Maryland Family Law provided by Mulinazzi Law Offices

DeBunking the Myths About Divorce

People talk about divorce. They talk about their own divorces and they talk about what they think they know about other people’s divorces. You hear information, advice or supposed facts from friends, family members, your hairstylist, or someone at the gym. There’s a pretty good likelihood that some or all of what they tell you about the divorce process is completely incorrect. Myths about divorce can cause people to make decisions or take actions that may wind up hurting them. That is why it is so important to speak with an experienced divorce lawyer as soon as possible if divorce is contemplated.  The sooner you have good information the better you can plan, change behaviors, and come to a better resolution. The attorneys at Mulinazzi Law Office (www.mulinazzi.com) are highly skilled, experienced, and most importantly reasonable about the possible and best outcomes for your situation.

Your divorce lawyer can tell you the truth about how divorce works and bust the many myths about divorce. Here are some of those myths that are widely believed but simply not true:

  1. Mothers automatically get the kids. Decades ago there was a bias in favor of women getting custody, especially of younger children. That was called the “tender years doctrine.” While the name sounds official, that is NOT the law in Maryland. Custody or access time is a continuum and absent a horrible situation both parents will see the child. The parent who has the child for more than 65% of the overnights (256/365) is said to have primary physical custody. If the other parent has more than 35% of the overnight (128+) then the parents share physical custody.  The Court determines the custody arrangement based on all sorts of factors to include parent work schedules, geography and logistics, past parenting, communications, involvement with school, doctors, sports, etc.
  2. Adultery means you will lose custody. If a spouse is cheating but not involving the children in any way, not doing it in a way that is designed to publically humiliate the faithful spouse, and not spending a lot of money on the paramour, then the adultery will not significantly affect custody or the division of marital property. In Maryland, if you can prove adultery you can get a divorce without any waiting period at all, and technically you could live in the house during the divorce. Still, adultery is a [misdemeanor] crime in Maryland and it may reduce the amount of alimony that will change hands.
  3. Children can choose which parent they with. In Maryland, if s/he is of an appropriate age and maturity, his/her preference is a factor in the child custody decision.  However, Judges do not let kids pick who they live with and Judges do not like it when a parent puts a child in that position.  That in and of itself could be the main reason someone loses primary custody. The older the child is the more his or her choice may be considered but generally Judges want the child to be represented by a Best Interests Attorney so the Court can hear the child’s preference and the reasons for that preference indirectly. Still, under Maryland Law, a child who is 16 years old can file his own petition for custody.  The attorneys at Mulinazzi Law Office are trained Best Interests Attorneys and Child’s Counsel and they’ve represented dozens of children in custody cases.
  4. Visitation can be denied if my ex doesn’t pay child support. Child Support and Visitation are not related. So the other parent does not pay for time and you cannot threaten or deny the other parent visitation if s/he is not paying child support.
  5. You can agree to not pay or receive child support. Child support obligations and amounts in Maryland are established by the Maryland child support guidelines. The child support money is earmarked for the financial benefit of the child. In theory the money is not the custodial parent’s money but the custodial parent may use it as s/he sees fit to care for the child. If you have a minor child and you are not the custodial parent, you will pay child support. If you fail to comply with a child support order, both your spouse and the Office of Child Support Enforcement can take aggressive steps to enforce those orders and obtain the support owed. OCSE can intercept your tax refund, suspend your license, and the Court could, in extreme case incarcerate you for failing to pay child support.
  6. If property is titled only in my name she cannot get it. False. While the Court cannot transfer ownership of the property if the property was partially or fully acquired during the marriage then it is marital property subject to division. A lot of people tell me that they “bought” their house before the marriage but what they really mean is that the got the mortgage before the marriage and they’ve bene paying monthly for their house since. So some of the house is still being acquired from the bank and some of the house is marital property. It is very difficult to determine which is which and that is why you will need an experienced lawyer to explain this.
  7. Divorce always leads to battles. Divorces do not have to lead to battles and fighting. There are other options such as Collaborative divorce, mediation, and divorce attorneys who are focused on resolving conflicts as opposed to starting or escalating them can help make your divorce a process of negotiation and agreement rather than argument. Do not retain an aggressive bulldog jerk lawyer unless you enjoy dealing with jerks and want to portray yourself as a jerk to your ex and to the Court.
  8. Alimony is forever. Actually Maryland Law favors rehabilitative alimony. This means that the alimony duration can be for a term of years for the amount of time that spouse needs to get further educated, trained, certified, etc. to be self-supporting. Of course there are exceptions for very long marriages and older spouses but generally indefinite alimony is a not ordered. There is not required formula to determine the appropriate amount and duration of alimony so consult with the attorneys at Mulinazzi Law Office to assist you.
  9. You must get divorced in the state you were married in. This is an easy one – it’s not true. As long as you lived in Maryland for more than six months before filing for divorce you can file for divorce in Maryland.
  10. You can get divorced while you live together. Probably not but there are limited exceptions. For example, if you have no minor children and you have a fully signed Separation Agreement that solves all issues in your marriage, then the answer is yes you can get divorced while you live together if you file for a Mutual Consent Divorce. Also, if the other spouse is committing adultery and you do not condone it and/or do it yourself then you can file for a divorce based on adultery. Finally, if your spouse is physically abusing you then you may be able to file for a divorce based on excessively vicious conduct or extreme cruelty then you may be able to file for divorce while you living together.  In all cases it is a bad idea to live with your spouse when one of you filed for divorce.

