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# Monthly Archives: June 2021
## Division of Property in Maryland Divorce
Spouses in a divorce are free to agree on the division of any or all of their marital property, without the intervention of Maryland courts. However, if the spouses cannot agree, Maryland’s Marital Property Act controls the division of property.
Maryland is an “equitable distribution” state, meaning the combined assets of the spouses are not automatically split 50/50. Instead, the Maryland court uses a great deal of discretion to divide the divorcing couple’s property fairly.
The first inquiry for the court is deciding which property constitutes “marital property” and which constitutes “non-marital property”. In addition, some property falls into the hybrid categories of “part marital and part non-marital property”, and “family use personal property”. Maryland Code of Family Law Section 8-201 defines the property types for purposes of divorce.
## **Marital Property**
Marital property is any property acquired during the course of the marriage, regardless of how it is titled. An asset may still be considered marital property even if it is paid for by one spouse from their income. A home titled as tenants by the entireties is, by definition, marital property. Marital property typically includes real estate, bank accounts, stock, pensions, and retirement assets, furniture, cars, and personal property.
## **Non-Marital Property**
Excluded from the realm of marital property is property:
* Acquired before the marriage
* Received as a gift or inheritance
* Excluded by a valid contract
* That is directly “traceable” to any of the above sources
The party who is claiming property to be non-marital has the burden of proving to the Court the nature of its acquisition or the tracing to the non-marital source.
## **Part Marital and Part Non-Marital Property**
Part marital and part non-marital property depends on the specific assets and circumstances, but some examples include a home purchased before the marriage with mortgage payments made with marital funds during the marriage, a business started by one spouse that has increased in value during the marriage, or a retirement account started before the marriage with contributions made during the marriage with marital funds.
## **Family Use Personal Property**
To allow a divorcing couple’s children to continue to live in a familiar environment or community, certain property may be disposed of as ‘family use personal property.’ The court has the authority to order exclusive use and possession of the property, including the family home and other assets, to the spouse with custody of the minor children, for up to three years.
## **Monetary Award**
Once the couple’s property is accurately categorized, a host of factors are considered by the court to ensure that the totality of a divorce settlement is “fair” to all parties. Maryland Code of Family Law Section 8-205 sets forth guidelines for the court in awarding property to divorcing spouses. After determining the category of a particular property, the court will assess the value of such property and then apply “fairness principles” to the particular case. These principles include:
* Monetary contributions made by each spouse
* Non-monetary contributions made by each spouse for familial well-being
* Value of property interests in each spouse’s name
* Possible alimony awards
* Length of time the spouses were married
* Age and physical and mental health of each spouse
* Economic circumstances and earning capacity of each spouse
* Duration of the marriage
* Circumstances that lead to the divorce
It should be noted that the court may not transfer the title of property from one spouse to another, with some exceptions; however, the court may grant a monetary award to the untitled spouse as an adjustment for any inequities in the division of property. The court is not required to compensate each spouse for 50% of the property but instead will apply the above equitable distribution factors in making the final monetary determinations.
The division of property in a divorce can be nuanced and complicated. While Maryland courts seek fairness in utilizing their broad discretion, results for the family can be optimized by working together, and by acquiring legal advice and representation. The attorneys at TNS Family Law are experts in all aspects of property rights and division in a Maryland divorce.
**If you have questions about divorce and division of property, please contact Turnbull, Nicholson & Sanders, P.A. at (410) 339-4100 or info@tnsfamilylaw.com. Our team of family law attorneys is here to help guide you.**
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## 5 Questions to Ask Before Hiring Your Divorce Attorney
Divorce is personal and the process of hiring an attorney can seem overwhelming. Not to mention, every divorce attorney has a different approach when handling a divorce. If you are in the process of hiring a divorce attorney, please take note of the questions below. You want to feel comfortable that you have made the right choice by hiring your divorce attorney and these questions will guide you in the decision-making process.
## **Before ­You Ask, Know Your Goals**
Before we dive in, we encourage you to reflect on your goals and be clear on what you are looking for in an attorney. Are you looking for a compassionate attorney to hold your hand throughout the divorce process? Do you anticipate a difficult court battle and want an attorney who will fight for you in a trial? What is your main goal? Do you want custody of your children, or are you seeking alimony? The more you know about what you want, the easier it will be to choose the right divorce attorney for you.
## **5 Questions to Ask Before Hiring Your Divorce Attorney**
1. **Do you focus your practice on divorce?** Believe it or not, but there are many attorneys who take on divorce cases without focusing their practice on family law. As a result, you may end up with an attorney that has little experience in family law and how to handle the nuances of child custody, child support, alimony, marital property, and property division. You may even want to ask how many divorce cases they have handled to get a better idea of their experience level. With these questions, you will quickly learn whether the attorney has the right experience in family law to properly handle your divorce.
2. **Are you willing to go to trial?** Even the most amicable of divorces can quickly turn sour. Some attorneys focus on settling divorces outside of the courtroom through Marital Settlement Agreements, Mediation, and Arbitration. However, in the event your case does not settle, your attorney should be ready and willing to go to trial for your divorce. You will want to make sure your attorney has experience not only in reaching negotiated settlements but litigating divorce matters.
3. **Who will be working on my case?** You contact a law firm intending to meet with and be represented by a specific attorney. Many firms have associate attorneys, paralegals, and other support staff who will be involved in your case. Ask who will be your day-to-day point of contact, who will be handling the case and if that would change throughout the process. You can also request to be introduced to each attorney who may work on your case before deciding to work with them.
