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Thyden Gross and Callahan LLPCounselors and Attorneys at Law

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Maryland Divorce Legal Crier

News and comments about divorce, child support, child custody, alimony, equitable property distribution, father’s rights, mother’s rights, family law, laws on divorce and other legal information in Maryland.

Archive for August, 2010

Why We Hire Experts to Value Assets

Monday, August 30th, 2010

hemi
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.

Divorce Quotes

Friday, August 27th, 2010
“Anger is a bad adviser. — Hungarian Saying

Who Gets Rover?

Tuesday, August 24th, 2010

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

rover

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.

Accrued Leave

Monday, August 23rd, 2010

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).

Mother’s Gift to Couple Is Marital

Thursday, August 19th, 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).

Divorce Quotes

Tuesday, August 17th, 2010

valley

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

Country Songs We Wish We’d Written

Thursday, August 12th, 2010

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.

Alienation of Affection and Criminal Conversation

Tuesday, August 10th, 2010

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.

Divorce Insurance

Monday, August 9th, 2010

Want to buy some divorce insurance?  Jennifer Saranow Schultz reports in the New York Times that SafeGuard Corp. of North Carolina is offering the world’s first divorce insurance called WedLock.  For each $15.99 per month you pay, you can buy $1,250 in coverage.   The benefit covers the costs of divorce such as lawyer fees or setting up a new home.

Then, if you get divorced, you send Wedlock proof, and they’ll send you a check for the amount of insurance you purchased.  You have to be married at least four years, however, before the payout.  You can buy riders to shorten that to three years or get your premiums back if you don’t make it that long.  Every year the company automatically adds another $250 to the coverage for each unit you buy.

The company helpfully provides calculators on its site for Divorce Probability and Divorce Costs to help you figure out much insurance you need.

Dividing Up Debt, Part 3

Friday, August 6th, 2010

by Michael F. Callahan

This is the last in a series of articles about how debt is handled in divorces in Maryland, Virginia and the District of Columbia.

No matter where your divorce case is heard, the divorce court cannot order the creditor to collect from one spouse rather than the other.  That is because your creditor is not a party to your divorce case and the court has no jurisdiction over them.

What if the divorce court orders husband to pay a joint debt and he subsequently files bankruptcy and receives a discharge barring the creditor from collecting from him?

The joint creditor will turn to the former wife to collect.  Upon payment, the former wife will have a claim against her ex-husband for indemnification under the divorce court’s order.  That claim is not dischargeable in bankruptcy.  11 U.S.C. Sec. 523(15).

 
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