“Never tell me the odds, Kid.”  That’s what Hans Solo said to Luke Skywalker just before they flew through the asteroids in Star Wars.  And I hear it in my head every time a client asks me what I think their chances of winning are.

First, the Code of Professional Responsibility prohibits me from giving you percentages, because each case is unique with its own set of facts.

Second, the judge weighs the testimony and credibility of the witnesses, and there is no lie detector at the bench.

Third, the judge doesn’t always get it right.

Fourth, you might win or you might lose, or it might be something in the middle.  Usually there is a least one thing in the judge’s decision to feel bad about.

Fifth, my crystal ball is cloudy.

Sixth, two judges trying the same set of facts, will give different opinions.

Seventh, judges have their own filters, feelings, history and perceptions.   Did the judge have an absent father and nurturing mother?  Is the judge divorced and mad about having to pay alimony?  Did the judge have a good breakfast or an argument with their spouse on the morning of your trial?

So your chances of winning?  It all depends.

This excerpt from an article by Jane Eaton Hamilton struck me as a particularly poignant description of the losses felt by people going through divorce:

“We had lost our wives and husbands. We had lost our best friends. We had lost sex. We had lost our children. We had lost our animals. We had lost our homes. We had lost our furniture. We had lost our gardens. Our incomes had severely plummeted. There were new therapists to pay, and lawyers to pay, and moving costs to pay. Some of us had to replace even the spices in our cupboards and the toilet brushes behind the bowls. We moved without screwdrivers, without our art, without our shampoo.”

With Social Security and entitlements under debate, baby boomers are hitting their 60’s and guess what else.  They are getting divorced.

Long term marriages account for nearly a quarter of divorce filings in recent years.  This is attributed to many factors, including the growing financial status of women, and couples drifting apart after the kids are gone.

Many of these “gray divorces” are less hostile than the usual divorce.  The marriage ends with a fade away divorce rather than a divorce by crisis.  The parties just want to separate their finances and move on with their lives. Another interesting statistic is that once divorced, more boomers are staying single.

Source:  KansasCity.Com

Today I received an order from the court notifying me that my opponent’s motion to dismiss my complaint was denied.  Only problem is that I never received a copy of the motion.

Since I won anyway, and my opponent is not a lawyer and she is representing herself, I am not going to complain.

I did let her know, however, that she must mail or deliver a copy to me of any future pleadings she files, so that I will have an opportunity to respond.

Maryland Rule 1-321 says in part “Service…shall be made by delivery of a copy or by mailing it.”

And Maryland Rule 1-323 provides in part:

“The clerk shall not accept for filing any pleading or other paper requiring service, other than an original pleading, unless it is accompanied by an admission or waiver of service or a signed certificate showing the date and manner of making service.”

If you are a do-it-yourselfer, don’t forget to mail a copy to the other side and put a certificate of service on the pleading you file with the court.

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.

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).

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.

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.

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.

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.