Posted on December 13, 2010 in Divorce

It is a situation in which many individuals seeking a divorce find themselves. They have high value assets to chase in their divorce proceedings, but no money to afford an attorney to do so. As the New York Times Reported on December 4, 2010 , a California based company, Balance Point is funding divorces for those who can not afford to do so. However, they take a percentage of their client’s winnings, so the cases that they accept are those where high value assets are involved. As the New York Times reports, “the number of companies investing in divorce is small – Balance Point is one of the few that do it exclusively. But other businesses are gearing up. A New York start-up, Churchill Divorce Finance, also is planning to enter the business.”

The Maryland Lawyers’ Rules of Professional Conduct Rule 1.5 prohibits attorneys from taking divorce cases on a contingency fee basis, meaning to take a percentage (as is often seen in personal injury and medical malpractice cases) of their client’s ultimate share of the marital estate as their form of compensation.

For more information, contact Monica Scherer, Esq. at 410-625-4740

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 Posted on December 01, 2010 in Divorce

While your spouse’s substance abuse issues may not affect you nearly as much since you have separated, they certainly will continue to affect your children. Unfortunately, many clients are faced with these issues. It is important to address all substance abuse concerns at the beginning of a matter, by bringing it to your attorney or the court’s attention. In many Maryland counties the Court, when requested, will order a substance abuse evaluation of the parties. Be aware that if you request an evaluation of your spouse, the Court will often order that the evaluation be performed on both parties. The evaluation will most likely consist of an interview including substance abuse history, and treatment and also in some cases urinalysis or other form of drug/alcohol screen. If a party asks, and the Court feels is it necessary, continuing drug screens of a party may be ordered. This allows for the party to gain visitation or custody with their child or children after maintaining positive results. If a custody evaluation is performed in a matter the evaluator will also utilize the information gained from drug screens or a substance abuse evaluation to assist them in making their recommendation.

For parties who resolve their matter outside of a Maryland court proceeding, they still can address substance abuse issues by incorporating language in their separation agreement, parenting plan or Consent Order that allows for continued monitoring of the other parent. For instance, they may require the parent to undergo monthly drug screens and forward to them the results in order to maintain the access or custody schedule. If substance abuse is no longer a problem, but has been in the past, they may consider incorporating language that allows for testing or treatment upon suspicion of a recurrence of a substance abuse issue, ie relapse. For instance, an agreement may have language that states that upon suspicion of drug or alcohol use during visitation, the party may withhold all visitations from the using parent until a negative drug screen is provided. Parties may also add language that requires a parent to submit to a breathalyzer before driving the children in a vehicle or exercising visitation at all, if alcohol use has been suspected.

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 Posted on November 30, 2010 in Criminal Defense

As an Experienced Baltimore Maryland Criminal Defense Attorney I have often written about the mistakes that are made by inexperienced attorneys when representing people in criminal cases. I often pose the question, "did you hire the right lawyer to represent you?". In many of my previous postings I have written about cases in which the criminal defendant has hired an attorney who was in reality a domestic (divorce/child custody) attorney, an accident attorney or a general practitioner, who had claimed to be experienced in criminal defense. Upon closer inspection of his or her case history, these claims turned out to be false.

Recently I have become aware of several instances of poor representation in cases where the criminal defendant hires an attorney who sends him an unsolicited letter shortly after they are charged in a criminal case. These "letter lawyers" as they are known, very often offer legal services at well below the customary fee charged by experienced criminal lawyers. The reason for this in most instances is that the attorneys sending these letters are inexperienced (many are just out of law school) and are unable to attract criminal clients any other way. Truly experienced criminal defense attorneys are able to get most of their clients from referrals from past satisfied clients or from people who do the necessary research to find a qualified lawyer to represent them. And as the old adage goes, "you get what you pay for", as very often these inexperienced attorneys do what one would expect from an inexperienced attorney and that is, they make mistakes.

