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Marital Property…Yours, Mine, Ours, and Commingled?

A married couple’s assets and property are generally divided into two categories: marital (also referred to as joint property) and separate property.

Marital property is property and income that is acquired or received during a marriage by either spouse, regardless of whose name is on the title. This includes earnings, retirement contributions, homes, cars, and other items that are purchased or earned during the marriage.  Marital property is jointly owned and will get jointly divided if you get divorced.

Separate property is property that one spouse owns before the marriage, and is not subject to division in a divorce.  Certain types of property acquired during a couple’s marriage may also be considered separate property.  This includes gifts and inheritances. In a divorce, separate property is generally awarded to the spouse who owns it. However, when spouses commingle separate property, it can lose its separate status.

Commingling occurs when one spouse’s separate property is mixed with marital property. This can happen when a spouse uses marital funds to improve, maintain, or contribute to separate property.

Let’s look at a real life example:  A house that one spouse purchased before the marriage is considered separate property. You get married and later use marital funds to pay the mortgage, remodel, or make other improvements to the home.  Your spouse now has gained an interest in the value of the home. Because the house, which was a separate asset, has been commingled with marital assets, it may be treated as marital property, not separate property, during a divorce.

Be prepared to prove that non-marital property is your own and was not commingled during the duration of your marriage. This typically isn’t a case of “what’s mine is mine and what’s yours is yours.” If this sounds confusing and complicated, that’s because it is. The line between marital and non-marital property divisions tends to blur, especially if you have acquired a number of assets during your marriage. Because this is a complicated area of family law and divorce, it is an area where you really want to seek effective legal counsel.

How do the courts distribute property?

Of course, it’s best if you and your spouse can come to an agreement on the division of property. You won’t need to involve the courts and the process will likely be much smoother. However, this isn’t always realistic, especially if you have a number of assets to consider.

In the case that you need assistance from the court, your marital property becomes subject to the concept of equitable distribution. The court begins by looking at the value of the property. They then consider the following factors:

  • Length of marriage
  • Why the marriage ended
  • The income and economic circumstances of each spouse
  • When the property was obtained
  • How the property was obtained
  • The effort put  forth by each spouse to obtain the property
  • The age of each spouse
  • The health (mental and physical) of each spouse
  • The total value of all property interests of each spouse
  • Familial contributions made by each spouse over the course of the marriage
  • Provisions made by the court regarding personal property and alimony
  • Anything else they deem necessary to making an equitable division

Keep in mind that an equitable division does not mean a 50/50 split.  Maryland is not a community property state where marital property is more or less divided evenly between the two parties.  Equitable means fair, not even.

The court may also give a monetary award, or a lump sum, based on the value of marital property. It cannot transfer ownership, but a spouse may transfer property on their accord.

How can I prevent my separate property from being commingled?

The easiest way to prevent commingling is through a prenuptial agreement. A prenup states definitively who gets what in the event of divorce. Most prenuptial agreements are upheld, regardless of whether spouses commingled their property or not.  Though it may be hard to think about divorce when you are engaged and planning your wedding and your new life together, if you are bringing considerable assets to the marriage, it might be something to consider.  Remember, a prenup doesn’t just protect you.  It also protects your soon to be spouse.

Arriving at an equitable solution for the division of marital property isn’t always easy.  But, you owe it to yourself to fight for what you’ve worked so hard to achieve, both before and during the marriage. The legal team at Planta & Satin, LLC, have the experience and knowledge needed to support you and make that happen.

About Planta & Satin Law

Attorneys’ Bill Planta and Wendy Satin practice Family Law and Criminal Defense Law. Together they bring a wealth of trial experience coupled with calm, straightforward approaches and keen legal acumen to Planta Satin Law. Mr. Planta and Ms. Satin are regarded as two of the best lawyers in the State of Maryland.

Mr. Planta and Ms. Satin bring their vast trial experience and empirical knowledge to the table, whether the job is big, or small. All cases are “big” to the person at risk, or experiencing the breakdown of their family, and they deserve to have someone with a thorough and realistic grasp of the law, and judicial system, helping them in their time of need.

Contact Planta & Satin, LLC today at 301-762-1000 to discuss your case and the best way to achieve an equitable division of marital property, or visit our website:  www.plantasatinlaw.com

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Domestic Violence: Can I Get a Protective Order?

Under Maryland law, domestic violence encompasses many different types of threatening behavior, including:

  • Stalking
  • Rape
  • Attempted rape
  • Any act that causes bodily harm
  • Any act which gives another person reason to fear bodily harm
  • Assault
  • Other sexual offenses
  • False imprisonment.

