When Is Property "Acquired"?
For property that isn't purchased all at once, Maryland courts have defined the term "acquired" as the ongoing process of making payments on the property. Under this definition, whether the property is nonmarital or marital depends on the source of each payment.
So, for example, a house that one spouse bought prior to marriage and was paying the mortgage on would start entirely as nonmarital property.
However, as the spouses make mortgage payments using marital funds during the marriage, the property becomes partially marital.
Marital property includes assets that belong to the marriage -to both spouses-rather than to one spouse or the other as separate property. Marital property includes real property (such as a home or land) that the spouses own as tenants by the entirety unless the spouses have a valid written agreement to the contrary.
Marital property also includes any property either or both spouses acquired during the marriage. However, a court may exclude property from the "marital" category if one spouse acquired the property by gift or inheritance from a third party, or if the spouses have a valid agreement stating that the property is nonmarital.
Property that either spouse acquired before the marriage is also considered the separate property of that spouse. And, any property that is directly traceable to a separate property source remains separate property. For example, if one spouse owned a car before the couple married, then sold the car during the marriage to buy a pool table, the pool table would remain that spouse's separate property.
Many divorced parents say the most challenging part of ending a marriage is sharing parenting time. Not being able to see your children every day can be incredibly painful. Without having to defer to each other for daily decisions, divorced parents may create households with different rhythms and rules. One day, your child may tell you they want to live with your ex-spouse. While you are likely to feel sad, angry, or rejected, it is important to control your emotions and balance your response if you want to preserve the relationship with your child. Change is inevitable and the connection with your ex-spouse may be what they need right now. Discuss with Your Ex-Spouse If your relationship with your ex-spouse is amicable, bring them into the discussion. They may be able to offer more insight into why your child wants to live with them and if it is practical. Approaching the situation as a team will make determining where your children will live a more peaceful and productive one. Avoid the Guilt Trap. When a child wants to live with the other parent, it may be tough to not make them feel bad or guilty, but this will only strain your relationship further. Divorce is painful for children and adding guilt or shame to the emotions they are already experiencing will make the healing process more difficult. Do not punish them for processing this enormous transition in the only way they know how.
Sometimes the strain of divorce can be more than matched by your irritation with your lawyer's antics, so be sure you're happy with this person before agreeing to retaining them. The more aggressive and "take-all" the attitude of your lawyer, the less amicable the settlement process will be, so bear that in mind when choosing one.
Each week I will be posting tax considerations when going through the divorce process.
1. Spousal support payments are commonly used in divorce settlements to shift cash from one spouse to another to provide income. It's important to understand how these payments will impact your client's taxable income and cash flow. Alimony is one type of spousal support payment. The Tax Cuts and Jobs Act tax legislation changed the tax treatment of alimony paid and received: any divorce or separation agreement instituted on or after January 1, 2019 is governed by the new tax law and alimony income is not taxable to the recipient and there is no tax deduction for alimony paid. The tax treatment of alimony for agreements completed by December 31, 2018 was not changed by this legislation and payments that qualify as alimony are taxable income to the payee and tax deductible to the payer.
When a child's parents never agreed on a surname at the time of the child's birth, a court's inquiry upon a motion to change the child's name is a pure "best interests of the child" standard. In short, "an appellate court does not make its own determination as to a child's best interest; the trial court's decision governs, unless the factual findings made by the lower court are clearly erroneous
or there is a clear showing of an abuse of discretion."
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The number of overnights the child or children spend with each parent controls whether or not the Child Support Guidelines will be calculated pursuant to "sole custody" Guidelines or "shared custody" Guidelines. Under the current statute, "shared physical custody" means that the non-custodial parent has the child or children overnight for more than 35% of the time, or 128 overnights per year. If a parent has the child or children less than 35% of the time, or 127 overnights per year or less, then the sole custody Guidelines apply.
A new statute will take effect on October 1, 2020 which converts this concrete "128 overnights" divider between sole and share custody Guidelines into a downward slope between the two sets of Guidelines. First, the statute lowers the number of overnights from 35% to 25% of the time. Thus, the sole custody Guidelines will only be applicable to cases where the non-custodial parent has the child or children less than 25% of the time, or less than 92 overnights per year. The shared custody Guidelines will be applicable to cases where the non-custodial parent has the child or children more 30% of the time, or 110 or more overnights per year. And, for the non-custodial parent that has the child or children more than 92 overnights but less than 110 overnights per year, the new statute establishes a certain formula for the calculation of child support.
Going through this pandemic is stressful enough, but when you compound divorce and custody matters, it can be unbearable. Please contact me if any family law questions firstname.lastname@example.org.
