A Message from the Editor 2. Parent Coordination-Three Years Later 4. Can You Get Your Client A Piece of That IRA Before Final Divorce?

Transcription

1 Family Law News A newsletter published by the Section Council of the Section of Family & Juvenile Law Maryland State Bar Association, Inc. September 2007 Table Of Contents Chairs Message 2 A Message from the Editor 2 Parent Coordination-Three Years Later 4 Can You Get Your Client A Piece of That IRA Before Final Divorce? 5 Mark Your Calendars 6 A Basic Divorce Practice Primer for New Attorneys 8 St. Mary s County Practice & Procedure 9 Website of the Month 10 The Birthday List 11 Case Notes 18 Editor: Walter A. Herbert, Jr.

2 Chair's Message - September 2007 have had the honor of serving on the Family Law Section Council during two different terms over the years, and now have the distinct privilege of chairing the Section. Throughout my time on the Section Council, I have received inquiries from family law practitioners wondering what the Section Council does, and what opportunities there are for those who would want to participate in the Section at large. An explanation of who we are, what we do and how we do it should answer many of these sections. The Family Law Section is governed by the Section Council. The Section Council is also advised by its past Chairs, who are ex-offico members, many of whom continue to participate in Section Council activities. The Council itself meets monthly from September to June for regular business meetings at different venues throughout the State. Subcommittee meetings are held as needed, particularly during the legislative session, in preparation for MICPEL presentations, and for the annual meeting in June. Council meetings are not open to the general membership, although we do invite other members of the bar, the judiciary, the legislature, etc. to attend certain meetings. The Section Council co-sponsors the CLE programs with MICPEL; it generally provides the agenda, the speakers and the written materials for those presentations. Our Members write articles for MSBA publications. The Section Newsletter is one of our most visible features and is full of useful and constructive information; the Newsletter has now become Walter Herbert s baby and all Section Members owe Walter a great debt for his hard work on it. In my view, our most intensive and important activity is participation in the legislative session each year. The Section Council, pursuant to the MSBA charter and by-laws, and in cooperation with other sections and the MSBA Legislative Office, begins its legislative involvement long before the annual session begins. Council members review proposed legislation, provide written testimony, testify at bill hearings and communicate with legislators. All Section Council (continued on page 3) Message from the Editor Ah, the tingling anticipation of a new Bar year: the children back in school, the brightly-colored leaves, the O s out of another race sigh. Shaking off our summer stupor, the Section Council met in September to plan our activities, and there will be lots of doings this year: Micpel s, Family Law University (one of my personal favorites), a re-design of the Section Council web-page and, always, advocating the interests of Family Law in Annapolis (and after Conaway I think Annapolis will be very interesting this year ) I admit it: I am a shameless poacher. Passing time in the Alexandria Circuit Court law library recently I came across a wonderful article, a basic primer for new attorneys on family law, by Beth Ann Lawson, published in the Virginia Bar Association Journal: true, some elements will only apply to Virginia practitioners, but most of the common sense tips in her article apply no matter where you practice many thanks to Beth Ann and the VBA for reprint permission. I admit it: I know nothing about ART (which should be obvious to any long-time reader of this paper) but thanks to Diane Hinson s Case Note of In Re: Roberto d.b. we all learn a bit... Many thanks to all of our contributors lots more good stuff, so read on Please contact me with thoughts, comments, article ideas, etc.: Herbertlaw@worldnet.att.net FAX: Section of Family & Juvenile Law September 2007

3 Chair's Message... (continued from page 2) members participate in this process to some degree, and the amount of time devoted to legislative matters runs into the hundred of hours each year. Over the last several years, the Council has increased its legislative presence; during the hearings on guardian ad litem/best interest attorneys, Section Council members traveled throughout the State, wrote articles for the general press appeared on radio programs. The Section Council s involvement in the personal property and real property transfer of title bills was significant and instrumental in the historic passage of these bills. Two years, ago the Council decided to take a more proactive approach in legislative matters and actually proposed legislation of its own. I am proud to report that the bill to equitably apportion the cost of health insurance in computation of child support was our bill, and will take effect on October 1, The Legislative Sub-Committee, which is being chaired by Dorothy Fait has been very busy this past summer in planning for the forthcoming session. Keep an eye on the Section Newsletter for further details. Anyone who has any questions or wishes to provide input on legislative matters can contact Dorothy directly (her address is dfait@faitandwise.com), or they may contact me at any time. The Section Council sponsors the annual program at the MSBA in Ocean City. Our programs are always among the most well attended during the convention. This past year, we presented a panel of Family Law Administrative Judges who provided a retrospective on family divisions programs and policies, along with a discussion of how the process can be improved. The program also included the usual entertaining yet educational component along with a panoply of valuable prizes. The Beverly Groaner Award was presented at that meeting to Roger Perkins, a past president of the MSBA and a former chair of the Section Council. A special committee is appointed each year to select candidates for that annual award. The annual program takes a significant amount of time to put together and is completely written and produced by the Section Council members and other Section members at the annual meeting. The Section Council has worked with MSBA over the years to expand the Listserv for the Family Law Section. Anyone who subscribes to the Listserv realizes that it has become a useful tool for practitioners. Members are also entitled to discounted admissions to MICPEL presentations and publications. This year, I hope to strengthen the Section Council s ties with Family Law Committees and sections of local Bar Associations, and to reach out to Section members to insure their input. The Section Council has put together a survey (which we hope to be launched soon) of Section members in order to determine what other activities and benefits members might want to see. Keep an eye on the Listserv and on the Newsletter for further information regarding outreach programs. If you wish to become actively involved in Section activities, to offer suggestions or comments, or to let us know how we might improve our efforts and activities, we want to hear from you. Our MSBA webpage lists the name and contact information for all of the Officers and Members of the Section Council. Anyone desiring to participate in MICPEL programs should contact Erin Gable (her address is egable@dalnekoffmason.com) who is this year s chair of the MICPEL Subcommittee. While our Section is one of the larger ones of the MSBA, there are many family law attorneys who are not members of the Section. For those of you who are not, we urge you to become members. For those of you who are members, please urge others who are not, to join. Our collective voice becomes stronger and louder at the legislature, and in the courts as our numbers increase. If any Section member has a question, suggestion or comment about the Section or any of our activities, I welcome your contact. I can be reached via at mnoren@adelbergrudow.com. Marc Noren, Chair Baltimore, Maryland September 2007 Section of Family & Juvenile Law 3

