Tag Archive for: court

Late Counterclaim

If your spouse files a Complaint for Divorce against you, you have 30 days from the date you are served to file an Answer if served in the state of Maryland.   Maryland Rule 2-321(a).

You may also file a Counterclaim against your spouse.  Maryland Rule 2-331(a).

But if you file it more than 30 days after your Answer was due, your spouse can file a Motion to Strike your Counterclaim for being late.  The court shall grant the motion unless you can persuade the judge that the delay will not prejudice your spouse.  Maryland Rule 2-331(d).

/by James J. Gross

Marriage Certificate Will Not Be Required for Divorce

The court in Montgomery County, Maryland, will no longer require the parties to submit their marriage certificate in order to obtain a divorce.  This brings our procedure in line with other counties in the state.

/by James J. Gross

In Rem and In Personam Jurisdiction

Court Jurisdiction in Maryland

Court Jurisdiction Over a Divorce

In rem jurisdiction means jurisdiction over the thing or subject matter jurisdiction.  The courts of Maryland have subject matter jurisdiction to decide the marital status of the residents of Maryland. Therefore they have in rem jurisdiction to grant a divorce.

To order the payment of money, such as alimony, child support, counsel fees or a marital award, the court must also have in personam jurisdiction, or jurisdiction over the person.

Court Jurisdiction Over a Defendant

The Supreme Court has held that a person must have sufficient contact with a state before the courts can exercise personal jurisdiction over him or her.

The court has in personam jurisdiction over any defendant who lives, works or is served with a summons and complaint within the state.  But what about a person who does not meet these requirements?

The court can still assert in personam jurisdiction over a defendant if certain conditions are met under CJP Section 6-103.1 of the Maryland Code:

(a) Maryland must be the matrimonial domicile of the couple immediately before separation; or

(b) There is a written agreement to pay alimony, child support or counsel fees signed by one of the parties in Maryland; or

(c) There is an obligation to pay alimony, child support or counsel fees that arose out of the laws of the State of Maryland.

/by James J. Gross

Belly Dancing Reduces Alimony

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Several years ago a New York judge ordered Brian McGurk to pay his wife, Dorothy McGurk, $850 a month in lifetime alimony and gave her the marital residence because of her disability.

Recently Brian saw an entry on her blog that she was now belly dancing.  Furious, he took her back to court.

Dorothy claimed that her doctor had prescribed belly dancing as therapy for her injuries in a 1997 car accident.  The doctor however did not support that claim in court.

The judge reduced alimony to $400 a month, ordered her to pay her husband’s attorney fees of $5,000 and to give him 60% of the proceeds from the sale of the house.

As Shakira says, “Hips Don’t Lie”.

/by James J. Gross

Shopping for a Courthouse

by Michael F. Callahan

We practice family law mostly in the Washington, DC commuting area, which includes DC Superior Court and the County Circuit Courts of the nearby Maryland and Virginia suburbs.  Divorce jurisdiction depends on a party’s residence at the time the court case is filed.  And divorce usually involves at least one party moving from the marital residence (more about that later).   So often there are at least two choices for filing the case even without any planning regarding where to file.

You may have read or heard that the basic law of divorce — grounds, property distribution, spousal support, child custody and child support — is similar in each of the three local jurisdictions.  Why then think about shopping around for a divorce court?

There are clear differences between the jurisdictions in certain aspects of the law.  Because of one of these clear differences, the most important issues in your case might be decided differently in each of the three jurisdictions.  It might be decided much differently (and better for you) in say, Virginia, than it would be in Maryland or the District of Columbia.  Armed with this knowledge before you move, since you’re moving anyway, maybe you’d decide to move to an apartment in Arlington for a while instead of one in Bethesda.

Next time, I’ll discuss how and when to pick the court for your divorce and how to put your choice into action.  In coming weeks, we’ll discuss the various differences in the laws that can result in big differences in the outcome of a particular case.

/by James J. Gross

What Is Extrinsic Fraud

Extrinsic Fraud

James Hresko asked the court to reopen his uncontested divorce for fraud because he said his ex-wife misrepresented her assets in negotiating a settlement agreement.  But the Maryland courts will only reopen a case if the fraud is extrinsic, not intrinsic.

What is extrinsic fraud?  Black’s Law Dictionary says it is the type of fraud which is collateral to the issues tried in the case.  The court says it is fraud which actually prevents a trial. Examples of extrinsic fraud would be:

  • An opponent keeps a party away from court.
  • A false promise of compromise.
  • A party did not have knowledge of the suit.
  • An attorney pretends to represent someone they do not.
  • An attorney corruptly sells out his client.

James said his ex prevented him from trying the case by keeping him away from the court with a false promise of compromise.  To be continued.

/by James J. Gross