Your Lawyers in Rockville MD.

A divorce is probably one of the most difficult decisions that people make in their lives. For many, the prospect of altering one’s entire life is a daunting task. At Bours & Lucero, LLC, we have seen firsthand the emotional toll this process takes on a person. It is our firm’s belief that we can offer both an attorney who understands the law, but who also has a compassionate approach to the attorney-client relationship. Our legal services are designed to get you the best possible outcome in your case, as well as trying to instill in our clients a positive outlook for the future.

Since the Maryland legislature’s recent passage of the “one-year separation ground” which does not require marital fault by either party, many separating parties are using the no-fault one-year separation ground to obtain a divorce. However, some clients may be entitled to a more expedited divorce if they can establish and prove in court fault grounds based on their spouse’s misconduct. Below is a comprehensive list of all grounds in Maryland to obtain an Absolute Divorce and can be found at MD Code Annotated, Family Law §7-103:

Desertion: if the desertion has continued for at least 12 months without interruption before any application filing for divorce; the desertion is then deliberate and final. From there, there is no reasonable expectation of reconciliation

Conviction of a felony of a misdemeanor in any state or court of the United States if prior to filing an application for divorce the Defendant has been sentenced to a minimum of three years or an indeterminate sentence in a penal institution.

12-month separation, when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.

Insanity if the insane person has been confined in a mental institution, hospital or similar institution for a minimum of three years before the application of divorce or court determines from the testimony of at least two licensed physicians who are competent in psychiatry who state that the insanity is incurable and there’s no hope of recovery.

Cruelty of Treatment of the complaining party, or a minor child of the complaining party, if there is no reasonable expectation of reconciliation.
Excessively Vicious Conduct toward the complaining party or even a minor child of the complaining party, if there is no reasonable expectation of any reconciliation. MD Code Annotated, Family Law §7-103

Mutual Consent if the parties have no children and resolve all other issues in a written agreement they can obtain a divorce on the grounds of mutual consent

When one is facing the prospect of a divorce or a relationship breakup, generally the first question that pops into a parent’s mind is, “What will happen to my children?” For example, where the child(ren) will live and with whom is a significant concern to the party who has been consistently the caregiver to the child. Sometimes parties use children as a bargaining chip when looking at the marital property issues pending as well. Others use the children as a weapon against the other party simply to cause pain. Thus, custody disputes can easily become one of the most contentious areas in the law.

During this difficult transition, we can advise a client as to the following concerns:

1) What to expect regarding the legal process

2) How to best situate oneself for a custody battle

3) What to do in terms of communicating with your spouse, or other biological parents regarding the child

4) How to best prepare yourself for the new financial situation of supporting a child without residing under the same roof of the other biological parent.

At Bours & Lucero, LLC, we pride ourselves on an aggressive litigation stance when the welfare of a child is at risk. We have successfully brought and defended fathers and mothers at emergency hearings involving allegations of abuse and/or neglect.

Our firm regularly handles modification of custody petitions and works hard to establish in court that a material change in circumstances exists, affecting the general welfare of the child, justifying a change in custody. The many things which constitutes a material change of circumstances is an area of law that is complicated and detail specific. Contact our office in Rockville, MD for a consultation to discuss the unique facts involved in your case, and we will help you determine whether a modification of custody case is appropriate in your situation.

In Maryland, the courts have distinguished between two types of custody.
A. Residential/Physical Custody: Our courts have noted that in physical custody decisions the court shall apply the Best Interest of the Child (BIC) standard when making a custody determination. In Maryland, the courts are required to weigh the following ten factors when making a custody determination:

• Fitness of the parents
• Character and reputation of the parties
• Desire of the natural parents, along with agreements between the parties
  Potentiality of maintaining natural family relations
• Preference of the child
• Material opportunities that affect the future life of the child
• Age, health, and sex of the child
• Residences of parents and opportunity for visitation
• Length of separation from the natural parents
• Prior voluntary abandonment or surrender

While the court considers all above factors, it will generally not weigh any one to the exclusion of all others. The Courts will take a look at the overall situation. Montgomery County Department of Social Services vs. Sanders, 381 A.2d 1184 at 1163 (1977).

