Author: JGL Law

 

Even estate planning seems to go through stages and fads with discussion of new techniques making the cocktail party circuit and the “free” lunch seminars for discussion.  One popular topic these days is the use of Revocable Living Trusts.  Before you consider rushing in to visit your estate planner to “get one of these” you might want to understand the basics of it and see why it is not a “one size fits all” tool for everyone.

What A Revocable Living Trust IS:

• The Trust is your alter ego. At any time, you can easily add, remove, buy or sell Trust property at any time. Further, the Trust is “revocable” — you can change or end the Trust at any time.

• A Revocable Living Trust allows you to avoid probate (and the Courts) during periods of disability and upon death. Probate is avoided because a revocable trust is a separate legal entity, although you, as the creator of the trust, retain control over the assets of the trust during your lifetime and while you are able.

• Assets titled in the name of the Trust are transferable at all times, and probate is avoided. Thus, the management and administration of the Trust’s assets is not disrupted by the deceased’s death or disability.

• In order to create and effectuate a Revocable Living Trust, not only must the trust documents be executed but your property must be transferred to your trust.  This extremely important step is the one that fails to get completed – thereby defeating the purpose of the Trust altogether.

 What A Revocable Living Trust Is NOT:

• A Revocable Living Trust does not avoid estate taxes. Specific provisions must be included in a Revocable Living Trust (or in a Will) to reduce estate taxes.

• A Revocable Living Trust is not a substitute for a Will. You still need a Will. This type of Will is called a Pour-over Will and is used to make tax elections, appoint a Personal Representative, appoint a guardian for your minor children, and transfer assets you forget to title in the name of your Revocable Living Trust to your Trust.

There are plenty of good reasons to use a revocable living trust:

• avoid or minimize the costs of Probate and tying up assets during Probate;

• to possibly avoid will contests and keep the disposition of your assets private since your will becomes a matter of public record when filed for the opening of Probate which your trust is generally not;
• provide for immediate management of your financial affairs by a fiduciary selected by you in the event of your disability.  If something happens to you, your successor Trustee steps in “your shoes” and continues managing the Trust as long as necessary. If you and your spouse are Co-Trustees, or if your spouse is successor Trustee, either can act or instantly take control if the other becomes disabled or dies.

However, everybody does not need a Revocable Living Trust– some people do not feel comfortable with the concept of a trust, and no one should do anything that will make them lose sleep at night. Second, some people have a small enough (or simple enough) estate that probate may not concern them or their heirs.

Generally speaking, the Revocable Living Trust is an estate planning tool which should be considered only after careful discussion with your attorney about whether it is appropriate for you.

The next time someone tells you “you gotta get one” ask them why they needed one and whether they actually deeded their house over to the Trust and changed all of the names and signatures on their bank accounts. Don’t be surprised if they can’t give you a good answer!

Eight years ago, Maryland’s Reasonable Accommodations for Pregnant Workers Act (“RAPWA”) [1], which went into effect on October 1, 2013, did not exist, and the United Parcel Service (“UPS”) denied a pregnant Maryland employee’s request to lift no more than 20 pounds at work on the written advisement of her doctor.

Instead, she was given unpaid leave because her pregnant condition did not fall under one of the three categories eligible at the time for accommodations/light duty assignments under UPS’ collective bargaining agreement: (1) those who were injured on the job, (2) those who were eligible for accommodations under the Americans with Disabilities Act (“ADA”), or (3) those who had lost their Department of Transportation certification because of a failed medical exam, a lost driver’s license, or involvement in  a motor vehicle accident.

The issue of pregnancy discrimination has received a lot of attention in recent years. Circuits have been split on the issue [2], Congress passed 2008 amendments to the ADA to require employers to accommodate workers’ temporary disabilities, the Equal Employment Opportunity Commission (“EEOC”) is set to provide guidance about the amendments, and President Barack Obama has recently urged Congress to pass the Pregnant Workers Fairness Act introduced in the Senate last year. Now, even the Supreme Court of the United States has decided to hear the issue of “whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’” [3]

The case coming before the Supreme Court for the October Term is Young v. United Parcel Service, Inc., an appeal from Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013). [4] Peggy Young, a part-time package delivery driver for UPS in Landover, Maryland, became pregnant in 2006 and asked for a light-duty assignment. Her supervisor denied her request, explaining UPS did not offer such accommodations for pregnancy-related limitations, so Young took an extended leave of absence without pay and ultimately lost her medical coverage. Young filed a discrimination claim with the EEOC in 2007 alleging violations of the ADA and the Pregnancy Discrimination Act (“PDA”) and sued UPS in the U.S. District Court for the District of Maryland in 2008.