4 Parent Coordination- Three Years Later By: Anonymous In 2005, with less than one year s experience, I wrote an article on the parental perspective of parent coordination. I wrote about the goals of parent coordination, some of the procedures used, my perspective of how those procedures work, and the need for both parents to put the needs of their child(ren) above their own wants in order to be successful. I m not quite sure how to proceed with this follow-up article, but here goes. Just over a year ago, two years into it, the whole parent coordination thing seemed to be falling apart for me. I was terribly unhappy about two items and ready to go to court to get some relief. My son s father was threatening to not sign a new agreement when our contract expired. We were both feeling seriously used and abused by the other. I guess that s a pretty typical scenario that often ends with a nasty day in court. Somehow we allowed our parent coordinator to get us to agree to one more try. Maybe because we d had so many successes with her, maybe because we believed a judge would side with us if we could show we d done everything a reasonable person could be expected to do. Whatever the reason, the end result was that our parent coordinator pulled off something of a miracle. I think it happened because our parent coordinator kept reminding of us our recent successes, but also kept reminding us of the long-term consequences of our actions on our child. We met, renewed commitments that had been made in court and been broken repeatedly since, yet now the consequences of those broken commitments were understood in terms of our ability to act in our child s long-term best interests. It wasn t just the effect of not fulfilling that commitment on our child, but on our ability to effectively communicate with the other parent in the long term. As for what we previously appeared to have looked at before as solely a win-lose situation for ourselves, we could more clearly see as win (one parent)-win (child)-temporary loss setting the stage for a future win (other parent). had decades in which we developed a really bad communication style, and I m afraid I ll revert back to it without constant vigilence. That may sound silly, but it gives me comfort to know she s there when I feel a need for a consultation. I also think of her as I interact with my son s dad when we re going through a difficult time; I imagine her looking over my shoulder and helping me work through how to best communicate with him. Also in case you re wondering, my professional career has taken off in the last couple of years. The communication skills learned from my parent coordinator are so effective, I ve become something of a communication junkie. I ve continued learning and working on using these skills in the office. Management has taken notice of my improved performance. I received a promotion last year and have just earned the opportunity to test the waters of management for myself. I have to thank my attorney for setting the stage for this parent coordination success. Personally, I cannot see how a parent coordinator could be successful without the entire court system actively supporting their effort. Parent coordination isn t about what s fair from any perspective except the child s. It simply doesn t fit the legal arena all that well. In fact, its very goal is to stay from the legal arena. My attorney kept me on the track of what was fair for my child and in my child s longterm best interest before my parent coordinator came on the scene. He also kept me out of court except for the required hearings and kept me entirely away from trials, emphasizing that both have the tendency to escalate the hurt and anger experienced with divorce, making it far more difficult to recover and parent in an effective manner afterward. Thank you. In ending, I don t think parent coordination success stories can get much better than my own. Because of it, I have a welladjusted, well-liked, straight A student son who knows he has two parents dedicated to working together to give him the type of childhood he deserves. Life is good! We have had a couple of almost crises since. They were so bad, I discussed them with our parent coordinator in fear they were going to blow up. But with the new attitude of focussing on our child s long-term best interests and using the communication skills our parent coordinator has emphasized over and over again, we pulled through without her intervention. It seems we now are both willing to give benefit of the doubt when we couldn t trust enough to do so before. In case you re wondering, I fully intend to keep my parent coordinator around until my child turns 18. His father and I 4 Section of Family & Juvenile Law September 2007

5 Can You Get Your Client A Piece Of That IRA before Final Divorce? By Anne LoPiano, Esq. The following are two questions that have popped up a number of times in my practice as between and among lawyers and divorce clients, and the answers lie in federal tax law, are: IRAs do not generally have (nor are they required to have) a written plan associated with them, as do 401(k)s and ERISA qualified employer defined benefit pension plans. Nevertheless, an order directing division of an IRA account incident to divorce must identify the plan and the owner sufficiently to direct the transfer if the holder of the IRA is to obey the Order. Are there any tax consequences for the transfer of IRA assets, either for the transferor or the transferee spouse, before there is any final judgment of divorce, when there is only a written separation agreement directing the division of the IRA assets? ANSWER: MOSTLY, NO. But see information about SIMPLE IRAs, below. Is an IRA, like a 401(k) plan, divisible only by a QDRO?, or can the party who owns the IRA just direct the holder of the IRA to divide it as per the Separation Agreement? ANSWER: Most IRAs do NOT (by law) require a QDRO or other court Order in order to be divided by the financial institution holding it. However, watch your language in the Agreement if the Agreement says it is divisible only at time of absolute divorce or by court order, then your Agreement trumps the federal tax law that governs this. With good drafting and negotiation, you might get your client his/her share of that IRA long before the final divorce. REASONS: Generally, IRAs (Individual Retirement Accounts) need not be divided by a QDRO (Qualifying Domestic Relations Order) which is a legal term defined in the IRC referring to how certain ERISA covered qualifying employer plans must be divided in divorce. IRAs are generally not subject to ERISA. This is not to say that the court cannot issue an order dividing an IRA such order is just not subject to the exact requirements of ERISA as to QDROs. Rather, IRAs are generally divided under the authority of IRC 408, as distinct from ERISA plans. That said, some employers now administer IRAs for their employees, known as Simple IRAs. 1 There has been disagreement among federal courts, but the Department of Labor has issued regulations that do treat Simple IRAs as ERISA covered assets meaning that for a Simple IRA you will need a QDRO, which can only be done incident to absolute divorce, and which alone can avoid the anti -alienation provisions of ERISA. So be sure to find out what kind of IRA you are dealing with before you draft that agreement language. Here s what the IRC says about dividing IRAs in divorce and/ or separation (emphasis supplied), in IRC 408. Individual retirement accounts, at subsection (d)(6): TRANSFER OF ACCOUNT INCIDENT TO DIVORCE (emphasis supplied) The transfer of an individual s interest in an individual retirement account or an individual retirement annuity to his spouse or former spouse under a divorce or separation instrument described in subparagraph (A) of section 71(b)(2) [see below herein] is not to be considered a taxable transfer made by such individual notwithstanding any other provision of this subtitle, and such interest at the time of the transfer is to be treated as an individual retirement account of such spouse, and not of such individual. Thereafter such account or annuity for purposes of this subtitle is to be treated as maintained for the benefit of such spouse. Ditto the Treasury Regulations, at Regs. Sec (g) Treatment of distributions from individual retirement arrangement, without providing any more detail as to what is meant by the term a separation instrument in IRC section 408(d)(6). This leads one to ask what is meant by the IRC when it uses the term separation instrument? Can it mean a separation agreement only, even where there has not yet been any divorce? The answer is yes. Subparagraph (A) of section 71(b)(2) of the IRC gives the following definitions (emphasis supplied): (2) DIVORCE OR SEPARATION INSTRUMENT The term divorce or separation instrument means (A) a decree of divorce or separate maintenance or a written instrument incident to such a decree, (B) a written separation agreement, or (C) a decree (not described in subparagraph (A)) requiring a spouse to make payments for the support or maintenance of the other spouse. Lest one still doubt whether it can really be true that one may transfer his IRA assets to his spouse incident only to a written (continued on page 7) September 2007 Section of Family & Juvenile Law 5

6 Can You Get Your Client... (Continued from page 5) separation agreement, reading Private Letter Ruling /16/2002 is instructive. 2 In summary, it clearly treats a separation agreement as being both within the meaning of 71(b)(2) (above herein), which is plain on its face anyway, but goes out of its way to emphasize that even without a divorce having happened, the transfer of IRA assets will be a non-taxable event to the transferor spouse as well as to the transferee spouse. The IRS consumer Publication no. 504, Divorced or Separated Individuals, reiterates this, in the section entitled INDIVIDUAL RETIREMENT ARRANGEMENTS: The following discussions explain some of the effects of divorce or separation on traditional individual retirement arrangements (IRAs). Traditional IRAs are IRAs other than Roth or SIMPLE IRAs... IRA TRANSFERRED AS A RE- SULT OF DIVORCE. The transfer of all or part of your interest in a traditional IRA to your spouse or former spouse, under a decree of divorce or separate maintenance or a written instrument incident to the decree, is not considered a taxable transfer. Starting from the date of the transfer, the traditional IRA interest transferred is treated as your spouse s or former spouse s traditional IRA. Similarly, the IRS consumer Publication no. 590, provides as follow, in the section entitled CAN YOU MOVE RETIREMENT PLAN ASSETS? You can transfer, tax free, assets (money or property) from other retirement programs (including traditional IRAs) to a traditional IRA. You can make the following kinds of transfers: - Transfers from one trustee to another. - Rollovers. - Transfers incident to a divorce. The same section of Publication no. 590, further provides: Transfers Incident To Divorce: If an interest in a traditional IRA is transferred from your spouse or former spouse to you by a divorce or separate maintenance decree or a written document related to such a decree, the interest in the IRA, starting from the date of the transfer, is treated as your IRA. The transfer is tax free. The IRS may not necessarily wish to broadcast to the consumer public that the effect of IRC section 408 (d)(6) is to permit the tax-free transfer of IRA assets before divorce, but the law is very plain in its face, and I find no Regulations or Service Rulings or other law that qualify or contradict its plain meaning. Family law attorneys are often more familiar with IRC Code Sec. 1041, Transfers of property between spouses or incident to divorce, which was codified in or about 1984 (10 years after the 1974 enactment of IRC section 408 re IRAs.) It provides in summary that transfers of property incident to divorce are not subject to ordinary income tax. Even though it may not be apparent on its face, the Treasury Regulations which construe it make it clear that it too (like section 408, specific to IRAs) means that a transfer pursuant to a separation agreement, where there has not yet been a divorce, will satisfy the terms incident to divorce, and related to the cessation of marriage. Therefore, even though IRAs are not controlled by IRC section 1041, the Service has construed the two Code sections fairly similarly perhaps to be as consistent as possible in its tax treatment of various retirement assets in divorce. Remember though, that, notwithstanding IRC Code Sec. 1041, ERISA covered assets (such as 401(k) plans) still can only be transferred pursuant to QDROs because of ERISA law. 3 Again, the dissimilarity between how certain retirement assets must be divided in divorce is most notable as to those, such as 401(k) plans and other qualified employer plans which are specifically subject to ERISA law, by statute, and therefore must be divided by QDRO orders, and those which are not subject to ERISA, including most IRAs. NOTICE: IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the U.S. Internal Revenue Service, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any taxpayer for the purpose of (1) avoiding tax-related penalties under the U.S. Internal Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matters addressed herein. Footnotes: 1 As per the IRS on web page article/0,,id=111420,00.html#1 on 07/16/07, in What is a SIMPLE IRA plan? A SIMPLE IRA plan is an IRA-based plan that gives small employers a simplified method to make contributions toward their employees retirement and their own retirement. Under a (continued on page 12) 6 Section of Family & Juvenile Law September 2007

