Blogs from June, 2023

The number of people choosing to live together without going through a formal marriage is rising every year. But non-marriage alternatives like civil unions and domestic partnership are imperfect replacements for a legal marriage. Before you decide to skip filing a marriage license, be sure you understand the property problems presented by civil unions and domestic partnerships in Maryland.

Who Can Get Married in Maryland?

In Maryland, two individuals can be legally married if they:

• Are both 18 years old or older (a 16 or 17 year old can be married with parental consent and/or proof of pregnancy)
• Are not married to anyone else
• Are not too closely related to one another
• Obtain a marriage license in the county where the wedding will be performed
• Wait at least 24 hours after obtaining the marriage license (but not more than 6 months)

Same-sex marriage has been legal in Maryland since 2012, when the state passed the Civil Marriage Protection Act, changing Maryland law to allow “a marriage between two individuals” rather than between a man and a woman.

What are Domestic Partnerships

Before you decide to skip the marriage license, we invite you to speak with a Maryland family lawyer to learn more about unique issues often encountered when ending a domestic partnership, and how we can help you create a contract to avoid them.

Maryland law also allows couples to enter into a domestic partnership, as an alternative to marriage. The domestic partnership law was created in 2008, and it creates a committed relationship between two people who live together but are not married. It forms a kind of domestic contract where the domestic partners agree to depend on each other and contribute to the maintenance and support of one another and the relationship. It is formed by signing an affidavit together and providing proof of cohabitation and mutual support.

The best proof of intent to form a domestic partnership is a domestic partnership agreement. This is a contract signed by both partners, laying out how they intend to share finances and assets, and to work together to form a single household. It also includes provisions for what they want to happen if the partnership breaks down or one partner dies. (However, separate estate planning documents must be signed to actually convey property to the domestic partner).

Domestic partners are entitled to many of the same benefits as spouses, including the ability to:

• Visit each other in jails and hospitals
• Share a room in a nursing home
• Make funeral and burial decisions for one another
• Transfer the couple’s primary residence between partners tax-free
• Assert certain housing rights

Domestic partners may also get married to one another without first terminating the domestic partnership.

Can You Get a Civil Union in Maryland?

There is no law allowing Maryland residents to enter a civil union. Domestic partnerships fill this role. However, Maryland will recognize a civil union entered under another state’s laws. Maryland family courts will also dissolve a civil union entered in another state in a divorce action, with some limitations.

Domestic Partnerships and Civil Unions Raise Property Problems in Maryland

Domestic partnerships allow unmarried couples to share finances and raise children together, but they don’t provide all the same protections as legal marriage. The same is true for civil unions. This can create problems dividing property when these non-marriage relationships break down.

In a divorce, Maryland residents are entitled to an equitable division of all marital property, including houses, vehicles, bank accounts, personal property, business interests, and retirement assets. This applies no matter whose name the property is held under. Unlike married couples, domestic partners’ rights to jointly titled real property is defined by how that property is titled. One domestic partner is not automatically entitled to an equitable division of property accumulated by the other partner during the domestic partnership. The same is true to members of a civil union.

Similarly, married couples can transfer assets back and forth between them without any tax consequences. While Maryland domestic partnership law applies this same rule to a domestic partnership’s primary residence (as long as it is titled to both partners as joint tenants), other property, including vehicles, rental properties, or retirement assets, could come with tax consequences when those properties are divided.

Finally, the division of a domestic partnership’s assets is generally governed by the couple’s agreement. While some couples enter formal domestic partnership agreements, many do not. Without that contract, domestic partners can lose out on many of the property rights they would have had simply by filing a marriage license instead of a domestic partnership affidavit.

There are many good reasons to choose a domestic partnership over a legal marriage. However, you should know your rights – and what rights you are giving up – before making that choice. A well-drafted domestic partnership agreement can give committed life partners many of the same rights as married couples, particularly when paired with Maryland’s domestic partnership laws. Before you decide to skip the marriage license, speak with a Maryland family lawyer to learn more about the property problems in domestic partnerships, and how you can create a contract to avoid them.

Property division can be challenging in a traditional marriage. A domestic partnership makes many of those problems even harder. If you are considering entering a domestic partnership and need an attorney to prepare an agreement, or if you signed a domestic partnership affidavit and now that relationship has broken down, we can help. The Law Office of Shelly M. Ingram is able to help you reach a resolution that works for your family. Call us at (240) 652-2596">(240) 652-2596 or contact us here to schedule a consultation at our Howard County family law firm located in the Maple Lawn business district of Fulton, Maryland. We look forward to working with you.

