Maryland Divorce Lawyer - Cynthia H. Clark

Military Divorce in Maryland Can Be Complicated

She is in the Navy on a ship for the next two years. This is her second overseas deployment since they got married. He is living in Bowie trying to raise two kids on his own while she is away. He’s in the Army Reserves, but he really wants to go back on active duty. Things have not been great between the two, and the last time she was home on leave a huge fight led to talk of divorce so they could both get on with their lives. He has a lot of questions about how they can get a divorce while she is deployed. He does not want to wait two years until she returns. What will happen with the kids, and the house they just bought?

To get started with the divorce process the spouse filing for divorce needs to figure out the proper jurisdiction and venue in which to file the divorce petition. The Plaintiff will file the petition in the circuit court. The residency requirement for a Maryland divorce is one continuous year immediately prior to the filing for divorce. The grounds for a military divorce are the same for a civilian divorce. The military spouse must be located and then served with divorce papers.

What are the differences between a military divorce and a civilian one?

Military divorces are settled in the state court rather than military courts. There are several rules that apply to active members of the military with regard to divorce that must be followed.

If the active duty spouse is served with divorce papers they are entitled to a 90-day delay after their active duty service is over in order to give them time to find and work with an attorney and prepare their case. The Servicemembers Civil Relief Act (SSCRA) protects members of the military from ending up divorced by default especially during times of war. If the active-duty service member does not want to contest the divorce they can waive the delay and let the divorce proceed.

In Maryland, child support is determined according to the state guidelines, however, child support and spousal support combined may not exceed 60% of the service member’s pay.

With regard to the military spouse’s retirement benefits, the Uniformed Services Former Spouse Protection Act (USFSPA) governs how they are disbursed and protects them from becoming joint property in a divorce. Marital property is all property acquired during the marriage except by gift or inheritance. This includes military retirement benefits. Ordinarily, the Court would issue a Court order for the division of those benefits. The Court order would go to the military to be processed and the military would pay the former spouse upon retirement and according to the terms of the Order. If, however, the spouses were married for less than 10 years, the military will not make direct payment to the former spouse. In those cases, payments must be made directly.

Additional considerations for military divorce

When the divorcing couple has children and one parent is on active duty with long deployments, establishing a permanent parenting plan can be a challenging task.

Before filing for divorce from a member of the military it makes sense to take the time to learn about the process and get clear on your rights and responsibilities. Scheduling a consultation with a knowledgeable Maryland divorce attorney who has had experience with military divorce will help put your mind at ease and answer the questions that have been on your mind.

Are you thinking about getting divorced from a member of the military? If so you are welcome to contact Cynthia H. Clark & Associates, LLC to schedule a consultation. We understand the nuances of military divorce, and we have the skills, experience and resources you want on your side during complex divorce proceedings.

Divorce, Marital Property

Who Gets the Beach House?

Vacation homes are typically high-value properties. Ending your marriage will necessitate dividing those assets and properties. When properties other than a primary residence come into play, the next steps you and your attorney take are crucial to determining whether or not you will receive what you deserve from the sale of those assets.

Like other assets, it is vital to make sure that the value of your vacation home is properly assessed during divorce proceedings. It is possible, and even likely, that if you and your spouse are separated during the proceedings that one of you will use the second property.

Complicating factors

You and your spouse may decide to continue sharing use of the vacation home. However, the details of a sharing agreement often prove too complicated to bear out in reality. It is important to objectively assess the importance and value of the vacation home to determine whether or not selling is better than sharing.

Yet another complicating factor can affect the value of your vacation home; the real estate market. For example, the median sale price of vacation home sales surged from 2012 to 2013 by almost 30% according to the National Association of Realtors. A detailed understanding of the market can greatly affect the outcome of asset division during your divorce.

As with all issues in a divorce, there is no prescribed course and no best way to handle vacation homes. A divorcing couple must examine all aspects of their finances, and take that information into account. Of course, having an emotional attachment to a home can change the game; you may be willing to keep a property regardless of the cost if it is important to your family.