After losing at the trial level, Young appealed to the U.S. Court of Appeals for the Fourth Circuit in 2013. Young argues that the PDA requires employers to provide pregnant employees the same accommodations as non-pregnant disabled workers who are similar in their ability or inability to work. But, both the district court and the Fourth Circuit found that UPS did not discriminate against Young under the PDA because its policy treats pregnant workers and nonpregnant workers alike in eligibility for accommodations. [5]

In an amicus curiae brief [6], the United States explains that a majority of circuit courts that hear claims similar to Young’s – including the Fourth Circuit – “erred in interpreting Title VII [of the Civil Rights Act of 1964]’s requirement that employers treat employees with pregnancy-related limitations as favorably as nonpregnant employees who are similar in their ability or inability to work.” [7]  However, the Justice Department nevertheless lobbied against the Supreme Court taking the case, stating that although the question presented is “important and recurring,” Supreme Court review is not needed at this time because: 1) Congress’s enactment of the ADA Amendments Act of 2008 “may lead courts to reconsider their approach to evaluating a pregnant employee’s claim that other employees with similar limitations on their ability to work were treated more favorably than she and may diminish the adverse effect of the courts of appeals’ error” and 2) the EEOC is currently considering the adoption of new enforcement guidance on pregnancy discrimination that should clarify the Commission’s interpretation of issues related to pregnancy under the PDA and the ADA. [8]

However, there may be another reason why courts may need to reconsider their stance on this issue: the increasing passage of state and local laws like Maryland’s RAPWA. Twelve states (Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Iowa, Maryland, Minnesota, New Jersey, Texas and West Virginia) and four cities (New York City, Philadelphia, Providence and Central Falls, R.I.) have similar pregnancy anti-discrimination laws and Maryland’s law seems to be directly applicable to this case. [9] Although the law is not retroactive, so it cannot be applied to Young’s case, if these same set of facts arose today, there would be a different outcome under RAPWA. Instead of requiring the comparison of non-pregnant and pregnant workers, Maryland’s RAPWA requires employers to make reasonable accommodations for pregnancy-related disabilities as long as such accommodations do not present an undue hardship to the employer. This provision addresses the language in the PDA requiring employers to treat pregnant workers the same as those “similar in their ability or inability to work,” which some courts have rendered meaningless by interpreting them to mean that accommodations do not need to be provided for pregnant employees that would have been otherwise unavailable for non-pregnant employees with similar disabilities.

With the recent passage of Maryland’s RAPWA and pregnancy discrimination being a hot topic in all branches of government, it will be interesting to see how this case with Maryland roots plays out in the Supreme Court. Stay tuned to JGL’s blog for updates on this issue.

*       *       *

[1] Read JGL’s “Quick Hit” blog post about the enactment of Maryland’s RAPWA here: https://www.jgllaw.com/blog/quick-hit-marylands-reasonable-accommodations-for-pregnant-workers-act/.

[2] A 1996 U.S. Court of Appeals for the Sixth Circuit decision allowed a similar pregnancy discrimination claim to move forward. See Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996)(concluding that, “instead of merely recognizing that discrimination on the basis of pregnancy constitutes unlawful sex discrimination under Title VII,” the PDA “provided additional protection to those ‘women affected by pregnancy, childbirth or related medical conditions’ by expressly requiring that employers provide the same treatment of such individuals as provided to ‘other persons not so affected but similar in their ability or inability to work.’” Id. at 1226 (quoting 42 U.S.C. § 2000e(k)).

[3] http://www.scotusblog.com/case-files/cases/young-v-united-parcel-service/

[4] The Fourth Circuit’s decision in Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013) can be accessed here: http://www.ca4.uscourts.gov/opinions/Published/112078.p.pdf.

[5] See id. at 20.

[6] Read the Department of Justice’s amicus curiae brief here: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/05/12-1226-Young-Invite.pdf.

[7] Id. at 8.

[8] Id.

