Frequently Asked Questions
Your Basic Rights & Responsibilities
Your basic legal rights and responsibilities may not always be clearly defined by law enforcement officials. If stopped or detained, politely ask the police officer “why?” in a manner that is not confrontational. Remember, your priority should be to alleviate or minimize the potential charges and/or use of excessive force against you. In some states, there are no clear statutes or laws which delineate the use of deadly force by law enforcement officials. In theses instances, the courts will decide, on a case-by-case basis, what is considered deadly or excessive force.
A Word of Caution
Laws and law enforcement procedures may vary from state to state. You should consult an attorney or law enforcement representative who is familiar with the laws in your state. Our office is ready to assist you.
What Are "Preliminary Hearings" in Criminal Cases?
In the Maryland criminal justice system, a preliminary hearing may occur when a
defendant is charged with one or more felonies. The practice in most other
Maryland counties is to only schedule a preliminary hearing upon request
of the defendant. Criminal defendants must make the request within ten days
of the arrest or file a motion for good cause with a judge.
Preliminary hearings are conducted in the Maryland District Courts. If a judge
finds probable cause, the case is sent (held over) to the Circuit Court for
arraignment and possible trial. If the judge does not find probable cause
that a felony has been committed by the defendant, then felony is dismissed. If a defendant is also charged with one or more misdemeanor, those charges remain and will be set for trial on another day at the District Court level. Simply put, a District Court judge must find some link between the felony and the defendant. In most preliminary hearings in Maryland, the arresting officer will take the stand and read from his/her police report. The standard of review in a preliminary hearing is in the “light most favorable to the state”. In simple terms, the judge will give the prosecuting attorney the benefit of the doubt when determining if the defendant has committed the crime. The defense attorney is permitted to ask limited questions pertaining to the facts. An experienced criminal defense attorney will try to obtain as much detail from the police officer, under oath, for use down the road at trial. For such reasons, holding a preliminary hearing may be useful to the defense-even if the judge does not dismiss the felony charge(s).
Often times a defendant will show up for court expecting a preliminary hearing, only to find that 1/ the case has been indicted by a grand jury, 2/ the prosecutor has exercised his/her discretion and dropped the felony(s), or 3/ the entire case has been dropped (nolle pros) or placed on the stet docket (indefinite postponement). Often, an experienced criminal defense attorney can sway the prosecutor into dropping the charges even before the preliminary hearing is held.
For more information on a criminal defendant’s rights and the strategy of holding a preliminary hearing in Maryland,
please contact the Law Offices of Gabriel J. Christian & Associates, LLC for a free consultation.
What Happens When One is Charged With A Crime?
A person may be charged with a crime before they are arrested. If this happens, a judge will issue a warrant for the person’s arrest. A police officer will attempt to locate the person who is the subject of the warrant. If the person is located by the police and arrested, the police must give the person a copy of the warrant that states the charge for which they are being arrested. The police do not necessarily need to have a copy of the warrant with them at the time of the arrest, but they should provide a copy to the arrested person within a reasonable amount of time afterward. After a person is arrested, they will be “booked” at the police department. This entails taking fingerprints and completing other procedural requirements. The person will then be held in police custody pending a court hearing. This hearing will usually take place within 48 hours.
When a person is taken into police custody, they have the right to speak to a lawyer. The person will be allowed to contact that lawyer. The person should have at least a brief opportunity to meet with their attorney before their initial court hearing. At the court hearing the judge will read the charges against the person, who is called the defendant. If a person was arrested without an arrest warrant, this may be the first time that they are told the charges against them. The judge will try to make sure that the defendant understands the charges. The judge will then ask the defendant to enter a plea. A defendant can enter a plea of “not guilty”, of “no contest”, or of “guilty”. Even if a defendant is guilty, they can enter a plea of not guilty, if they think that there is not enough evidence to prove their guilt. In any case, a plea of not guilty will lead to a trial where the government will have to prove, beyond a reasonable doubt, that the defendant is guilty of the crime that they are charged with.
A jury will have to decide, based on the evidence presented by both sides, whether the defendant is to be found guilty or not guilty. In some cases, a defendant may waive their right to a jury trial, and the judge will be the one to decide if they are guilty or not guilty based on the evidence that is presented. The defendant should consult with their lawyer about whether or not they should waive their right to a jury trial. If the result of the trial is that the defendant is found not guilty of the crimes charged, they will be released from custody. If the result of the trial is that the defendant is found guilty or if there is no trial because the defendant entered a plea of no contest or of guilty, then there will be a sentencing hearing.
There may be evaluations of the defendant that are performed prior to the sentencing hearing. For example, if the crime is DWI the defendant may be evaluated to determine if they have a substance abuse problem. The court will also make a pre-sentencing report, which is basically an investigation into any prior criminal history of the defendant. This information helps the judge determine an appropriate sentence. At the sentencing hearing, there may be an opportunity for individuals to speak to the court about what factors they feel the court should take into account in determining a sentence. These individuals can include the victim of the crime, the victim’s family, the defendant, the defendant’s family, and any other interested party.
The judge will consider all of the evidence presented and take into account any sentencing requirements. The judge will then enter a sentence for the defendant. If the crime was relatively minor, and the defendant has been in custody during the whole court process, they may have already served the jail time that is imposed by the judge. If the crime is more serious, the defendant may face even more jail time. A criminal sentence may involve more than serving time in jail as well. The defendant may be ordered to pay fines, to give restitution to the victim, to undergo treatment for substance abuse or mental problems, to perform community service, or many other things.