When conflict is high in a divorce or custody case, sometimes a child’s voice, and even their best interest, can get lost in the debate between parents. In cases of family violence or abuse, or when a child’s special needs require special attention, the Maryland Family Court judge may appoint a lawyer to advocate for your child and assist the Court in determining the child’s best interest. Understanding who the child’s lawyer is, and her role in the case, will help you take full advantage of this court-appointed resource, and make sure your child’s needs are being met. 

Why a Legal Representative for Your Child May be Appointed to Your Case 

Maryland Family Court judges have the authority to appoint child lawyer in divorce, child custody, and contested child support cases. This happens when there are special concerns about whether the child’s interest is being adequately reflected by the parents. (More on that later.) In fact, in Maryland, a child age 16 or older even has the authority to file his or her own motion to change custody. When that happens, or when high conflict between parents threatens to drown out a child’s needs and best interests, the Court may appoint a child lawyer to step in, meet with your child, and represent his or her best interests, privacy interests, or preferences in court. The Court can appoint a child representative on a motion from either party, or on its own initiative. 

When a Maryland Court Will Appoint a Child Lawyer

Not every high-conflict case requires an independent child lawyer. According to Maryland Law, when deciding whether to appoint an attorney for a child, the Court is instructed to consider:

• The nature of potential evidence to be presented
• Other methods of obtaining that information (including social service investigations and mental health evaluations)
• Available resources for payment (most often one or both parents)

While cost, and the parents’ ability to pay, is a consideration, your child will not be deprived of representation just because you are unable to pay for it. When circumstances require, the Court has the authority to appoint child attorneys, and to request that those attorneys represent children pro bono, without cost to the parents. 

The rule also outlines several factors indicating when appointment of a child lawyer is most appropriate:

1. Request of one or both parties;
2. High level of conflict;
3. Inappropriate adult influence or manipulation;
4. Past or current child abuse or neglect;
5. Past or current mental health problems of the child or party;
6. Special physical, educational, or mental health needs of the child that require investigation or advocacy;
7. Actual or threatened family violence;
8. Alcohol or other substance abuse;
9. Consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent;
10. Relocation that substantially reduces the child’s time with a parent, sibling, or both; or
11. Any other factor that the court considers relevant.

Why Parents May (or May Not) Request a the Appointment of a Child’s Lawyer

In certain cases, a child’s lawyer can be a powerful advocate to cut through the noise of litigation and make sure your child’s best interests are being met. A child’s legal representative can be especially helpful in cases where the two parents’ stories are vastly different, or where one party has been abusive or manipulative in the past, such as when trying to divorce a narcissist. They can also be powerful allies in cases involving Child Protective Services investigations, or parental interference. Finally, they can provide assistance when a child’s medical or mental health needs are at the center of the child custody dispute. 

If your child’s other parent is resisting the appointment of a child lawyer, it may be because of the cost of bringing a third attorney into high-conflict litigation. While pro-bono child representatives are sometimes an option, more often, parents will be asked to pay some, if not all, the child’s attorney’s fees. 

However, a parent may also object to the appointment of a child advocate out of concern that an independent legal representative for the child will uncover uncomfortable information about the parents. It is important to remember that no parent is perfect. If a child’s lawyer is doing her job, she will find good and bad things about both parents. The goal is to provide your child a voice in the courtroom, and to assist the Court to sort out the good and the bad to determine what is in your child’s best interests.

3 Types of Child’s Lawyers in Custody Cases

Our child custody attorneys can help you protect yourself and your children in a high-conflict divorce, custody, or child support case. We know when and how to work with a court-appointed child’s lawyer. Contact us to schedule a confidential consultation with one of our Maryland attorneys.

The term “Child’s Lawyer” is an umbrella term that covers the various roles an attorney can play in representing a child’s interest in court. These legal professionals can take on one (or more) of three possible roles:

Best Interest Attorney

A Child’s Best Interest Attorney (previously known as a “guardian ad litem”) is an attorney appointed by the court to protect and advocate for what she determines to be the child’s best interests. When appointed, she will:

• Meet with your child;
• Explain her role in the case;
• Visit the child in each parent’s home; 
• Interview parents, teachers, counselors, doctors, childcare providers, and other relevant witnesses;
• Observe each parent’s interactions with the child;
• Review educational, medical, mental health, and other records;
• File and respond to motions;
• Receive information and documents related to the case (Discovery);
• Participate in settlement negotiations;
• Prepare your child for any meetings with the judge or testimony they may offer;
• Call witnesses and present evidence and arguments at trial. 

