most child support cases. Recently, it has been even more common and problematic given the state of the economy, the high unemployment rate, and the years-long recession.  But just because one parent is unemployed doesn’t obviate the child support obligation. It’s a child’s right to receive economic support from a parent, and the courts will view unemployment of the non-custodial parent with a skeptical eye.

The first information the courts will look at when a parent is unemployed and not paying child support is the age of the child and the custody arrangement. If the parent is caring for a child of the parties, and that child is under two years of age, than the court will enter “0″ in the child support calculations for that parent’s income.  In addition, if the court concludes that the parent is actually and reasonably unable to work for reasons beyond that parent’s control, than the court will likely enter “0″ for that parent’s income.

But if the parent is not caring for a child of the parties who is under two years of age, and if the parent is able to work, then the court may very well attribute income to that parent even if he or she isn’t actually working.  In other words, if the parent is unemployed but is actually able to work, then the court may likely determine the amount of income that he or she is reasonably able to make and enter that amount into the income field of the child support formula.  The amount may be minimum wage, or it may be something higher.  Whatever the amount is, the amount is called an imputed amount.  It is imputed because the court recognizes that the parent isn’t actually earning that amount but is merely ABLE to earn it.

The parent to whom the court imputes an income will have to pay child support in the amount determined by the formula into which the imputed income was entered, even if that parent lacks actual income.  If the parent does not pay the child support amount, than a child support arrearage will accumulate which the parent will have to pay at a later time.

So the bottom line is that if you voluntarily impoverish yourself because you don’t believe the child support award was fair (even though it’s a mathematical calculation), or you’re discouraged by the job market and stop trying to earn a living, the courts will determine how much income you should be earning even if you’re not doing so. When you have children it’s your responsibility to care for them and that fact doesn’t change no matter how bad the economy is at the time. If you can work then you must work to support your kids.

Child Support in Maryland – It’s A Child’s Right

We recently covered a story about spousal support guidelines and states that are using them to replace what was traditionally deemed alimony. Similar to child support guidelines, they are based on a mathematical calculation of economic means with the monied spouse making financial contributions to the household of the non-monied spouse for a specific amount of time. In Maryland, if the court awards child custody to one parent, the court will almost certainly require that the other parent pay child support. The question is how much child support will the court award? It depends on the following:

The court calculates the child support amount using a formula called the Maryland Child Support Guidelines Formula.  This formula is somewhat complicated, but generally it requires only a few numbers.  First, it requires the income of each parent. Second, it requires the healthcare expense and daycare expense for the children, and it requires any extraordinary medical expenses for the children.  Based on these few numbers, the court uses the formula to arrive at a child support amount that the non-custodial parent will have to pay.

Child support is not intended to benefit the custodial parent. Instead, the family law courts view child support as a child’s right not the custodial parent’s. While it may seem that an ex-spouse is the one who mainly benefits from child support payments (especially in cases where the awards are many thousands of dollars per month), that really isn’t or shouldn’t be the case. This isn’t like alimony where the couple’s standard of living is at issue. This is about providing enough money for the child’s expenses. In a case in which the parties have a combined income that exceeds $15,000 per month, the court has the ability to consider the parties’ financial circumstances and decide on an appropriate child support amount.  But even in this case, the court will likely use the formula as a guide in reaching its decision.

Of course the parties are always free to agree to an amount GREATER than the court’s award, and that does happen, sometimes. But they cannot agree to a lesser amount no matter how unfair the paying party thinks the child support award is. Child support is often a contentious subject and regularly requires the assistance of legal counsel. An attorney can assist in establishing the income amounts, the expenses related to the children, and the few other factors that go into the formula. These amounts are often subjective and open to argument, and an attorney can assist to ensure that the figures are determined in a way that is favorable to you. But always remember it’s the child’s right to receive monetary support from its parents. That’s one thing you can never change.

Child Custody in Maryland – the Legal and the Physical

Child custody can really be broken down into two parts. There’s physical custody and legal custody. Sometimes a parent is granted both, other times it’s mixed, and in rare cases one parent gets neither. It’s important to understand the distinctions between the two because very specific rights attach to both types of child custody.

