Notes From Annapolis: Death, Disability, and Digital Assets

In the aftermath of the 2015 session of the Maryland General Assembly, we naturally focus our attention on bills passed by the Assembly and signed by the Governor.  But as we sift through the accomplishments of our elected officials, it is always important to consider the bills that did not pass and the problems that may ensue without adjustment to our Code. One such bill that did not receive a favorable review this year is the Maryland Fiduciary Access to Digital Assets Act (SB 429/HB 531).  If enacted, this bill would vest fiduciaries with the authority to access, control, or copy digital assets and accounts.  Typically such accounts – Facebook, e-mails, tweets and other on-line accounts – are governed by the contract created by the user of the account and the provider of the service without any reference to fiduciaries. Under the bill, fiduciary means a personal representative, guardian, agent acting pursuant to a power of attorney, trustee or advisor.    In essence, the bill would enable a fiduciary to “step into the shoes” of the account holder.  The fiduciary could take action that the account holder can take and would be bound by the same limitations of the account holder. While opponents of this bill cited concerns about the privacy of the account holder, as we collectively become more and more engaged in electronic communications and transactions, it is becoming increasingly apparent that those who are entrusted with managing our affairs – the fiduciaries we count on to perform tasks on our behalf – can encounter significant obstacles in dealing with on line transactions.  For example, in estate administration,...

Child Support: The Basics Versus The Extras

When parents of minor children live in separate households, providing for children’s financial needs can become especially challenging.  Occasionally, the press reports on studies that calculate the financial cost of raising a child until legal adulthood, and to most of us, the number of dollars is enormous.  Still, children need to be fed, clothed, sheltered, and cared for when parents are at work.  The basic health insurance needs of children must also be addressed. When evaluating the affordability of child support, it helps to understand the difference between what we want and what we need.  For legal purposes, child support is designed to cover the basic needs of children and, as a general rule, the law holds both mothers and fathers legally accountable for the financial support of their children.  For most people, the amount of child support will be calculated according to a formula established in the law.  This formula divides the obligation of child support in proportion to each parent’s income, allowing for variations that depend on the circumstances of the particular family.  For example, as one would intuit, the amount of child support that is appropriate for two children will differ from the amount for six children.  Similarly, the appropriate amount of child support will differ according to the actual residential time spent by the child in each parent’s home as well as the total amount of income generated by the family. Child support is not generally intended to cover expenses for extracurricular activities such as sports teams or dance lessons (nor will child support be ordered by a Maryland court to cover college tuition or...

Notes From Annapolis: Victory For Consenting Adults in Divorce Cases

The 2015 session of the Maryland General Assembly ended with the enrollment of a bill that will soon generate a quiet revolution in the practice of family law. Governor Hogan has not officially signed it, but HB 472 (Family Law-Grounds for Divorce-Mutual Consent) is likely to be approved and go into effect on October 1, 2015. HB 472 authorizes a court to decree an absolute (i.e. final) divorce on the ground of mutual consent.  In order to use the ground of mutual consent, spouses cannot have any minor child in common and must execute and submit to the court a written settlement agreement that is signed by both parties. This agreement must resolve all issues related to alimony and the distribution of property, and neither party may file a pleading to set aside the agreement. Additionally, both parties are also required to appear before the court at the absolute divorce hearing. HB 472 significantly eases the requirements for a no-fault divorce in Maryland.  Under our current law, spouses are required to live in two different homes and refrain from any sexual relationship for a minimum of one year before they are entitled to file for an absolute divorce.  HB 472 eliminates these requirement for couples without minor children in common. However, it does require these couples to sign a written settlement agreement that addresses money issues that relate to marriage, such as alimony and property.  If divorcing couples can accomplish this task, then they can promptly move forward and resume their status as single individuals without the expense of moving to a new home or dealing with the intrusive...

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...

Notes from Annapolis: Criminal Records

As a school child, you may remember a teacher’s threat to place a poor grade, bad behavior, or otherwise undesirable piece of information on your “permanent record.”  As mature adults we can now appreciate that the “permanent record” referred to by a frustrated educator probably did not have a lasting or meaningful impact on our lives. However, the permanent record with regard to judicial proceedings presents a different set of considerations.  Legislators in Annapolis continue to grapple with the complicated issue of expunging or shielding records of criminal convictions.  While this list is not exhaustive and more bills on this topic will likely be introduced in the 2015 session, here are some of the bills that deal with this topic: SB 16, Criminal Procedure – Expungement – Misdemeanor and Felony Convictions; SB 130, Criminal Procedure – Shielding – Misdemeanor Convictions; and HB 244, Maryland Second Chance Act. Proponents of the concept of limiting public access to criminal convictions argue that after a certain amount of time, a person who has experienced the consequences of a criminal conviction and now lives within the law should be able to be rehabilitated into society without always being judged by past behaviors.  In particular, proponents argue that shielding or expungement of criminal records will enable such individuals to compete fairly for a job.  Opponents of this concept argue that reliable information from court records is a basic necessity for the protection of all of us in society so we know the people we are dealing with and can make appropriate decisions in every day transactions.  It will be interesting to watch how this...

Notes from Annapolis: The Commission on Child Custody Decision Making

For those of us who follow changes in Maryland’s family law, December 2014 is an important month. On December 1, the Commission on Child Custody Decision Making released its final report to the General Assembly. As suggested by its name, the Commission took a comprehensive look at the topic of child custody in our state. Born of repetitive introduction of clashing bills on the topic of child custody, the Commission came into being following the passage of legislation by the General Assembly, effective in July 2013. The members of the Commission included individuals who have expertise or particular interest in this topic, and the members of the Commission represented a variety of perspectives and constituencies. To accomplish its mission, the Commission divided into six distinct committees, met over 90 times, and identified issues raised at five public hearings. The December 1 report marks the fulfillment of the Commission’s responsibility to study the child custody decision-making process and to report its findings and recommendations to the General Assembly. The Commission’s entire report of over 300 pages can be found on-line. While all of the findings and recommendations contained in the Commission’s report are too numerous to be listed here, the influence of the report prepared by this Commission may be significant. Previous reports by Commissions on domestic relations law–particularly with respect to alimony and marital property– have set the stage for major statutory initiatives in family law. An initiative on the topic of child custody in Annapolis in the coming year is likely. Included in the Commission’s report is a proposed draft custody statute. The proposed draft custody statute neatly...