7 MARK YOUR CALENDARS: THE PRINCE GEORGE S COUNTY BAR ASSOCIATION Family Law Committee Our section meets on the third Wednesday of each month at 4:45 p.m. in the Circuit Court Law Library. Each meeting includes a Guest Speaker... all are welcome. Upcoming topics include: October 17: Topic - TBA November 21: Topic Master s Rants Prince George s County Master(s) insight from the bench December 19: Topic Case Law & Cookies Join your Family Law colleagues for a review of the 2007 hot topic case law, and enjoy holiday festivities including cookies! Again folks, did I mention the COOKIES! **7 TH ANNUAL FAMILY LAW SEMINAR*** (REVIEW) ALTERNATIVE DISPUTE RESOLUTION Our 7 th Annual Family Law Seminar again met with great attendance and review. Among our guest speakers presenting on mediation were the Hon. Julia B. Weatherly, the Hon. Theresa Nolan (Ret.), Donna Frederick, Esq. (Property Mediator), Jane Powers (Mediator), and on Collaborative Law, Mary S. Pence, Esq. and Darcy A. Shoop, Esq. Thanks again to all those who contributed to and participated in this now well established continuing legal education program. We hope to see you all again this May for the 8 th Annual Family Law Seminar on the topic of Custody. For Information Contact: PGCBA, Family Law Committee Co-Chairs: Justin J. Sasser, Esq Elveta M. Martin, Esq ANNE ARUNDEL BAR ASSOCIATION Family Law Committee Agenda SEPTEMBER 2007: Use of Private Investigators in Family Law Cases Methods and practices used by investigators and use of evidence obtained by investigations at trial. OCTOBER 2007: Real Property Transfers by the Court The statute in action and the roles of the lien holder and mortgage brokers in your case. NOVEMBER 2007: E-Discovery in Family Law Cases A primer. Obtaining and using electronic evidence at trial. JANUARY 2008: Immigration, Passport, & Travel Issues in Family Law Cases FEBRUARY 2008: Children s Counsel: The New Rules MARCH 2008: CLE: Marital Property Seminar Part II Presentation by the Honorable Michael Loney in conjunction with Barbara Taylor, Esquire. Factor analysis and its impact on the distribution of marital property. *Date to be announced APRIL 2008: Bankruptcy Issues in Family Law Matters MAY 2008: Issue Roundup: Contempt (When it is useful & effective); Granting an award of attorney fees (When it is appropriate); Legislative & Case law update. JUNE 2008: End of year social meeting at Galway Bay and election of officers for committee year. *Unless otherwise noted, all meetings will be held on the third Tuesday of each month at 5:00 p.m. in the Attorney s Lounge at the Circuit Court. reminders for each meeting will be sent out monthly. To be added to the list, please send your address to jmerrill@dalnekoffmason.com. A minimum of one meeting this year will be held in Glen Burnie and advance notice will be sent out prior to the meeting. Please note there is no meeting scheduled for December 2007* (continued on page 13) September 2007 Section of Family & Juvenile Law 7

8 A BASIC DIVORCE PRACTICE PRIMER FOR NEW ATTOR- NEYS: AVOIDING SOME EARLY PITFALLS A basic premise of new divorce attorneys may be that they learned everything they needed to know about divorce in law school. Case law and actual procedure before the bench, however, can be worlds apart. As fate would have it, a few days after I joined my first law firm, the firm s family law attorney relocated to another firm. Until a new senior family law attorney could be retained, maintenance work on divorce files became my assigned task. A new attorney was never hired, and in default, I became the firm s assigned attorney for divorce. What I desperately needed was a mentor and a list of legal pitfalls to avoid. Perhaps some of my moments of truth will facilitate the movement of other new attorneys into the practice of family law with far greater grace than I enjoyed. And just perhaps, this article will encourage veteran family law attorneys to take on the vital task of patiently mentoring new attorneys toward confidence, competence and client service. What follows are just some of the necessary truths and basic pitfalls in family law practice. 1. KNOW THAT THE TRUTH LIES SOMEWHERE IN BETWEEN. The facts stated by your client can be most convincing. Even today, I still experience mild surprise each time I speak with opposing counsel for the first time and discover that I represent both Jekyll and Hyde when I am only charging Jekyll. A good intake sheet with a broad array of questions is helpful when trying to interview a client and create a comprehensive, factual picture with a minimal number of future surprises. It is important to use a first meeting with opposing counsel as an information gathering opportunity rather than a contest to show that your client has the only side to this story. Leave behind the defensive mindset that your client told you everything and has been 100% forthcoming. The actual truth that will further your client s position in the divorce lies somewhere between opposing counsel s facts and your client s story. Practice active listening. Allow opposing counsel to speak without interruption. Opposing counsel is stating the facts as they have been told. New information will allow you to identify uncertainties in your client s position which will require additional discussion with and verification by your client. 2. VIRGINIA AND MARYLAND COURTS HAVE DIVERSE DIVORCE PROCEDURES By Beth Ann Lawson Do not count on any two Virginia or Maryland courts having similar divorce procedures. This assumption will cause needless error and may result in having your documents returned. From city to city or county to county, procedures vary. If you practice in a larger metropolitan area, you will need to know the procedures from one city or county to the next. Never will this be more evident than when you are filing at the last minute to make a statutory deadline. Know the various filing fees of the court in question including whether there is a charge for making certified copies. Forcing your clients to execute documents a second time due to procedural filing errors does not promote a professional image of a court savvy attorney. For each court in which you intend to practice, get a copy of their rules and procedures and follow them; if you practice in Maryland, be aware that this publication, Family Law News, publishes a review of practice in procedure in a different jurisdiction each issue. If you practice in one of the metropolitan areas, you may have ten or more different courts within your practice area. Many metropolitan courts are internet friendly and post their contested, uncontested and pro se divorce rules and procedures on-line. If your locality does have web postings and you choose the approach of constantly calling the clerk s office about procedure, expect to encounter comments such as, Have you visited our web site? Did you know that all of our procedures are posted on the web? Clerks hearing the same question many times on a given day tend to remind attorneys that they have full access to the same information on line and are being less than diligent in their legal research by calling the Clerk s office. There are several procedural filing questions you will want to document for each separate court. Is a civil cover sheet required for filing? Does the locality have its own cover sheet or should you go the Virginia Judicial System s website at and use one of the many available forms which can be prepared on line and printed. In Maryland, visit the Maryland Judiciary home page at for a comprehensive listing of forms and contact information for each Circuit Court and District Court Clerk s office. How many copies of the complaint do you submit? Are you required to submit an original copy of the separation agreement? How do you submit a privacy addendum in a manner that guarantees client privacy? Is the privacy addendum submitted in a separate envelope to protect it from public records? What types of payment are accepted from an attorney? May an attorney submit a private check if cash or a corporate check are unavailable? What service of process options exist? (continued on page 15) 8 Section of Family & Juvenile Law September 2007