Anyone who is charged with a crime should hire an attorney with experience in criminal defense to represent them.
This is the best way to make sure that their rights are protected, and that they obtain the best possible outcome.
Certain constitutional protections apply to a person charged with a crime. There are also certain procedures that are roughly the same from jurisdiction to jurisdiction.
The following is a brief description of what happens when a person is charged with a crime. Confer with a Criminal Defense Attorney immediately if you or someone you know have been arrested or charged with a crime. Getting legal help is critical to ensure a defendants rights are protected.
What does it mean to be cited, charged or arrested in Maryland?
When dealing with law enforcement, and individual can be cited, charged, and/or arrested. Citations are typically given for minor traffic violations, and generally do not require an individual to go to jail. Being charged means that you have been formally accused of committing a crime, and being arrested means that you have been physically taken into custody.
In some instances a person can be arrested without being charged. In such cases the police make the arrest and then submit the evidence to the prosecutors, who then decide whether to charge. If the prosecutors believe the evidence against the individual is weak, they will not formally charge the individual. Alternatively, a person can be charged without being arrested. In these types of cases, evidence gathered by detectives is submitted to the prosecutors, who then present it to a judge who may issue an arrest warrant. In Maryland, police officers can file charges independent of a judge or court commissioner, but some crimes must be committed in the presence of the officer in order for this to be legal.
Maryland Criminal Court Procedure
What court an individual is tried in depends on whether he or she is facing misdemeanor or felony charges. Essentially, misdemeanor charges are less serious, and potential penalties include fines and jail time for less than one year. Misdemeanor cases are tried in the District Court system. Felony crimes such as drug trafficking and homicide are handled differently by the court system due to their seriousness. Felony crimes are tried in the Circuit Court, though initial charges may be brought in the District Court.
If you've been charged with a misdemeanor in Maryland, you may or may not be detained and taken to local jail. If you are taken to jail, you will eventually be taken before a jail commissioner who will set your bond as well as the conditions of your release. If you're fortunate, you will be released on your own recognizance, which means that you will not have to pay to get out of jail. Otherwise, the commissioner will set forth an initial bond amount. At this point there are three options: 1) post the full amount of bond; 2) hire a bail bondsman to cover your bond and pay him or her a 10% commission; or 3) wait until the next day for the bond hearing. If you hire a criminal attorney prior to the hearing, he or she can often convince the judge to lower the bond amount. Although most individuals want to leave jail as soon as possible, a great amount of money can often be saved by hiring a lawyer to have the bond lowered to a reasonably affordable amount.
The first court appearance after being charged with a misdemeanor is the "preliminary inquiry", where the defendant is advised of his or her charges and the potential penalties, and also made aware of the option to hire a public defender if the specific charge is punishable by jail time and he or she cannot afford to hire an attorney. There are certain financial conditions that must be met in order for someone to be eligible for a public defender. Also at this time a trial date is tentatively scheduled to be held in a Maryland district court.
If you've been charged with a felony in Maryland, you or your attorney have the option to request a "preliminary hearing" within 10 days of your arrest. At this hearing, the prosecution must establish probable cause for each of your charges, which is a very low burden of proof. Essentially, the prosecution must establish that each of the alleged crimes may have occurred, and that the defendant may have committed them. The defense cannot offer any evidence, but can cross examine any of the prosecution's witnesses. Unlike in a criminal trial, hearsay evidence is allowed, and is often used to establish probable cause. A preliminary hearing can be waived; however, a criminal defense attorney will usually opt to have the hearing in order to assess the initial evidence against the defendant. Also, any statements that are elicited from the prosecution's witnesses can be used against those individuals at trial if they decide to change their story. After analyzing the evidence presented at the hearing, the judge can 1) reduce charges, 2) dismiss charges, and/or 3) "hold the charges over" for trial. In most instances, the charges are held over for trial. In some instances, a plea arrangement can be reached to avoid trial.
If the prosecution chooses, they may opt to utilize a grand jury proceeding in lieu of a preliminary hearing. The fundamentals of a grand jury are the same; however, 23 jurors decide whether charges should be held over instead of a judge. If they decide to hold the charges over, this is called an indictment.
After the preliminary hearing or grand jury proceeding, a 4-215 hearing is held in circuit court. This hearing is essentially the same as a "preliminary inquiry" which is discussed above. A few additional tasks are completed however: 1) a status conference is scheduled, 2) motions dates are scheduled if applicable, and 3) the trial date is scheduled. A status conference is an opportunity for the defense and prosecution to determine if any issues need to be resolved before proceeding further. A motions hearing is an opportunity for the defense or prosecution to have the judge make pre-trial rulings, such as whether certain evidence will be allowed at trial. It's important to note that the 4-215 "starts the clock", meaning that from that date, prosecutors have 6 months to being the defendant to trial, or risk having the case dismissed.
What Should I Do If I Am In A Car Accident?
If you are involved in a car accident, the first rule of thumb is to keep
everyone safe. Make sure that no one in your car is injured. If no one
is seriously injured, exit the vehicle after checking to make sure that
no cars are coming. If possible, drive your car to the side of the road
to keep yourself out of the way of traffic.