4. **Can I call or email you throughout my divorce?** Communication between an attorney and client is key. A client wants to be updated on the status and progress of their case. You may want to ask the typical turnaround time to return phone calls and emails. Also, will you send me updates throughout the divorce process? Communication styles vary greatly depending on the attorney and their law firm. A reputable divorce attorney will make themselves available and respond in a timely manner.
5. **What is your style of practice?** Every divorce attorney has a different approach to handling divorce cases. Some attorneys may take a more compassionate, collaborative approach, while others are more aggressive in their style. However, you may want to ask if the style of practice may change depending upon the circumstances. Overall, you want to determine if the attorney’s style and strategy align with your goals.
## **Do Your Research**
In addition to knowing your goals and asking these questions, it is important that you do your research. Look up your attorney online to make sure they are a reputable family law attorney that is licensed to practice in your state. And if you are comfortable, ask around to see if your friends and colleagues have heard of the attorney and/or their law firm.
TNS Family Law has provided high-quality family law services since 1998. We take pride in our depth of experience and knowledge of the law.
**If you have questions about divorce, please contact Turnbull, Nicholson & Sanders, P.A. at****(410) 339-4100****or****info@tnsfamilylaw.com****. Our team of family law attorneys is here to help guide you.**
## When A Minor Requires Representation: Child Counsel Attorneys
Child custody and child access cases can be fraught with difficulties, high conflict, and/or dangers for the children involved. To represent the interests of children in these circumstances, judges may appoint a trained Child’s Attorney pursuant to Maryland Rule 9-205.1. Alternatively, the parties may agree to the appointment of an attorney for their child or children who advocates for their best interests.
## **When to Appoint a Child Counsel Attorney**
Child Counsel Attorney appointments are traditionally approved in cases that involve:
1. Abuse, neglect or family violence
2. Alcohol or substance abuse
3. High conflict
4. Inappropriate adult influence or manipulation
5. Mental health problems of the child or a party
6. Physical, educational, or mental health needs of the child requiring investigation or advocacy
7. Possible termination of parenting time or awarding custody or visitation to a non-parent
8. Relocation that substantially reduces the child’s time with a parent or sibling
9. Request of one or both parties
## **The 3 Different Types of Child Counsel Attorneys**
There are three types of Child Counsel Attorneys that can be appointed, depending upon the purpose of the appointment and circumstances of the particular case.
1. A **Child Privilege Attorney (CPA)** acts as a gatekeeper and determines whether or not a child’s legally confidential and privileged information should be shared. The types of confidential and privileged information are most often kept with a mental health professional. Mental health professionals who commonly interact with and gather information from children in these cases include psychologists, psychiatrists, social workers, licensed professional counselors or health providers.
   If a CPA “waives privilege”, a mental health professional who has interacted with the child may testify in court or disclose any known information about the child. If a CPA “asserts privilege”, a mental health professional will be prevented from testifying or sharing information. The trained CPA determines whether the child’s confidential information is necessary to disclose for the optimal outcome for the child. If not necessary for this purpose, it is protected.
   Parents, even if they agree, cannot waive privilege on behalf of their child, and a minor is unable to waive their own privilege. The CPA must consider whether waiving privilege will damage the therapeutic relationship that has been established between the child and their mental health provider, or if the need to have the provider testify outweighs that risk.
2. A **Best Interest Attorney (BIA)**’s role includes that of a CPA, except they also decide upon a path forward that is in the child’s best interest. A BIA advocates for the child during the litigation process, just as each parent may have their own counsel advocating on their behalf. Advocating for the child may entail disclosing the child’s information, if its disclosure is deemed to be in the child’s best interest. With adult clients, attorneys typically keep attorney-client information confidential, however, BIAs are not required to do so in child custody, access or support cases. It should be noted that BIAs are also required to disclose the child’s preferences during a hearing, even though the child’s position may differ from the position of the BIA.
   Thorough research is required on behalf of the BIA, to make a decision that is truly in the best interest of the child. This research may include interviewing the child, interviewing the parents or any witnesses, observing the child with the parents or witnesses, interviewing the child’s teachers or school personnel, reviewing mental or physical health records, and visiting the child’s home or homes.
3. A **Child Advocate Attorney (CAA)** serves as an independent attorney for the child. With a CAA, a child client is treated as an adult client, as the CAA provides the child with the same confidentiality and full representation as an adult would receive. A CAA may be appointed when a child displays a level of maturity and competence known as “considered judgment”.
Factors that contribute to a child’s judgment, making them reasonably eligible to have a CAA, include developmental stage, ability to communicate, ability to reason about their legal position, among other qualities showcasing the child’s maturity level.
A CAA is appropriate if and when the child’s interests are deemed different or separate from those of their parents. It should be noted that without a CAA, a judge may choose to interview a child independently. This information is usually less comprehensive and accurate, is included as a part of the official case, and is not confidential.
Maryland law authorizes the Court to appoint Child Counsel Attorneys in child custody or child support cases when need is shown. County courts in Maryland determine associated fees or fee arrangements, including pro bono representation. An attorney may be appointed for multiple siblings, though a conflict of interest could preclude joint representation. Several attorneys at TNS Family Law are certified and experienced child counsel, including Christopher Nicholson, Mary Roby Sanders, Rebecca Fleming, Alaina Storie and Snehal Massey.
**If you have questions about Child Counsel Attorneys, please contact Turnbull, Nicholson & Sanders, P.A. at****(410) 339-4100****or****info@tnsfamilylaw.com****. Our team of family law attorneys is here to help guide you.**
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