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MD Family Law > Weak Areas > Flashcards

Weak Areas Flashcards

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1
Q

Subject Matter Jx

A

Maryland courts of equity have the power to hear:
1. divorce - if the ground for divorce occurred in MD, at least 1 souse must be domiciled in MD at the time the complaint is filed; at least 1 spouse must be domiciled in MD for a minimum of 1 year prior to filing the complaint.

  1. alimony
  2. child custody
  3. visitation
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2
Q

How does an MD court acuire jx over a D in a family action?

A

1 Power to grant divorce despite lacking personal jx; cannot extinguish the D’s alimony or marital property rights though.

  1. Long arm: Personal jx over nonresident Ds who are personally served with process in child support, and alimony action if:
    a. P resides in MD at the time the suit is filed; AND
    b. MD was the matrimonial domicile of the parties immediately before their separation, or the payment obligation arose under MD laws or under an agreement executed by one of the parties in MD
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3
Q

Venue of family court

A

General: Filed where D resides, carries on business, is employed, or habitually engages in a vocation.

  1. Divorce may be brought in place where the P resides
  2. an annulment action may e brought where the P resides o where the marriage ceremony was performed, and
  3. an action relating to custody, guardianship, maintenance, or support of a child may be brought where a parent of the child resides or where the child resides.

Note: Lack of proper venue is waived unless a D asserts it in a preliminary motion filed before an answer to the complaint is filed.

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4
Q

Where and how must a matrimonial action be brought?

A

Must be brought in circuit court, and all of these issues can be raised:

  1. divorce and annulment
  2. enforcement of separation agreements
  3. division of property
  4. spousal and child support
  5. child custody and visitation, and
  6. ward of reasonable and necessary counsel fees.

Circuit ourt has full equity powers included injunctions, set aside transfers or assets, and to compel an accounting.

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5
Q

Special Pleading Requirements

A

Apply in family law actions

Each arty, even a party represented y an attorney, is required to sign each pleading filed by that party. P in divorce action must file a complaint alleging grounds for divorce. Family law actionpatries may be required to file current financial statement.

With child custody, initial complaint must contain info regarding the child’s whereabouts and mst reveal any other custody proceedings involving the child, as well as any info regarding another person who is not a party ho either has physical custody of child or claims custod or visitation rights with respect to the child.

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6
Q

What can a master do when matrimonial action si referred to her?

A
  1. Must hold a hearing
  2. Must prepare written recommendations
  3. party has 0 days after recommendation is served or on record to file exceptions to recommendations.
  4. Ct must rule on the exceptions
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7
Q

Can a party recover attorneys fees

A

Yes, in property disposition, divorce, alimony, child support, and child custody.

Court must consider the (1) financial resources and needs of the parties and (2) where there was substantial justification for prosecuting or defending the action. If ot, must order payment of litigation costs.

Separation agremeent may include provision for one party to pay attorney’s fees. But party seeks fees has burden to prove reasonableness.

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8
Q

Marriage definition

A

Legal creation of the status of spouse between two parties who consent to enter into the relationship. Only valid if parties are not otherwise prohibited from marrying.

MD recognizes same sex marriage.

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9
Q

Antenuptial agreement definition

A

Premartial K providing for the ay propert is t be dividedon divorce. Parties deemed to be in a confidential relationship.

burden of proof that agreement is enforceable if t the time it was made, the agreement was fair and there was frank, full, and truthful disclosure of the enforcing party’s assets.

Provisions that waive right to alimony are valid and not void on public policy grounds.

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10
Q

hat makes a marriage valid in MD?

A

Marriage license and solemnized by designated court officials or official religious group authorized by rules and customs of that group to perform the marriage.

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11
Q

Legal age to marry?

A

18

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12
Q

Can you marry at 16 & 17?

A

Yes with parental consent or physician’s certificate that bride is pregnant or has given birth.

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13
Q

Can you marry at 15?

A

Yes, with parental consent AND physician’s certificate that bride is pregnant or have given birth.

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14
Q

Common law marriage

A

Arises by agrement o the parties and cohabitation.

Prohibited in MD, but MD does recognize common law marriages that are valid where contracted.

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15
Q

What are barred causes of action in MD?

A
  1. Alienation of affections
  2. Criminal converation
  3. Fraud
  4. Intentional infliction of emotional distress by wide based on wife’s adultery and subsequent misrepresentation of the paternity
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16
Q

What are void marriages?

A
  1. prior existing marriage
  2. within prohibited degrees of consanguinuity
  3. lacked mental capacity
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17
Q

What are voidable marriages?

A
  1. Under age 15
  2. age 15 and did not have a physician’s certificate
  3. 16 or 17 without parental consent or physician’s certificate
  4. under influence of liquor or drugs
  5. fraud, duress, coercion, or force
  6. too closely related by blood or marriage
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18
Q

Limited divorce v. absolute divorce?