Our skilled attorneys are experienced in the complexities of high-asset divorces, and can help you clarify priorities during an emotionally charged time. In addition to vacation homes, there are likely other investments as well as stocks, pensions, and retirement plans. If you are looking for experienced representation during a high-asset divorce, look no further than Cynthia H. Clark & Associates, LLC Contact us today to reserve a consultation.

As always, an amicable agreement is preferred. However, if you and your spouse are unable to reach an agreement, the court will provide a solution. Regardless, having the experienced lawyers of Cynthia H. Clark & Associates, LLC on your side will ensure that you keep the assets that are important to you. Please contact our firm to reserve a consultation.

Child Custody, Military Family Law

For Active Duty Military, Child Custody Can Be a Nightmare

Divorce is never easy, but for the members of our armed services it can be particularly complex. Military family law cases are handled in civilian courts, but present complicating factors including deployments, military pensions, and child custody. Active service members face unique challenges with child custody cases.

The service requirements of active duty members of the military often involve long deployments that result in long absences from the family unit. Civilian judges can be unsympathetic to duty requirements, instead seeing these absences as a lack of involvement in the lives of any children involved.

Additionally, laws vary from state to state. If the family has been transferred frequently, establishing a “home state” can be difficult, and courts may defer to another state.

To complicate matters further, each branch of service has different guidelines for how support can be allocated. If the ruling of the civilian court is not handled properly, payments will not be made. The civilian court’s ruling technically trumps military policy, which can result in additional paperwork, and therefore additional time on the process, as well.

The Uniform Law Commission

The Uniform Law Commission is a nonprofit association that:

“drafts uniform laws for the states to consider and enact. A uniform act is one that seeks to establish the same law on a subject among the various jurisdictions. When the term ‘uniform’ is used in the nation’s laws, it is highly likely that the ULC drafted the act.

“The ULC also promulgates ‘model’ acts. An act may be designated as ‘model’ if the act’s principal purposes can be substantially achieved even if the act is not adopted in its entirety by every state.”

The ULC has been promoting a model act since 2012 called the Deployed Parents Custody and Visitation Act. Under this act, past deployment and any possible deployments in the future cannot be used against a parent during a custody proceeding. To minimize the impact on children, imminent deployments may be considered.

So far, seven states have enacted the majority of the Deployed Parents Custody and Visitation Act. This year, legislation has been introduced in Minnesota, Arkansas, and South Carolina. We hope that our state, with such a large number of active service members, will ultimately see the light and enact legislation that will alleviate the burden of child custody hearings on our armed forces.

Divorce can be difficult; choosing the right attorney should not be. Cynthia H. Clark & Associates, LLC has successfully represented military couples throughout Maryland. Please contact the firm to reserve a consultation.

Divorce, Family Law

“Get” Creates Extenuating Circumstances Causing Decade-Long Divorce Proceedings

Divorce proceedings can be complicated. It is generally in the best interest of both parties to come to an agreement as quickly as possible to spare unnecessary emotional turmoil. However, one Maryland woman’s case highlights a little known problem with Maryland divorce law.

Cynthia Ohana is a member of the Orthodox Jewish community. Under Orthodox law, a member of a married couple can approach a rabbi to seek a divorce. If all goes well, the husband gives his wife a “get,” a document that nullifies the marriage. However, this procedure must be voluntary for all parties. When Cynthia’s husband, Ephraim, would not cooperate the rabbinical council gave her permission to seek a civil divorce.

Cynthia’s civil divorce was granted; the court found that her husband had abused her. While this secular divorce dissolved her marriage in the eyes of the law, without a “get” she was still viewed as married in the eyes of her community. Though her legal divorce was finalized in 2005, it was not until January of this year that her husband finally ended a battle that lasted 11 years.

