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David P. Korteling, PC     

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Divorce, Child Custody and Domestic Violence

Divorce can be one of the most stressful encounters people may face.  Emotionally and financially, divorce can be a life disrupter causing profound changes on finances, parenting and social life.

Whether it is an amicable, uncontested, situation where both parties have decided that it is simply time to move on, or a highly contentious matter with allegations of abuse, misconduct, financial improprieties, infidelity, or profound disagreements over parenting, a highly experienced divorce attorney can help to lessen the emotional and financial stress that accompanies such a major life decision.

Financially, divorce is akin to a business partnership dissolution.  That's where the business and tax expertise of the firm provides the edge you need to make sure that you are treated fairly in the process and that you receive the support and share of marital assets that you deserve. The firm has a broad range of experience in asset tracing, forensics, disposition of retirement accounts in divorce, and the unique and often complex issues that arise in divorces involving self-employed individuals and professionals. The firm also has experience in international divorce issues involving both U.S. citizens and non-U.S. citizens, including off-shore accounts, novel transnational choice of law matters, as well as highly sensitive, unique issues that arise in divorces involving public officials and professional athletes.

Same-sex couples face many of the same challenges in divorce, and some unique challenges. While the landmark U.S. Supreme decision in Obergefell v. Hodges recognized that the fundamental right to marry is protected by the U.S. Constitution, the hodgepodge of state and federal laws affecting that right can require novel application of legal principles that developed over time pre-Obergefell.

In child custody matters, there are three main issues to resolve: legal custody (decision making), physical custody (where the child resides and visitation rights) and child support.  Relocation issues may arise after these issues have been initially determined, when one parents desires to move to another jurisdiction. The court always retains jurisdiction to modify legal custody, physical custody and support when there has been a material change in circumstances occurring since the last custody order. 

Child support is often straightforward because most jurisdictions rely on child support guidelines in which the amount of support is determined by the income of the parties, and the cost of certain childcare related expenses such as health insurance, work related childcare, extraordinary medical expenses, and the like. The formulas provided by the child support guidelines yield a support amount that is presumed to be the "correct" amount of support. However, child support can become more difficult to determine when there are reasons to ask the court to deviate from the guidelines due to atypical circumstances such as where one parent is incurring travel costs to see the children, where a parent is providing support for the children by paying certain expenses that a court could not otherwise order to be paid, or other case specific circumstances. Additionally, determining a spouse's income can become complicated in situations involving self employed individuals, business owners, foreign sourced income, and other non W-2 type earnings. 

Domestic violence includes not only physical violence, but also emotional abuse, threats, humiliation, sexual abuse, preventing social interaction, financial control, abuse of other family members such as children, and battered spouse syndrome. If you are the victim of domestic violence, or if you have been accused of domestic violence, courts (and where appropriate, police) can offer swift and sweeping actions that can have profound effect.  Courts can issue a protective order (sometimes called a restraining order), order a spouse or partner to vacate the residence and to provide financial suppose.   

Some people are eager to find the most aggressive, "bull in a china shop" divorce attorney around. In some situations, that approach is effective but those situations are rare. More typically, clients benefit from knowledgeable, experienced legal representation that can quickly and efficiently zero in on the issues and prepare the evidence to be presented to the court. There is a difference between aggressively protecting your rights and aggressively beating up on the other side to exact some measure of revenge or satisfaction. Clients achieve greater success (and at a lower cost) when they stay focused on aggressively protecting their rights, rather than aggressively beating up on the soon to be ex-spouse. Where both sides are represented by effective counsel, matters are more likely to resolve without the stress and high costs of a trial because an experienced divorce lawyer can help clients understand what they can realistically expect from the court.  That information helps people make informed decisions and adopt reasonable positions on what to demand from the spouse.

The firm also relies on its of counsel relationship with the attorneys of Axelson, Williamowsky, Bender & Fishman, PC to ensure that all aspects of the divorce matter receive the close attention required of every divorce matter. This professional collaboration means that the firm provides comprehensive, experienced representation in all aspects of the divorce process.

Regardless of your situation, contact the firm to speak with a Montgomery County divorce lawyer.