A

Limited

  1. Legalizes party’s separation and permits the court to order alimony, hild custody, and child support
  2. does NOT permit remarriage or resolve all property claims

Absolute

  1. Permanent
  2. Permits remarriage
  3. Terminate property claims.

Note: Grounds for divorce must exist at time of filing. Can file supplemental complaint if seeking limited divorce and grounds amtured into claim for absolute divorce.

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19
Q

Limited Divorce Fault Grounds

A

Fault Grounds:

  1. cruelty of treatment
  2. excessively vicious conduct (can be toward minor too)
  3. Desertion

*Constructive desertion: 1 spouse so abusive that it is impossible for the otherto remain int he marital home. Abusive spuse is deemed the deserter whenother spouse actually leaves.

No fault grounds:

  1. Voluntary and mutual separation if:
    a. Living separate and apart without cohabitation AND
    b. there is no reasonable expectation of reconciliation
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20
Q

Grounds for Absolute Divorce

A

Fault Grounds

  1. Cruelty of treatment (no reasonable expectation of reconciliation)
  2. Excessively vicious conduct (no reasonable expectation of reconciliation)
  3. Desertion (continuous for 12 months or more prior to filing)
  4. Adultery (proved by circumstantial evidence of opportunity and disposition to commit adultery)

Fifth amendment: Can invoke privlege against self-incriminations ince adultery is a crime in MD; court can draw adverse inference from a refusal to answer & give it appropriate eight.

  1. Conviction of Crime (sentenced to 3 years or more; served 12 months of the sentence)
  2. Insanity or serious mental disorder if:
    a. there has been confinement to a mental institution for at least 3 years before the filing,
    b. at least 2 psychiatrists testify that the insanity is incurable and there is no hope of recovery; and
    c. 1 of the parties has been a MD resident for at least 2 years.

No fault grounds:
1. 1 year separation: separate and apart for at least 1 year and the marriage is irretrievably broken.

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21
Q

Defenses to Divorce Action

A
  1. Condonation: forgiveness of gronds for divorce. Not a complete defense to adultery, but a factor in determining whether divorce should be granted on that ground.
  2. Recrimination: Equal fault exists; factor in determining whether divorce should be granted on ground of adultery
  3. Reconciliation: Offer or attempt to resume marital relations after separation. An unaccepted offer or attempt is not, by itself, a bar to divorce.
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22
Q

Res judicata for a fault ground?

A

Fault ground not a bar for either party obtaining an absolute divorce on a no-fault ground of two year separation.

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23
Q

What can’t a postnuptial agreement waive?

A

Duty to support one’s minor children. Marital misconduct as a ground for divorce also cannot be waived.

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24
Q

Merger of a postnuptial agremeent intoa divorce judgement

A

If agreement is merged into the judgment, the agreement may be enforced only by a contempt action. If it is incorporated but not merged, it can be enforced as an independent contract as well as through the court’s contempt powers.

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25
Q

3 step in equitable division

A
  1. All property owned by ither or both spouses is classified as either nonmarital or marital property
  2. All marital and nonmarital property is valued
  3. balancing the equities, the court can make a monetary award to a spouse up to the value of the marital property and can transfer an interest in pension, retirement, pofit-sharing, and deferred compendation plans fromone spouse to the other.

Court can dtermine ownership of property where there is a dispute between the spouses, order the partition and sale of property jointly owned by the spouses, and transfer an interest in family use personal property.

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26
Q

Comingled - Source of Funds Rule

A

When property is purchased with commingled separate and marital funds, all of the property is considered marital property except that part of percentage that may be traced to a nonmarital source.

Allocated funds in proportion to the contributions of separate and marital sources.

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27
Q

What is considered marital property?

A
  1. real property
  2. partnership interest
  3. professional practices, including goodwill
  4. lottery winnings
  5. pensions, including military pensions,
  6. life insurance policies
  7. irrevocable trusts
  8. socks and stock option
  9. personal injury award or settlement, either tort or workers comp
28
Q

What is considered nonmarital property?

A
  1. professional licenses
  2. social security benefits
  3. accrued holiday and vacation rihts
    4 a country club membership that is nontransferrable and nonrefundable
  4. property interest that cannot be valued because of its speculative nature
  5. a property interest that may never vest due to events beyond the control of the spouse
29
Q

At what point in time is the value of marital propety determined?

A

As of the date of divorce. Just statement must be filed with court concerning marital and nonmarital property.

30
Q

Tax consequences of equitable distribution

A

Equitable distribution payments are not taxable as ordinary income to the receiving spouse or deductible y the paying spouse.

PRoperty transfers between divorcing spouses are TAX FREE

Untaxed gain at the time of transfer may be taxable when the recipient later sells property if recipient takes transferor’s interest.

