Family Law Flashcards
Jurisdiction (Family Law):
The Circuit Court has jurisdiction in all family law matters, except that it shares jurisdiction with District court for protective order and ONLY the district court does peace orders. No juries.
Family Law Subjects:
Marriage, Annulment, Divorce, Property, Alimony, Child Custody and Support, Prenups, Domestic Violence.
Age to Marry:
18 years. 16-7 with consent or pregnant, 15 if consent and pregnant.
Marriage Requirement
License, Ceremony, Correct Age, no Bigamy or Consanguinity
Breach of Contract for Marriage
A person may not sue another for breaching a marriage proposal unless the plaintiff is pregnant by that person.
Common Law Marriage:
Maryland will recognize common law marriage from another jurisdiction if: parties intended the marriage via agreement, held themselves out as married, and continuously cohabit.
Grounds Making Marriage Void
Consanguinity and Bigamy.
Grounds to Making Marriage Voidable:
No License or Ceremony, Under Age, Insanity, Intoxication, Duress, Fraud.
ANNULMENT:
The Legal Determination that a Marriage never existed, because of bigamy, consanguinity, failure to have license, failure to have ceremony, under age, insane, intoxicated, duress of fraud.
Limited Divorce:
A non-required Court governed separation that allows aggrieved spouse to live separate and apart and permit pendente lite alimony, custody, use and possession, etc…but does not permit remarriage. Grounds exist at time of filing and are Voluntary Separation, Cruelty of Treatment, Excessively Vicious Conduct, Desertion/Constructive Desertion. Can file immediately
Absolute Divorce:
A permanent divorce, which allow remarriage, that may be governed by a separation agreement. Grounds for divorce must exist at time of filing.
Absolute Divorce Grounds
“Seems Almost Every Divorce Involves Interesting Conduct.” Separation, Adultery, Excessively Vicious Conduct, Desertion/Constructive, Incarceration, Insanity, Cruelty.
Excessively Vicious Conduct or Cruelty
Two grounds for divorce that mean practically the same thing. Spouses conduct toward other spouse or minor child endangers safety or mental health making the marriage impossible to maintain with no reasonable expectation of reconciliation. Immediate Filing. Could be a ground for constructive desertion.
Adultery:
Sex between married spouse and non-spouse proved by evidence of opportunity and inclination. Immediate filing.
Actual Desertion:
Unjustified, uninterrupted separation of one spouse from another for 12 months with the intent to end the marriage and no hope of reconciliation.
Constructive Desertion:
Complaining spouse (plaintiff) physically leaves other for one year, having been driven from marriage by spouse who made continued cohabitation impossible because it jeopardized her health, safety, or self-respect…
Insanity:
A cause for divorce only if the insane spouse is confined in an institution for an incurable mental illness at least 3 years before filing for divorce and at least one party is MD resident for two years.
Separation:
No fault divorce. Couple must live separate and apart without cohabitation for one year before filing for divorce. Sex restarts clock. Need not be a consensual separation.
Incarceration:
Defendant spouse has been sentenced to at least three years and has served at least twelve months.
Defenses to Divorce:
Condonation, Recrimination, Collusion, Provocation.
Condonation:
If a spouse is forgiven for a marital offense, the offense cannot be grounds for divorce.
Recrimination
An assertion by the offending spouse that the aggrieved spouse is also guilty of the offending conduct, usually adultery, thus nullifying the grounds for divorce.
Collusion
A conspiracy by spouses to defraud the court by the misrepresentation that grounds for divorce exist.
Provocation:
Charge that one spouse incited the other to commit a marital offense.
Who can get Divorce in MD?
A person can get divorced in MD if the grounds for divorced occurred in MD, if 1 party is domiciled in MD -OR- if the grounds occur outside MD, if 1 party has lived in MD for a year.
Venue:
A plaintiff may file a complaint for divorce in the county where the defendant resides, is regularly employed, or has a place of business -OR- where Plaintiff resides. i.e. normal venue rules + where plaintiff resides.
Corroboration Required:
Each element of a grounds for divorce must be corroborated oral testimony of a competent witness with personal knowledge.
MD PROPERTY DISPOSITION:
Equitable distribution of marital property, considering both monetary and non-monetary contributions to the family made by the respective spouses.
Marital Property Defined:
Marital property includes all property, however titled, acquired during the marriage and any property traceable thereto. Property accumulates up to the time of divorce, not separation, but does not include gifts/inheritance or property excluded by agreement. Property owned TBE is ALWAYS marital, regardless of when it was acquired.
Power of the Court with Respect to Property:
Court can award money to compensate party for interest in marital property, transferred title of property of 1)family home, 2)family use property, 3) pensions, -AND- award Used and Possession.
3 Steps of Property Distribution:
Classification, Valuation at date of divorce, Distribution. (all mandatory).
Classification of Property:
Classify whether property is marital or non-marital and explain why
Source of Funds:
If parties dispute whether property is martial, the court will trace the property to the “source of funds” for its acquisition, to determine if non-martial money was used to acquire it. If traced to source is partial marital/non-marital, court will divided pro rata, unless too commingled to be accurately traced in which case it will all be marital.