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 Posted on November 30, 2010 in Family Law

As reported in our September 30, 2010 blog , there are two parts to custody in the State of Maryland, legal custody and physical custody. Legal custody is the ability to make decisions regarding the child’s health, education, religion and other matters of significant importance. Legal custody can be awarded solely to one parent or jointly to both parents (there are also variations on joint legal custody, such as having one parent as a tie breaker or a requirement to mediate when parents cannot reach a joint decision or assigning each parent sole legal decision making with respect to different issues, ie Mom makes the decisions on education and Dad makes the decisions on health matters and the parents have joint legal custody on religious issues). Maryland courts have held that the strongest factor in determining whether to award joint legal custody is the ability of the parents to communicate with each other regarding the children.

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 Posted on November 29, 2010 in Family Law

As a follow up to our June 30, 2010 and July 8, 2010 blogs on Facebook evidence in Maryland family law proceedings, we have compiled a top five do’s and don’ts for Facebook for parents in the midst of custody litigation.

1. Do disable your Facebook account. If you can’t bring yourself to do it, make your presence on Facebook as minimal as possible, and we mean minimal.

2. Do set your Facebook page to private so only those who are your friends can view your page, and while you are at it do a "spring cleaning" of your friend list, eliminating those who are unnecessary. Friends should only be those who have no connection with your ex or your ex’s family and/or friends. You never know who is viewing/printing information from your account and passing it along.

3. Do eliminate all photographs, wall posts, information that could be damaging to your matter, such as posts or photographs related to illegal substances, partying, unsuitable living conditions, boasting, and/or unemployment. In other words, eliminate all posts or photographs that you would not want a Judge to see.

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 Posted on November 19, 2010 in Family Law

In my November 16, 2010 blog I briefly mentioned the concept of voluntary impoverishment. Maryland law describes voluntary impoverishment as freely, or an act by choice, to reduce oneself to poverty or deprive oneself of resources with the intention of avoiding child support, John O. v. Jane O. 90 Md. App. 406 (1992). Our case law has further explained voluntary impoverishment as whenever an individual has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources or income, Gordon v. Gordon, 174 Md. App. 583, 923 A.2d 149 (2007). Income is a factor in child support matters, divorce matters involving alimony, and a factor when deciding whether or not to award a party attorney’s fees.

In order to calculate child support in a Maryland child support case both parties’ incomes are needed. Maryland Code Family Law, § 12-201(h) defines income as (1) actual income of a parent, if the parent is employed to full capacity; or (2) potential income of a parent, if the parent is voluntarily impoverished. Before a Judge can impute a party a potential income for the purpose of calculating child support they must find that the party is in fact voluntarily impoverishing themselves. Oftentimes, establishing voluntary impoverishment is not a cut and dry as it may seem. To assist the Court in making a determination if a parent is voluntarily impoverished for purposes of calculating a child support obligation, several factors as to the parent are considered, including, but not limited to: (1) his or her current physical condition; (2) his or her respective level of education; (3) the timing of any change in employment or financial circumstances relative to the divorce proceedings; (4) the relationship of the parties prior to the divorce proceedings; (5) his or her efforts to find and retain employment; (6) his or her efforts to secure retraining if that is needed; (7) whether he or she has ever withheld support; (8) his or her past work history; (9) the area in which the parties live and the status of the job market there; and (10) any other considerations presented by either party. Gordon v. Gordon, 174 Md. App. 583, 923 A.2d 149 (2007); Stull v. Stull, 144 Md. App. 237, 797 A.2d 809 (2002).

Income, and in turn voluntary impoverishment in some case, also come into play in divorce matters involving alimony. For more information on how alimony is calculated see our October 2, 2009 blog. A court may determine that a party can pay alimony based on voluntary impoverishment when they find that that party has voluntarily impoverished him or herself in an effort to fraudulently deprive their spouse of alimony. Colburn v. Colburn, 15 Md.App. 503 (1972). Conversely, a court may find that a party should not be awarded alimony based on the fact that they are voluntarily impoverishing themselves.

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 Posted on November 18, 2010 in Family Law

1. Well in advance of each holiday, refer to your existing Court Order, Separation Agreement, and/or Judgment of Absolute Divorce to determine what your Order and/or Agreement sets forth for each holiday.