9 ST. MARY S COUNTY CUSTODY, VISITATION, CHILD SUPPORT AND DIVORCE PROCEDURES The majority of domestic relations cases filed in St. Mary s County go before the Master for Domestic Relations, F. Michael Harris. Once an Answer is filed wherein it is determined that custody, visitation and/or child support are at issue, a Scheduling Order is issued setting the matter in for a Scheduling Conference with the Master. The Scheduling Conference takes place within two to three weeks. The Assignment Office in St. Mary s County does not call the attorneys office to clear dates. If there is a conflict with respect to the proposed scheduling date, it is important to contact Opposing Counsel and the Assignment Office to obtain new potential dates. You must file the Motion to Continue promptly and include the proposed new hearing dates. If the continuance request is due to a previously scheduled hearing, it is important to attach a copy of the Hearing Notice to the Motion. It is also important to remember that the Master for Domestic Relations is a part-time position in St. Mary s County and he is only in the courthouse on Mondays, Tuesdays and Wednesdays of each week. In the event that you are running late to the Scheduling Conference, it is imperative that you call the Master s Office at , otherwise the Scheduling Conference will take place and Pretrial and/or hearing dates will be set without your input. At the time of the Scheduling Conference, if custody and visitation remain at issue, a Court Order will be generated. The parties will be referred to a co-parenting/divorce education program and/or mediation. In addition the children are generally referred to a Roller Coaster program. The co-parenting program is a six hour program which is held on two evenings. The Roller Coaster program lasts approximately six weeks. Fees for the mediation are dependent upon the mediator assigned. On occasion there is no fee for the mediation if mediation is provided through the Family Service s grant. If there is past domestic violence or a pending domestic violence case, the parties will not be referred to mediation. At the time of the Scheduling Conference, a pre-trial conference is scheduled before the Master within six to eight weeks. At the time of the pre-trial conference, if custody has not been resolved, the matter will be set in for a hearing. The custody/visitation hearing will be heard by the Master for Domestic Relations if the parties sign a preprinted form agreeing that the Master will hear those issues. If the matter is scheduled before the Master, the hearing is generally scheduled within days. If the hearing is to be scheduled before a Judge, the hearing is generally scheduled within two to three months. All custody/ visitation matters must be resolved before the Master will address child support. In the event the issue of child support is resolved and a Consent Order is submitted, the child support in the Consent Order must be consistent with the Maryland Uniform Child Support Guidelines. Any deviation from the By Kevin Peregoy, Esquire Child Support Guidelines will require the parties to be present for a hearing and state on the record why the deviation is in the best interest of the minor child/children. For matters involving marital property, Maryland Rule is strictly enforced. In the event a Statement is not filed ten (10) days prior to the hearing, the matter will be continued one time. If Rule is not complied with prior to the second hearing, the matter will be dismissed, without prejudice. For emergency pleadings the party filing the emergency pleading is to contact the Assignment Office at the time of filing. The Assignment Office will contact an available Judge s law clerk to review the petition. If a Judge determines that the Petition is a true emergency either a hearing date will be scheduled or a further conference with a Judge. COSTS Unless otherwise waived by the Court: A) Filing fee: $ B) Custody evaluation: a custody evaluation may be ordered at the time of the pretrial conference. Evaluations must be paid for up front unless a fee waiver is granted. The following individuals are currently appointed to conduct custody evaluations: 1) Pat Simpson, LCPC and MSW, generally $1, per party, no psychological testing; 2) Patricia Murphy, LCSW-C, generally $1, $1, per person, no psychological testing; 3) Dr. Charles Ruby, Pinnacle Center, $1, per person. Dr. Ruby will do psychological testing. His evaluations generally take 4-6 months; C) Home studies. These are sometimes ordered in conjunction with a custody evaluation. Dr. Ruby does not perform home studies. In addition the Department of Social Services will not conduct a home study in St. Mary s County. Pat Simpson and Patricia Murphy generally do the Home Studies. D) Co-Parenting/Divorce Education Program: $ per person E) Roller Coaster program: $70 per child or $140 for two or more children. (continued on page 12) September 2007 Section of Family & Juvenile Law 9

10 Website of the Month: Scarred Every scar has a story. I was flipping through channels one evening and happened upon MTV s Scarred: no, I didn t recognize the show, either, but the handful of teen-age boys spread throughout my house certainly did, surging towards the television and instantly arguing about the best episode. Today s easy accessibility to video recording equipment make s it easy for one to memorialize forever the most foolish stunts of one s youth (From my own past I vaguely remember an encounter that involved a tablecloth doubling as a cape and a shed roof, but fortunately no one taped it of course, my son will tell you that when I was young photographer s still used flash powder ). Most of the young men, and some women, don t set out to make the Most Gruesome highlight film, they are just goofing around with skateboards usually, but the results are, in MTV s words, bonecracking. I could only watch one episode. Any takers? Family Law Section HOLIDAY PARTY December 13, P.M. 'Till??? At the Offices of Stricker Sachitano & Hatfield, P.A Montgomery Avenue Suite 900N Bethesda, MD* Professionals- $40 Non-Professional Court Staff- $20 *Directions at Please R.S.V.P. to Paula at ssh@modernfamilylaw.com by December 1st Section of Family & Juvenile Law September 2007

11 September: Joan Larkin: he irthdays A native of Rockville, following her parent s divorce she took off for L.A., only 15 years old. With fellow runaway Lita Ford she formed, well, the Runaways, but their mercurial relationship doomed that band. She made her way to London and formed a new band, the Blackhearts, and recorded the single I Love Rock and Roll. Rolling Stone magazine named her #87 on the list of 100 Greatest Rock guitarists, and Cal Ripken, Jr., asked her to sing the National Anthem the night he broke Lou Gehrig s record at the Yard now, how cool is that By the way, after her parent s divorce she changed her last name to her mother s former name Jett, and that s how we know her Joan Jett and the Blackhearts. October: Maya Ying Lin: At 21 she won a blind design competition; her entry resulted in the elegant and moving Vietnam War Memorial, The Wall. She later designed the Civil Rights Memorial. November: Robert Louis Stevenson: His father wanted him to be an engineer and join the family firm, he refused to study engineering, so they compromised, and Stevenson became a Scottish lawyer I really don t follow this he never practiced law but turned to writing, with some success, particularly Treasure Island: Stevenson s vivid imagination gave us Long John Silver, Jim Hawkins, Billy Bones and X marks the spot. September 2007 Section of Family & Juvenile Law 11