First there’s physical custody. Physical custody is what everybody thinks of when they think of custody. It is the custody associated with having the child live with you.  Often one parent or the other has primary physical custody, sometimes called sole physical custody, and the other parent has visitation, sometimes called access.  In this situation, the child will live with the custodial parent full time, or nearly full time, and will have visitation with the other parent.

Second, there is legal custody.  Legal custody is less well-known than physical custody, but it is equally if not more important.  Legal custody is the authority to make important decisions affecting the child.  Common decisions that may require legal custody are the religion of the child, where the child goes to school, whether the child is allowed to travel abroad, whether the child obtains braces, whether the child plays high school football, etc.  Each of these decisions is important, parents may disagree on them, and legal custody is necessary to guarantee the right to make the decision.

In many cases there’s a mixture of custody and that’s called joint custody. Again, it’s applied to both the physical and legal custody. With joint physical custody, the child will live with both parents, shifting back and forth on a schedule, and each parent will consider that the child lives with him or her part of the time.  No visitation is necessary in the situation of joint physical custody because the child lives with both parents for a substantial part of the time. In cases of joint legal custody, the parties must consult with one another and reach a mutually agreeable decision on each important issue that arises.  Obviously, the ability to communicate and reach shared decisions is necessary for joint legal custody to work.

Some people argue that child custody decisions are weighted in favor of the mother. There are father’s rights groups all over the world working to change the perception that women are inherently better custodial parents. However, the gender of the parents is not included among the factors that the court considers when deciding on the best interests of the children in a case involving child custody.  Maryland law on child custody includes no preference for the mother or the father.

Using Technology in Adoptions

Like many other family law attorneys, adoption is an issue that presents itself every once in a while but certainly not as often as divorce or custody cases. According to the US Department of Health & Human Services, there are 107,000 children and youth in foster care waiting to be adopted and a multiple number of parents desiring to adopt them. We don’t know why, but somehow we missed covering National Adoption Month in November so please forgive us the lapse as we attempt to right this wrong!

We believe adoption is an amazing life change for the adoptive parents, the child, and the biological parents and we support efforts to bring together the parties for the good of all involved. There are international adoption opportunities in Asia, Russia, and Eastern European nations, and domestic adoptions from right in our own backyards. It can be a costly undertaking (from $5,000 to more than $100,000 but averaging around $20,000) to adopt an infant and sometimes a bit less for an “older child”. There’s even an income tax credit for adoption that is set to expire at the end of this year (but it sure is a good one so we had to detail it here). According to the IRS:

“In 2010 and 2011, you may be able to take a refundable tax credit for qualifying expenses paid to adopt an eligible child (including a child with special needs). This means that you could qualify for a tax refund even if you did not have federal income tax withheld. For tax years prior to 2010, the adoption credit is not refundable.”

One of the biggest barriers to adoption is matching an eligible child with eager parents. An average wait time for an eligible child can be measure in years rather than months in most cases, and especially in an international adoption. So one woman in 2008 decided to use technology to speed up the matching process here in the US. Dr. Lori Ingber, PhD, founded ParentMatch.com not as an adoption agency or a facilitator but as an adoption resource for agencies and parents.

According to its website, the Parent Match database is only accessible by registered adoption agencies and not by prospective birth parents or adoptive parents in an effort to maintain confidentiality. There is a monthly fee that agencies pay for access, but it seems nominal given the searchable database they provide that is reportedly the only one of its kind available (and the technology is patent pending). They list the benefits of their service on the website and minimizing cost and time spent on the adoption process receive top billing as they should.

We think it’s a great way to use technology to solve a pervasive problem in the world of adoption, and we are eager to learn more about it. Please share with us your adoption stories – the successes and the frustrations – because even though we’re celebrating National Adoption Month a few days late, celebrate it we are!

