Stewart A. Sutton has an extensive practice in all areas relating to the formation of families (adoptions, guardianships, name changes, and pre-nuptial agreements) and the termination of relationships (divorces, child custody, child visitation, alimony, and division of property).
Most couples do not want to engage in protracted litigation to end their marriage, because divorce litigation tends to be time consuming, frustrating, and extremely expensive. Mr. Sutton helps his clients resolve all issues relating to their marriage as quickly and inexpensively as possible. The ultimate goal is for the divorcing couple to enter into a Voluntary Separation and Property Settlement Agreement to resolve all issues relating to their marriage so that the couple can proceed with a 10-minute uncontested divorce hearing.
The most common grounds for divorce in Maryland are (a) 1-year voluntary separation; (b) a 2-year involuntary separation; (c) adultery; and (d) cruel and vicious conduct.
If the parties are unable to resolve their child custody and/or property issues with a Voluntary Separation Agreement and Property Settlement Agreement, then the case will proceed to trial.
A Voluntary Separation and Property Settlement Agreement is a contract entered between the divorcing parties to resolve all issues relating to their marriage, including child custody, child support, visitation, alimony, and division of the division of personal property, real property, and retirement accounts. As a contract, the parties always have the ability to modify a Voluntary Separation and Property Settlement Agreement by mutual consent. However, a Court cannot modify the parties’ Voluntary Separation and Property Settlement, except as it relates to custody, visitation, and child support.
Stewart A. Sutton has drafted hundreds of Separation Agreements. He uses simple, clear, and concise language to avoid any possible confusion or ambiguity. In contrast, a poorly drafted Separation Agreement written by another Maryland attorney has been characterized by a family law judge to be “singularly unmasterful” and a “plan for chaos”.
After the parties have executed a Voluntary Separation and Property Settlement Agreement and have been separated for 1-year, they will have a 10-minute uncontested divorce proceeding. The Voluntary Separation and Property Settlement Agreement will be incorporated into the parties’ divorce decree.
If the parties are unable to resolve their property issues with a Voluntary Separation Agreement and Property Settlement Agreement, then the case will proceed to trial and the judge will equitably divide the parties’ marital property.
Marital property is property acquired during the marriage. If the parties do not enter into a Voluntary Separation and Property Settlement Agreement, the Court will equitably divide the parties’ marital property. Although the Court usually equally divides marital property, the Court may award one spouse more than half of the marital property. Some of the important factors that a court will consider in deviating from an equal division include (a) a parties’ economic contribution; (b) a parties’ non-economic contribution to the marriage; (b) the circumstances that caused the parties’ estrangement; (d) the value of the parties’ non-marital property; (e) the parties’ present economic circumstances; and (f) duration of the marriage.
Marital property does not include property that a party owned before marriage, inheritances, gifts received during the marriage, and property excluded by agreement, as well as any property that is directly traceable to the non-marital property. For example, if a party owned 1,000 shares of IBM stock before marriage and then sold the IBM stock during the marriage and used the proceeds to purchase Intel stock, then the Intel stock would be non-marital property.
When non-married couples separate, they will need to resolve issues relating to custody, visitation, and child support. A Parenting Agreement is a contract entered between the separating parties to resolve these issues, which will then be entered as a Consent Order by the Circuit Court.
Child Support and Modification: A custodial parent is entitled to receive child support from the non-custodial parent until a child reaches the age of 18 or graduates from high school, whichever occurs later, or until the age of 19 if the child is still attending high school. The amount of child support owed by the non-custodial parent to the custodial parent depends on the parents’ incomes, the number of children, the cost of daycare, cost of extraordinary medical expenses, as well as several other factors.
After the court has entered a child support order, either party may seek a modification of child support, if there has been a material change in circumstances. The most common changes in circumstances include: (a) a material increase or decrease in the parent’s income; and (b) a material increase or decrease in the cost of daycare.
Child Custody and Modification
Most parents enter into a Voluntary Separation Agreement and Property Settlement Agreement or Parenting Agreement to resolve the issue of child custody and visitation. If the parents are unable to agree on child custody and visitation, then the custody and visitation case will proceed to trial.