Approach the drivers of the other cars involved in the accident, but
remember to keep a cool head. After an accident, everyone involved
will be shaken up, and so level headed thinking will be tremendously
helpful. Additionally, no matter what happened, do not admit guilt at the scene. Even if the accident was your fault, simply collect contact information from the other drivers and do not confess to anything until you speak with your insurance company.
The most crucial information to gather from other drivers after an accident is their license plate numbers, driver’s license numbers, full names, telephone numbers and addresses. Also collect their insurance information if possible. It’s a good idea to keep a disposable camera in your glove compartment so that you can document an accident for your insurance company. Take pictures of the overall scene of the accident, as well as specific damage to your vehicle and the other vehicles involved. After collecting information from the other drivers and documenting the damage, call the police to file an accident report, and then call your insurance company.
If anyone involved in the accident has been injured, the very first thing you must do is to call 911. Use any first aid equipment or blankets that may be in your trunk to attend to injured people until an ambulance arrives. If any of your passengers, or the driver of your car, have been injured, you’ll want to contact a personal injury attorney as soon as you get to a safe place. A personal injury attorney will work with your insurance provider to collect money from the at-fault driver to cover hospital bills and any other medical fees. Again, if someone is injured, do not admit fault in the accident until you have first spoken to a personal injury attorney. We are seasoned Personal injury attorneys who have successful strategies for helping injured victims in any type of accident, and you will want us to do the speaking on your behalf.
What is a marital separation agreement?
A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce, even while you and your spouse are still living together.
Why is a Marital separation agreement important?
If you have no marital property, no joint debts, and no children, you probably don’t need a marital separation agreement to get a no-fault divorce. However, if you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Separation Agreement. An agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings.
Do I have to file a Marital Separation Agreement with the court?
When you initially execute your Marital Separation agreement you do not have to file the Agreement with the Court to be effective. When you begin the divorce proceedings you will, in most jurisdictions, attach the Marital Separation Agreement to the complaint and ask the court to merge, but not incorporate, the Agreement into the final judicial decree. If the Marital Separation Agreement is incorporated into the decree, it becomes a court order and is enforceable by the court’s contempt powers. If you don’t incorporate it into the decree, it simply becomes a contract between you and your spouse, which you later have to sue in a separate action to enforce. If the separation agreement is not incorporated into the divorce decree, and your spouse violates the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree.
What Should I Do If I Want A Divorce?
Divorce is never pleasant; avoid it, if possible. Some divorces
are more unpleasant than others, and some are necessary to
clear away a mistake that blocks you from leading a better life.
This web site describes many things; some will apply in your
case and some will not. However, knowing those that apply will
help you avoid some problems and deal better with others. It
does not and cannot cover all of the issues, laws, or rules
Maryland laws on divorce are always subject to amendment by
the legislature, to reinterpretation by the courts, to different
application by different judges, and to factual variation from
case to case. Before acting on what you have read, talk to us
first—that is why we are here. This is not legal advice
specifically for you. It is information which we believe will make
matters less difficult for you.
Divorces in Maryland can be “contested”, which requires adversarial proof, or they can be “uncontested” (which are usually based on a mutual and voluntary separation of one year).
1. Uncontested Divorce. If the parties agree to be divorced, you must have a written Separation Agreement that makes adequate and sufficient provisions in writing for the custody and support of the minor children of the marriage and makes a fair and equitable division of your property. There are also additional technical requirements, but the Separation Agreement is the essence of an uncontested divorce. As for assessing fault for the marriage breakdown, you only need to say that differences have arisen that will prevent you from living together as husband and wife, there is no hope of reconciliation and you intend to end the marriage.
2. Contested Divorce. A contested divorce is a case in which the parties cannot agree on one or more points (property division, alimony, custody, child support, or attorney’s fees). Even when parties have lived separate and apart for one year, and wish to be divorced but cannot agree to the terms of financial settlement, or custody, it is still a contested divorce.
A permanent and final divorce is called an “absolute divorce” in Maryland. All divorces require proof of grounds. If you are filing for divorce, you need to have your grounds before you file. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for the award of legal fees to your spouse. Pending the final divorce you should not do anything to give your spouse any grounds for divorce because it can probably be used against you. In Maryland you cannot be living separate and apart under the same roof. Other jurisdictions may provide for separation under the same roof but this is difficult to prove.
The grounds for an “absolute” or final divorce in Maryland are as follows:
1. One Year’s Mutual and Voluntary Separation. Living separate and apart for one year without interruption.
2. Two Year’s Involuntary Separation. Living separately and apart for two years without interruption.
4. Desertion. For one full year without legal cause, actual or constructive (you are forced to leave by the behavior of your spouse).
5. Conviction of a Felony or Misdemeanor. Requires incarceration for one year under a sentence of three or more years.
6. Insanity. Confined to a mental institution for at least three years.
8. Excessively Vicious Conduct.
If you are not ready for a divorce but you want to talk things over with someone, we recommend counseling and we will be glad to recommend some counselors. If you do not want a divorce, do not get one. However, even if you do not want a divorce, after two years of continuous, uninterrupted separation, your spouse is entitled to proceed, whether or not you agree. The law does not force people to stay married if they are determined not to.
Defenses to the grounds for divorce include:
1. Condonation. Knowing what your spouse did wrong but forgiving him or her anyway; this is usually proven by showing that you and your spouse had sexual relations after you found out what your spouse did.