Alimony in Virginia

    In evaluating any request made for spousal support, the Court considers the factors set forth in Virginia Code Section 20-107.1(E).  They are:
    1.    The obligations, needs, and financial resources of the parties, including, but not limited to, income from all pension, profit sharing, or retirement plans;
    2.    The standard of living established during the marriage;
    3.    The duration of the marriage;
    4.    The age and physical and mental condition of the parties and any special circumstances of the family;
    5.    Whether the parties’ have children who have special needs;
    6.    The contributions of each party to the well being of the family;
    7.    The property interests of the parties;
    8.    A potential award of marital property;
    9.    The earning capacities of the parties and their present employment opportunities;
    10.    The opportunity for a party to acquire skills which could enhance his or her earning capacity;
    11.    Decisions regarding employment, career, economics, education, and parenting arrangements made by the parties during the marriage and their effect on present & future earning potential, including the length of the party has been absent from the job market;
    12.    The extent to which either party has contributed to the attainment of education training, career position, or profession of the other party; and
    13.    Tax consequences.

    You can assist us in prosecuting your case by considering the above factors, bringing to our attention any matters that you believe are relevant to the above, and by gathering information relevant to these factors.
    Virginia recognizes both indefinite alimony (which generally continues until the death or remarriage of the other party) and rehabilitative alimony, which requires payment of alimony for a specified period of time until the economically dependent spouse can sustain himself or herself.

blog post

Can you record phone calls in Maryland?

Maryland is a two party consent state, which means that both parties to the phone call must agree that it can be recorded. If not, or if the call is secretly recorded, the recording is inadmissible under Maryland law. Even worse, the person recording the call can be subject to criminal and civil liability.

Maryland has the Maryland Wiretapping and Electronic Surveillance Act. Md. Code, §§ 10-401 of the Courts and Judicial Proceedings Article.  Section 10-402(a)(1) of the Courts and Judicial Proceedings Article is clear and unambiguous. It does not matter whether the person recording the call knew that what he was doing was illegal. The Court of Appeals so held in Deibler v. State, 365 Md. 185 (2001), overruling the Court of Special Appeals precedent to the contrary that had come to prominence during the Linda Tripp matter.

It also does not matter that the person recording the call was a party to the conversation. Maryland law requires the consent of all parties to the conversation for it to be recorded (except in other cases specified by the Act). See CJP § 10-402(c)(3). Maryland law is stricter in this regard than the corresponding federal law, which makes it sufficient that only one party to the conversation consented to its recording. See 18 U.S.C. § 2511(d).

If it is revealed that someone made the recording deliberately, he could be charged with a felony and, if convicted, be "subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both." CJP § 10-402(b). He can also be sued civilly, and could be subject to liquidated damages, as well as to punitive damages and reimbursement of attorney's fees and litigation costs. CJP § 10-410.

Maryland law also provides that the recording is inadmissible at trial. Section 10-405(a) of the Courts and Judicial Proceedings Article provides:

Except as provided in subsection (b) of this section, whenever any wire or oral communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this State, or a political subdivision thereof if the disclosure of that information would be in violation of this subtitle.

This statute is "unambiguous" and "precludes the admission of evidence which was not lawfully intercepted." Mustafa v. State, 323 Md. 65, 73 (1991). The Court of Appeals held in Mustafa that the statute expressed a public policy that barred the admission of a recording that was made by a person in the District of Columbia (lawfully under that jurisdiction's laws) of a telephone conversation with a person who was in Maryland and had not consented to the recording. The General Assembly partially overruled that result in 2001, with the enactment of § 10-405(b) of the Courts and Judicial Proceedings Article (in response to the Court of Appeals's following of Mustafa in the case of Perry v. State, 357 Md. 37 (1999)).

The statute also bars the admission of the recording for "impeachment" purposes. See Wood v. State, 290 Md. 579 (1981). Other than the exception stated in § 10-405(b), the only exception to the rule of exclusion would be to allow admission of evidence of the recording in a criminal prosecution or civil action for a violation of the Act itself. The Court of Special Appeals held as such in Standiford v. Standiford, 89 Md. App. 326 (1991), cert. denied, 325 Md. 526 (1992), a case arising out of a civil action, in which it said that "such evidence may be introduced in evidence for the narrow purpose of proving a violation of the Act in such a civil action." Id. at 346. The Court reasoned that the Act's provision for a civil action would be "meaningless" if evidence of the recording could not be admitted in such an action. Id.

I know what you're thinking. Someone is being prosecuted or accused of an action, and has evidence that directly contradicts the accusation. We have seen situations where the other party even admits that they are "making up the charges." And the law of the Free State says that, not only is the evidence inadmissible, but he can also be prosecuted and sued for preserving that evidence? While there are some situations in which an argument could be made to support that the Maryland statute violates the U.S. Constitution, the bottom line is that it is not wise to record a telephone conversation where one party is located in Maryland unless that party consents.