Maryland Family Law provided by Mulinazzi Law Offices

Custody Questions and Answers

Can grandparents petition for custody of a child temporarily living with them?

Question:  My wife has a 5-year-old son from a previous relationship. The child had been living with my wife’s parents prior to us getting married.  The closest thing he ever had to a male role model prior to me was my wife's grandfather. They developed a bond.  The child now lives with my wife and I.  Can the grandfather petition the Court for custody?

Answer:  Any third-party can petition the court for custody of a child. However, the court will consider the child’s best interest looking at the history of who has provided care for this child.

If the child’s parents are alive, great deference will be given to the parents having custody. Of course, if the parents agree to someone else having custody and they are willing to sign consents with the court, then it is very likely that the court will award that relief. On the other hand, if even one parent does not consent, then the petitioning parties will need to prove that the parents are either unfit or it is in the child’s best interest given all the circumstances that the child live with them.

If parents of a child reach an agreement, do we still have to go to Court?

Question:  My child’s mother and I are both listed on our daughter’s birth certificate.  She wants me to have full custody.  Since we agree do we still need to go to Court?

Answer:  Yes, you need a court order for custody. Without a court order you will not have the rights you want. If she is truly okay with you having custody, then you both can go to the courthouse and ask the Clerk for the proper paperwork and you can each file asking for a Consent Custody Order.

Still you should expect a Judge to ask you to appear for a brief hearing just to make sure that the agreement is valid and the custody arrangement is in the child's best interests. You should also expect the Judge to order the non-custodial parent to pay child support because you cannot waive that requirement -- that is where most agreements fall apart.

How long does the defendant have to file an Answer?

Question:  My paperwork was finalized last month. The defendant had to be served by county sheriff's department and I'm not sure if they have been served yet. It's been nearly one month.

Answer:  The defendant has 30 days after he is served if he lives in Maryland and 60 days if he lives out of state to file an Answer.

Do I need to maintain my wife’s health insurance until our divorce is finalized?

Question:  I am currently going through mediation for divorce in Maryland. Our trial dates are set for February 2019. My wife is currently on my health insurance. Do I have to sign my wife up for insurance for 2019 if she has it available to her through her employment?

Answer:  You should not remove her from your insurance while the divorce is pending. It is best to keep her on your insurance until after the divorce.  When you are divorced, there will be a change in family status, meaning that she will no longer be a family member and the insurance will automatically kick her off of the policy.  It’s best for the insurance company to do that and not you for many reasons.

When are you permitted to file for a modification of custody?

Question:  In January my son’s father took me back to court trying to obtain 50/50 custody and a modification of child support. I feel he only wanted 50/50 custody in order to decrease his child support. In the end, he did not get what he wanted. He is now attempting to re-file.

Answer:  The parent can file a motion to modify child custody at any point. However, the court requires a material and significant change of circumstances affecting the child’s best interest. Without that, they may dismiss his case if you file a motion to dismiss and you describe that there is no change and it is simply a matter of him wanting to re-litigate the case.

Can I move to another state with my child?

Question:  The father and I share legal custody. I have primary physical custody of my child. The father visits the child from 9:00 a.m. to 6:00 p.m. on Saturday and Sunday every other weekend. Our agreement is silent regarding relocating.

Answer:  You must inform the father as soon as possible. What you’re describing is a relocation case which is the most difficult type of case that comes before the Family Court. I recognize that you are the primary caregiver, but that does not give you an absolute right to move the child away from the other parent. Since you have a court order, if you cannot agree in writing, one of you will need to bring a case before the court asking to modify the custody and access order to be consistent with you moving. Obviously he cannot maintain the every other weekend schedule with the child if you move far away. Then the court will have to consider all the factors to determine whether or not it is in the child’s best interest to be relocated. If that happens, a new and different access schedule will be ordered which will inevitably include long periods of time over the school breaks and holidays.

What is the process for dismissing a protective order?

Question:  I was granted a protective order against my child’s father in Maryland. I do not feel threatened or scared for my life and would like to dismiss the order, how do I go about this?

Answer:  You can file a Line asking the Petition to be dismissed or just not show up for the final protective order hearing.

If the final protective order has already been granted and you need to file a petition to rescind a protective order, there will be a brief hearing with the Court asking if you feel safe.

Can child support arrears be discharged?

Question:  I am a non-custodial father and my son turned 18 in April of this year and my current child support has ended. I have an arrearage of about $20,000 and I am required to pay $200 per month for the arrearage. What are my options to settle this?

Answer:  Child support arrears are NOT dischargeable in bankruptcy and is not something that can be negotiated away. $200 per month may not be easy to pay but the Court could order you to pay it back a lot faster. Also, keep in mind that you are not paying interest on this amount.

What should I expect in an uncontested divorce hearing?

Question:  I have an uncontested divorce hearing in a little over a month. We are both representing ourselves. I would like to know what happens during these hearings and what will be the next step? We have children, but nothing is being established for child custody.

Answer:  The Court will ask you a prescribed set of questions that correspond with the statements on your Complaint for Divorce. You both must bring copies of your paystubs and other proof of income so the Court can calculate child support.

Can I request a DNA test for a child I believe to be mine?