2. Insanity. A defense to divorce if the person who is guilty of the grounds for divorce was insane when he or she committed the act. The insanity must be to the same degree as in a criminal case. If the person is insane at the time of trial, the case can still proceed against him or her but the court will appoint an attorney to look after his or her interest. These facts are unusual.
The law of defenses is subject to change, and for technical reasons the defense that sounds like it applies in your case might not apply. Ask us about it.
A form of legal separation in Maryland is called a “limited divorce”. It also requires that you have grounds. The grounds for a limited divorce are different than the grounds required for an absolute divorce, and they are as follows:
1. Voluntary Separation. Without reasonable expectation of reconciliation. (No Minimum Duration).
2. Desertion. (No Minimum Duration.)
4. Excessively Vicious Conduct.
A legal separation may have some advantages in certain cases, e.g. remaining on health insurance, or tax benefits. Ask us about it.
We don’t normally recommend a limited divorce because you usually wind up divorced anyway, and instead of paying for one lawsuit, you pay for two.
Annulments are granted by the court only in certain rare cases. The legal effect is to void a marriage from the very beginning—as if the parties had never married. If for religious or other reasons you want an annulment, tell us before the divorce is filed.
Prior to filing your petition, you must have resided in Maryland for one year. However, emergency, custody or other matters may be filed in Maryland without regard to this requirement. Check with us.
STARTING THE PROCEEDINGS
The first step in a divorce proceeding is the preparation and filing of a Complaint. The legal document that starts the proceeding is entitled “Complaint for Divorce”. The Complaint states the grounds for divorce and the vital statistics of the parties and the marriage.
It also covers certain technical matters and asks the court for anything you might want. If you and your spouse cannot agree on something (support, custody, visitation, property division, attorney’s fees, court costs) then you must ask the court for it in the petition or the court cannot give it to you. If the list seems long, or if it includes more than you want, think of it as a wish list.
If the wording seems strange, remember that it is a formal legal document and much of the wording is required by law. If your spouse has already filed, be sure that we have a copy of the Complaint as soon as possible.
WHO FILES FIRST
There may be tactical advantages for the person who files a Complaint first. The person who files first is the plaintiff. The other person is the defendant and that person must respond to your complaint in a formal document known as an Answer. The defendant may also want to complain that the plaintiff was at fault. To do so the defendant files a Countercomplaint. This is usually followed by Discovery, which can include written questions, known as Interrogatories, Requests for Admissions or Requests for Production of Documents, and face-to-face questioning before a court reporter, which is called a Deposition.
If possible, talk to your spouse about divorce before you file. It is hard to keep open lines of communication if your spouse has been surprised by a process server serving divorce papers on him or her at 4:00 A.M. (which is when they sometimes serve papers).
Most likely the next document drawn up in your case will be a proposed Voluntary Separation and Property Settlement Agreement. Divorces usually settle in the beginning when both parties feel guilty or in the end when both are exhausted. We will draw up the agreement but we need to know who gets what and who pays what. You are encouraged to settle as much as possible between you—even if you give up a little it is much less expensive.
You can include many things in your agreement, some of which are listed below:
1. Court cost and attorney’s fees. Who pays?
2. Property. Who gets the house? Who gets the note? How does the equity get divided if it is sold?
3. Personal property. Who gets which car, what appliances, and what happens to the sofa in the den?
4. Retirement. What happens to any retirement benefits that have accrued?
5. Debts. Who pays what? Should the debts be paid off by refinancing?
6. Alimony. How much? How long?
7. Custody. Who gets which child? Should any aspects of custody be shared? The noncustodial parent may be the one who is a doctor and may be the one who should make medical decisions. Will joint custody work?
8. Child Support. How much? How long? Who carries health or life insurance on children? Who gets to claim the children as income tax deductions? Private school or college tuition?
9. Visitation. Do you want a specific schedule or can you and your spouse work together on it?
10. Insurance-Life insurance. Who is insured? Who is the beneficiary? Term or cash value? How much?
11. Insurance-Health insurance. Who is covered? In many cases an employee’s spouse can be covered up to thirty-six months after the divorce by the employed spouse’s insurance for an additional premium. Sometimes one parent’s health coverage is cheaper than the other’s and the cost differential can be reimbursed in other ways.
12. Other. Security for obligations in the agreement, for Wills, for death, and for taxes—(You cannot avoid death or taxes, so you may need to provide for them.)
WORKING IT OUT
If you try to work something out with your spouse yourself, the following are some useful pointers to remember:
1. Meet on neutral ground. Not at his office or at her mother’s home, but some place where both parties will feel comfortable.
2. Put aside time. A reasonable amount of time should be set aside to deal with the issues. If you leave to answer a telephone call just as you almost have things worked out, you may find that things have fallen apart when you get back. On the other hand, do not leave the meeting time open ended. A meeting without a deadline will drag on and issues will not get resolved.
3. Set an agenda. Decide what will be dealt with at the meeting. “This week we will decide on custody and child support, next week we will decide on the house.”
4. Do not bog down. Try to talk about what you agree on. No matter how bad it is, there are some things you agree on (“the marriage stinks, or “the kid is cute”). If you hit a point that gives you trouble, move on to something else and come back to the problem after you have resolved some other issues.
