A Groundbreaking New Child Support Ruling in Maryland

Liz EstephanLiz Estephan, Attorney

Awarding child support to a non-custodial parent doesn’t seem to make sense. Why would a parent who has access with his or her children for less time receive child support from the custodial parent?

Well, Kaplan v. Kaplan says exactly that. Kaplan, a case of first impression in Maryland may bring good news to some that child support could flow to the parent who doesn’t have as much access with his or her children.  In the Kaplan case, the Court of Special Appeals upheld a ruling by the Circuit Court for Montgomery County that awarded child support from the primary custodial parent to the other parent.

This case was unique in its fact pattern. First, this case was an ‘above-the-guidelines’ case. Meaning that, the current Maryland child support guidelines are capped for parties with a total gross income of $15,000 per month or $180,000 per year. In an above-the-guidelines case, the court has discretion to promote the objectives of the guidelines and take into consideration the particular facts of the case in order to determine child support.

The father in this case was a high earner — his base salary was over $1 million. The mother earned about $50,000. Even though the father in this case had a rigorous work schedule, the court awarded him primary custody of the children and the mother had visitation. The court also awarded the mother child support, which is atypical. Usually, child support flows to the parent who has more overnights with the child or children.

The court rationalized awarding the mother child support because she incurred expenses for the children when they were with her overnight. And as Maryland law supports, the children are entitled to the same standard of living at both of their parents’ homes and because of the income disparity, the mother in this case was unable to provide the same standard of living commensurate to the father’s if she did not receive child support because of the income difference.  

Some may find this ruling just while others may think it’s unfair. Keep in mind: child support is a benefit for the children. And if you think you may be entitled to a child support adjustment based on the Kaplan case, you should consult your attorney..

For more information, contact Liz at erestephan@lerchearly.com.

The Court of Special Appeals Weighs in on the Frozen Embryo Issue

AvatarCasey Florance, Principal

In my last post (Who gets the Frozen Embryos in the Divorce?), I explored how the Court might handle the disputed disposition of frozen embryos upon the divorce of the parents-to-be.

I hypothesized that the Court might view embryos as marital property, and I recommended consulting a lawyer as part of the assisted reproductive process to ensure that a clear and enforceable contract is in place regarding the disposition of any frozen embryos upon divorce or either party’s death. 

The Court of Special Appeals of Maryland has since answered the question I posed, in a reported opinion issued on April 29, 2021.  In Jocelyn P. v. Joshua P. (WL 1684645), the Court held, as a matter of first impression, that frozen embryos should be given special consideration in light of their potential for human life, and in light of the fundamental and coextensive rights of the embryos’ creators to decide “whether to bear or beget a child,” and accordingly the embryos should not be treated simply as property.  The Court also clarified and set forth the process that the trial courts should follow when addressing the disputed disposition of frozen embryos, using a blended contractual/balancing-of-interests approach.

First, trial courts need to consider the parties’ preferences as set forth in any existing agreements. This may include oral agreements between the parties, and would certainly include an express agreement drafted by the parties’ attorneys.

The Court was careful to caution that trial courts should not consider, however, “boilerplate language in third-party form contracts [such as the form contracts that many fertility centers utilize] that lack expression or direction from the progenitors” because such form contracts “will not qualify as an express agreement for this purpose.” This lends further support for my prior recommendation to engage an attorney to draw up a separate agreement with your partner as part of the assisted reproduction process, so that your and your partner’s intentions and desires are clear and will therefore likely be upheld by a court in the event of a later dispute. 

If there is no express agreement regarding the disposition of the frozen embryos, then the trial courts are directed to seek to balance the competing interests of the parties using six different factors, including the intended use of the frozen pre-embryo if preserved, the parties’ original reasons for undergoing IVF, and the potential burden on the party seeking to avoid becoming a genetic parent. 

Further, the Court of Special Appeals has directed that the trial courts should specifically not consider financial or economic distinctions between the parties, the number of existing children, or whether “reasonable alternatives” such as adoption may be available to the party seeking to become a genetic parent.  

Jocelyn P. v. Joshua P. is a lengthy and interesting read for divorce lawyers, and makes clear that this area of dispute is ripe for invasive and costly litigation when parties do not agree.

So how do you avoid this quagmire if you are thinking of using assisted reproductive technology? See a lawyer and have a clear contract in place between you and your partner regarding the disposition of any fertilized embryos. It will cost time and money upfront, but could save you a boatload of both in the future. 

What Does Divorce Mean for Your Vacation Home?

If you own a vacation home, odds are that you consider it a place of serenity and fond memories. When couples separate and divorce is on the horizon, the question is inevitably asked: “What happens to our vacation house?”

First, you and your spouse can always agree on what to do with your vacation home. Examples of the types of agreements you and your spouse could reach are: agreement to sell it and divide the proceeds, one spouse could buy-out the other spouse’s interest and keep the home, or perhaps the home becomes part of a bigger picture estate plan or trust so that children and grandchildren may continue to enjoy it, despite any divorce. You can agree with your spouse about the fate of your vacation home at any time during the divorce process. You don’t have to wait until the divorce is final.

If you and your spouse cannot agree and you have a contested divorce case, your trial will likely be a year or more away. The court will decide what will happen to your vacation home only at the end of the entire process – and the court is limited to two options:

  1. Order the sale of a jointly titled vacation home and the equal division of any sales proceeds; or
  2. If the vacation home is titled only in one spouse’s name, the court cannot transfer title to the other spouse. However, if the home was acquired during the marriage with marital funds, the non-titled spouse has a martial property interest in the home. The court may order the spouse who owns the home to make a monetary award payment to the other spouse in consideration of their interest in the home and as part of the overall equitable distribution of marital property. “Equitable” does not always mean equal – who gets what depends on the courts consideration of a variety factors – some of which include the duration of the marriage, each party’s age, health, financial circumstances, and contributions to the marriage and property, and the circumstances that contributed to the divorce.

If you and your spouse do not agree on what to do with your vacation home, consider that prior to the actual divorce, the court cannot:

  • Force you or your spouse to sell your home;
  • Force you or your spouse to refinance any debt associated with the home;
  • Force your or your spouse to move out of a jointly titled vacation home. The one exception to this is if a party is ordered stay-away from a vacation home being used as one or both parties’ residence incident to a domestic violence protective order;
  • Force you or your spouse to pay the mortgage or carrying costs.

Also, if you and your spouse do not agree on what to do with vacation home, and it is titled in joint name or solely in your spouse’s name, the court cannot transfer it to you.

You and your spouse can enter into an agreement to do something other than what the court can do, which is legally binding and enforceable.

Before filing in court or entering into any divorce related agreement, you should consult with a family law attorney to determine what effect this has on the other issues in your case.

The Court has more options when it comes to what can happen to your primary home in a divorce. For more information about that, see our article, “What does divorce mean for your home?

For more information, contact Heather at hscollier@lerchearly.com and Erin at elkopelman@lerchearly.com.