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Notes from the Desk of Cynthia Lifson: Crafting Language

  As I write this paragraph, I am taking a break from drafting amendments to a bill that has been introduced in the Maryland General Assembly on behalf of one of my legislative clients.  The drafting is tricky because the amendments are responding to new information gleaned through my interactions with legislators followed by additional communications with my client.  The goal of this exercise is to push the law forward so that the problem presented by the original bill introduced in the General Assembly is sufficiently addressed and at the same time to handle the objections articulated by opponents of the bill adequately so that the bill can pass the General Assembly. Crafting legal language is tedious work and requires adherence to specific stylistic conventions.  Translating thoughts into language that will be interpreted by our courts and that will ultimately affect the lives of our citizens can be difficult.  This effort is one of the most important tasks performed by attorneys and it applies not only to legislative advocacy, but to nearly all of the work that we do with respect to resolving disputes and creating documents that reflect such resolutions. As demonstrated in the Baker case discussed in the above article, courts scrutinize language contained in a contracts carefully.   To avoid ambiguity in a contract, the provisions of a contract must be expressed clearly.  A written agreement is not ambiguous merely because two parties in litigation offer different interpretations of its language, but will be found to be ambiguous if, when read by a reasonably prudent person, it is susceptible to more than one meaning. To avoid difficulties...

Notes from the Courts: Know Your Marital Assets & Say it Clearly in Writing

The recent decision by the Maryland Court of Special Appeals in Baker v. Baker reminds us that in order to avoid differences in the interpretation of an agreement, it is crucial for an agreement to expressly contain the complete articulation of each and every element of the agreement.  If a clear and complete articulation of the terms of an agreement is absent, the court will look to principles of law and regulation to resolve an issue. The Baker case involved the allocation of a marital asset that was not specifically addressed in the marital settlement agreement signed by the parties.  The language of the agreement of the parties required Wife to relinquish to Husband any interest she might have in any jointly titled investment or bank accounts.  At the time of the divorce, the parties had a capital-loss carry-forward that resulted from losses in their investment accounts, but this specific asset was not discussed in their agreement.  The carry-forward came about because the Internal Revenue Code limits the amount of a capital loss that taxpayers may use to reduce their tax liability in any given year, but allows taxpayers to defer (or carry-forward) the excess loss to reduce tax liabilities in future years.  After the divorce, Ms. Baker used about 50% of the capital-loss carry-forward to offset the gains she had realized from the sale of a parcel of real property. Mr. Baker argued that because their agreement stated that Wife was required to relinquish any interest she may have had in any jointly titled investment account, Husband was entitled all of the capital-loss carry-forward asset.  While the trial...

Notes from Annapolis: Calming Custody Chaos

Following the December 2014 release of the final report of the Commission on Child Custody Decision Making, the Maryland General Assembly is now evaluating bills to address children in custody cases.  These bills will give judges guidelines on how to decide legal custody–the legal right and obligation to make major decisions on behalf of minor children, and physical custody– the daily living arrangements for minor children when their parents do not reside in the same home.  In general, two competing visions are contained in the legislative proposals introduced in the 2015 session. The proposal endorsed by the Commission (SB 550/HB 1083) begins with the principle that is now our current law.  In this approach, both mother and father stand before the law equally and neither parent is presumed to be the superior or inferior parent.  This bill requires judges to analyze the “best interest of the child” when reaching a decision about parental responsibilities and arrangements for the child.  It places the child at the center of the process and sets forth a series of factors that the court both must consider and may consider in its ruling.  It requires the judge to articulate the reasons why the court arrived at its decision. The chief competing proposal before the General Assembly (SB 650/HB 888) begins with a different principle.  This bill asserts that joint legal decision making and shared physical custody of the child with both parents for approximately equal periods of time is the starting point in defining the best interest of the child.  As a matter of public policy, this bill favors co-parenting arrangements, but permits litigants...