5. Reschedule as needed. If things start to turn nasty, if someone gets angry, or if you are losing everything, re-schedule the meeting for another time. It is important that both of you feel that the agreement is a good thing.
6. Keep the kids out of it. Your children do not need to be involved in this. Do not have them around. They will interrupt you, and it will upset them. Do not discuss or complain about the divorce to the children. Reassure them that they will be provided for—even if you are worried about it.
7. Start talking early. Divorces usually settle early on when both parties feel guilty and are not locked into a position, or divorces settle after much litigation when the parties are too exhausted to fight anymore. Sometimes you can get more with guilt than you can get at a trial.
If you and your spouse work out something and you make notes, do not sign the notes. This could be considered to be an agreement. If it is not in the correct legal language, you may be bound by something other than what you thought you agreed to.
The legal requirement for separation before filing requires at least separate sleeping arrangements and a lack of physical relations. In Maryland this means separate households. Some jurisdictions permit separation if the parties are still living under one roof, but it is difficult to prove.
Renewing physical relations destroys your grounds for divorce. Reconciliation after a divorce may have tax consequences you need to explore. However, we encourage reconciliation.
All too often people use the telephone not to communicate but to destroy communication. The angry spouse may call to scream insults or make hang-up calls.
The first case is the easiest to deal with—hang up. If you choose to stay on the telephone and to listen to the rude jerk who called, then you have made a bad choice and you should not complain about it.
Hang-up calls are tough—once you pick up the telephone you have lost. The answer is technology. Get an answering machine. The machine will screen your calls, and you can return the calls of the people you want to talk to. If your spouse calls and curses at you over the machine, we can bring that tape to court for the judge to hear.
The telephone company offers services in our area that may be:
1. Call tracing. This traces calls so we can prove to the court who made the call.
2. Call block. This locks out calls from certain numbers. You can block out your ex-spouse-to-be and many of your ex-in-laws-to-be.
3. Dial “*69”. This identifies the number from which the last call to you originated.
4. Call forwarding. There was once a client whose ex-spouse called every night at 3:00 A.M. to plead with her to come back. His offer of reconciliation was somewhat tarnished by his newly contracted venereal disease. His late-night pleadings both upset our client and deprived her of sleep. She solved the problem herself by ordering call forwarding. When she went to bed, she would forward her calls to Dial-A-Joke.
Do not date. You are married. Your spouse can use it against you. If you are divorced, moving in with your lover could cause problems with custody, visitation, or alimony. If you do date, be prepared to face the problems that may arise. Tell us about it, because if we are surprised by it in court, it will hurt your case.
If you suspect your spouse may have been exposed to the AIDS virus, you must have yourself tested for AIDS. Your exposure is not only to your spouse but to everyone who had sex with anyone who had sex with your spouse. The most frequent avenue of exposure we deal with is sexual contact. However, that is not the only means of contracting AIDS. Exposure to blood is also a risk. Therefore spouses of physicians dentists, undertakers, or any medical workers have a special concern. Consult your physician and let us know the results of any test. If you are unsure if you need to be tested, you need to be tested.
Uncontested divorces usually take two to three months, after filing in our experience, and contested divorces can take up to eighteen months. During the waiting period we will try to help you work out the details of custody, visitation, support, and property settlement, or, if necessary, prepare for trial. Certain circumstances may qualify for a quicker divorce, but we recommend a quicker divorce only in unusual situations.
It is critical you tell us all you know about all the assets. The more we know, the more we may be able to get for you.
Property includes assets as well as liabilities; real estate; and personal property, both tangible and intangible. Property can include houses, pensions, businesses, coin collections—almost anything.
The legislature has set out criteria for alimony, child support, and property division.
First, you must find and value the property (equity in the house, value of pensions, value of antique furniture).
Next, you must determine whether the particular piece of property is separate property and remains with the person who owned it.
Separate property is usually acquired before the marriage or outside the marriage, such as by gift or inheritance, or is excluded by a valid agreement.
Marital property is usually acquired during the marriage. To determine who gets what marital property, the court will consider:
1. Length of the marriage.
2. Age, health, skills, and abilities of the parties.
3. Amount of separate property owned by each spouse.
4. Relative ability of the parties to acquire property in the future.
5. Financial needs and liabilities of the parties.
6. Contribution to the education or to the earning power of the other.
7. Contribution to the value of the marital property or the separate property.
8. Premarital property and postmarital property.
9. Financial conditions of each party.
10. Tax consequences.
11. Use and Possession. Allowing the custodian and children to continue to live in the home permanently or for a period of time (the Maryland statute permits up to three years following divorce);
12. Other factors that the court considers appropriate.
If you and your spouse can agree on how things will be divided and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property, provided you can prove one of the grounds to divorce. If you cannot agree and cannot prove at least one of the grounds, you cannot get divorced.
Despite an agreement for one spouse to pay a debt that is in both parties’ names, if the party responsible for the debt does not pay the debt, the other party can still be sued for the debt.
For example, the wife gets the house and the husband agrees to pay the mortgage. The husband dies or goes bankrupt. The wife may or may not be able to sue the husband. In any case the mortgage company can foreclose on the house if the payments go unpaid and sue the wife for any unpaid balance after foreclosure. The best way to protect the wife in this case would be for the husband to refinance the property and to remove the wife from the debt if possible. Sometimes this is financially impossible for large debts such as houses, but can still be done with smaller debts such as second mortgages and charge accounts.
