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GUARDIANSHIP CASES: LESSONS LEARNED FROM THE BRITNEY SPEARS GUARDIANSHIP/CONSERVATORSHIP CASE
If you are like many of us, you have been following the Guardianship case involving the famous singer, Britney Spears, in California. Essentially, Britney’s father petitioned the Court to act as her conservator, citing mental health and other issues plaguing the singer. Now, the singer is seeking that the Guardianship be ended and that her father, the conservator, be removed as her Guardian. How is this relevant in Maryland?
Guardianship in Maryland: The Basics
Guardianship entails a court designating a person to manage a minor child’s or an individual with a disability’s personal affairs (non-financial decisions), financial affairs, or both. There are two types of Guardianships in Maryland: that of the person and that of the property. The court may also appoint one person to manage the individual’s personal affairs and another person to manage their financial affairs. Furthermore, two people may serve as co-guardians and share responsibilities.
EXAMPLE GUARDIANSHIP CASES:
CUSTODY BY NON-PARENTS: GRANDPARENTS’ CUSTODY, THIRD PARTY CUSTODY
Who/What is a Third Party?
Under Maryland law, if someone other than a parent seeks custody of a child (ie a grandparent) that person is considered a third party. A third party is someone who is not the child’s biological parent or adoptive parent. A third party may be related by parents’ marriage or blood (other than biological parent), or may be entirely unrelated to the child. Legally, they are strangers to the child (unless certain conditions are met, which this series explores).
Case Law Concerning Third Party Custody:
In 2000, the U.S. Supreme Court issued its Troxel v. Granville, 530 U.S. 57 (2000) opinion on grandparent visitation rights. In result, third party custody and visitation rights could no longer be evaluated based solely upon the best interests of the child. Troxel calls for sufficient protection of a parent’s Constitutional right of care, custody, and control of their children. After Troxel and before 2016, Maryland’s third party custody law backtracked and, frankly, suffered.
Concealed assets and divorce
People who are going through divorce usually have a lot of property, funds, and assets to divide, including their marital home, bank accounts, and retirement funds. However, there are also hidden assets or assets that divorcing couples may not think about often. If you live in Maryland and are considering divorce, here are some assets you may need to consider when getting divorced.
Restricted stock units
If you or your spouse have a corporate job, you could have restricted stock. This stock is considered part of your income stream and is classified as deferred compensation, but it’s different from receiving an annual bonus. Corporations often revise the terms of restricted stock units, but payments from the stock are usually based on performance or the length of time an employee works for the company.
If you’re not the executive-level spouse, it is important to account for if many of your spouse’s restricted stock earnings were accumulated during your marriage, which means you are entitled to some of the funds once you divorce. Usually, restricted stock is non-transferrable, but other marital property can be divided in a way that will account for restricted stock assets.
How substance abuse allegations affect child custody
Going through a divorce in Maryland with children involved is often stressful. Unfortunately, knowing that your former spouse is dealing with a substance abuse problem only complicates matters. As a parent, you want what’s best for your children. With that in mind, here’s more information about how courts handle substance abuse issues during a divorce.
Getting the courts involved in substance abuse situations
It’s understandable to wonder when courts begin investigating allegations of substance abuse. In most cases, a court will respond to these allegations during child custody hearings. Courts can also get involved in these matters after receiving reports from other organizations like the Department of Child Protective Services. The next step is for an investigation to begin that determines if substance abuse affects a parent’s ability to raise their child.
How does substance abuse affect a child’s time with their parent?
After the court launches an investigation into allegations of substance abuse, it will act in the best interests and safety of a child. In some cases, the court will restrict a parent’s time with their children until they resolve their substance abuse problem. It’s also possible for the courts to have another party supervise visits between a child and the parent dealing with substance abuse issues. These visits may continue until a parent can prove to the court that they’re no longer abusing any substances.
Does remarriage affect child support?
In Maryland, the court determines the amount you pay for child support. Under this law, both parents’ role is to cater to your child’s financial needs depending on your income. While most parents are aware that their income determines child support, some are unaware that remarriage or the new spouse’s income can affect the amount you pay for child support.
Remarriage and child support
Once you remarry, your obligations to your child won’t change since the biological parents of a child have the duty of meeting their needs. However, if you experience a change in your finances, you can ask the court to modify your child support arrangement. Some custodial parents opt to quit work once they remarry. In such a situation, the court may decide to classify the income of the non-working parent as potential income. In other cases, the court might also reduce the obligations of the non-custodial parents. However, the non-custodial parent must meet all their child support obligations until the court makes new support.
How to prepare for a divorce
If you’re planning on leaving your spouse, it’s generally a good idea to have a plan in place prior to serving the divorce papers. For example, you may want to speak with a Maryland divorce attorney to learn more about what you might receive in a final settlement.