12 St. Mary's County... (Continued from page 9) F) Mediation. These are dependent upon the mediator assigned. On occasion, provided free of charge through the Family Services grant. Call Teresa Weeks, Master Harris Chambers or Linda Grove, Family Services Coordinator, for any additional information APPROXIMATE LAPSE OF TIME OF PROCEDURES After filing of Initial Complaint A) An Answer is due 30 days after service if service is obtained in the State of Maryland. If service is outside of the State of Maryland, within the United States, an Answer is due 60 days after service. B) The Scheduling Conference is scheduled before the Master for Domestic Relations, generally within 2-3 weeks of the date a contested Answer is filed. C) Pretrial conference, within 6-8 weeks of the Scheduling Conference the custody/visitation hearing is generally scheduled within days and scheduled before the Master for Domestic Relations. If the hearing is going to be scheduled before a Judge, it is generally scheduled within 2-3 months. D) Uncontested Divorce hearing before the Master is generally scheduled within 2-3 weeks of the filing of an uncontested Answer. Uncontested hearings can also be scheduled before one of the Standing Hearing Examiners: Katie Werner P.O. Box 530 Leonardtown, Maryland Sue Ann Armitage Three Notch Road, Suite B Lexington Park, Maryland Kevin Peregoy, Esquire, has practiced Family Law for over 18 years. He limits his practice to Charles, St. Mary s and Calvert County, Maryland. His office is located at 2 Industrial Park Drive, Suite E, Waldorf, Maryland 20602, Phone: or Can You Get Your Client... (Continued from page 6) SIMPLE IRA plan, employees may choose to make salary reduction contributions and the employer makes matching or nonelective contributions. All contributions are made directly to an Individual Retirement Account or Individual Retirement Annuity (IRA) set up for each employee (a SIMPLE IRA). SIMPLE IRA plans are maintained on a calendar-year basis. See IRS Publication 560, IRS Publication 590 and IRS Notice 98-4 for detailed information on SIMPLE IRA plans. 2.Please be aware that Private Letter Rulings, while not regarded as having the force and effect of law, and which the IRS does not recognize as legal precedent in any but the case in which the ruling has issued, are nevertheless very good road signs pointing to how the IRS construes IRC provisions and Regulations. 3 Here s the text of IRC Code Sec. 1041, (in pertinent part only and emphasis supplied). (a) GENERAL RULE No gain or loss shall be recognized on a transfer of property from an (continued from prior page, footnote 2) individual to (or in trust for the benefit of) (1) a spouse, or (2) a former spouse, but only if the transfer is incident to the divorce. (b) TRANSFER TREATED AS GIFT; TRANSFEREE HAS TRANSFEROR S BASIS In the case of any transfer of property described in subsection (a) (1) for purposes of this subtitle, the property shall be treated as acquired by the transferee by gift, and (2) the basis of the transferee in the property shall be the adjusted basis of the transferor. (c) INCIDENT TO DIVORCE For purposes of subsection (a)(2), a transfer of property is incident to the divorce if such transfer (1) occurs within 1 year after the date on which the marriage ceases, or (2) is related to the cessation of the marriage. 12 Section of Family & Juvenile Law September 2007

13 Mark your Calendars... (continued from page 7) All bar members are welcome at the committee meetings. The meetings are well attended by the Bench and provide an excellent opportunity for discourse between the Bar and the Judges and Masters Officers Jennifer L. Merrill, Chair Timothy Thurtle, Secretary Erin Darner Gable, Assistant Chair Robert Erdmann, Assistant Secretary HOWARD COUNTY BAR ASSOCIATION Family Law Committee October 12, 2007: How to Get Paid in a Family Law Case Speakers: Joel Abramson, Esq., Alan Fishbein, Esq., Linda Ostovitz, Esq. November 9, 2007: What to do if you don t get paid in a family law case: Fee Collection and Court Awards of Counsel Fees Speakers: Judge Diane Leasure January 11, 2008: Parenting Coordination panel presentation Meetings are held on the second Friday of the month in the jury assembly room of the Howard County Circuit Court. Lunch is available for $6.50 with prior RSVP. RSVPs should be sent to HCFLC@agclaw.com. Master Mary Kramer Circuit Court Howard County mary.kramer@courts.state.md.us Baltimore County Bar Association Family Law Committee On Wednesday, September 19, the Family Law Committee of the Baltimore County Bar Association hosts its annual meet and greet the judges and masters dinner at Towson Golf and Country Club, Stone Hill Road in Phoenix, Maryland with a cash bar at 6 pm and dinner at 7 pm. The judges and masters do not speak at this dinner, but we have commitments from all of the judges who are sitting on the Family Law docket this fall and most of the masters. The cost is $40.00 per person with a choice of Maryland crab cake, beef tenderloin and breast of chicken stuffed with sage dressing. On Thursday, October 25, 2007, we will have the Honorable Joseph Murphy and Gregg Bernstein, Esq. address wiretapping issues as they relate to the family computer at Christopher Daniel Restaurant on Padonia Road in Cockeysville, Maryland. There will again be a cash bar at 6 pm and dinner at 7 p.m. On Tuesday, November 13, 2007, we will have the Honorable Lawrence Daniels and Mike Helms of Child Support speaking at Hunt Valley Country Club at the same times set forth above on the topic of dealing with Child Support Enforcement on the payor and payee side of things and how contempt issues on failure to pay and so forth from a judge s perspective. Kristine K. Howanski, Esquire Law Offices of Kristine K. Howanski, LLC 401 Washington Avenue, Suite 803 Towson, Maryland (O) (410) , ext. 102 (F) (410) Montgomery County Bar Association Family Law Section SECTION MEETINGS & PROGRAMS Regular Section meetings are held on the third (3 rd ) Thursday of the month at 5:30 p.m. in the Bar CLE Classroom unless otherwise indicated. September 20 th : Roundtable Discussion with Family Law Judges, 5:00 p.m. October 11 th : Legislation in Family Law November 8 th : Pre-Nuptial/Post-Nuptial Agreements December 13 th : Holiday party January 24 th : Custody Merits & Court Evaluators February 21 st : Divorce Merits (Ricketts and Tracing Non- Marital Funds) March 20 th : Wine & Cheese honoring Judge Sundt s retirement April 17 th : Post-Judgment/Financial Planning May 2 nd : Law Day: Domestic Partnership Agreements (continued on page 14) September 2007 Section of Family & Juvenile Law 13

14 Mark your Calendars... (continued from page 13) FALL CLE PROGRAMS Breakfast CLE s are held at 7:45 a.m. and evening CLE s are held at 5:30 p.m. in the Bar CLE Classroom. September 25 th : Breakfast: Child Support Enforcement (Master Wisor/Wanda Martinez) October 23 rd : CLE: ADR in Family Law (Panel discussion) November 6/13 th : CLE: Rita Rosenkrantz (Panel discussion) November 15 th : Breakfast: Indefinite Alimony (Judge Woodward) SPRING CLE PROGRAMS January 31 st : Breakfast: PL Hearing (Master Ryon) March 27 th : Breakfast: Financial Statements/9-207 (Master Salant) Section Co-Chairs: Vicki Viramontes-LaFree, Esquire Pasternak & Fidis, PC 7735 Old Georgetown Road, Suite 1100 Bethesda, Maryland Tel (301) ; Fax (301) vlafree@pasternakfidis.com Stuart Muntzing Skok, Esquire Gimmel, Weiman, Ersek & Blomberg, P.A. 4 Professional Drive, Suite 145 Gaithersburg, Maryland Tel (301) ; Fax (301) sskok@gweblaw.com The 12th Annual Symposium of the Maryland Chapter of the American Academy of Matrimonial Lawyers The 12th Annual Symposium of the Maryland Chapter of the American Academy of Matrimonial Lawyers will take place on November 12, 2007 at Martin s West. This year s agenda includes a presentation by Steven D. Stark, Esquire, a universally acclaimed writer, lecturer, consultant, and lawyer, who will present on SPEAKING TO WIN. Other presentations will be on changes in Family Law on the legislative horizon (State Delegate Kathleen Dumais) Hidden and Undisclosed Assets in the Domestic Relations Case (Ethical and Malpractice Issues), presented by Faith Dornbrand, Esquire; followed by a roundtable discussion on challenging Family Law Issues that are sure to come your way. Save the date and look for the brochure with all the details on this great event. Stephen Krohn, Esquire Annapolis, Maryland Ronald L. Ogens, Esq. Sandra Castro MICPEL Essentials of Maryland Practice: Nuts & Bolts of Lawyering in 16 Core Areas of a General Practice - 11/15&16/07 (Columbia) Deposition Practice & Procedure - 12/06&07/07 (Baltimore) Contact MICPEL at for further details. 14 Section of Family & Juvenile Law September 2007