It’s better to get the truth and the facts as soon as possible. The attorneys at Mulinazzi Law Office are happy to meet with you and discuss your rights and responsibilities under Maryland Law.

 

Thomas MulinazziAbout the Author: Mr. Thomas Mulinazzi focuses his practice on family and domestic law.  He is an experienced Collaborative Law practitioner, holds advanced training in best collaborative law practices, and he is active in local Collaborative Law attorney groups. You can learn more about his practice by visiting his website at mulinazzi.com

Filed under: Divorce Comments Off

Selling my House after Divorce: What to Expect

If you and your spouse own a home (this applies to multiple homes as well), as part of the divorce you will need to “divide the property.” What does that mean exactly?

Well, technically the property could be divided or partitioned but that is an unreasonable and draconian exercise which will leave you both with something that feels like less than half. Thankfully, Courts almost never do that.

What does the Court do with the marital property?

  1. Sell the house and divide the proceeds. Orders the property sold: the Court will give you a definite period to list the property (30 days, 45 days, etc.) and require the parties to share the mortgage payments and costs of sale. This way the parties do not need to argue about the value of the house because the market will determine that for them. See below for what to expect on your returns as explained by mortgage specialist Ida Reis, CMPS. ireis@primeres.com , or
  2. Equity buyout. The Court could order one of the spouses to buy out the other’s marital equity. To accomplish this, the would-be buyer spouse would need to get an appraisal of the house and provide the appraisal to the other side in advance of the discovery deadline. Likewise, the buyer would need to identify the appraiser as an expert in accordance with the Court’s Scheduling Order. Next the would-be buyer would need to get pre-approved to buy the house by a mortgage specialist like Ida Reis, CPS at Primary Residential Mortgage, Inc. As with the appraisal, the pre-qualification must be provided along with the identification of Ms. Reis as an expert to the other side in a timely manner. Then if the other side accepts your numbers you could proceed via a mutual agreement to buy out your spouse’s interest. If no agreement, then your attorney must present evidence of the value of the home (expert appraiser) and your ability to buyout the existing mortgages plus your spouse’s interest (1/2 of the equity) by demonstrating that you qualify for the larger mortgage.
    1. Calculating buyout amount. A would-be buyer spouse first needs to get a mortgage equal to the current mortgage or mortgages to buy out the current lender. But the other spouse’s martial share must be bought out also. So the new loan that the would-be buyer is qualified for must be equal to those amounts and any refinance costs and fees (unless you are bringing money to the closing table).
    2. Effect on your divorce settlement. Please discuss all of this with your attorney because nothing happens in a vacuum in divorce court. If you have enough resources to buyout your spouse’s interest in the marital home, unless s/he earns as much as you do in income, your spouse is probably an alimony candidate and the court will not allow you to increase your expenses unnecessarily. So, if buying out your spouse is “unnecessary” the Court may not grant this relief. Still, there are many reasons why buying out your spouse may be “necessary” or most equitable and a good lawyer can explain this to you before you make any commitments or plans on the buyout.

Mutual Agreement - the best option is always to come to a mutual agreement or settlement on this issue. Knowing the likely outcome in court will help you do that. But there are many variables where disagreement can grow: value of the house, “sweat equity,” any non-marital contribution to down payment or home improvements, how much should the costs of sale be (Ex: actual refinance costs or potential costs of sale described below), and needed repairs. All of these things can be negotiated and discussed outside of court to reach a fair resolution.

 

Thomas MulinazziAbout the Author: Mr. Thomas Mulinazzi focuses his practice on family and domestic law.  He is an experienced Collaborative Law practitioner, holds advanced training in best collaborative law practices, and he is active in local Collaborative Law attorney groups. You can learn more about his practice by visiting his website at mulinazzi.com

Pendente Lite — What NOT to do

Mis-steps and Mistakes During the Pendente Lite Period: what NOT to do!

by Thomas Mulinazzi

After a case is filed certain behaviors are expected of the litigants in a divorce case. Unfortunately, for the litigant very few, if any, of these expectations are written down anywhere and the Court will not provide this information. Most litigants are already feeling confused and anxious about their future, how they will pay for bills, what will happen in the court process, but now each has to worry about how to make decisions in the reality of their newly separated family.

The short answer is that each litigant should do everything he or she can to maintain the status quo and therefore change as little as possible. That is easier said than done when the family now has to pay for two households and the associated bills. Sometimes, a spouse feels entitled to something that he or she has gone without for years of unhappiness or dissatisfaction during the marriage and as a result he or she feels compelled or entitled to make an unusual purchase. It is probably also a lot harder to communicate with your soon-to-be-ex and you may be getting a lot more questioning from your children and your friends and family. This blog is intended to inform you on the law and in doing so implore you NOT to make too many changes in your lifestyle during the pendency of your case.