31
Q

How long can a parent use family property?

A

Court may award use of the family home and family use property to the custodial parent and the parties children for up to 3 years.

32
Q

Alimony defined

A

Amount of money paid by one souse for the maintenance of the other spouse pursuant to a complaint for alimony or as part of a decree for annulment or limited or absolute divorce.

  1. alimony pendente lite
  2. permanent or indefinite alimony
  3. rehabilitative alimony
33
Q

Alimony Pendente Lite

A

Temporary alimony aid to sustain an economically depedent spouse during the course of the litigation. Terminates at the end of litigation.

34
Q

Permanent or Indefinite Alimony

A

Periodic payment of money at predetermined intervals for an indefinite period of tie. may end upon the remarriage of the recipient or the death of either party.

35
Q

Rehabilitative Alimony

A

Payments ordered for a definite period to allow an economically depedent spouse to develop income-earning skills and become self-supporting. ; favored by court.

Awarded only if:

  1. due to age, illness, or disability, the party seeking alimony cannot reasonably be expected to become self-supporting, or
  2. even after the party seeking support has made as much progess as possible, the respective living standards of the parties will be unconscionably disproportionate.
36
Q

Can alimony be awarded after divorce?

A

Only if:

  1. the court granting the divorce reserved judgment on the issue of alimony, or
  2. the annulment or divorce was issued by a court that lack jx over the party seeking alimony, and the party seeking alimony was domiciled in MD at least one year before granting of the annulment or divorce.
37
Q

Is alimony taxable?

A

Yes, as ordinary income to the recipient and is deductible by the payor.

38
Q

Who is eligible for child support

A

Biological or adopted children who are either:

  1. a minor
  2. handicapped
  3. between 18 and 19 and unmarried, enrolled in high school and subject to parental control.

Rebuttal presumption that a child is the marital child of a couple who is married at the time of conception.

39
Q

How does equitable estoppel apply to child support?

A

Father, even if not the father, may be required to pay under doctrine of equitable conversion if:

  1. he represented that he would provide for the child
  2. wife relied on that representation, and
  3. she suffered an economic detriment as a consequence of reliance
40
Q

How is child support computed?

A

Income shared method.

  1. each parents actual monthly income is determined
  2. each parents actual income is adjusted
  3. both parents adjusted actual monthly incomes are combined
  4. basic child support obligation is determined by consulting the statutory guidelines, and
  5. this obligation is adjusted to arrive at the child support obligation of bboth parents.
41
Q

Determining whether a parent is voluntarily impoverished?

A
  1. parents physical condition
  2. parents level of education
  3. timing of any change in employment or financial position relative to divorce proceedings,
  4. the relationship of the parties prior to divorce proceedings
  5. parents efforts to find and retain employment
  6. parents efforts to secure training
  7. whether the parent has ever withheld support
  8. parents work history, and
  9. job market in the parents community.
42
Q

What expenses are added to the total child support obligation?

A
  1. child care costs incurred due to employment or job search of either parent
  2. extraordinary medical expenses
  3. expenses for school; and
  4. transportation expenses related to the travel of the child between the parents homes
43
Q

How do you compute obligation or sole custody?

A

Sole phsyical custody: parent’s adjusted monthly income is divided by both parents comined adjusted actual monthly incomes to arrive at the parents percentage share of the combined incomes, which is then multipled by the total child support award

Rebuttable presumption that the amount of support from guidelines is correct

44
Q

When can alimony be modified?

A

Where extended circumstances arise that would lead to a harsh and inequitable result without extension; amount modified as circumstances and justice require.

45
Q

When can child support be modified?

A

When a material change in circumstances regarding employment, inflation, income, children growing older, retirement, disabiling illness, etc

46
Q

Are child support payments taxable?

A

Child support payment are neither includible in the income of the custodial parent nor deductible by the payor parent.

47
Q

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A

Avoids jurisdictional disputes with courts of other states in matters of child custody and vsitation, to promote interstate cooperation, and to facilitte the interstate enforcement of custody and visitaton orders.

48
Q

Initnial Custody Dertermination Primary Test

A

Jx to initially enter or modify a custody or visitation order if the state:

  1. child’s home state, or
  2. was the child’s home state within the past 6 months and the child is absent from the state, but parent or person acting as a parent continues to live in the state

Child’s home state is where:
1. child has lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding, disregarding temporary absence.

  1. If child is less than 6 months old, home state is where the child has lives since birth.
49
Q

When does the home state rule not apply?

A

Court has jx to enter or modify a child custody or visitation order if no other state has or accepts home state jx and:

  1. child and at least one parent have significant connection with the state, and
  2. substantial evidence concerning child is available in state.

Court has jx to modify order for custody or visitation if no other state has jx under another test

50
Q

What court has exclusive jx?