15 A Basic Divorce... (Continued from page 8) It is particularly important to know how long service of process takes if you use your local Sheriff s office. Ask for general timelines. This is not meant to be an offensive question to the clerk. Adequate service of process is critical to your case. If a Sheriff s office cannot meet your deadline, hire a private service or process server. If you use a private process server, ask your local clerk how you may obtain notice from the court that an item is ready to be picked up by a private server. Know the answers to these questions prior to filing. Service of process can be a pitfall in itself. Interview potential process servers and get references. You are relying on these individuals to get papers served in a timely fashion to allow you to proceed in court. Put in writing to the process server your expected dates of service and any specific deadlines. If your process server has to hire an out-of-state server, get the name and number and speak to that individual personally. You have no guarantee that your local process server has conveyed your deadlines to the out-of-state server or that your local server mailed the papers to the new server in a timely fashion. Be a watch dog on out-of-state service if your deadlines are tight. Pendente lite hearings also offer a prime example of the differences for which you need to prepare. Some courts hold closed session hearings for Pendente Lite hearings while others schedule the hearing on an open motions day and hear the matter in open court. Some judges like to handle all questioning. Some judges prefer that the attorney question the parties. You must be prepared to question your witness on the stand if the judge so desires. It is also very important to know that some judges will hear some custody issues in the pendente lite hearing while others will not. For example, if you have a hearing where one parent has taken the child out of state during the school year and is refusing to return that child, some judges will hear the issue while others refer it on to a Guardian ad Litem - which could take several months to resolve when the child is out of state. Get to know the Guardians ad Litem for children in your local court system. Go to court, introduce yourself to these individuals, and ask them about the procedures used in these type cases. Keep an active list and contact information of those you work well with for easy reference. 3. NO TWO JUDGES ARE ALIKE Judges have procedural preferences. Learn them. It is helpful to ask court clerks and other attorneys about the preferences of the various judges. This is smart lawyering. To effectively represent their client to the best of their ability, an attorney needs to learn how to present a client s case to any judge assigned to their case. This entails learning what is expected in each courtroom and delivering it. Network with other attorneys and ask about their experiences with the various judges. Many colleagues will share some interesting horror stories about how they learned that a certain judge did not like things done in a particular fashion. These judicial preferences include such areas as how to approach the bench, how to address the court, how to handle two or three cases in different courtrooms on the same day, paperwork requirements, etc. Many bar associations host events for new attorneys to meet and greet with the local judges. Do not skip any event where you have an opportunity to speak with a judge and gain insight into local area judicial procedure. 4. UNDERSTAND THE DIFFERENT USES OF A NON-SUIT I was pleased the first time opposing counsel asked to nonsuit a highly contested divorce action. Changing venue appeared to be a smart move and the nonsuit would produce an opportunity to do so. Opposing counsel had another trick up his sleeve. It is important for a new divorce practitioner to learn how to effectively use nonsuits to stop legal actions which are not proceeding according to plan and how to use the nonsuit to gain better position. The Code of Virginia explains the dismissal of action by a nonsuit in , including information on a first nonsuit as a matter of right if the provisions of the statute are met. Virginia plaintiffs have a right to nonsuit, or voluntarily dismiss their case before their case is submitted to the judge or jury for a decision. This safety net provides plaintiff attorneys with a window in which to test their legal strategy. Attorneys can initiate their lawsuit, view opposing counsels pleadings, discovery, trial preparation and trial strategies and then dismiss the case should an adverse judgment be anticipated. Lawyering skills and analysis will be called into play when you are representing the defendant and have to determine whether to agree to a second or third request for a nonsuit by plaintiff s counsel. Would your client be in a better position if you proceed with the current suit? Would a different court provide a better outcome? Are all the necessary facts available to proceed? Has new information presented a better legal strategy? Do you have an edge in your current position which might topple opposing counsel s seemingly stronger case which could be lost if you agree to the nonsuit? (continued on page 16) September 2007 Section of Family & Juvenile Law 15

16 A Basic Divorce... (Continued from page 15) A strategic legal tactic to remember is that while opposing Counsel Snidley Whiplash s nonsuit is being signed by the judge in Court Room A, Attorney Whiplash may be down the hall twirling his mustache and filing a new complaint on the same matter. Whatever new strategic advantage opposing counsel will gain by the nonsuit will not be designed to make your day. Client costs may double as work is repeated in jockeying for new position in a new suit. Nonetheless, a nonsuit is a valid legal tool in Virginia and is essential in repositioning one s legal strategy as needed. 5. COURT PERSONNEL ARE BLESSED INDIVIDUALS Get to know everyone involved in the divorce process of the local courts. Meet all of the clerks. Get to know the Deputy Clerks who are a wealth of procedural knowledge and assistance. Give everyone you meet your card. These court individuals control the flow of your paperwork and information. When you have emergencies or make mistakes (which you will!), these individuals pull you out of the fire. Court personnel take a great deal of abuse from lawyers and the general public. Most people approaching a court clerk are under stress. And to be fair, court personnel can also do their fair share of dishing out abuse. One of the best pieces of advice I received from a colleague early on was that, Court clerks are your best friends. Get to know them. Many, if not most, of these clerks are lifetime employees. These people will see you time and time again. If you are feeling that I am the LAWYER; you are the clerk, I suggest you step outside for a moment and get some fresh air. The truth of the matter is that he or she is the CLERK; you are the lawyer ; and you need his or her assistance to succeed. 6. EXPERIENCED FAMILY LAW PARALEGALS ARE WORTH THEIR WEIGHT IN GOLD As mentioned earlier, understanding and following correct court procedure is important in the successful management of divorce cases. File management is critical. Deadline management is even more critical to the protection of your license. Tracking pleadings and managing response deadlines will prevent gross practice errors. If you are a poor paper organizer, offset your weakness by hiring an obsessive compulsive organizer of a paralegal. It may save your career. Choosing which pleading will be the most effective tool to file from among multiple possibilities comes with both knowledge and experience. When you are a new practitioner, each case brings its own unique perspective. Each case seems similar to a previous case but each has a twist requiring more research. The immeasurable value of an experienced paralegal is her or his wealth of knowledge of previous cases and scenarios which can help rapidly focus your research. An experienced paralegal also brings to the table a wealth of knowledge of forms and drafting. Look for a paralegal who has his or her own copy of the Virginia Forms books. If it is falling apart with dog-eared pages and yellow sticky notes, give that person an interview. If you hire them, buy them the newest version of the state forms manual. In addition to forms and procedures, an experienced paralegal can provide immediate value to a new practitioner simply from experience gained from years of interaction with various courts and court personnel. Having a paralegal who displays excellent people skills may help a new practitioner. This may be hard to read, but not all attorneys are blessed with a warm and nurturing persona. Hiring an alter ego with warmth and good people skills may grease squeaky wheels allowing the attorney to travel down roads heretofore closed to him or her. 7. MILITARY DIVORCE REQUIREMENTS Attend continuing legal education training on military divorce. Military divorce requires specialized procedures and knowledge. There are complex issues of jurisdiction. There are pension calculations which require knowledge of specific formulas. Any new attorney handling their first military divorce should seriously consider finding a seasoned colleague to help navigate the first walk through the jungle of military divorce. Add new terminology to your computer s spell check for Survivor Benefit Plan (SBP) and Thrift Retirement Savings Plans. Military divorce requires that an attorney become familiar with the Uniformed Services Former Spouses Protection Act found at 10 U.S.C (1982). Drafting Qualified Domestic Relations Orders (QDRO) to divide military retirement plans is a different process than dividing private company pension QDROs. Military QDROs must include specific wording directing the Defense Finance Accounting Service (DFAS) to apportion the retirement pay upon the service member s retirement. The order must be submitted to DFAS for approval and payment. In my experience, DFAS is most helpful to attorneys with questions. DFAS maintains an excellent informational website, found at which can be invaluable in navigating all the potential hazards of a military divorce. There are a number of excellent articles on this site relating to the division of military pension. (continued on page 17) 16 Section of Family & Juvenile Law September 2007

