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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 May, 2011

Subpoena!

Tuesday, May 31st, 2011

Today I received a subpoena by fax from opposing counsel.  A subpoena is a court document requiring a witness to appear and testify.  This one requires my client to appear at a Scheduling Hearing two days from now.

The problem is that my client had been excused from attending this hearing because he is out of town and no testimony is taken at Scheduling Hearings anyway.

So I checked MD Rule 2-510 which governs subpoenas.  I found two things wrong with this subpoena.  Firstly, it has to be served on me either by hand delivery or first class mail, not by fax.

Secondly, the rule states, “Unless impracticable, a party shall make a good faith effort to cause a trail or hearing subpoena to be served at least five days before the trial or hearing.”

Unless something changes, I’m planning on being at the hearing with a copy of Rule 2-510, but not my client.

All Divorce Dollars Are Not Equal

Wednesday, May 25th, 2011

Let’s say you have a 401(k) plan worth $200,000 and you and your spouse have $200,000 in equity in the family home.  Should you trade your spouse the house for your pension plan?

No because the equity in the house is tax free.  You will pay a tax of about 35% when you start taking your pension.  That makes the pension worth 65% of $200,000 or $130,000.

Would you let your spouse keep $10,000 in the joint checking account if you can keep $10,000 in joint IBM stock?  The bank account is tax free.  Any capital gains on the IBM stock will be taxed when you sell it.  So you won’t get $10,000 in cash.

Trades that look equal on paper, aren’t necessarily equal once you take taxes into account.

Negotiation Tip: The Door to Settlement

Tuesday, May 24th, 2011

“I want to ask my spouse to discuss a divorce settlement and put a stop to the litigation,” said Harry on the phone to his lawyer as he paced the floor of his office.

“I always think it’s better to settle than litigate if you can,” said Tom, pausing to take a puff on his pipe.  “Most cases settle.  There are not enough courthouses and judges to try all the cases that are filed.”

“When is the right time to ask?” Harry said as he fell into his office chair.

“Settlement negotiations and litigation proceed on parallel railroad tracks toward the trial date.”  Tom’s pipe went out and there was a moment’s silence as refilled it with tobacco.  “You can settle at any time before trial.  I’ve had trials settle on the  courthouse steps on the day of trial and one even settled at the noon recess after a half day of trial.  People settle for all kinds of different reasons, and you never know when they are ready to settle, so I keep asking every time I get a chance during the litigation process.”

“But do you think it will show weakness or desperation on my part that will cause me to lose bargaining power in the negotiations?”  asked Harry.

“I think it shows strength and confidence,” Tom replied, while relighting his pipe.  “You don’t have to settle on terms you think are unreasonable and you don’t have to bid against yourself.  But it never hurts to let the other side know that the door to good faith settlement discussions swings open on easy hinges.”

“Great.  I’m going to call her.  I can’t thank you enough for this advice.”

“Yes, you can.  When you get my bill.”

Divorce Quotes

Monday, May 23rd, 2011

“Holding a grudge is like drinking poison and waiting for the other person to die.”

— Diane Mercer & Katie Jane Wennechuk, “Making Divorce Work”

Seven Year Itch

Thursday, May 19th, 2011

US Census Data just published for 2009 shows that first marriages ending in divorce last an average of eight years (seven years to separation).

The data also shows that more people are cohabiting and waiting longer to get married.

About 30% of Americans are not married.

Divorce Stats

Wednesday, May 18th, 2011

According to the CDC’s latest statistics (2009), there were 6.8 marriages and 3.5 divorces for every 1,000 people in the United States.  The divorce rate per thousand in our three jurisdictions breaks down as follows:

  • Washington, DC    2.6
  • Maryland    2.8
  • Virginia    3.7

Both Maryland and Virginia were down 0.1 from the year before.  DC stayed the same.  Maryland and DC beat the national average, but Virginia is higher.

Read more.

Boomer Breakups

Tuesday, May 17th, 2011

News of the separation of Arnold Schwarzenegger and Maria Shriver after 25 years of marriage adds to the growing list of baby boomer breakups.

Last year it was former Vice President Al Gore and his wife, Tipper Gore.

About 35% of baby boomers have split from their spouses, and now baby boomers make up the majority of all divorced Americans.

What to Do if Your Spouse is Evading Service

Monday, May 16th, 2011

You can ask the court by motion to allow you to serve your spouse by alternative service.  You attach an affidavit that a defendant has acted to evade service and list the attempts made to effect service.

The court may then order that service be made by (a)  mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant’s last known residence and (b) delivering a copy of each to a person of suitable age and discretion at the place of business of the defendant.

If you the above method of service would be inapplicable or impracticable, then the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice.
Maryland Rule 2-121

Motion to Continue for Marital Harmony

Tuesday, May 10th, 2011

After accepting an appointment to defend a criminal case in federal court, Chad Dorsk, an attorney in Newport News, Virginia, discovered the trial date was one of the days of his planned honeymoon.

The Virginia Lawyer’s Weekly reports that Dorsk said in his Motion for Continuance, “In support of this motion, the Defendant’s counsel represents to the Court that the undersigned is getting married on May 28, 2011, and has planned a honeymoon thereafter.  In order to preserve and ensure a future of marital harmony and bliss Counsel respectfully requests that this continuance be granted.”

We won’t know whether the judge would have granted the motion or not because the defendant decided to plead guilty and the trial was canceled.

Service of Process

Monday, May 9th, 2011

Once you file your complaint for divorce, due process of law requires that you give notice to your spouse that a lawsuit has been filed and copies of the complaint and summons.  This is called service of process.  Maryland Rule 2-121 provides several different ways to accomplish service of process.

  1. By delivering the suit papers to the other party.
  2. By leaving the suit papers at your spouse’s residence with a resident of suitable age and discretion.
  3. By mailing the suit papers certified mail requesting “Restricted Delivery–show to whom, date, address of delivery.”
  4. When served outside of Maryland, in addition to the above, by any other manner permitted by the other jurisdiction, if reasonably calculated to give actual notice.

The court will also accept service upon a party’s attorney if the attorney is authorized to accept service on behalf of that party.  If a defendant files a response, that shows they have notice of the case and service of process is not required.

Next: What to do if a spouse is evading service.

 
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