Eligibility for a domestic violence protective order is dependent on the type of relationship you have with the person you are seeking to obtain the order against.  Only family or household members can be victims of domestic violence under Maryland law.  To obtain a protective order, the accused must be: a current spouse, a former spouse, someone you have lived with intimately for at least ninety days over the last twelve months, or someone related to you by blood, adoption, or marriage. Those in a parent/child relationship or even a stepparent/stepchild relationship who have lived in the same home for a minimum of ninety days in the past twelve months may also be eligible to obtain a protective order. Parents who have children together are also eligible to obtain a protective order against one another. Those who do not have one of the above relationships must request a peace order rather than a protective order.

If an incident of domestic violence is reported to the police within 48 hours, a police officer may make an arrest without a warrant; however, there must be some type of evidence that the alleged victim suffered an injury. The police officer must also reasonably believe the accused committed a domestic violence crime against the alleged victim, and that if not arrested, the accused could evade arrest, tamper with, or dispose of evidence, cause further injury, or damage property.

Filing a protective order

If you are able to go to the court clerk’s office during normal hours, you may be issued an interim protective order on the same day. An interim order can be issued without a full court hearing and without the accused being present. If the accused is not present, he or she will be served with the interim protective order after it is issued.  If the court clerk’s office is closed, you can file for an interim protective order at your nearest district court commissioner. An interim order lasts until a temporary hearing is held, usually within a couple of days.

A temporary order will be in effect for seven days, then a court hearing will be held to determine whether to extend the temporary order. In order for a final protective order to be issued, both sides must have the opportunity to present their case at a full court hearing.

Final protective orders often last one year; however, it can last as long as two years, or can be permanent under certain circumstances. Permanent protective orders can be granted if there was a protective order against the accused in the past and he or she served a minimum of five years in prison for abuse committed against you.

In what ways does a protective order help you?

A protective order can help you in different ways, depending on whether the order is interim, temporary or final. All protective orders will prohibit the accused from threatening, contacting, harassing, abusing, or entering your home. All protective orders will prohibit the accused from coming to your place of employment, your school, your temporary residence or the homes of other family members. If you shared a home with the accused, all types of protective orders will order him or her to move out of the house, giving you temporary use and possession (unless you are not married and your name does not appear on the lease or deed). All types of protective orders may also award temporary possession of any pets to you.

Interim protective orders contain all the above and can also award you temporary custody of children you share if child abuse is alleged or if the child lived with you and the accused at the time of the abusive incident.

A temporary order can additionally order the accused to stay away from the daycare provider and/or school your children attend and can award temporary child custody to you. A temporary protective order can also require the accused to relinquish possession of any firearms to law enforcement.

A final order of protection will do everything a temporary protective order does while also setting up temporary visitation for the other parent (if safety for the children is not an issue), ordering the abuser to pay child support and/or spousal support, awarding temporary use of a jointly owned vehicle to you, ordering counseling or a domestic violence program, and ordering the abuser to pay all legal fees associated with the protective order. If you have been the victim of domestic violence, it can be extremely beneficial to speak to an experienced Maryland criminal defense attorney who can guide you through the process.

What is a peace order?

A peace order is a similar form of legal protection; however, it is offered for individuals in a dating relationship, as well as neighbors or strangers. A peace order essentially allows an individual who wishes to be left alone to ask the court to require another person to refrain from contact. The peace order is for the person who alleges abuse, trespass, malicious destruction of property, harassment and stalking. Unlike a protective order, the court is not concerned with the nature of the relationship between the two parties. A peace order can mandate that the alleged abuser stop abusing the alleged victim, stay away from the alleged victim, and refrain from hassling the alleged victim. The judge can order counseling, mediation and can order the alleged abuser to pay filing fees and court costs.

About Planta & Satin Law

Attorneys’ Bill Planta and Wendy Satin practice Family Law and Criminal Defense Law. Together they bring a wealth of trial experience coupled with calm, straightforward approaches and keen legal acumen to Planta Satin Law. Mr. Planta and Ms. Satin are regarded as two of the best lawyers in the State of Maryland.

Mr. Planta and Ms. Satin bring their vast trial experience and empirical knowledge to the table, whether the job is big, or small. All cases are “big” to the person at risk, or experiencing the breakdown of their family, and they deserve to have someone with a thorough and realistic grasp of the law, and judicial system, helping them in their time of need.