Question:  I believe I'm the father of this child but the mother had another man sign the certificate. I've been in the child’s life, but now she's keeping him away from me. What can I do legally to prove I'm the father and get visitation?

Answer:  You could file a Petition for Custody with a separate Request for a Paternity Test in the Circuit Court of the County where the child lives. You should consult an attorney to make sure you add the proper information to your filings.

If the other man is her husband then that presents another layer of complication.

What should I do if my 14-year-old nephew and 12-year-old niece don't want to go back to their mom?

Question:  Their mom recently started a new relationship with a guy who is an alcoholic and stays in his mom's one-bedroom government housing apartment. Their mom stays there with him and doesn't have an actual place to live and the kids are currently with us. When they are with their mom, they are all in this one-bedroom apartment and sleep on air mattresses in the living room. When the boyfriend’s 5-year-old comes, the girls have to share an air mattress. She still has primary physical custody and gets child support through child support enforcement. She won't make any agreement due to her needing the child support to look for a place to live. Whenever custody issues get brought back to court their mom gets angry and starts talking to the kids nonstop and guilt tripping them. One night she had left the kids at her ex's house and she went and stayed with the new boyfriend and was late getting back so she could take the 14-year-old to his second day of high school.  He contacted me asking for a ride and she yelled at him for doing so. We just want to know the best way to go about things while protecting the kids.

Answer:  Will the Mom agree to share physical custody? Maybe she gets them every other Thursday to Sunday/Monday although I doubt the kids would want to do that.

If the Mom will not agree, then you can file a Complaint to Modify Custody and Intervene into the old case number. It sounds like you provide a healthy, secure place for them to stay and that is in the kids’ best interests.
You may want to ask the Court to assign a Best Interests Attorney for the children to help the Mom and the Court understand how the kids feel.

Can I file a Petition for Contempt in conjunction with my Counter-Complaint?

Question:  My ex is taking me back to court to try to get one of our two kids after 13 years. I answered her complaint and counterclaimed. We had a scheduling hearing and I was told I can amend my answer and counterclaim to include child support.

Answer:  The Contempt Petition is a separate filing. The Court will issue a Show Cause Order and a Writ of Summons and schedule a separate Contempt Hearing. At that hearing, the only issue before the Court will be whether or not she broke the terms of the Order, changing custody will not be discussed unless the Magistrate finds her contemptuous behavior so egregious that it warrants a change.

Meanwhile your Petition to Modify Custody will continue in its normal course.

Will I have to split my earnings with my husband following our divorce?

Question:   I own my own business and make most of the money in our household. I am married but it’s very rocky. In the event of a divorce, can my husband attempt to acquire the funds I work hard for? I do pay more bills than he does.

Answer:  If you own your own business your husband may seek to have the business valued in order to get a buyout of his marital equity. This is costly and it is difficult to prove the value of a business. Depending on the type of business you have, you may have what is called "personal goodwill" which is non-marital property and not subject to division by a Court.

Consult an experienced attorney on how best to move forward to protect your assets.

 

Can I get into trouble for contacting my husband when I have a protective order against him?

Question:  I have protective order on him since August 2018.  I'm going back home so that we can try to make our marriage work.  Will I get in trouble with the Court if I do this since I’m the one who has a protective order against him?

Answer:  You cannot get in trouble -- but he could get in trouble.
The Order is against him, not you. So, if he has contact with you, he is trusting you not to file charges against him. On the other hand, you are trusting him not to abuse you again. Your safety is most important so I hope that he got help to address his anger and hurt. If not, statistically speaking he will do it again and very soon: I hope that does not happen.

You could file a Motion to Rescind the Protective Order and if I was his attorney, I'd insist on that.

Can someone that has outstanding criminal warrants still collect child support?

Question:  My ex is on the run but I am still paying back child support for kids that are in my care.

Answer:  You owe "back" child support or arrears until they are paid off regardless of which parent has custody.

What should I do if my ex is violating the Court Order?

Question:  It's been a long road but my children's father has done everything possible to not return my children even though the court order states I have them Monday until Friday and he has every other weekend from Friday to Sunday. He keeps showing up at school and taking my soon.  What can I do?

Answer:  If your ex is breaking a court order, you should have other remedies such as Contempt and/or parent kidnapping. Maryland has a law that says that if you keep a child in contravention of a court's custody order for longer than 48 hours you can be prosecuted for parental kidnapping - but there has to be a court order.

If the Courts gave you custody, the Court will enforce its own Order and protect your child.

** Act immediately!
Can I deny court ordered visitation if I fear for my daughter’s safety?
Question:  Mother has a history of drug abuse, homelessness, absconding with the child, and cutting off all contact. Her behavior has escalated recently. She will not disclose her latest address. My child is having personality changes, nightmares, and accidents.  There is an existing custody order.  What can I do?

Answer:  You have the right to file for a protective order. However, I do not think that would be the best route. A ground for a protective order would be mental or physical injury to a child; neglect is not a ground for a protective order. Additionally, if you have a custody order most Courts prefer to address custody issues within the custody case rather than through a protective order case. You should consult with an attorney to discuss the option of filing for a modification of custody and requesting an emergency hearing. You also have the right to contact CPS if you fear that your child is being abused and/or neglected.

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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

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.

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.).