A

the court that made the initial custody or visitation determination until the court determines:

  1. neither the child nor the childs parents continue to reside in the state; or
  2. the child no longer has significant connection with the state and substantial evidence is no longer available in the state.
51
Q

When may a court decline jx?

A
  1. inconvenient forum; and

2. another state’s jx is more appropriate.

52
Q

Best interest of child factors?

A
  1. fitness of the parents
  2. character and reputation fo the parties
  3. the desires of the parents and any agremeent between them
  4. potential for maintaining natural family relations
  5. preference of the child
  6. material opportunities affecting the child’s future
  7. age, health, and sex of the child
  8. residences of the parents and
    opportunity for visitation
  9. ength of the separation fo the parents
  10. evidence of spousal or child abuse
  11. existence of a prior voluntary abandonment or surrender of custody of child by one parent
  12. when adultery of one party is proven, whether that adultery has a detrimental affect on the child
    * presumption in favor of parental custody unless preponderance of evidence shos that parent lacks fitness to be a paren or exceptional circumstances injurious to child.
53
Q

Joint Custody Factors

A
  1. capacity of the parents to communicate and reach shared decisions affecting the child’s welfare
  2. willingness of the parents to share custody
  3. fitness of the parents
  4. relationship between the child and each parent
  5. preference of the child
  6. potential disruption of the child’s social and school life
  7. geographical proximity of the parental homes
  8. demands of parental employment
  9. age and number of children
  10. sincerity of the request
  11. financial status of the parents, and
  12. impact on state or federal assistance
54
Q

Standard for permitting visitation?

A

Best interest of the child; custodial parent cannot withhold visitation from a noncustodial parent because of failure to pay support

55
Q

Visitation by 3rd parties

A
  1. Grandparents may petition for visitation rights at any time
  2. Nonadoptive stepparents may be granted visitation upon termination of marriage
  3. SCOTUS held that as long as parent fit, parent’s determination as to appropriateness of nonparent visitation must be given special weight
  4. Judge may not override a fit patent’s decision because ti feels like a better decision
56
Q

What allows court to modify custody orders?

A
  1. material change in circumstances

2. best interest of child

57
Q

Sanctions for violating custody or visitation order

A
  1. Civil contempt
  2. termination of custody or visitation
  3. fine
  4. incarceration
  5. posting security
58
Q

Enforcing Out of State Custody Decrees

A

Enforceable if certified copy of decree is filed with the clerk of the court.

May be modified if the foreign court declines jx, the new court has proper jx under the UCCJA, and the out of state party is given 20 days notice prior to any hearing

59
Q

Federal Parental Kidnapping Prevention Act (PKPA)

A

Mandates that full faith and credit be given to child custody awards if the Act’s jx standards are met.

Substantially the same as those in the UCCJA, except that a state may not assume jx under the best interest of the child standard if another state is the child’s home state.

PKPA >UCCJA

60
Q

What abusive behavior triggers right to seek civil protection order?

A
  1. serious bodily harm
  2. fear of imminent serious bodily harm
  3. criminal assault
  4. rape and sexual offense or an attempted rape or sexual offense
  5. false imprisonment
  6. criminal stalking
  7. child abuse
61
Q

Who can seek a civil protection order?

A
  1. current or former spouse
  2. cohabitant
  3. person related to the abuser
  4. parent, steppareent, child, or stepchild who reside or resded ith abuser or victim for at least 90 days withint he 1 year period before the filing of the petition
  5. vulnerable adult
  6. person who has a child in common with abuser
62
Q

How can you get an emergency protection order?

A

by filing a perition seeking relief from abuse with either the district court, circuit cort, or, if the office of the clerk of each court is closed, with a district court commissioner.

A parent, other relative, or an adult residing in the home may file on behalf of a child victim.

63
Q

Process for protection order?

A
  1. temporary; ex parte hearing granting relief up to 30 days; must be reasonable grounds to believe person abused
  2. final protection order; no more than 7 days later fter temp order, court finds by preponderance of evidence that abuse occurred, or the alleged abuser consent to entry of a protective order; final order up to 1 year, can extend 6 months longer
  3. relief granted; refrain from further abse; vacate joint residence; stay away from the victim’s residence, school, place of employment or child care provider
  4. violation can lead to contempt, criminal prosecutionf or misdemeanor; entitled to attorney for incanceration through contempt
64
Q

Peace order defined

A

Recent victim of assault, rape, false imprisonment, harasment, stalking, trespass, or mlicious destruction of property by a nonfamily member may seek emergency protection trhough a peace order.

65
Q

Safe Abandonment of New Born Law

A

Mother of newborn or person acting with her approval who wishes to abandon the baby, may leave with responsible adult without civil liability or being subject to criminal prosecution.

But be done with 10 days o birth and baby must be unharmed.

MD Family Law (1 decks)

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