2017 Maryland Family Law Legislative Update

The 2017 legislative session saw the introduction of relatively few family law bills, but with a surprising number passing (especially as compared with 2016). Subject to veto by the Governor until May 30 (which is not anticipated), the following bills were passed into law and go into effect October 1, 2017:

Divorce:

Family Law – Divorce – Restoration of Former Name

Revises Family Law Article §7-105, to allow a party to request restoration of a former name up to 18 months after the Judgment of Absolute Divorce/divorce decree is granted, without requiring the formal name change process of Maryland Rule 15-901. Currently, a spouse who took on the other party’s name during the marriage may be restored to any former name if the party no longer wishes to use the name, the name change is requested in the divorce, and the request is not for any illegal, fraudulent, or immoral purpose. Under existing law, this request must be made and granted at the time of the divorce and entry of the Judgment of Absolute divorce; not after.  §7-105 merely extends the time to 18 months from the date of the divorce. Under current and the new law, the request must be made by the party seeking the name change for her- or himself. One spouse may not request a name change for the other spouse.

Child Support:

Requirements for Filial Support – Repeal

Repeals portions of Family Law Article §13-101 through 13-103 and §13-106 through 13-109. Under the new law, the court will no longer be authorized to require adult children to contribute to the expenses of destitute parents who have no means of subsistence and cannot be self-supporting due to age or infirmity. The provisions of §13-101 regarding support of destitute adult children (an adult child who has no means of subsistence and cannot be self-supporting due to mental or physical infirmity) remain intact. The sponsor and proponents pointed to the historic origins of the original law and Medicare, Medicaid, and Social Security making this law obsolete.

Child Support – Heath Insurance – Definition

Revises Family Law Article §12-201, to define “health insurance” to include medical, dental, prescription, and vision insurance. Under current child support law (Family Law §12-204), the child support guidelines shall be calculated using “[a]ny actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible…and shall be divided by the parents in proportion to their adjusted actual incomes.” Until now, “health insurance” has not been defined. The sponsor and proponent of HB926 pointed to the need for consistency across the state and its many jurisdictions when deciding what types of “health” insurances to include in the child support guidelines.

Child Support – Noncompliance With Court Order – License Suspension

Revises Family Law Article §§10-119(b)(1) and 10-119.3(e)(1)(i), (f), and (j) regarding child support enforcement’s suspension of different types of licenses of obligors who fall behind on child support. Specifically, driver’s licenses as well as business, occupation, and professional licenses. On driver’s licenses: The new law distinguishes between noncommercial and commercial driver’s licenses; current law does not. Currently, the new law allows the office of child support enforcement to notify the Motor Vehicle Administration/MVA of drivers who fall behind on their child support. These updates now set the timing at noncommercial drivers who accumulate 60 days or more of arrears and commercial drivers who accumulate 120 days or more of back child support. On business/occupation/professional licenses: Currently, a business/occupation/professional license may be suspended if the license holder falls behind on child support for 120 days or more. The new law entitles the business/occupation/professional license holder to request an investigation before the suspension due to the wrong arrearage amount, suspension impeding employment from the primary source of income, good faith payments by the obligor, undue hardship either due to documented disability resulting in verified inability to work or due to inability to comply with the child support order. If any of these exists, the office of child support enforcement may not seek suspension of the obligor’s business/occupation/professional license. The new law adds additional bases to reinstate a suspended business/occupation/professional license – for payment of a lump sum equal to four times the monthly child support (so, child support/month x 4) or cooperation with the office of child support enforcement to enter an earnings withholding order with the maximum wage withholding per federal law.  Related changes also appear in Transportation Article §§16-203, 16-206, 16-303, 16-402, and 27-101 regarding license suspension for child support arrears.

Domestic Violence:

Family Law – Divorce – Domestic Violence Order

§7-103.1 makes an Interim, Temporary, or Final Protective Order granted in a domestic violence proceeding inadmissible evidence in other family law matters, such as divorce, custody, and custody modification cases. Additionally, §7-103.1 prevents a court from considering compliance with a protective order as grounds for a limited or absolute divorce. This means (in theory, though not in practice) that a person who stays away from and ceases cohabitation with a spouse pursuant to a year-long protective order could stop the court from considering this a 12-month separation or 12-month desertion. Effective October 1, 2017, §7-103.1 will no longer be the law. The sponsor’s and proponents’ reasoning behind HB293 is that §7-103.1 has become obsolete and may streamline or even save victims of domestic violence from relitigating the abuse, if proven in the underlying domestic violence case, when having to prove cruelty and excessively vicious conduct grounds in the subsequent divorce case. It will be interesting to see how prior evidence and findings in the domestic violence case will be received and used by the judge in the later divorce case.