17 A Basic Divorce... (Continued from page 16) Two extremely valuable resources I frequently reference are 1) THE MILITARY DIVORCE HANDBOOK by Mark E. Sullivan and 2) THE SILENT PARTNER, a lawyer-to-lawyer resource for military legal assistance attorneys and civilian lawyers. The SILENT PARTNER is a publication of the Military Committee, Section of Family Law, of the American Bar Association prepared by COL. Mark E. Sullivan (USAR, Ret). There are a number of informative internet sites and other fine written materials on Military Divorce. Keep some handy in your office if you intend to handle military matters. Form an association with another attorney in your area who specializes in military divorce. As mentioned above, the American Bar Association maintains a Military Committee in the Section of Family Law, and would be an excellent place to start in finding other local attorneys who might mentor your efforts in this specialized area. 8. MEDIATION IS HERE TO STAY Mediation has rapidly become a standard part of a contested divorce where issues of support arise. Many retired judges are now mediators. Mediation has become a key judicial tool in settling opposing party differences where the parties cannot come to an agreement while in the courtroom. Mediation gives parties an opportunity to reach an agreement in a setting where each party may exercise more direct control over designing the solution to their problem. divorce clients. Learning how to overcome some of the described pitfalls will be time well spent. Please note that due to space limitations, the issues described in this article do not begin to provide a new attorney with a complete catalogue of practice pitfalls. However, this article may provide a place for you to begin in compiling your own research. As you progress, keep your own list of practice pitfalls and be a mentor to the next new attorney who comes behind you. Lawyers can enhance the quality of the legal profession by mentoring new practitioners. Due to space limitations, this basic primer details just a few of the pitfalls a new practitioner may encounter in a divorce practice. May the information contained herein encourage new practitioners to gain additional knowledge in these areas to enhance both their confidence and their service delivery to clients, and may it prod some seasoned family law attorneys toward mentorship of new lawyers of the firm. Beth Ann Lawson is a Partner with Lawson, Bryan, Johnson, Edwards-Talbot t/a Virginia Beach Law Group, 629 Wesley Drive, Suite 200, Virginia Beach, VA She received her BA from Virginia Tech, her MPA from Golden Gate University and her JD from Regent University, and can be contacted at (757) or balawson@vabeachlawgroup.com. The foregoing article is reprinted with the permission of the VBA Newsjournal. To learn more about mediation, contact a mediation center or the family court in your area to get information on the process. Inquire on how mediation is used in your local judicial proceedings. Attend an Introduction to Mediation training seminar. Understand when mediation can be used for the benefit of your client. It is important to note that any and all parties may participate in a mediation session, including the lawyers. Mediation does not preclude the use of a lawyer and should not be perceived as a threat to the legal industry. Many of the best mediators are licensed attorneys and retired judges who have found a new forum in which to apply their love of the law. SUMMARY As divorce statistics continue to advertise that one out of two marriages end in divorce in the United States, divorce attorneys are and will continue to be in high demand. Becoming familiar with the finer points of divorce law and procedure will enable new attorneys to provide effective representation to September 2007 Section of Family & Juvenile Law 17

18 Case Notes: Gestational Surrogacy in Maryland In re Roberto d.b. (May 16, 2007), Slip Op. Facts: In this case, the Appellant, Roberto d. B, a single man, wanted to have a biological child. To do so, he turned to Assisted Reproductive Technology and arranged for his sperm and the ova of an anonymous egg donor to be fertilized by in vitro fertilization, then had the embryos transferred to the uterus of another woman with whom he had contracted to serve as his gestational carrier. A gestational carrier, in contrast to a traditional surrogate, has no genetic link to the child. She serves only as a uterine host. In Appellant s case, the fertilization was successful, the gestational carrier became pregnant with twins, and she delivered Appellant s children at Holy Cross Hospital in Silver Spring, MD. The hospital followed standard procedure with respect to the children s birth certificate application, submitting information to the Maryland Division of Vital Records listing the Appellant as the children s father and the gestational carrier as the children s mother. In Maryland, the attorneys for Intended Parents working with a gestational carrier will often obtain a pre-birth order of parentage to enable the hospital to submit the correct information of the child s parentage to Vital Records immediately upon the child s birth. There was, however, no such pre-birth order in this case. The Appellant and the gestational carrier jointly petitioned the Circuit Court for Montgomery County to direct Vital Records to issue corrected birth certificates that would delete the gestational carrier s name, resulting in a birth certificate with a father s name but no mother s name. The Circuit Court refused, outlining two primary reasons: (1) there was no case law in Maryland that authorizes a trial court to issue a birth certificate without the mother s name; and (2) removing the mother s name would be inconsistent with the best interests of the child standard. The Appellant appealed the decision to the Maryland Court of Special Appeals. Prior to proceedings in that Court, the Court of Appeals of Maryland, on its own motion, granted certiorari. Issue on Appeal: The question on appeal was whether the name of a genetically unrelated gestational carrier must be listed as the mother on the birth certificate or whether, under these circumstances, a birth certificate could be issued listing only a father. Holding: The Court concluded that the State may not require the name of a genetically unrelated gestational carrier to be listed as the mother on the birth certificate. Therefore, in a case By: Diane S. Hinton, Esq. and Linda C. ReVeal, Esq Creative Family Connections LLC with a single father and a (genetically unrelated) gestational carrier, the birth certificate should properly list the name of the father only, with the name of the mother left blank. The lower court decision was therefore reversed and remanded. Reasoning of the Court In a 4-3 decision that included two separate dissents, the Court first concluded that a trial court may order the issuance of a birth certificate on which no mother is named. The Court then concluded that when there is an egg donor, a genetically unlinked gestational carrier and a biological father, the trial court must order the issuance of a birth certificate that lists only the father and no mother. The Court reasoned that the Maryland s Equal Rights Amendment forbids the granting of more rights to one sex over the other. Given that Maryland paternity statutes provide a means for a genetically unrelated man to disavow paternity, a genetically unrelated woman must similarly be allowed to disavow maternity. Otherwise, there would be an Equal Rights violation. Finally, the Court held that the best interest of the child standard (applied by the lower court) is typically applied in a dispute between two natural, fit parents and not between parents and non-parents, unless the natural parent is found to be unfit. Accordingly, the Court determined that the best interest of the child is inapplicable to the case at hand. (1) Maryland Law Permits the Issuance of a Birth Certificate on which no Mother is Named The Court concluded that Maryland law allows a trial court to order the issuance of a birth certificate without a mother s name. Specifically, the Court noted that Maryland Code (1982, 2005 Repl. Vol., 2006) of the Health-General Article allows for the issuance of a birth certificate in a situation in which a court of competent jurisdiction has entered an order as to the parentage, legitimation, or adoption of the individual. (Emphasis in original.) The Court reasoned that by using the word parentage without regard to gender, the statute provided a court the basis to make finding of law in connection with either a mother or a father and to order that a birth certificate reflect its finding. Accordingly, the Court found that a trial court can authorize a birth certificate that does not list a mother s name. The Court further noted that Vital Records had no objection to such a format, citing a letter approved by the Birth Section Chief of the Maryland Department of Vital Records, outlining the method (continued on page 19) 18 Section of Family & Juvenile Law September 2007