Custody consists of two separate components: legal and physical. Legal custody concerns who makes long-term decisions regarding the child’s education, religion, and healthcare. Physical custody addresses the primary residence of the child.
Most often, parents have shared legal custody. In cases where the parents are unable to communicate or cooperate or one parents lacks the ability to make decisions that promote the child’s welfare, one parent may be awarded sole legal custody. Sometimes the parents share legal custody, but in the event they are unable to make a mutual decision, then one parent will have final say on the matter.
Physical custody can either be sole or shared. Sole physical custody means that the child resides primarily with one parent and the other parent has visitation on weekends, holidays, school breaks, and part of the summer vacation.
Shared physical custody means that one parent has the child at least 35% of the overnights, which corresponds to 5 overnights nights every 2 weeks (5/14 = 35.71%). The advantages of shared physical custody are that the children spend more time with both parents; and the parents more equitably share the responsibility of raising their children.
When custody is disputed, the Court usually requires a custody evaluation by a social worker. The custody evaluator is a court employee. In performing the custody evaluation, the custody evaluator meets with the parents, the children, and often other people, such as teachers, neighbors, relatives, and daycare providers. The custody evaluator will draft a written report regarding the family and make recommendations concerning custody and visitation. The recommendations of the custody evaluator are usually instrumental in helping the parties reach a custody and visitation agreement.
If the parents are unable to agree on custody and visitation, then a judge will determine what it is in the best interests of the child in terms of custody and visitation. The Court will usually award sole physical custody to the parent who has been the primary caregiver to the child and award joint legal custody to both parents. When both parents work full-time and they equally shared the responsibility of raising their child, the Court will usually award the parents joint legal and physical custody of their child.
Upon separation, the Court can award the economically dependent spouse pendente lite alimony to preserve the status quo. Pendente lite alimony is based upon the economic needs of the economically dependent spouse and the ability of the other spouse to contribute towards these expenses.
Upon divorce, the court can award either rehabilitative alimony or permanent alimony. The purpose of rehabilitative alimony is to provide the economically dependent spouse with the opportunity to increase his or her earnings by either completing a college degree or certification program, re-entering the labor force, and/or obtaining a higher paying position. Rehabilitative alimony usually is awarded for 1 to 5 years.
Permanent alimony is limited to situations where there has been a long term marriage, there remains a large disparity between the parties’ incomes, and/or the economically dependent spouse is unable to support himself/herself. Permanent alimony is often awarded where one spouse is unable to work due to a medical condition.
Public adoptions involve an adoption agency. A private adoption is conducted between the biological parents and the adoptive parents without an adoption agency. The most common form of adoption is an adoption of a step-child by a step-parent. The cost of a step-parent adoption usually does not exceed $2,500.
When parents are unable to take care of a child, they can temporarily transfer their parental rights to another adult with a guardianship. The most common reasons for a guardianship include (a) an illness of a parent; (b) the parents being transferred overseas by their employer; (c) grandparents needing a guardianship of a grandchild to obtain insurance coverage through their employer.
An adult can legally change their name as long as the name change is not being done for fraudulent or improper purposes. A parent can also change the name of their minor child, which usually requires consent of both parents.
Prenuptial or Pre-Marital Agreement
A Prenuptial or Pre-Marital Agreement is a contract between marrying parties concerning the division of their property and award (or waiver) of alimony upon divorce. After the parties are married, they can enter into a Post-Nuptial Agreement regarding the division of their property and award (or waiver) of alimony upon divorce.
When parties have significant assets prior to their marriage, a Prenuptial Agreement is efficacious in documenting the parties’ pre-marital assets. A Prenuptial Agreement avoids the situation of proving that a spouse owned particular personal property prior to the marriage.
Protective Orders and Peace Orders
A party may seek a protective order or a peace order when a party has been physically harmed or threatened with harm by a family member, a member of the household, or by a third-party. A protective or peace order will bar the aggressor from having contact with the victim or complaining party for six months to one year.