Do not hide assets. These assets are usually found and if they are found, you will look like a crook to the court. The judge will have trouble believing what you say about anything after that, but the judge will not have too much trouble assessing attorney’s fees against you for your behavior.
Alimony is supposed to be temporary and “rehabilitative.” Rehabilitative means to an economic functioning level, i.e. earning a reasonable living. The public policy is to assist the former spouse to be self supporting. If temporary alimony cannot bring about rehabilitation, then the court can, in proper circumstances, order alimony on a long-term or indefinite basis. Indefinite alimony is granted less often these days. Technically, husbands can get alimony from wives, but it almost never happens. Alimony is based upon the relative needs and resources of the parties. The legislature set out criteria for the court to consider and they include the following:
1. Income from salaries, investments, etc.
2. Pension profit-sharing, and retirement plans.
3. Education and ability of the parties. As well as opportunities for additional education.
4. Length of the marriage.
5. Age, physical condition, and mental condition of the two parties.
7. Whether or not one of the parties should stay at home with the child of the parties instead of working.
8. Separate property a person has.
9. Marital property a person has.
10. Standard of living the parties enjoyed during the marriage.
11. Tangible and intangible contributions. Contributions of a homemaker and the tangible and intangible contributions of one party to the education, age, or increased earning power of the other party.
12. Fault of one of the parties (if the court wants to).
13. Tax consequences.
14. Other factors that the court considers appropriate.
Indefinite alimony can be raised or lowered over time if there is a change of circumstances. If you do not get alimony at the time of the divorce, you cannot get alimony later on.
Living with someone after the divorce, regardless of whether you have sex or not, may cause indefinite alimony to be lowered or stopped. Death of one of the persons paying or receiving alimony or marriage of the person receiving alimony will terminate alimony unless the divorce settlement agreement provides otherwise. The court can require a bond or put a lien on property to ensure the payment of alimony or child support.
If you cover your spouse or children on your insurance, do not drop them from the policy at least until the divorce is final. You are probably responsible for their medical bills until then anyway. Even after the divorce, the employed spouse may want to keep the spouse and children covered. If you are paying child support, a large unexpected medical expense for the child could be assessed against the noncustodial parent as additional child support. The same could happen with alimony and an ex-spouse. A recent federal law allows most employees to cover their spouses for up to thirty six months for a small additional premium. However, the employer must be notified prior to the Final Decree.
Close joint accounts and notify the banks, charge cards, and others by a certified, return receipt letter that you are no longer responsible for your spouse’s expenses. You may want the company to reopen an account in your own name. This is a good time to request it. We will write these letters for you if you ask us.
At the bank you may want to divide joint accounts or put them in your name. This sometimes will make the judge angry with you, but it is often easier to give money back than to get it back. If you are the breadwinner do not put your dependent spouse out in the cold without some money to get by on. This will aggravate the judge who will make you pay anyway.
Do not cut off the utilities on your spouse or your spouse and children without giving them plenty of notice. Make sure you can prove this notice to the court because leaving your spouse and children home without heat or light in December seldom sits well with the judge.
Divorce proceedings are very emotional, and parties sometimes use children to seek revenge. If we believe you are doing this, we will not represent you. Try to keep the children out of this; if they must be involved, prepare them properly without poisoning their minds about your spouse. Obtain professional advice if possible. But don’t try to use your child’s therapist to gain an advantage in a custody battle. Tell the children that the divorce is not their fault and that they will still have both parents. We will be glad to recommend a counselor if you want one.
Discuss support and property division with your spouse. Do not use the children as messengers. Make a special effort to spend time with your children during this difficult time. Give them your full attention. Reassure them that both parents love them, even if you do not believe it. Give them extra love now—they need it.
Disagreement over custody is almost guaranteed to put you right in the middle of a bitterly contested and expensive divorce. Custody cases are the cruelest and most destructive of litigations. Be sure that the children would be significantly better off with you than the other parent before you get involved in a custody fight. Custody cases are expensive in both emotional cost and in legal cost. The damage caused by winning a custody case is great; the damage caused by losing is terrifying.
The legal standard in deciding who will get custody is what is in the best interest of the children. Every judge sees it differently. If the judge’s father abandoned his family and the judge’s mother slaved day and night to help her son through law school, then the judge will have a hard time understanding why a father should have custody. There are no courts in Maryland where the mother has an automatic edge in litigation. The fathers win in at least half of the litigated cases.
There are also certain doctrines and presumptions (but not inflexible rules or requirements) which aid the court in determining the best interest of the child:
1. Parental rights. Parents must be shown to be unfit before the children will be given to someone else, such as grandparents.
2. Continuity of placement. If children are doing well where they are, do not mess things up by moving them.
3. Children’s preference. A judge will consider who the children want to live with. The judge may talk to the child in private and may talk to a child younger than fourteen years of age. The judge is not bound by what the child wants.
4. Other. The court can consider the custodian’s age, health, wealth, religious beliefs, conduct, type of home, psychological evaluations; the location of the residences of the child’s siblings; the child’s school performance; or anything else the court considers important.
If there is custody litigation, you must be able to show the judge that the child is better off with you. Photographs of you and your child having a good time doing things together is useful evidence. This is a good time to subscribe to publications such as Parents magazine. Buy some books about children, parenting, and getting children through divorce. Attend seminars and keep the brochures and literature. The point is to do these things for your child and yourself, not just to impress the judge.