The “pendente lite” is a Latin term meaning awaiting or pending litigation. Maryland Law gives Courts the authority to make temporary pendente lite orders on matters such as physical and legal custody of children, child support, child access schedules, who gets exclusive use and possession of the family home, furnishings, and vehicle, alimony and/or financial support, and attorney’s fees and suit costs where appropriate. Again, these orders are by definition temporary and only operative during the pendency of the litigation. These issues and others (division of property, grounds for divorce, etc.) are revisited and re-litigated at the final divorce trial absent a binding partial or full settlement agreement. Pendente Lite Orders are meant to reestablish the status quo, to give the children stability, and to ensure that both spouses have enough financial support.

In its essence a Pendente Lite Order is meant to establish an equitable/fair temporary status for everyone. For this reason, it is imperative that you do not do anything or buy anything that is unusual or unreasonable. The following is a non-exhaustive list of some of the things you should NOT do during a divorce:

  • Parenting: refuse to tell your spouse where you live, deny access between the children and the other parent, disparage the other parent, move far away or out-of-state with the children, send aggressive and obnoxious emails or texts to the other side, refused to tell the other parents about your children's appointments, refused to share information such as grades and test results regarding your children with the other side, fail to consistently request time with your children, failed to consistently attempt to communicate with your children,
  • Purchases: Buy a new car, take a vacation (esp. a lavish one), get expensive plastic surgery,
  • Home: make renovations to your home, buy large ticket items (furniture, car, timeshare, etc.), take in a roommate, refinance your house or take a HELOC,
  • Dating: openly date, introduce your children to a special friend, post scandalous or hurtful information on social media, loan money or buy gifts for special friend,
  • Financial: donate large sums of money to charity or give away money or loan money to family or friends, cash out stocks or retirement funds, stop paying your bills, remove spouse from insurance or beneficiary designations, sign spouse’s name to anything especially tax returns, fail to file taxes, unilaterally take deduction,
  • Employment: quit your job, take a much lower paying job, relocate your job
  • Legal: fail to follow court orders, get arrested, abuse alcohol or drugs, file bogus criminal charges or court pleadings against the other side or family members of the other side,
  • Attorney: Finally do not hire an overly “aggressive” attorney who may be inclined to tell you doing any of these things and who may create more acrimony in your family and in the court case.

All of the bad decisions above represent a deviation from the status quo and all are not good for the family. The Court will see these actions as selfish and destructive to family harmony and this will influence the way the Court awards relief, especially on a pendente lite basis. For example, the Court may decide if you have extra money for luxuries then you have extra money to pay your spouse or your spouse’s attorney’s fees. With regard to the poor parenting choices above the Court may find that you lack the desire and ability to co-parent and as a result your parenting time may be limited and the other parent may be awarded sole legal custody. Often, once these mistakes are made the tone is set for the entire litigation and without substantial remediation by the offending spouse the effects of the poor decisions immediately after separation linger and continue to poison the outcome at the final divorce hearing several months later.

After a separation, many people find themselves in seemingly desperate financial straits and they may consider turning to one of the desperate solutions listed above. This is not uncommon and if the situation is handled appropriately by an experienced family-centered lawyer there may be agreement from the other side for a temporary repair to the house, a refinancing of the home, a necessary purchase etc. While some of the decisions listed above are patently bad choices and should never happen during litigation, others can be better managed by you and your attorney and as such the negative effects can be mitigated.

Filed under: Divorce, Pendente Comments Off

Post Judgment Divorce Options

Post judgement divorce optionsYou’ve gone to Court and the Judge has issued a Divorce Decree that you think is unfair, or you are otherwise unhappy with it.  Can you appeal the Judge’s decision?  Yes, there are a number of avenues you can take that our firm can help you with.  The rules for filing an appeal are very strict, especially concerning the processing of the appropriate legal documents.   For instance, failure to submit a brief in the correct format, or a mistake in how the brief and appendix are to be prepared, could cause the clerk's office to reject the submission.  When a client is serious about winning an appeal, enlisting the services of an experienced attorney is crucial.

Our attorneys evaluate your case and determine which option from the below list is the best option to change the results in your case.

Two Types of Divorce in Maryland: Limited versus Absolute Divorce

Two types of divorces in MarylandMaryland recognizes two kinds of divorce: limited and absolute.  There are a number of significant differences between the two types and certain circumstances in which to file for one versus the other.  The attorneys at the Mulinazzi Law Office can sit down with you to discuss which is best to file for under the facts for your particular case but in general:

1.   Limited Divorce --- A limited divorce is not a divorce at all; instead, it’s a legal separation from bed and board – pending the outcome of the final divorce (called “Absolute Divorce” see below).  In a Limited Divorce spouses can receive relief from the Court on only certain specific issues.  These include: custody, child access, child support, exclusive use and possession of the family home, alimony, and attorney’s fees.  It is important to know, that property issues are NOT resolved at this time (pensions, 401ks, house, etc.).