2. Communicate to the other parent, (preferably in writing via e-mail or text), your interpretation of the existing Order and/or written Agreement. Specifically spell out who has the child(ren) on which day or part of the day, the times and where exchanges are to take place. Ask the parent to confirm that is their understanding.

3. If there is not an existing Order and/or written Agreement, again, well in advance of the holiday, contact the other parent (preferably in writing) and set forth your specific proposal and ask them for there thoughts and comments.

4. Put your child(ren) first, not yourself. Understand that the child(ren) should have the opportunity to spend part of the holiday which each parent and their respective families, regardless of your feelings for the other parent. Do not be selfish, it will come back to haunt you.

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 Posted on November 17, 2010 in Family Law

With the holidays approaching many clients may be facing uncertainty or conflicts as to where their child(ren) will be spending the holiday. We always advise clients to plan holidays far in advance so a schedule can be arranged that is best for the child(ren). It is important to develop a schedule that is not too overwhelming for children, so they can enjoy the holiday without exchanges at inopportune times, such as midnight on Christmas Eve, or too many exchanges in one day. It is also important to remember not to make plans for your child(ren) on the holiday until you know what the schedule will be. Lastly, for your child’s sake, explain to them how the holiday schedule will go, do not seek their input or place a guilt trip on your child(ren) for not being with you for the holiday or a portion of the holiday, and be flexible and accommodating to making the holiday work for everyone. Everyone does include the other parent and his or her family.

If you are unable to reach a holiday arrangement with your child’s parent you may turn to what many practitioners refer to as "holiday court". Most Circuit Courts throughout the State of Maryland implement a specific protocol for what is known as "holiday court," or the process that takes place in order to resolve these holiday access disputes. We have collected information from the nearby Circuit Courts to find out how they will be handling this year’s holiday disputes.

Anne Arundel County Circuit Court

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 Posted on November 16, 2010 in Family Law

I recently tried a custody matter in the Circuit Court for Baltimore County, in which I represented the father of the minor child. The father came to our office in January 2010, after he had arranged for his minor child to reside with him upon learning that the child’s mother was not properly caring for him. The minor child had resided with his mother for nine years, but she had recently changed residences, which our client had great concerns about. Prior to January 2010, our client, who resides in a neighboring state, was visiting with the child every other weekend, when the parties were on good terms. After our client made arrangements for his son to live with him, the mother filed a Complaint for an Emergency Hearing, which was scheduled for March 2010 at the Circuit Court for Baltimore County. Due to a heavy docket we were sent to mediation and a hearing was not held. We were able to negotiate a temporary schedule which granted our client temporary sole physical and legal custody and allowed the mother visitation with the minor child.

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 Posted on November 10, 2010 in Criminal Defense

As a Baltimore Maryland Criminal Attorney, I often represent people in Bail Review Hearings both in the District and in the Circuit Court. Very often when someone gets arrested, friends or family members fail to act quickly enough to get an experienced criminal defense attorney involved in the case prior to the initial bail review in the District Court which typically takes place on the next business day.

It is understandable given how quickly these events transpire that attorneys are often not contacted until after the person’s bail review has occurred. It is also often a very big mistake. In many cases the absence of effective representation at the bail review can be the difference between the defendant going home or remaining incarcerated. The District Court Judge often sets the bail much higher than he or she otherwise would have had the person had an advocate there on their behalf. This is the point when many people pick up the phone to call an attorney for the first time. I had two cases where the events unfolded in this manner this past week in Baltimore County Circuit Court. Here is what happened:

Both clients were arrested on Friday of the preceding week. One was charged with Second Degree Burglary for allegedly breaking into storage units. While this is certainly not the crime of the century, he was nonetheless ordered by the Court Commissioner to be held without bail because he has a pending charge of a similar nature. The second case involved an allegation of Domestic Assault. This individual was also ordered by the Commissioner to be held without bail as he was also pending another charge, in his case another assault with the same alleged victim.

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