If you have been the victim of domestic violence in Maryland, contact Planta & Satin, LLC. Our domestic violence attorneys have successfully represented individuals in Washington D.C., and throughout Maryland who have sought protection from an abusive spouse or domestic partner. You are not alone – we can help. Contact Planta & Satin, LLC today at 301-762-1000 to discuss your case and the best way to proceed, or visit our website:  www.plantasatinlaw.com.

 

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Emergency Child Custody in Maryland: What you Need to Know

Every state has laws in place to protect children. These include, but are not limited to abuse or parental neglect, parental kidnapping, or the sudden incapacity or death of one or both parents. Under any emergency circumstances, courts may step in, issue orders of custody to be certain someone is going to care for the child during a temporary or long-term period.

Local and State Laws Apply to an Emergency Custody Order

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), sets forth laws that govern child custody enforcement, as well as jurisdiction (which means which court has the authority to issue the order). It was adopted by all states, except for the state of Massachusetts. The UCCJEA was made to discourage interstate kidnapping by a non-custodial parent. Prior to the Uniform Child Custody Jurisdiction and Enforcement Act, it was typical for non-custodial parents to, without consent or permission, take their children across state lines, as well as ask courts out of state to grant custody orders.

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Helping your Children Cope with Separation and Divorce

If you’re undergoing a divorce, you’re potentially worried about the effect on the kids. It may be a challenging time for them. The emotions of children might go through changes and stages. Your children might feel confused, sad, guilty, angry, or concerned with what is going to happen to them. How you react and deal with these changes is important both to the family dynamic and to your youngster’s well-being.

What should you tell the kids about your separation and divorce?

Think it through first and prepare how you’ll talk to your kids about what is going on in your household now and what may happen in the future. Children are most fearful of the unknown.  If possible, it is best for both parents to talk with your children together in a neutral setting. Be truthful and honest when giving them the facts and try to keep your emotions in check.  Young children will require less information. Older kids may request more details.

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The 4 Types of Alternative Dispute Resolution and Mediation

When a legal dispute is at hand and the parties involved would like to avoid going to trial, Alternative Dispute Resolution and Mediation can offer several options. ADR is the term used for the steps taken that will help ADR to resolve a dispute without the need to go to trial and includes negotiation or collaborative law and arbitration.

Mediation is undertaken when a dispute happens between two or more parties. Here, mediators, who are impartial, will help those involved reach a resolution that all agree to voluntarily. It is a helpful way to find solutions to a dispute.

Let’s take a look at a few examples of ADR in closer detail.

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5 Ways to Avoid Parental Alienation

While it would be ideal for all parents to realize how important it is to put their children first and keep them out of the separation or divorce, that is often not the reality. Whether it’s from anger, hurt, jealousy, sadness, or another strong emotion, sometimes one parent will try and manipulate their children to alienate the other parent. In this article, we will take a look at this very real part of a divorce known as parental alienation, how to avoid it, and what to do if you are experiencing it.

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5 Major Mistakes to Avoid During a Custody Battle

A custody battle is often an emotionally charged experience for any parent. While you likely have your child’s best interests at heart, it isn’t uncommon to get swept away by feelings of frustration, anger, and grief.

These unchecked emotions may cause you to make mistakes that could affect the outcome of your custody case. Stay proactive by reviewing these 5 major mistakes so that you can achieve the most favorable result for both you and your child.

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Maryland Separation Agreements Guide for Divorce

One of the most important steps in the process of getting a divorce in the state of Maryland is meeting the proper guidelines established for separation before your divorce can be finalized.  In this article, we’ll take a closer look at what separation agreements in Maryland cover as well as some of the key concepts and terms you will want to become familiar with.

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How Child Representation Protects Your Child’s Best Interests

As a parent, you want the best for your children and part of that is ensuring that they receive the best means of protecting their best interests. This is especially important in child support and custody cases where the decisions made have the potential to make a huge and lasting impact on your child’s future.

To better understand how child representation factors into legal matters, we’ll take a look at several important elements including the URCANCPA.

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Tell-Tale Signs of Parent Alienation and Their Devastating Effects

Parental alienation is a form of manipulation in which one parent attempts to harm or destroy a child’s relationship with the other parent. It may also be referred to, in layman’s terms, as “parental brainwashing.”

This process is often accomplished through lies, misrepresentation, and isolation. Parental alienation may start with something has simple as complaining about a spouse in front of a child and grow in severity as problems between the couple escalate. The purpose of this psychological alienation is to bring the child or children closer to the offending parent by driving them away from the targeted parent.

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