Valuation (Fam Law):
Property is valued at date of divorce, except for retirement benefits, which are valued based on if and when the pensioner is to receive the benefits, appreciation, and the source of funds contributed.
Distribution Factors:
Court can consider an factors to split property evenly. Major factors are 1) Contribution of each family to well being of the family, 2) Economic circumstances of each party, 3) How/When Property was acquired, 4) whether alimony or use and possession was awarded
USE AND POSSESSION:
The court, in an action for annulment, absolute or limited divorce, may award use and possession of the primary family home and family use personal property to the custodial parent of a child, a not stepchild, for up to three years. The purpose of ordering Use and Possession is to keep the family together and stable.
ALIMONY:
A court ordered money award to provide economic support to a party that’s needs the money to become rehabilitated i.e….to enable sufficient support to educate and train the economically dependent spouse to become self-supporting. There is Alimony Pendeente Lite, Permanent Alimony, and Rehabilitative Alimony.
PERMANENT ALIMONY:
May be awarded if the court finds that the party cannot become self supporting or if there will be an unconscionable disparity in the standard of living of the parties, even if one becomes self-supporting.
REHABILITATIVE ALIMONY:
The purpose for Alimony is presumed to be rehab, which is a monetary award for a specific period of time to allow an economically dependent spouse to develop income producing skills and become self-supporting. A “self-supporting” spouse is not entitled to rehabilitation alimony
Termination of Alimony:
Unless the parties agree otherwise, alimony terminates of date specified, death of either party, marriage of recipient, or if necessary to avoid a harsh and inequitable result. Cohabitation does not automatically terminate a support obligation….
Types of Custody:
Physical, Legal, Sole, Joint. Legal custody just means the ability to make “important” decisions regarding the child. Cannot give joint custody unless court sees that parent’s are mature enough to operate together constructively.
Custody Standard:
BEST INTEREST OF THE CHILD.
Third Party Custody and Visitation:
A third party may not be awarded custody unless they prove it is in the best interest of the child AND that there are “exceptional circumstance” or the parents are “unfit.”
Modification of Custody:
Despite agreement by parties, the court ALWAYS has ability to modify custody of children. Modification is proper if there is a material change in circumstances which could adversely impact the child. Further, A child 16 or older may petition to modify custody
Custody Jurisdiction:
UCCJEA holds that court decrees are extended full faith and credit by other jurisdictions.
Visitation:
A Non-custodial parent MUST be provided reasonable visitation dependent on the circumstance, unless the court has reasonable grounds to believe that a child has been abused or neglected and that such abuse is likely to continue.
CHILD SUPPORT:
Child support is an amount of money to be paid by the non-custodial parent to the custodial parent for the maintenance of a biological or adopted child who is a minor or is a dependent handicapped adult. The amount MUST be based on established guidelines. Further, a show of paternity is required to order support, by testing or oral/written/conduct admission.
Termination of Child Support:
Child is 18 (19 if still in high school), becomes married/self-supporting, or the payer dies.
Voluntary Impoverishment:
A parent who deliberately chooses not to work or to lose his income will have an obligation based upon potential income.
Enforcement of Child Support Order:
Major waysare Lein, Garnishment, Civil Contempt Action, or even a Criminal Non-Support Action IF proven that payor is cable of payment.
MARITAL SETTLEMENT AGREEMENTS:
Agreements relating to alimony, child support, child custody, and property disposition are enforceable, unless violate public policy. Agreements related to kids are changable by court, but not other types of agreements.
FORMATION OF MARITAL AGREEMENT
Must satisfy statement of fraud and standard contract principals. Court will set aside agreements that Breach of a fiduciary relationship between spouses, are Unconscionable, entered under Duress or Fraud.
Approved, Incorporated and Merged Agreements:
If agreement approved by parties it is automatically incorporated into the divorce decree, allowing enforcement via contempt power as an independent contract. If the court orders a merger of an agreement into the divorce decree it is only enforceable via contempt power. If an agreement has been merged, approved or incorporated, the validity of the agreement is res judicata.
PRENUPTIAL AGREEMENTS:
An agreement before marriage, which sets forth the parties’ rights with respect to property, in the event of the termination of the marriage by death or divorce. May not enforce if 1)not fairly procured, 2) parties failed to disclose assets, 3) no independent legal advice, 4) violates policy, or 5) was otherwise not freely entered into with full knowledge of its meaning and effect.
Persons Eligible For Relief Domestic Violence:
Household members, 90-day sexual cohabitants, and certain relatives may seek civil protective order against abuser, to present threats of serious bodily harm, assault, false imprisonment, stalking and sexual assault against.
4 Types of Protective Orders:
Interim (48 hours when courts closed), Temporary (7 days-6months, prior to hearing), Final (up 1 year, after hearing), Permanent (previous final order & abused in jail for 5 years for attempted murder, 1st degree assault or 1st or 2nd degree rape or sex offenses.
PEACE ORDERS:
Similar to Domestic Violence Protection Order, but focused on stopping dating violence, stalking, harassment for up to 6 months. Only district court has jurisdiction. If can a protective order, cannot get a peace order.