A Child’s Best Interest Attorney does not submit reports directly to the Court, and cannot be called as a witness to testify at trial.

Child Privilege Attorney

Every person has a right to keep certain information private, such as:

• Certain medical and educational records,
• Therapy or mental health information including both diagnosis and treatment,
• Communication with privileged individuals (such as clergy or counselors).

When that protected information is used in court, the person to whom it is related has the ability to assert a “privilege” to exclude it as confidential. 

Under Maryland law, a parent cannot waive a child’s right to protect that information for his or her own benefit. However, sometimes, information related to a child’s wellbeing is needed to determine their best interests. Most often, this information comes from the child’s therapist, psychologist, psychiatrist, doctor, religious leader, school counselor, or social worker. 

To protect the child’s privileged information, the Maryland Court can appoint a Child Privilege Attorney (formerly known as a “Nagle v Hooks Attorney” after a 1983 Maryland Supreme Court case of the same name). This type of child’s lawyer is authorized to decide whether it is in the child’s best interest to release the protected information. If not, the attorney may assert the child’s privilege at court and prevent testimony or admission of evidence related to the confidential information. The Court must appoint a Child Privilege Attorney anytime confidential information is going to be presented and the child is not mature enough to assert his or her own privilege. 

Child Advocate Attorney

The third type of child lawyer is the Child Advocate A Child Advocate is generally only appointed to represent teenagers or older children. Often, a Child Advocate also serves as a Child’s Privilege Attorney. A Child Advocate has the closest to a traditional attorney-client relationship with the child they represent. She acts as an independent lawyer for the child, representing the child’s position at court and following their instructions. Unlike a Best Interest Attorney, communication between a Child Advocate and the child she represents is confidential. 

Should Parents Talk to a Child’s Lawyer? 

Your child’s attorney has the authority to talk to you, and in some cases to observe you and your child together in your own home. It may be natural to try to persuade your child’s lawyer to see things from your perspective. To an extent, a child’s lawyer does rely on parents, and their attorneys, to understand the issues in the case, and provide context for the child’s preferences. 

However, you should always remember that what you say to your child’s lawyer is not protected by attorney-client privilege. If you pressure the lawyer to sway her best interests, determination, or admit to contested issues, those statements may be used against you later in the case. Try to keep the focus on your children, and on the facts of the case, rather than your emotions. If you have concerns about talking to your child’s lawyer directly, talk to your own attorney. They may be able to arrange a meeting time, place, and situation that will protect your interests, or even be present to speak on your behalf.

Can a Child’s Lawyer and the Child Disagree?

As part of her role, a child’s lawyer must determine whether the child has “considered judgment.” That is, whether the child understands the risks and benefits of their legal position and can reasonably communicate their wishes to the Court. In making that determination, the legal representative for the child should consider several factors:

• The child’s cognitive ability, socialization, and mental and emotional development;
• The child’s ability to express their position, communicate with the attorney, and explain the reasons behind their legal position;
• Relevant reports (such as from social workers, mental health professionals, or schools) that may support or contradict their position

Even children with cognitive or emotional disabilities may have “considered judgment.” However, it may be necessary for the child’s counsel to speak with professionals, family members, or other witnesses to determine whether the child’s position is their own. They may also need to have a professional evaluation done to determine the child’s ability to form and express their opinion. 

As many parents know, what a child wants is often not what is in their best interests. When a Child Best Interest Attorney’s determination differs from the child’s “considered judgment,” the child’s lawyer is required to make the child’s position known to the Court as part of the record. However, it is her job to advocate for the child’s best interests, not necessarily the child’s desires. 

In contrast, a Child’s Advocate is the child’s lawyer, for good or ill. A Child’s Advocate must advance the child’s preferences and position, even if it conflicts with the lawyer’s own beliefs about the child’s best interests. 

At the Law Office of Shelly M. Ingram, our child custody attorneys can help you protect yourself and your children in a high-conflict divorce, custody, or child support case. We know when and how to work with court-appointed child lawyer, and can help you decide whether to request separate legal representation for your child. Read our blog covering co-parenting tips.  Call (240) 652-2596">(240) 652-2596 or contact us online to schedule a confidential consultation with one of our Maryland attorneys.