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