B. LEGAL CUSTODY: Is the decision-making authority over essential areas of a child’s welfare. These decision areas include religion, education, medical decisions, and the general welfare of the child. There are two options in the area of legal custody

Sole Legal Custody: One parent has the sole authority to decide unilateral legal custody decisions

Joint Legal Custody: Where the parties each have an equal say in the legal custody decisions. The parties are often expected to engage in good faith negotiations on areas of contention.

Joint Custody with final say: Is the same as joint custody, but after the parties engage in good faith negotiations and are still at an impasse, then the party with final say or “tie-breaking authority” will make the final decision.

Joint Custody with a mediation clause: Is the same as joint custody, but after the parties engage in good faith negotiations and are still at an impasse, then the parties will submit to mediation before a neutral third party.

Both of the child’s parents have the duty to support their minor children, but when they separate, the immediate question to be determined is who pays and how much. This is largely determined by the Maryland Child Support Guidelines, a statute the seeks to make awards of child support more predictable while still recognizing the incomes of the parents, the costs of child care, medical insurance or actual medical expense have an impact that varies with each case.

In 1989, the General Assembly enacted the Maryland Child Support Guidelines. Md. Family Law Code Annotated § 12-201 et al. The use of child support guidelines is mandatory, and deviation from the use of such guidelines is the exception to the rule. These child support guidelines are federally backed with enforcing laws and federal regulations. The purpose of these regulations was to create uniformity and consistency in the amount of child support awards across the state of Maryland. The child support guidelines are a formulaic equation which calculates child support, and by law are deemed presumptively correct. Thus, the application of child support guidelines is considered to be the correct amount of child support to be awarded.

Our Rockville Law firm is experienced with using the Guidelines and applying the required factors to obtain the proper outcome for each case. If you are seeking child support, prompt action is critical. Child support awards require a written complaint that is filed with a court. Once filed, judges may exercise discretion to make child support awards retroactive to the date the action was filed. The same is true if a party is seeking a reduction of child support previously awarded because, say, the person lost a job or has reduced income for a valid reason. Child support cannot be modified any sooner than the date the request for modification is actually filed. In either situation, we can represent you in seeking an initial award or modify an existing order for child support.

Spousal support in Maryland, unlike child support, is not done by a formulaic approach. There is not a one size fits all approach. The court is required to take into consideration a multitude of factors such as: the ability of the party seeking alimony to be self-supporting, including the time needed for the party seeking alimony to gain all of the sufficient education or training to enable that party to find suitable employment, the standard of living the parties acquired during the marriage, the contributions monetary and non-monetary, of each party to the well-being of the family, the circumstances that ended up leading to the estrangement of the parties, the age of each party involved, the ability of the party from whom alimony is sought to meet that party’s needs while simultaneously meeting the needs of the party seeking alimony, any agreement between the parties; the financial needs and resources of the parties, and whether the award would cause a spouse who is a resident of a related mental health institution and from whom alimony is sought to become eligible for receiving medical assistance earlier than would otherwise occur.

A person seeking an award of alimony should be aware that there are two types of alimony awards in Maryland:

Rehabilitative Alimony: Is generally for a short period of time designed to get the financially dependent person back on his or her feet. This is accomplished by education, training or other approaches. Generally speaking, courts in Maryland favor rehabilitative alimony over indefinite awards of alimony.

Indefinite Alimony: The court may award alimony for an indefinite period if the court finds that due to factors such as age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress towards becoming self-supporting; or even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.

Modification of alimony: Absent an agreement by the parties to make an award of alimony non-modifiable, a person may seek to increase, decrease or terminate the alimony awarded in a case. Our firm can assist you in preparing an agreement for alimony, or a court filing to modify it.

Division of property is seldom simple, and Maryland makes no presumption that everything is to be split equally between spouses. Property can consist of real property “real estate holdings,” personal property (i.e. cars, jewelry, household goods), bank accounts, stocks, retirement funds, pensions and other tangible items. When parties are in dispute as for their property, it becomes the task of a judge to make a determination as to ownership interest, valuation of the property. The judge may then, according to statute, “transfer ownership of the interest in the property and/or grant a monetary award to one of the parties as adjustment of the equities, as well as the rights of the parties concerning marital property whether or not alimony is awarded”. Annotated Code of Maryland, Family Law § 8-205. This award can be reduced to judgment.