According to the Jewish Times, “Ohana first sought the help of CHANA, a Jewish aid program of The Associated: Jewish Community Federation of Baltimore, in September 2003 for domestic violence and secured the first of several protective orders from her ex-husband on Dec. 21, 2004. Although they secured a civil divorce in May 2005, Ephraim Ohana would not grant a get.”

The Orthodox community rallied behind Cynthia, staging protests in front of Ephraim’s residence. Even in the face of public protests and repeated requests by aid authorities, Ephraim refused to grant Cynthia the closure she needed to start a new life in the community.

Cynthia said, ““It affects me and any other woman who’s going through the same struggle in that it prevents her from going forward in having a stable and loving relationship at home and remarrying and, ultimately, there’s closure that’s lacking.”

What we can learn from one extreme case

Currently, New York is the only state in the country that legally prevents the withholding of documents that recognize divorce within a faith. A bill was proposed in Maryland in 2007 that would put women on equal footing during religious divorce proceedings, but it was not passed. Most likely, such a bill would be unconstitutional due to the First Amendment’s separation of church and state. Handling such issues is left to the religious institutions. It is not unusual for a separation agreement to contain a clause that parties will cooperate to obtain a get, but such a clause would only be enforceable by the religious courts.

If you or someone you know is having problems with a divorce, please contact Cynthia H. Clark & Associates, LLC to reserve a consultation. As one of Maryland’s premier family law firms, we have the skills, experience and resources you want on your side during complex divorce proceedings.

Divorce, Family Law, Modifications

Can Divorce Orders Be Modified as Life Circumstances Change?

As time passes after a divorce is finalized there are almost always changes in circumstances in the lives of both parties as they get on with their separate lives. One party might receive a job offer in another state, or the other party might have a permanent change in work schedule that conflicts with the visitation schedule. When one or both of the parties wants to alter the final divorce decree they must petition the court for a post-decree modification.

There must be a substantial change in circumstances

In order to keep families from going to court every time there is some change in their lives, and also to promote a sense of stability, there must be a substantial change in circumstances before the court will consider a modification of the original divorce decree. For best results, wait at least a year if possible before attempting to get a modification for changes to:

Child support
Child custody
Spousal support
Visitation schedule

Why are child custody, support or spousal support orders commonly modified?

There are many changes that can take place in the lives of both co-parents that might require a modification of orders, including:

One parent wants to relocate more than 50 miles away
One parent wants to increase or decrease the amount of child support
Modification or termination of alimony payments
Serious injury or failing health
Drug or alcohol abuse in the child’s presence

If your former spouse has graduated and is now gainfully employed, if you lost your job and must decrease the amount you pay in child support or if your spouse wants to increase or decrease visitation with the child due to work constraints, these are all valid reasons to request a modification.

What is the process for post-decree modifications?

Working with a competent Maryland divorce attorney you file a petition for post-decree modification and then the court will schedule a hearing. Collect all of the evidence that you must present to the court to bolster your position. The judge will listen to both sides, consider the evidence that you present and make a modified ruling.

To learn more about what the criteria is for modifying a divorce decree or any other questions you might have about divorce, contact the law office of Cynthia H. Clark & Associates, LLC to schedule a consultation.

Divorce, Family Law, Legal Separation

Can I Live With My Spouse While I File for Divorce in Maryland?

The short answer is yes, but it’s a bit complicated. While Maryland does recognize no-fault divorce, you are not permitted to live in the same residence as your spouse while you are waiting for your no-fault divorce to become final. The law requires a 12-month separation for a no-fault divorce in Maryland. In extraordinary circumstances, you do, however, have other options if there moving out is just not an option given your particular circumstances.