What should I do if I am stopped on the street?
Answer all questions. Your answers should be factual to the best of your knowledge.
Remember, you are not required to give testimony against yourself. You have Fifth Amendment rights.
Do not bad mouth or walk away from law enforcement officials, even in instances where you feel they are wrong. If the police officer behaves inappropriately, report his or her misconduct to a superior police officer at a later time.
If an officer has a reasonable suspicion that you may be carrying a weapon or illegal substance, you may be subjected to a pat-down search. Do not resist the search. Obey all requests made of you unless the request poses a risk to your personal safety or well-being. In that case, ask for a meeting with the officers supervisor.
What should I do if I am stopped in my car?
Slow down; pull over safely when you can. If the police vehicle is unmarked and you cannot identify the driver as a uniformed police officer, drive below the speed limit to a well-lit, populated spot and them pull over.
Stay in the drivers seat with both hands in sight on the steering wheel. Do not exit your car unless asked to do so. Getting out of your car can be perceived as aggressive behavior and a threat to the officers safety. Turn on your interior light if stopped at night.
Comply with the officers request to see your drivers license and/or registration. If they are in the glove box or under the seat, state that and then retrieve them slowly.
If the officer has probable cause, your can be searched without a court-issued warrant. If you are the driver and/or owner of the car and do not want your vehicle searched, clearly inform the officer of your non-consent in a polite manner.
If you are issued a ticket, sign it. Signing a ticket is not an admission of guiltonly an acknowledgment of receiving the ticket. However, refusal to sign a ticket could result in you being arrested and facing additional charges.
If you are suspected of drunk driving, cooperate with the officer(s) on the scene. If you refuse to submit to breath, blood or performance tests, your refusal may be interpreted as an indication of guilt in later court proceedings. This could result in loss of driving privileges and/or heavy fines.
Get out of the automobile if asked to do so.
Most officers will not provide specific reasons for the stop until they have your license and registration in hand. Therefore, they will avoid having to debate the reason for the stop before they receive these items from you.
If you wish to offer an explanation of your circumstances when stopped, do so before the officer returns to his vehicle. The officer cannot void the ticket once it has been written. If you believe you have been treated unfairly, present your case in traffic court and not to the officer along the roadside.
What if law enforcement comes to my door?
First, make sure each individual is really a law enforcement representative by requesting to see a police badge and/or identification card. Be pleasant but serious.
Make sure the officers are at the correct house by asking, How can I help you? They should have a warrant, be actively investigating a crime, or be in hot pursuit of an individual suspected of committing a crime and running into your house. If the officers do not have a warrant or are not in hot pursuit, you can deny entry.
Determine the type of warrantbody or search. A body warrant means that the officers are seeking an individual and, therefore, cannot search drawers and places not large enough for an individual to hide. A search warrant allows officers to search all places in which the items listed on the warrant can be hidden.
What should I do if I am arrested?
Before the police takes you into custody, make sure that your house or car is secure. Make sure you have been informed as to why you are being arrested.
NOTE: A lawyer should be called as soon as possible. The advise of an attorney is extremely important early in the process.
Under no circumstances should you make incriminating statements which might be used against you at a later time.
In most states, you must be taken before a judge, magistrate, constable or court commissioner within 24 hours of your arrest. You should secure legal representation before this initial court appearance.
Ask to telephone your parent, guardian, or lawyer immediately. Yo have the right to make one phone call to the person of your choice; use it. You also have the right to privacy during the call. If this right is denied, do not cause a confrontation that might result in additional charges being filed against you.
You should always have the number of a lawyer or a person you can rely on to get you an attorney if your lawyer is unavailable. Keep a record of that number, as well as the name and number of a lawyer in your wallet or purse. 301-218-9400.
What if I experience Police misconduct?
Law enforcement misconduct is loosely defined as improper and/or illegal action(s) and/or conduct by an officer. Some of the more frequent types of misconduct are:
Physical Abuse slaps, kicks, punches, choke-holds, beatings, flashlight and night stick blows, tight handcuffs, unnecessary use of firearms
Verbal Abuse name calling, use of racial slurs
The best way to avoid officer misconduct is to not provoke the officers while having a discussion about law enforcement matters. Showing off for friends and family will only get you arrested and possibly injured. Comply first then seek an explanation from the officer or his/her supervisor later.
Innocent individuals are often offended, angered, or both as a result of being detained by an officer for questioning. Although the delay might be inconvenient for you, the officer believes that there is a reason (probable cause) to stop you and ask questions. Examples of probable cause might include questions about a crime or incident which occurred recently in the area, someone placing a complaint about your presence, or suspicious activity. The police officer usually does not want to detain you any longer than necessary. A few minutes of cooperation will speed up the process and get you on your way.
Do not resist arrest for any reason.
Control your emotions.
Do not make threatening motions or statements to the officers talking to you.
Never attempt to interfere with the arrest of others who may be with you.
Always note the name of the officers with whom you come in contact.
Report cases of officer misconduct immediately following your release from police custody.
Record, document and describe any case of officer misconduct in a typewritten statement. Have your summary of the incident notarized within 72 hours of its occurrence.
What Is An LLC?