Gather financial documents
One of the most important steps in the divorce process is gathering documents such as bank statements, credit card statements and income tax returns. These documents may help you determine how much your household is worth, which may make it easier to determine if a settlement offer is worth accepting. Furthermore, financial records may be used to bolster your claim to alimony payments, child support payments or other forms of assistance.
Create a budget
During the divorce process itself, you may be allowed to remain in the family home. However, after the marriage officially comes to an end, you may be required to find a new place to live, and it may be necessary to make a rent or mortgage payment by yourself. Furthermore, you’ll likely need to buy your own food, purchase a vehicle or acquire health insurance in your own name. Knowing how much it will cost to live on your own may help you determine if you can afford to retire, save for retirement or meet other financial goals. If you believe that your marriage is coming to an end, it may be a good idea to consult with an attorney who may be able to help you obtain alimony, child support payments or a significant share of marital assets.
How marital property is established and divided during divorce
Each state has different rules for establishing and distributing marital property. In Maryland, courts consider marital, non-marital and commingled properties during the division of property process in a divorce.
Establishing marital and non-marital property
Maryland courts consider any property acquired during the life of the marriage to be marital property. This can include the home bought by the spouses, any vehicles, furniture and other items such as household effects and jewelry. It can also include accounts opened during the marriage as well as stocks and retirement or pension accounts. Meanwhile, non-marital property refers to any property acquired before the marriage as well as inheritances and gifts received by one spouse during the marriage.
Commingled property is more complicated
Commingled property is defined as property that has used both marital and non-marital funds. One example of this is a house bought before marriage by one person, but its mortgage and upkeep costs paid by marital funds. Retirement and pension accounts opened before marriage, with contributions continued after the wedding can also be considered commingled property.
How do you financially prepare for a divorce in Maryland?
No one likes the idea of preparing for a divorce, but one of the best things you can do to protect yourself is to prepare your finances. After years of living with someone and having your finances entangled with theirs, it can be hard to separate assets. The best thing you can do is go through your finances with a fine-tooth comb. This will help you get a better understanding of what you and your spouse share, what’s owed to you and what life after the divorce will look like for you.
What’s the first step in preparing your finances?
The first step in preparing your finances for divorce is going through all your financial documents. This includes credit card statements, loans and any paperwork that proves ownership of any joint assets.
You will want to take inventory of all the things that have your name on it and what might have to be negotiated in court. This is especially important if either you or your spouse is contributing more to your household’s finances or if one of you has spent more money on investments.
How do Maryland courts divide marital assets?
Divorce can be an uncertain time. Not only are divorcing people facing the end of their marriage, they may also have questions about their future financial health. Many of these questions are related to the distribution of property.
What property will the courts divide?
Under Maryland law, any property acquired during the course of your marriage is considered marital property. This includes money, debt, retirement benefits and real estate. Marital property can even include property listed only one spouse’s name and property acquired after you and your spouse separated but before your divorce was finalized. This property is considered jointly owned and will be divided during the divorce.
Generally, the court views a spouse as the sole owner of the gifts or inheritance they received during the marriage as well as the property that they acquired before the wedding.
ALIMONY IN THE STATE OF MARYLAND 2020 - Diamant Gerstein
The Law of Alimony It is a fundamental principle of Maryland family law that “alimony awards, though authorized by statute, are founded upon notions of equity[.]” Tracey v. Tracey, 328 Md. 380, 393 (1992). A Court can look at a laundry-list of factors when determining whether or not alimony is appropriate. Because the purpose of alimony is the “rehabilitation of the economically dependent spouse,” Maryland favors the provision of rehabilitative alimony for a fixed term to assist the dependent spouse in becoming self-supporting. St. Cyr v. St. Cyr, 228 Md. App. 163, 184-85(2016) (citations omitted). Nonetheless, indefinite alimony is appropriate when fairness requires it. Boemio v. Boemio, 414 Md. 118, 143-144(2010). Indefinite alimony should be reserved, however, for exceptional circumstances, i.e. “if the standard of living of one spouse will be so inferior, qualitatively or quantitatively, to the standard of living of the other as to be morally unacceptable and shocking to the court.” Karamand v. Karamand, 145 Md. App. 317, 338(2002).In deciding whether to make an award of alimony and, if made, the amount and duration of the award, the court shall consider the following factors: (1) the ability of the party seeking alimony to be wholly or partly self-supporting;(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;(3) the standard of living that the parties established during their marriage;(4) the duration of the marriage; (5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;(6) the circumstances that contributed to the estrangement of the parties;(7) the age of each party;(8) the physical and mental condition of each party;(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;(10) any agreement between the parties;(11) the financial needs and financial resources of each party, including:(i) all income and assets, including property that does not produce income;(ii) any award made under §§ 8-205 and 8-208 of this article;(iii) the nature and amount of the financial obligations of each party; and,(iv) the right of each party to receive retirement benefits; and(12) whether the award would cause a spouse who is a resident of a related institution as defined in §19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur. FL§ 11-106(b).
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Se Habla Español 301-560-2685
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