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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 June, 2011

Will Maryland Grant a Gay Divorce?

Tuesday, June 28th, 2011

Gay marriage is not legal in Maryland.  But Maryland will grant a divorce to residents who were legally married elsewhere.  Common law marriage is not legal in Maryland, but it is in DC.  If you have a common law marriage in DC and move to Maryland, you can get a Maryland divorce.

So if you have a same-sex marriage where it is legal, like DC or NY, can you move to Maryland and get a divorce?  The answer is, we don’t know.  Last year, Attorney General Douglas F. Gansler issued a non-binding opinion suggesting that the answer should be yes.

The Baltimore Sun reports that there are already some same-sex divorce cases that will likely end up in the Court of Appeals, which will have the final say on the matter.

Fraud

Monday, June 20th, 2011

Nancy Lasater filed a civil suit instead of a divorce action against her husband John Guttmann, claiming, among other things, that he defrauded her.  She says he misrepresented the state of their finances and remained silent when there was a duty to speak.  She said he falsely blamed her for their finances, misrepresented his own income and misstated how he spent their funds.

The court held that there was no fiduciary or confidential relationship between the parties, and therefore no duty to disclose a material fact.

The court found that John’s statements were his opinions and not material facts that could not support a fraud claim by Nancy.  And even if they were facts, the court said, Nancy could not have reasonably relied upon them.  The court said she could have easily discovered the truth by opening one of the hundreds of bank statements that had been sent to their home over the years or by a review of their tax returns.

In affirming dismissal of the civil suit, the court said, “We decline to open the door to tort suits arising from disagreements over allocation of marital resources when these grievances properly can be remedied in the divorce setting.”  Lasater v. Guttmann, 194 Md. App. 431; 5 A.3d 79 (2010).

Breach of Fiduciary Duty

Friday, June 17th, 2011

In Nancy Lasater’s tort complaint against her husband, John Guttmann, she said that he took advantage of her trust and confidence to secretly finance real estate investments, compact disks and other purchases.  He defrauded and deceived her in order to misappropriate hundreds of thousands of dollars of joint funds and her money for his own private purposes.  Nancy asserted that her husband owed her a duty of care, loyalty and disclosure.  He breached these duties, she said, by failing to disclose their financial position, their debt and by spending money on personal adventures and exotic merchandise.

The doctrine of interspousal immunity used to bar civil actions by one spouse against another.  Bozman vs. Bozman, 376 Md. 461, 830 A.2d 450 (2003) did away with that doctrine.  However, the court said, it does not necessarily follow that spouses can now sue each other for breach of fiduciary duty.

The court said that unless there is an agreement, a husband and wife are not true fiduciaries of one another and there is no presumption of a confidential relationship between them.  The court said that there was no particular transaction singled out and that it would not permit a spouse to use breach of fiduciary duty to launch a broad attack on the other spouse’s handling of financial matters during the marriage.

Intentional Infliction of Emotional Distress

Friday, June 10th, 2011

In the Lasater case, Nancy said that John deceived her for many years about his income and expenditures.  He lost his temper and yelled at her blaming her for the family’s financial plight.

This made her ill and gave rise to a claim in her lawsuit that John intentionally inflicted emotional distress on her.

The court said that one of the elements of this tort is extreme or outrageous conduct.  It found that John’s alleged actions, if true, did not rise to the level of extreme or outrageous conduct required.

Conversion

Thursday, June 9th, 2011

In the Lasater case, Nancy claimed that John spent money from their joint checking account, including money she deposited from her inheritance, for his own private use.

This was not authorized by her, and she said, amounted to conversion.

The court, however, found that once moneys were deposited in the joint account, they were commingled with other money that belonged to both parties and could not be separated out.  You cannot convert money which already belongs to you, so the conversion claim was denied.

Marital Torts

Wednesday, June 8th, 2011

Nancy Lasater and John Guttmann of Maryland were both attorneys who had been  married to each other for 27 years before their divorce.  John handled all the family finances.  They had a joint checking account where their paychecks were deposited.  They both wrote checks on the account.  Statements came to the house, but Nancy never looked at them.

When she finally did look at their finances, Nancy says she discovered that John had mismanaged them and spent all their money on bad real estate investments and other expenses (including a large collection of compact disks).  She sued John for the torts of conversion, intentional infliction of mental distress, breach of fiduciary duty and fraud.  John moved to dismiss Nancy’s lawsuit, and filed his own complaint for divorce.

The court granted John’s motion to dismiss, saying that, even if it happened the way Nancy says it did, her claims failed as a matter of law.  We’ll be taking a look at each claim and the law and the facts surrounding them in the next series of blogs.

Tough Choices

Thursday, June 2nd, 2011

It used to be that our divorce clients would argue about who gets to keep the house.  Now, with many houses worth less than their mortgages, divorcing couples face tough choices.  Sarah Portlock writes in an article at NJ.Com that the considerations are:

1.  Do they keep the house now and try selling it next year?

2.  If they wait, will its value go up or down?

3.  Can they rely on a short sale?

4.  What happens if they just stop paying the mortgage?

5.  Is one spouse willing to buy out the other, own the home and assume all risk?

6.  Where are the parties and their children going to live?

If they cannot agree, they can ask the divorce court to decide.  But the judge is likely to order the house sold by a Trustee.  The Trustee charges a fee and may auction the house off on the courthouse steps.  The mortgage company can sue the couple for any shortfall if the sales proceeds are less than the mortgage and costs of sale.

 
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