An LLC actually combines aspects of partnerships and corporations, so an LLC is less formal and more flexible than a typical corporation, yet offers protection as well as certain advantages that are much the same. For example, members cannot be found personally liable for company debts. Their assets are separate from the assets of the LLC so they cannot be seized. One of the advantages of an LLC is that taxation is based on the partnership model. Flow-through taxation is advantageous since members are only required to pay taxes on their earnings once instead of paying both corporate and individual taxes.
Our firm can help you form an LLC. Give us a call today!
LLC stands for Limited Liability Company. Because it is not a partnership or a corporation, the owners of an LLC are not partners or shareholders, they are “members.” Such companies are frequently labeled Limited Liability Corporations, but corporation is inaccurate and company is the proper term.
What are the Marijuana Laws in Maryland?
Prior to 2013, people charged with possessing any amount of marijuana in the state of Maryland were arrested and booked by a court commissioner. Under the old system, many people had to pay bail in order to secure their release while pending trial. Under the new system, defendants get the benefit of not being booked or detained. The downside to this obvious improvement to the law is that they often do not understand their rights or responsibilities related to their pending criminal case. This post is intended to answer some common questions I have heard from defendants who received citations for possession of marijuana in Maryland. Please understand that no blog post, forum post, or email exchange can be an acceptable substitute for legal advice. If you have received a marijuana citation in Maryland then you should speak to a lawyer right away.
Is a Maryland marijuana citation like a traffic ticket?
No. A citation for possession of marijuana is not a payable ticket. You must appear in court. Your case will be scheduled in Maryland District Court along with other criminal cases. If you are found guilty of possessing of any quantity of marijuana then you could be sentenced to jail. The maximum penalty for CDS: Possession of Marijuana Less Than 10 Grams is 90 days in jail.
Am I going to jail for receiving a Maryland marijuana citation?
I can’t tell you whether you will or won’t. That’s up to the judge. But I can tell you that it is extremely rare in Prince George's and the nearby counties for someone found guilty of possessing a small amount of marijuana to be sent to jail for a first offense. Probation, fines, and community service are typical.
Weed is basically legal, so it’s no big deal, right?
Wrong. It’s legal in a couple of states right now, but not in Maryland. While it is most unlikely that you will be sentenced to jail for a first offense, being convicted of possessing less than 10 grams of marijuana means being convicted of a crime. A Maryland criminal conviction cannot be expunged. It will be on your permanent record forever. When you apply for a job, apply for college, or undergo a background check for a security clearance, this criminal conviction can hurt your prospects.
Will a conviction for CDS: Possession of Marijuana Less Than 10 Grams affect my student loan?
It could. Question 23 on the Free Application for Federal Student Aid asks if you have been convicted of a drug offense while you were receiving aid. If your answer is “yes,” then you have to fill out a supplemental form. Depending on your answers to the questions on that form, you may be disqualified from receiving federal student aid for a certain period of time.
Can I fight the marijuana citation?
Yes! You are presumed innocent unless proven guilty in a court of law. You can ask for a trial where you can raise factual as well as legal defenses.
I’ve heard juries won’t convict people for smoking weed. Can I ask for a jury trial?
You cannot ask for a jury trial if you have been charged with CDS: Possession of Marijuana Less Than 10 Grams. Because the maximum possible penalty is only 90 days, you are limited to having your trial in a Maryland District Court, where there are no jury trials. If you do not like the outcome of your District Court trial, you can appeal your case to the Circuit Court for the jurisdiction in which you were charged. Then you could have a jury hear your case on a de novo appeal. A de novo appeal is one where the record from the first trial is thrown out and facts are heard all over again. Any sentence you received in District Court will be stayed pending the outcome of your Circuit Court case.
What are my defenses?
That depends on the facts of your case. You may have factual defenses, eg. “You got the wrong guy,” or you may have legal defenses, eg. “My right to be free from unreasonable searches was violated and the evidence should be suppressed.” You should talk to a lawyer to determine your best defense.
Will they dismiss my case if the cop who wrote my citation doesn’t show up?
Probably not. The state’s attorney will likely ask for and receive a postponement in the event the case is not ready for trial. I’ve noticed that cases are rarely dismissed for this reason lately. In part, I think it’s because courts have adopted “working and available” policies for officer witnesses. Under this kind of policy the officer need only check in with the court and announce his availability for trial if you request one. In order to actually see the officer in the court room you have to ask for a trial when your case is called!
I don’t have a criminal record. Will they dismiss the case in order to help me keep a clean record?
Some counties have diversion programs. These programs usually require that you participate in some kind of drug treatment or drug education. After you satisfy the conditions of the program then your case will be dismissed or placed on the stet docket. Note that diversion programs vary widely from county to county. Some are easier to complete than others. Some require costly drug treatment and feel more like probation than diversion. First time offenders can usually ask the court to grant probation before judgment. Whether or not to grant probation before judgment will be up to the judge.
Will the state’s attorney or the court get rid of the case because I only had a little bit of marijuana?
In my experience representing many marijuana defendants in the District Court system, the answer is no. Most state’s attorneys’ offices seem to prosecute a speck of marijuana or even marijuana residue just as though it was a usable quantity of the drug.
If this FAQ was helpful, and you believe you need our service please call us at 301-218-9400
At the start of 2013, Maryland police officers began issuing criminal citations to persons. The Law Offices of Gabriel J. Christian & Associates, LLC defends marijuana cases in Maryland if you charged with possessing less than 10 grams of marijuana, or more.