Filing for absolute or limited divorce on fault grounds

While you can’t live under the same roof if you are filing for a no-fault divorce, Ricketts V. Ricketts set a precedent allowing for a divorcing couple to live in the same residence. You must live in different parts of the house, not share a bed or have marital relations if you file under the fault grounds of adultery, excessive cruelty or “constructive desertion.” By part of its definition, constructive desertion means that one party is refusing to have sexual relations with the other. If this is case, then there is no worry about violating the law that says there can be no marital relations. Note, however, that the burden of proof is on the person claiming the “fault” and it is not unusual for one spouse to contradict the other. Since this is not the kind of situation where there is a witness, proof can be difficult. If you successfully prove a fault ground for divorcee, under these circumstances the divorcing couple may remain in the same house until the divorce is final. During the one year waiting period the two will effectively be living separate lives under the same roof.

How is custody, spousal support and property division handled if both parties are living in the same household?

Here is where it gets complicated. The Maryland Court does not have jurisdiction to rule on which parent gets physical custody, who will have visitation, whether alimony will be awarded while the spouses are in the same house. While theoretically a court could make a decision on marital assets while the spouses are living in the same house it is not likely given the inter-relationships between the various financial issues. One party must move out before this part of the divorce process can continue.

As you can see, given that each situation is different and complicated, you should seek the advice of a Maryland divorce attorney. Divorce is a complicated process, and the decisions you make now will have a lasting impact on your future.

At Cynthia H. Clark & Associates, LLC, we offer individualized attention to our clients’ specific needs. Contact us today and schedule a consultation to discuss your case.

Child Custody

Woman Loses Child Custody, Retains Rights to Embryos

Can a parent argue for custody of an unborn, un-implanted embryo? In a case that treads the line between property division and child custody, a Maryland woman has been awarded custody of nine frozen embryos she created during her marriage to her now ex-husband. The case demonstrates the evolution of child custody and divorce law throughout recent years.

The custody case also included the couple’s 3-year-old daughter, who had been conceived with one of the embryos in question. The pair split up in May 2012, but they have argued over the custody proceedings for several months.

The ruling, the first of its kind in Maryland, allowed the woman to retain custody of the frozen embryos. Legal representatives reported that the embryo’s father had wanted to have them destroyed. The judge in the case upheld a legal document that had been signed at the fertility center at the time of the fertilization; that document permitted the woman to maintain custody of the embryos in the event of a split.

Attorneys for the father argue that the ruling is taking away their client’s right to determine whether he would like to be a father again. The man is dismayed about the decision even though he was awarded sole custody of the couple’s daughter, largely because the mother was deemed unfit during courtroom proceedings. The man said he worries about the welfare of his future children because his ex-wife wants to conceive again.

Still, an ethical argument against the ruling persists, with experts calling the decision a matter of public policy instead of a simple personal choice. If women can opt for abortions, why should a man have to consent to father more children than he wants? Attorneys argue that the same rule should apply to both genders. The man’s attorneys have filed a stay to prevent the woman from implanting another embryo, though that request has not yet been confirmed.

Source: Greenbelt Patch, “Maryland woman wins custody of frozen embryos,” Bailey Henneberg, Jan. 7, 2013.

Legal Separation

Absolute and Limited Divorce in Maryland: What’s the Difference?

What? There are two kinds of divorce in Maryland? While it might be hard to fathom, it is true. Knowing the difference between the two types and what each of them requires can be a critical step for anyone considering divorce.

Depending on your particular circumstances, it could mean the difference between a dissolution wracked by messy, bitter conflict and one that gets resolved smoothly by anticipating possible pitfalls and negotiating mutually agreeable terms.

To get a clear view of how divorce in Maryland is approached it helps to start with what’s on the books. And perhaps the easiest source of information to tap in this regard is The People’s Law Library of Maryland, maintained by the Maryland Judiciary.

As information on this site explains, the two types of divorce possible in The Old Line State are absolute and limited. The first is probably the one that people are most familiar with. It is the process by which a court issues a divorce decree to formally dissolve a marriage. Grounds for such actions include but aren’t necessarily limited to adultery, spousal desertion and abuse of a spouse or child.

An absolute divorce can also be sought if a couple completely separates for an uninterrupted term of one year. They can’t even engage in sexual relations with each other.