Marriage Infidelity: Suing a mistress for alienation of affection

In English and other languages, there are many terms for a mistress: doxy, fancy woman, adulteress, courtesan, concubine, etc. While these terms almost exclusively are applied to females, there is certainly no lack of “male mistresses” in this world, but what label would we give to them? Mister doesn’t seem to fit the bill, and we think philanderer, cheater and cad are the ones most commonly used. Homewrecker could apply to both or either depending on the circumstances. No matter which term you use, in 7 U.S. states there are legal ways to deal with a spouse’s inamorata and one woman in a North Carolina courtroom last year did just that in a big way.

When Cynthia Shackelford discovered her husband, attorney Allan Shackelford, engaged in a long term extra-marital affair with Anne Lundquist, she decided to make an example of them. She sued Ms. Lundquist for alienation of affection. It’s a cause of action created a long time ago when women were still considered property of the husband, but it’s still on the books in some US states (not in Maryland, DC or Virginia). The basics of such a lawsuit are the following:

Alienation of affection(s) is a legal action, a tort based on willful and malicious interference with marriage relations by a third party. The elements constituting the cause of action are wrongful conduct of the defendant, plaintiff’s loss of affection or consortium of spouse, and a causal connection between the two.

In the Shackelford case the jury award $9 million to the scorned wife – $5 million in compensatory damages and $4 million in punitive damages. Ms. Lundquist has filed an appeal claiming among other things that she didn’t have proper notice of the trial and was unavailable to appear. Both she and Mr. Shackelford have publically stated that the Shackelford marriage was “over” long before they met and thus a causal connection between the cheating and the loss of affection cannot be established. Ms. Shackelford claims Ms. Lundquist “lured” her husband away from their marriage. As with most issues, the truth probably lies somewhere in between.

Lest you think this only happens to a female mistress in North Carolina, “in 2001, a jury awarded $1.4 million to a distraught husband in Mecklenburg County. On appeal, the court reversed the decision on $910,000 of the award but left about $500,000 for the husband.”

What do you think about alienation of affection lawsuits? Good laws and keep them on the books? Or, these laws are antiquated and no longer relevant to modern society?

Substance Abuse by Your Ex: Is it time to modify child custody?

Without question, Hollywood celebrity and actor Charlie Sheen has gotten quite a lot of press over the years regarding his domestic situations. He has been married and divorced three times, he has children by at least three different women, and allegations of substance abuse and domestic violence have been a long-running backstory to his life. But something curious has happened the past few days with his most recent ex-wife, and that’s what we’re discussing today.

Brooke Mueller, Charlie’s ex-wife and mother to his 2-year old twin sons Bob and Max, was arrested over the weekend in Aspen, Colorado for felony drug possession and a misdemeanor charge of assault. (Some of you may remember just two years ago when Charlie was arrested at the same location for domestic violence against Brooke for which he received 3 months of probation.) Ms. Mueller has reportedly battled drug addictions for most of her adult life, and has been in and out of rehab all this year. So while the family law court in California awarded Brooke primary custody of the kids, and Charlie has a typical every other weekend type of custody arrangement, there are many observers today wondering if he would attempt to change those custody conditions now that Brooke has suffered another setback. The answer came today, and it’s no.

According to Radar online, a celebrity gossip website, Charlie thinks it’s in his children’s best interest to leave the custody arrangements as is. They quote a source close to Charlie saying:

“Charlie knows that Brooke is battling a horrible disease, but that she is inherently a good person, and great mother. Charlie won’t be going to court anytime soon to seek custody of the boys, or to make any changes in custodial time. Charlie is much more interested in helping Brooke, and knows that hauling her into court right now would not benefit anyone in the long run.”

It’s no secret that Brooke’s parents relocated to Los Angeles from Florida in order to assist with the kids, and that they are primary caregivers to the two young boys. It seems that Charlie believes that arrangement is in the best interest of his kids and doesn’t want to upset their lives any more than has already happened with this incident and the numerous others prior to now. While he is well within his rights to ask the court for a custody modification, his view of the question every family law judge asks – what’s in the best interests of his children? – is to maintain the status quo.

We want to know if you think he’s making the right decision. Is Charlie correct in believing that no one is well served by taking this back to court, or should he fight for full custody while his ex-wife handles her drug problems?