#familylaw #custody #divorce #childcustody #childsupport #domestic
As many families are self-quarantining and social distances, it is not clear what "immediate family" means when you are divorced and have minor children. I've received a lot of calls from clients trying to figure out the line between protecting their children and custodial/visitation interference.
This is the time to mediate, however difficult it may be, keep in mind that your children are experiencing a significant amount of uncertainty. There are excellent mediators out there, and with applications like Zoom, mediation doesn't have to wait. If you are looking for a recommendation for a local mediator or just advice in general, please do not hesitate to contact my office.
#divorce #custody #children #mediation #custodydispute #custodialinterfere #visitation
I'm sure that a lot of you are concerned that the courts are limiting matters being heard. Rest assured that the courts are still hearing matters related to emergency matters including custody and domestic violence.
"Effective Tuesday, March 17, 2020, the Maryland state courts will require only essential employees to report to courthouse locations and court offices. Court locations and offices will be minimally staffed to hear emergency court matters and to answer calls between 8:30 a.m. and 4:30 p.m. All other employees able to work from home will do so at the direction of their supervisor.
Emergency matters include, but are not limited to, domestic violence petitions, family law emergencies, extreme risk protective orders, bail reviews, juvenile detention hearings, and search warrants. These matters will continue to be processed by the courts and its reduced workforce until Friday, April 3, 2020, or further notice."
Have you recently tried to reach the Office of Child Support and been met with difficulty? The purpose of the child support office is to ensure that the individual ordered to pay child support is meeting his or her obligation. The office is also tasked with ensuring that the person who is to receive child support gets his or her monthly payments. I have heard from a number of clients that they have been told that they don't have an open case (even though there is a wage garnishment) or that they where unable to get an accounting of their own payment obligations. I even have a client that was told there was no way for child support to calculate the arrears owed to them. A Magistrate had to tell my client that the case worker did not know what he was talking about and it is that office's job to determine arrears due and owing. If you are having difficulties navigating through the office of child support, please contact me for a consultation. The Office of Child Support should be working for you, not against you.
Contrary to what many people believe, there is no maternal preference when the courts make a determination regarding custody. In fact, the courts always favor both parents have maximum contact with their children. The courts determine custody based upon what is in "the best interest of the child or children." The factors that the court looks at include fitness of each parent, the character and reputation of each parent and the potentiality of maintaining family relations. There is a lot of incorrect information on the internet. If you have any custody questions, please contact my office to set up a consultation.
#familylaw #custody #schedule #childcustody #child #childsupport
Custody is always modifiable in the state of Maryland. If there is a material change in circumstances, e.g. a parent is travelling more for work or a parent is assuming more of the weekly overnights, then either party may file to modify custody. Once it is proven to the Court that there is a material change, then the Court must determine what is in the best interest of the children. The Court will not address the best interests of the child(ren), unless it is proven that there is a material change in circumstance. This means that you can't just ask for modification because you think your child(ren) are better off spending more or less time with the other parent. Always get advice of counsel before filing for modification.
#childcustody #custody #modificationofcustody
The idea of going to trial can be very intimidating and scary. I always recommend and strive for a way to help my clients settle their case. However, don't take a bad deal just because you don't want to fight anymore. Property, financial settlements and Alimony cannot be modified once there is a settlement agreement reached and either in writing or on the record. Once you waive alimony or reach property settlement, you cannot go back to court to ask for a modification. While custody and child support are always modifiable, there must be a material change in circumstance before the court will grant a modification. This is not as easy as it sounds. If it is a settlement that you cannot live with, don't settle and fight for what you want.
Mutual Consent Divorce: Currently, married couples can forgo the one-year separation period and file for a
divorce on the grounds of mutual consent as long as they have a written separation agreement, but only if they have no minor children. This law has now changed. Beginning October 1, 2018, married couples who have minor children will also be able to forgo the one-year separation period and obtain a divorce on mutual consent grounds. There is still the requirement of a written separation agreement and that agreement must not only resolve all financial issues between the parties, but also resolve custody, access, and support of the minor children.
#divorce #marriage #children #childcustody
When there are problems in a marriage, people are hesitant to speak to an attorney because it implies you are ready to move forward with a divorce. Even if you are not ready to move forward, there is no harm in getting information. You should know your rights. Too many times one spouse spends an hour on Google and thinks they know the law in Maryland and uses that information to intimidate the other party. Don't be intimidated. Call me for a consultation whether you are ready to file or not.
#divorce #marriage #children #childcustody #childsupport #spousalsupport