Interestingly, the same prohibition against sexual relations exists in a limited divorce. Sometimes referred to as a legal separation, this process involves a couple going through a court-supervised period of separation. The parties remain legally married during this time but live apart. Because they’re still married, neither party can remarry and if either has sexual relations with someone else during the oversight period, it is considered an act of adultery.

As with an absolute divorce, terms of possible spousal support, child custody and health insurance coverage may be negotiated. Those are steps typically best handled with the help of an attorney to ensure that everyone’s rights and best interests are protected. If a limited divorce is sought and granted, the court can make it permanent. But it can also be revoked at the request of both parties.

Perhaps the key thing to keep in mind is that in the eyes of the law, marriage is a contract situation. As such, disputes stemming from the contract can be pursued in the courts.

Source: clarionledger.com, “NYT: Divorce rate has been declining since 90s” Sam R. Hall, Dec. 02, 2014

Child Support

Digging Deeper into FAQs About Maryland Child Support

It’s been a few months since we focused attention on the issue of child support. In a post back in November, we sought to provide some insight into some of the frequently asked questions about this important facet of family law.

Much of what that post focused on had to do with who may be eligible for child support and the state and local government offices in Anne Arundel County positioned to help make sure that support is fulfilled smoothly and effectively. But in some instances, payers may be reluctant to meet their obligations and enforcement measures are needed.

It may be that an attorney’s help is required. When that’s the case, you want to be sure you are confident that your advocate has solid experience with collection processes and the various tools that are available to ensure that children get the financial support they need for their well-being. And what might they be? Here’s a list as provided by Maryland’s Child Support Enforcement Administration.

Interception of federal or state tax refunds: This applies if an obligated payer is behind. State refunds can be pursued if the arrears are $150 or more. Federal refunds may be collected if the amount is $500 or more.
Passport blockage: An obligor who is $2,500 or more behind on child support could be blocked from leaving the country until the past-due amount is paid.
Driver’s license suspension: This leverage can be brought to bear if child support is 60 days or more overdue.
Professional license suspension: There are many careers that require state licensure; doctors, lawyers, nurses, and even commercial truck drivers. Authorities may suspend a license until all child support arrearages are paid.
Wage garnishment: This is typically done through a wage withholding order through a payer’s employer.

There are other methods available, including the possibility of having a payer incarcerated under a contempt order from the court. But that might not be the ideal solution if the objective is to support recovery.

Divorce

Anticipation Rises as Roman Catholic Church Studies Divorce

Proud Maryland residents are aware that the state flag features a couple of red and white crosses.

There are probably those who think that the insignia is meant to reflect the state’s ties to the Roman Catholic Church. After all, historically speaking the Maryland colony was established with the specific intent of being a haven for Catholics who were excluded by civil law from participating in many aspects of public life in other British colonies. The Maryland government website, though, reveals that the crosses represent the crest of the maternal family of George Calvert, the first Lord Baltimore.

Acknowledging the deep Catholic roots of the state, though, we suspect there may be more than a few readers paying close attention to the doings of the church around the issue of divorce. Specifically, anticipation is likely building around the scheduled October Synod on the Familyduring which synod participants will dig into whether and how the church can help spouses and families of divorce participate more openly and fully.

As things stand now, common doctrine is that divorced Catholics can’t remarry unless they obtain an annulment stating that in the eyes of the church the first marriage never took place. Annulments aren’t easy to get and those Catholics who remarry without one are ineligible to receive Holy Communion.

This is a big issue for faithful Catholics on both sides of the fence. Traditional interpretation of common doctrine is that God outlawed divorce. In trying to strike a balance between that spiritual ideal and temporal reality, many opt for a legal separation which ends the civil marriage contract, and leaves the spiritual marriage intact.

But those with a more pragmatic view observe that divorce has always been around and question whether it isn’t time for some softening of spiritual penalty in the event that a divorced person does remarry without an annulment.

That is a question that is beyond the scope of our focus on family law in the temporal realm. But it will be interesting to see what comes out of the October synod.