by Jill H. Breslau

Every solution brings new problems.  For those states that have legalized same sex marriage, the new concern has to do with divorce: do the same rules apply as for heterosexual married couples?  And what happens when couples marry in a state that recognizes their marriage and then they move somewhere that doesn’t?  If they break up, can they seek legal remedies, such as alimony, property division and child custody in the courts?

In DC, same sex couples can now legally marry.  In Maryland, the attorney general has decided to recognize in Maryland gay marriages that take place elsewhere.

Logic says that if people are married, they should be entitled to the rights and responsibilities inherent in marriage.  But the laws of the states haven’t necessarily followed that reasoning.  Some states refuse to acknowledge same sex marriage and therefore won’t grant a divorce to the couple.  Since almost every state has residency requirements, people may be compelled to relocate, uprooting their lives, changing their jobs, just to end their marriages.

David Code is a minister and author who says we all have a built in defense mechanism called scapegoating that allows us to blame others when life gets too stressful.

Scapegoating may have been useful for us when we were cave people, because it allows you to lay off stress on those around you, so you can concentrate on survival. But it can play havoc in a modern marriage when the most convenient scapegoat for your troubles is your spouse.

Being aware of the concept can go along way toward solving the problem. Criticizing your spouse or pointing out their faults may really be our own misdirected anxiety finding a nearby scapegoat. After all, if we had to take responsibility for our problems, we might also have to take responsibility for fixing them. It’s much easier to complain to our spouses.

This realization, says Code, may also allow you to give up searching for a Spouse-Upgrade. Thinking the grass is always greener is an illusion because our anxiety and scapegoating instincts will still be with us even if we have a different mate.

Clients complain about the costs of discovery and experts to value things like pensions, businesses and other assets.  Frequently they waive discovery and valuation and instruct us to skip it altogether.  Steve Linden, who appraises classic automobiles, tells the story of a couple getting divorced and dividing up their martial assets.

The husband had purchased a couple of cars a few years earlier.  One was a beautifully restored 1966 Plymouth Valiant convertible that the wife drove.  The other was a 1970 Plymouth convertible that the husband drove from time to time.

As Linden tells it, “As the divorce proceeded the husband casually suggested that his wife keep the 1966 Plymouth convertible and he keep the 1970 Plymouth convertible. She didn’t see any problem with this and readily agreed. Her attorney however felt that it might be wise to have both cars appraised just to make sure that the value of both cars were similar, even if not exactly the same.”

Linden valued the wife’s care at $15,000.  But the husband’s car turned out to be a very rare and very valuable Hemi Cuda convertible, worth over a million dollars.

by Jill H. Breslau

“He might be cute and he might be furry, but he’s still property.” — Trial judge in a New Jersey divorce case

Reported cases may not reveal the degree to which pet disputes are part of divorce.  But consider these statistics.  Approximately one of every two marriages in the United States ends in divorce every year.  Of divorcing people, thirty percent own at least one dog and thirty-four percent own at least one cat.

Although people often consider their pets to be their children, or at least, like children, the law generally doesn’t see it that way.  When you divorce, your dog or cat is considered personal property.  Courts ordinarily will not arrange a schedule for access with a pet.  As a Pennsylvania judge stated, “Appellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or a lamp.”

While this perception may be distressing—after all, our pets are sentient beings; they express love and loyalty, and we love them, too–some commentators think dealing with pets as property is less complicated and frustrating than accomplishing good outcomes by using a child custody model, which refers to the “best interest of the child,” as the standard.

Courts can determine who will own a pet, not only by considering who paid for the pet, but who has cared for it, walked and fed it, trained it and spent time with it.  And divorce courts have stated that one goal is to make sure that a family pet will be kept safe and free from abuse and abandonment.

On the other hand, a New Jersey court, while declaring that pets are not children, and adhering to the notion that there is no “best interest of the dog” standard, has ordered that a separating couple alternate possession of their dog on a regular basis. This outcome suggests that, at least in New Jersey, a court can order “shared possession” of a pet—as long as it isn’t called “custody.”

And here in Maryland, the St. Mary’s County Circuit Court ordered a husband and wife to rotate custody of their dog every six months.  But this is the exception and not the rule.

by Michael F. Callahan

There was another issue in the Smith case that I discussed last week.  Mr. Smith had retired two weeks before his divorce trial.  Before the decision was entered, we asked the judge to reopen the trial to take evidence of money that Mr. Smith failed to disclose in the amount of $30,000 that he received for accrued leave at retirement.

Mr. Smith’s lawyer argued that these funds were not marital property and so they belonged entirely to Mr. Smith.  Thomasian v Thomasian, 79 Md. App. 188, 556 A.2d 675, 1989 Md. App LEXIS (1989), held that a divorcing spouse’s accrued leave was not marital property.  The trial court agreed.

On appeal, the Maryland Court of Special Appeals distinguished between accrued leave and accrued holiday pay, and actual pay received during the marriage.  The Court said that Mr. Smith was owed money for the accrued leave when he retired and was actually paid for the leave before the entry of the order of divorce.  It was no longer accrued leave, which is not marital property, but it was now money in hand, which is marital property.   Smith v Smith, 996 A.2d 416; 193 Md.App. 29 (2010).

by Michael F. Callahan

During their marriage, Mr. Smith’s mother conveyed real estate to her son and his wife, jointly.  In their divorce, we represented Mrs. Smith.  Mr. Smith contended that his mother really intended to give the property to him.  But he told her to make the deed jointly to him and his wife for convenience, so that his wife would not have to go through probate in the event of his death.  The mother was deceased at the time of the trial.

He asked the trial court to give him a monetary award based on his contribution of the real property to the marriage. Contribution to the acquisition of property titled to the parties as tenants by the entirety is a factor that the court must consider in determining whether to make a monetary award. Md. Code, Family Law Article, Sec. 8-205(b)((9).

The trial court ruled the real property was marital and ordered it sold and the proceeds divided equally.  The husband appealed.

The Maryland Court of Special Appeals held that the deed was conclusive evidence that husband’s mother gave the property to both parties.  Therefore the husband’s contribution to acquisition of this property was equal to wife’s, that is zero, and the trial court did not err in declining to grant him a monetary award.  Smith v Smith, 996 A.2d 416; 193 Md.App. 29 (2010).

“We learn from the valleys, not from the hills.” — Miakoda in Shadowheart

LOVER, LOVER
by
Niemann Jerrod

Well the truth, well it hurts to say
I’m gonna pack up my bags and I’m gonna go away
I’m gonna split, I can’t stand it
I’m gonna give it up and quit and aint never coming back

Girl but before I get to going, I’ve got to say,
I know you used to love me but that was yesterday,
And the truth, I won’t fight it,
When the love starts burning you got to do what’s right.

Woh-oh lover, lover lover, you don’t treat me no good no more,
Woh-oh lover, lover lover, you don’t treat me no good no more.

Paula Cook has filed a divorce petition in North Carolina alleging that her husband, Antwuan Cook, had an adulterous affair with the former American Idol winner, Fantasia Barino.

Lawyers are speculating that Mrs. Cook might file a lawsuit against Fantasia for alienation of affection and criminal conversation. Alienation of Affection is a civil lawsuit against a person who deprives you of the love and affection of your spouse. Criminal conversation is also a civil, not criminal, suit against a third party in which you have to prove adultery.

These causes of action exist in a few states but not in Maryland, Virginia or DC.