A. Use and Possession (Family Home and Family Use Personal Property): Sometimes when parties separate and they own a family home where the children have resided one party may seek to continue residing in the home for the stability of the children. If the parents disagree about listing the house for sale, the party who wants to keep it for the children can ask the court for use and possession of the marital home. A court can grant an individual up to three years of use and possession of a family home to promote the stability of the children.

B. Retirement funds and Pensions: Retirement funds are considered marital property by the courts. Spouses are entitled to a certain percentage of their spouse’s pension on an “if, as, and when basis” upon their spouses’ retirement. In a case called Bangs vs. Bangs, the Court held that retirement funds will be divided pursuant to a formula. One of the important factors is that a party is not entitled to any funds earned prior to the marriage.

By way of example: The parties acknowledge that Wife is entitled to a certain interest in Husband’s FERS Plan (hereinafter “the Plan”) which is hereby declared to be fifty (50) percent of the “marital property portion” of Wife’s interest in the Plan until the date of divorce. The Wife’s share of the Employee’s retirement annuity will be computed by taking 50% of the self-only amount (full and unreduced by the cost of the survivor annuity) of the Employee’s retirement annuity if, as and when payable to him, and multiplying said amount by a fraction in which the numerator would equal the total number of months during the marriage that the employee accrued creditable service toward retirement, and the denominator is the total number of months of creditable service accrued by the Husband at the time of his retirement.
Most divorced people will be entitled to transfers of pension/retirement money without tax consequences pursuant to a Qualified Domestic Relations Order (QDRO).

A prenuptial agreement is a contract between parties that is executed prior to their marriage. This Agreement generally defines the how money or property is to be divided upon separation and divorce. Some parties use this agreement as a vehicle to avoid a highly contested divorce over property down the road.
Separation Agreement: People who are about to separate, or who recently did separate, often find it advisable to make a written agreement on property and divorce issues before the legal action for divorce is filed. The simple principle involved is they can negotiate with each other and make better decisions on the issues than a judge who knows far less about their situation. Such agreements are also less expensive than paying lawyers to appear in court for protracted testimony and argument.

A “separation and property settlement agreement” Is a notarized legal contract drafted by one or more attorneys to address all issues in a divorce. Each spouse should have independent counsel negotiate, prepare or review the terms of these agreements. Once the contract is executed by the parties, the formal divorce proceedings can be abbreviated and less expensive. Agreements can also be enforced if violated by either party and often are incorporated into the judgment of divorce.

The problem of domestic violence between spouses and others in intimate relationships has resulted in legislation designed to afford a civil remedy to those affected by various forms of personal violence and harassment. In general, the affected person may apply for a family law protective order or a peace order that prohibits contact or otherwise orders the other person to refrain from harmful or annoying conduct.

Family Law Protective Orders are available to designated persons called “persons eligible for relief,” a concept that normally includes the present or former spouse of either party, relatives of either, or the parent of a child of either party to the protective order. These orders may be obtained from a judge during hours the court is open, or from a District Court Commissioner when the court is not. After an initial order is issued upon sworn application of the “Petitioner,” the “Respondent” must be served by a sheriff or other law enforcement officer, and a “final” hearing is scheduled, usually one week after the initial temporary order.

As part of issuing a final protective order, a judge may require someone to move out of the family home, grant custody of children, pay “emergency family maintenance,” or prohibit contact with the other party, in whole or in part. Because the final hearing occurs so soon, a person affected by the potential order must obtain representation quickly. Our firm has considerable experience in these matters and can represent you, even on short notice.

Legal representation is critical to anyone served with an initial protective order and optional for anyone who wants to obtain one. Our office represents either side in these cases and can explain the many consequences of prosecuting or defending such orders. If your ‘significant other’ has wrongfully accused you of threatening or harming you, we can defend the allegations in court, or negotiate with the opposing party or their attorney to resolve the case in the best manner possible.

Peace Orders are available to prohibit anyone, even a stranger, from engaging in conduct identified in the statute. Examples include assault in any degree, criminal harassment, stalking, trespass, destruction of property and similar conduct that is either dangerous or annoying. At a hearing on a peace order, the proponent of the peace order, who is also called the “Petitioner,” must prove that the conduct occurred and that it is likely to be repeated unless the peace order is issued.