19 Case Notes... (continued from page 18) already in place by which birth certificates are obtained in the case of gestational carriers without the name of a mother. (2) Maryland s Equal Rights Amendment would be Violated if a Genetically Unrelated Mother Could not be Removed from a Birth Certificate. The Court found that any action by the State, which imposes a burden on, or grants a benefit to one sex and not to the other, without a substantial basis, violates the Maryland Equal Rights Amendment. The Maryland paternity statute outlines a procedure pursuant to which the State can establish paternity and thereby hold alleged fathers responsible for parental duties. The statute also provides a means for alleged fathers to disprove paternity, including through evidence supplied by a blood test or genetic test. If no genetic connection is found, a court in Maryland may declare that an alleged father has no parental status. The Court noted that the statute, as written, does not afford the same rights to women because it does not take into account all of the options provided in the current world made possible by Assisted Reproductive Technology. The Court explained: What had not been fathomed exists today. The methods by which people can produce children have changed; the option of having children is now available, using these methods, to people who, otherwise, would not be able to have children. Whether the reasons for having a child in the traditional sense are biological or not, adoption is no longer the only option. One can certainly imagine a married couple that is infertile, but wishes to have children of their own genetic makeup. Assisted reproductive technology allows for that to occur. The paternity statute, clearly, did not contemplate the many potential legal issues arising from these new technologies, issues that will continue to arise unless the laws are rewritten or construed in light of these new technologies. As it exists, the paternity statute serves to restrict, rather than protect, the relationships the intended parents wish to have with children conceived using these new processes. Slip Op. at 12. Given that the Maryland s Equal Rights Amendment forbids granting more rights to one sex than the other, the Court found that the paternity statue must be construed to apply equally both to males and females. To find otherwise would effectively require the State to force unwanted and unintended legal, parental status on a woman despite her lack of a genetic connection. Specifically, a woman must be allowed to disprove maternity by the same means by which a man can disprove paternity, and the State must issue birth certificates that reflect this finding. More specifically, in a case like this one, the biological father is listed on the birth certificate and the gestational carrier is not. (3) The Best Interest of the Child Standard is Inapplicable The Court rejected the lower court s suggestion that a Best Interest of the Child standard was applicable in this case. It explained that the Best Interests applicability is highly dependent on the circumstances of an individual case. After a lengthy review of case law, the Court identified two general scenarios in which the State ordinarily applies the Best Interests standard. The first is a situation in which two natural parents vie for custody of a child. Given that natural parents possess constitutionally protected, fundamental parental rights, in a custody battle each parent neutralizes the other s right and the State is left with the Best Interests standard in order to determine custody. Second, the Best Interests standard may be addressed in a dispute between a third party and a natural parent if the natural parent has been found to be unfit. In short, absent a finding that the natural parent is unfit, the constitutionally protected, fundamental parental rights of a natural parent automatically override the claims of a third party and the application of the Best Interests standard is unnecessary. The Court found that the case at hand involved neither scenario. This was not a case in which two natural parents disputed custody or in which a third party sought custody over a natural parent that had been found to be unfit. In fact, the Court determined that there was no dispute whatsoever over parental rights. Moreover, in this case the only natural parent was Roberto d. B and there was no finding or even an allegation that he was unfit. Accordingly, the Court ruled that the lower court was wrong to suggest that the Best Interests standard should be used. Dictum (and Analyis) The Court emphasized in its ruling that its decision was narrowly crafted: This opinion does not attempt to predict the future of reproductive technologies, it does not attempt to write policy on the topic of surrogacy, and it does not define what a mother is. Slip Op. at n.15. Notwithstanding this laudatory statement, the Court then went on, in dictum, to discuss matters outside the scope of its narrow ruling. Most notably, the Court stated, somewhat off-handedly, in what could be entirely contradictory both to the ruling of the case (which implicity approved a gestational carrier arrangement) and to countless lower court rulings in Maryland (in which gestational carrier arrangements are regularly reviewed), that it requires noting that surrogacy contacts [sic], that is the pay- (continued on page 20) September 2007 Section of Family & Juvenile Law 19

20 Case Notes... (Continued from page 19) ment of money for a child, are illegal in Maryland. Slip Op. at The Court cited as the basis for this statement two statutes that proscribe payments for the relinquishment of custody of a child and three reported decisions. Notably, neither the statues nor the cases cited involved surrogacy in any fashion. Rather, all involved payments to a birth parent in exchange for the relinquishment of custody or parental rights. There is no question that payment of money to a birth parent in exchange for the relinquishment of custody or parental rights is illegal under Maryland law. There is not, however, a single statute or case in Maryland holding that surrogacy contracts are illegal. Indeed, the only opinion at all before Roberto was a Maryland Attorney General s opinion, issued in While the Attorney General did opine that paying a fee to a traditional surrogate would raise a problem under Maryland s laws, he also concluded that the same problems would not be raised with a gestational carrier. 85 OAG 438 at n.22 (2000). The Court in Roberto acknowledged that the gestational carrier or genetically unrelated gestational host was a third party with no fundamental, constitutional protected, parental rights and therefore is not a natural parent. Using the Court s own reasoning, therefore, a gestational carrier, as a third party, has neither parental rights nor the right to legal custody to relinquish. Therefore, her fee cannot be in exchange for the relinquishment of such rights because she never possessed them. Indeed, the Court s inclusion of a letter from Vital Records, outlining the policy for the issuance of birth certificates that list only the names of single fathers with no mother listed, implies, at the very least, that the Court had some inkling that attorneys in Maryland have been obtaining birth certificates with a father s name and no mother s name in gestational carrier cases like this for some time. Just as courts read statutes in a manner that is consitutional and internally consistent, it seems prudent to read the Court s decision in a manner that is internally consistent and consistent with the laws and case law that exists in Maryland. The Roberto case can be read in just such a manner if the dictum is read to suggest that traditional surrogacy contracts, in which the carrier is also the biological mother and recieves a fee in exchange for relinquishing parental rights, are invalid under Maryland law. The Court s decision would then be internally consistent, as the dictum would be consistent with the holding. And the dictum would be consistent with the Attorney General s opinion, as well as with trial court rulings in Maryland in gestational carrier cases and with the stated policy of Vital Records. The Court said it was not making policy on surrogacy in general. Given that there have been no legislative or court proclamations outlawing gestational carrier agreements in Maryland, many members of the ART Bar hope and assume the Court meant what it said when it said it was not re-writing surrogacy policy. Early indications from lower courts imply that it is the Court s holding and not its dictum that will govern their subsequent rulings,as lower courts continue to grant pre-birth parentage orders in Gestational Surrogacy cases. Dissenting Opinions: (1) Dissent of Judge Cathell In a strongly worded dissent, Judge Cathell finds that this is a matter solely for the Legislature. He states that he does not necessarily agree or disagree with the remedy fashioned by the majority, but instead takes issue with the majority s actions to fashion any remedy at all, which he suggests creates public policy and usurps the role of the Legislature. Judge Cathell explains that the Legislature is far better suited to evaluate the possible ramifications of allowing a birth certificate to be issued with no mother named. In support of his argument, Judge Cathell outlines a number of situations that could result including a birth certificate with no parents listed whatsoever warning that the many potential affects on a child cannot be properly assessed through a judicial ruling. Judge Cathell perhaps gives a hint of to how he feels, however, when in the first line of his dissent he refers to Assisted Reproductive Technology as the process of manufacturing children. (2) Dissent of Judge Harrell, Joined by Judge Raker Judge Harrell, joined by Judge Raker, likewise declined to comment on whether the majority opinion was correct, but dissented on the ground that the record before the court was insufficiently developed, and therefore concluded that the case should be remanded for further proceedings. He noted that a case with such potentially far-reaching implications requires a properly developed record, complete with extensive briefing on both sides of the issues and lower court findings on all the questions before the Court. Among other things, he would direct the trial court to appoint counsel for the children to determine whether it was, in fact, in their best interest to be declared motherless before deciding whether that standard is inappropriate. Diane Hinson and Linda ReVeal are members of Creative Family Connections LLC, a law firm located in Chevy Chase, MD, that focuses exclusively on Assisted Reproductive Technology. Last year, through the use of gestational carriers and egg donors, their clients gave birth to 20 babies. At present, 15 babies are in utero, with many more in the early stages, with clients in the cycling or matching phases. Creative Family Connection s clients include single families, traditional couples, and same-sex couples. 20 Section of Family & Juvenile Law September 2007