“Come on, Sobel,” Castor said.  “The judge is not going to put my guy in jail.  It’s contractual alimony, not court ordered alimony.”

“Whadya mean, Castor?  The Agreement is incorporated into the Divorce Decree.  That makes it a court order.  And your client has failed to comply with it.”

“Well there is no imprisonment for debt in Maryland.  Check the state constitution, Sobel.”

“You check it, Castor.  I’ve got it right here.  Section 398 of Article III says ‘No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children or for alimony shall not constitute a debt within the meaning of this section.’

“Sobel, me and my client will, as they say, see you in court.”

“Tell your client to bring his checkbook or a toothbrush, Castor, for when he goes to the slammer.”

My ex-wife’s at the door a-knockin’
Lord that woman won’t leave me alone
Same question, where’s my money
Well, honey, you can’t get blood from a stone

When I get it, you get it
Times are tough, get in line and wait
When I get it, you get it
And that’s all you’re gettin’ today, yeah.

The court may award alimony for an indefinite period when it finds as a fact that:

(i) the party seeking alimony, by reason of age, illness, infirmity, or disability, cannot reasonably be expected to make substantial progress toward becoming self-supporting; or

(ii) Even after the receiving party will have made as much progress toward self-support as can reasonably be expected, the respective standards of living of the two parties will be unconscionably disparate.

The Court of Appeals found from the evidence that the trial court’s award of alimony for three years would have left Mrs. Holston with a standard of living greatly below that enjoyed during the marriage and unconscionably disparate from the standard of living available to Dr. Holston.  Therefore the judges remanded the case to the lower court with instructions to grant Mrs. Holston permanent alimony.

Holston v. Holston, 58 Md. App. 308; 473 A.2d 459 (1984),  Cert. Denied (1984).

“Thus, when awarding alimony, the chancellor is required to consider not only those factors relating to the financial situation, age and health of each party, their standards of living, the duration of marriage and the contribution of each party to its well being but also the ability of the party seeking alimony to be wholly or partially self-supporting and the time deemed necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment. It is apparent, therefore, that the concept of  alimony as a lifetime pension enabling the financially dependent spouse to maintain an accustomed standard of living has largely been superseded by the concept that the economically dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living.”

There are some exceptions, however, and I’ll discuss those next week.

The chancellor awarded Eileen alimony for three years at a rate of $ 150 per week in order “to allow her the opportunity to either go back and complete her education, since she did not finish college . . . or to train herself or retrain herself for appropriate work,  because ultimately there is no question she has to provide for herself .”

Eileen appealed, claiming she should have been awarded indefinite alimony.  Let me know how you think this case turned out in the comments section.  Next week, I’ll tell you what happened.

Alimony. In each jurisdiction, the law provides a list of factors the court must court must consider in determining alimony.  In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties.  In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Property. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider.  In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate.  In Virginia, one factor is circumstances contributing to the dissolution of marriage.  In DC, it is circumstances contributing to the estrangement.

Custody. Marital misconduct does not necessarily make you a bad parent.  The test is best interest of the children.  But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

As a result, the parties spend 90% of their time in discovery and trial trying to prove fault.  While most of the judges I’ve talked to say it affects their decision by 10% or less.

Alimony guidelines have been in existence for some time.  The American  Academy of Matrimonial Lawyers publishes alimony guidelines and the Women’s Law Center has a program called the Kaufman Alimony Guidelines Calculator.  Even though the twelfth alimony factor is “anything else the court wants to consider”, it was not clear whether that included alimony guidelines or not.

The Maryland Court of Appeals ruled recently that the guidelines may be used by the judge as an aid so long as they do not replace the twelve factors or frustrate them.  So now divorce lawyers in Maryland will be presenting guidelines in settlement discussions, mediation and court.  Boemio v. Boemio, CA No. 57, September Term, 2009, May 11, 2010.

Last week we discussed how to pick a court in which to file your uncontested divorce case.  This is the first of several articles in which we’ll talk about circumstances in which a case would be decided differently depending on which local jurisdiction’s court hears the case.

There is no bar to alimony in the District of Columbia or Maryland for adultery.  Fault is only one of many factors that a court may consider in deciding whether to award alimony and, if so, how much and for how long.

However, in Virginia the court cannot award spousal support (alimony) at the conclusion of the divorce case from a spouse who has proven adultery of the other spouse as a ground for divorce, unless the court determines based on clear and convincing evidence that it would be a manifest injustice to deny support.

So there is more at stake when Virginia spouses, who suspect their spouses of cheating hire private detectives and snoop, electronically and otherwise.  This is because solid evidence of adultery strengthens the potential support paying spouse’s hand in negotiations and at trial.

It is necessary to find such evidence because you cannot rely on forcing your spouse to admit adultery by asking him or her under oath.  Adultery is a crime in Virginia, seldom prosecuted but still on the books.  Accordingly, your spouse can “take the fifth” when questioned about adultery.

Once adultery has been established, to overcome the adultery evidence and be awarded spousal support, the prospective support payee must establish by clear and convincing evidence that it would be a manifest injustice to deny support.   The statute provides that the court is to look at the spouses’ respective degrees of fault and relative economic circumstances.  So to prevail the adulterous support-seeking spouse needs to show (1) he or she  really needs support and the other spouse really can afford to pay, and (2) looking at the entire marriage and the conduct of both spouses, the other spouse’s conduct is really more culpable than the adultery of the spouse seeking support.  In short, it is very difficult burden.

If your spouse moves out of the Virginia marital house and into D.C. or Maryland, he or she may be forum shopping to avoid the Virginia adultery bar to alimony.  In that case you would be wise to file a divorce case in Virginia promptly.

Lawyer baby, just slip a complaint across your desk, for me
So I can get my divorce quickly
Lawyer baby, so hurry file the complaint today

Lawyer baby, a ‘54 convertible too, light blue,
And half the other property
Lawyer baby, so hurry file the complaint today

Think of all the fun I’ve missed,
Think of all the fellows that I haven’t kissed
Next year I could be just as good
With everything on my divorce list

Lawyer baby, I want a yacht and really that’s not a lot
Been an angel all year
Lawyer baby, so hurry file the complaint today

Lawyer honey, one little thing I really need, the deed
To a platinum mine,
Lawyer baby, so hurry file the complaint today

Lawyer cutie, and fill my stocking with a duplex and cheques,
Sign your x on the line
Lawyer cutie, and hurry file the complaint today

Come and let me pay your fee,
With the cash you will collect for me
I really do believe in you,
Let’s see you get me alimony

Lawyer baby, forgot to mention one little thing, a ring,
I don’t mean on the phone,
Lawyer baby, so hurry file the complaint today

Hurry file the complaint today
Hurry, today.