Public Safety – Regulated Firearms – Definition of Convicted of a Disqualifying Crime

While not overtly a domestic violence bill, HB294 revises Public Safety Article §5-101(b-1)(2)(i) so that a person who receives a probation before judgment for second degree assault that is a “domestically related crime” (as defined in Criminal Procedure Article §6-233) is disqualified from owning a firearm. Domestically related crimes generally are crimes against a person who would be eligible for a domestic violence protective order. Under current domestic violence law, the respondent/alleged abuser must relinquish any firearms while the protective order is in place. This law applies to persons convicted of crimes arising from the domestic violence and prevents them, under certain circumstances, from owning firearms.

Amber’s Law – Criminal Procedure – Conditional Release – Electronic Monitoring

While not explicitly a domestic violence law, Amber’s Law implements procedures in the criminal realm enabling a victim to request reasonable safety protections for herself and her family upon finding of probable cause and before the arrest warrant issues. The safety protections may include electronic monitoring to include “victim stay-away alert technology”, which notifies the victim if the offender goes to or near locations the offender was ordered to stay away from. This law also requires victim impact statements to include any requests for electronic monitoring or victim stay-away alert technology and requires the development of educational brochures for victims and their families about this option. Amber’s Law can be found in changes to Maryland’s Criminal Procedure Article §§11-101, 11-105, 11-402, and 11-912. Amber’s Law only applies to criminal proceedings, not civil domestic violence protective order matters. However, domestic violence Protective require offenders to stay away from the victim and victim’s family. For example, Protective Orders require an offender to stay away from the victim’s home, place of work, children’s schools and daycares. And, a judge can “order any other relief that the judge determines is necessary to protect a person eligible for relief from abuse”, which could include ordering an offender to stay away a certain distance from specific locations. If successful in the criminal realm, I expect to see legislative efforts to expand this explicitly into the domestic violence realm for consistency’s sake. In the meantime, I wonder how successful requests for this technology will be in domestic violence cases as “any other relief”.

Other:

Health Care Decisions Act – Advance Directives and Surrogate Decision Making – Disqualified Individuals

A blending of family/domestic violence law and estates and trust law in HB498/SB562. Specifically, this bill revises Health General Article §§5-602 and 5-605, expanding the categories of persons disqualified from serving as health care agents when a person is unable to make medical decisions on his/her own. A person against whom an interim, temporary, or final protective order is obtained (the respondent) will not be allowed to serve as a health care agent, making medical decisions on behalf of, a person eligible for relief. This supersedes an existing health care advance directive designation and eliminates the respondent from serving as a default health care agent if the designated agent is unavailable or there is no health care directive. The disqualification applies automatically, without the need to revoke the health care directive or indicate in any other writing. Likewise, spouses who file for divorce or have signed a “separation agreement” will no longer be eligible to serve as one another’s health care agents if designated in a health care directive or as a substituted agent if there is no health care directive or the agent is unavailable. The disqualification applies automatically as well. However and limited to divorce and separation agreements, there are two exceptions: 1) if the declarant (so, the person in need of medical care) is able to make a decision about the spouse continuing to serve as the agent; or 2) the declarant otherwise indicates an intention for the spouse to serve as the agent. The statute also imposes a duty to inform medical providers and facilities upon a person who obtains information that disqualifies an individual from serving as a health care agent.  Not every marital settlement agreement is a “separation agreement”, especially with the advent of Mutual Consent divorce that does not require a separation.  In those cases, it may behoove parties to revoke any health care agent designations and mutually waive the right to serve as a healthcare agent after the agreement is signed and before divorce is obtained.  Likewise, parties who reconcile after a domestic violence or divorce case is filed and denied or dismissed should consider signing affirmative documents regarding healthcare agent designations and addressing whether this law applies or not following reconciliation.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked InFacebookLindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.

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