[9] A Better Balance keeps a list of state and local laws protecting pregnant workers here: http://www.abetterbalance.org/web/ourissues/fairness-for-pregnant-workers/310.

The Duke of She told Confucius: “Among the upright men of my home, if the father steal a sheep his son will bear witness.”

Confucius answered: “Our people’s uprightness is unlike that. The father screens his son, the son screens his father. There is uprightness in this.”[i]

According to Confucius, a son should not be made to testify as to the crimes of his father. Morality considerations aside, the Fourth Circuit disagrees. On June 16, 2014, the federal appellate court in Richmond refused to recognize a parent-child testimonial privilege in Under Seal v. United States, where the government subpoenaed 19-year-old Doe Jr. to testify against his father, Mr. Doe, in a grand jury investigation regarding an unlawful possession of firearms charge against the father.[ii]

On November 20, 2012, officers from Harford County, Maryland responded to a 911 domestic assault complaint by Doe Jr.’s mother (Mrs. Doe). At the time, the Doe house was occupied by 18-year-old Doe Jr., his parents, and his two minor siblings. A search of the residence revealed approximately 40 assorted firearms, “including two assault-style rifles, a WWII-style pistol, a leaded semi-automatic handgun, and an AK-47 assault rifle” as well as “marijuana plants growing in five-gallon buckets and drug paraphernalia” in the basement.[iii]

Mrs. Doe eventually dropped the domestic abuse charges against Mr. Doe, and the government later referred the case to grand jury investigation for a potential charge pursuant to 26 U.S.C. § 5861(d).[iv] Doe Jr. was subpoenaed “to determine the ownership of the illegal guns” found in the home. In his motion to quash, Doe Jr. contended that compelling his testimony to “solidify a criminal case against [his] father” would cause incalculable “damage to the father-son relationship.”[v]

At the district court hearing on the motion to quash, Doe Jr. testified that although his father would not cut him off financially, and “would not hold it against” him for testifying, “he had significant anxiety about testifying against his father and provided doctors’ notes to the that effect.[vi] The government argued that Doe Jr.’s testimony was necessary to “fully explore all the evidence in this case to do a complete and thorough investigation,” because Mrs. Doe had invoked her spousal privilege, and the two minor Doe children would not be called as witnesses.[vii] Ruling from the bench, the district court agreed with Doe Jr. and explained that while the government had an interest in pursuing its investigation; it did not trump the individual privacy interests stemming from Doe Jr.’s relationship with his father.[viii]

The Fourth Circuit reversed on appeal, and in a unanimous opinion, declined to find a parent-child privilege. In support of its conclusion, it observed that in contrast to the “very small handful of federal district courts” that have recognized the privilege, “every federal appellate court that has considered adoption of the parent-child privilege – include our own – has rejected it.”[ix]  In particular, the court discussed two previous Fourth Circuit cases that also declined to adopt a parent-child privilege.

In United States v. Jones,[x] the Court held that no privilege existed where testimony would be limited to questions unrelated to his familial association with his parent, because a 29-year-old man was “not an impressionable young child.”[xi] The Court recognized, but did not address the possibility that the privileged may be recognized in cases with “changed factual circumstances” in which other considerations such as the age and emancipation status of the child may come into play.[xii]

In United States v. Dunford,[xiii] the father of two minor daughters was convicted of numerous counts of illegal possession of firearms and ammunition. The Fourth Circuit there refused to recognize the privilege and compelled the daughters to testify at their father’s trial because he had abused them and endangered them with illegal firearms. The court, nevertheless, left room for the possibility of adopting the privileges in certain circumstances where the intangible and tangible benefits of preserving the family unit would outweigh the government’s interest in compelling the child to testify.[xiv] As a corollary, the Court cautioned, “even if such a privileged were to be recognized it would have to be narrowly defined and would have obvious limits, perhaps such as where the family fractures itself or the child waives the privilege or where ongoing criminal activity would be shielded by assertion of the privilege.”[xv]

The Fourth Circuit held that the facts in Under Seal did not warrant application of the privilege because Doe Jr. was an adult college student who had truthfully testified that his father would not “cut him off” financially or “hold it against him” for testifying.[xvi] Furthermore, because Doe Jr. was the only individual in the Doe household who was available to testify, applying the privilege would undermine the U.S. Supreme Court’s admonishment that only limited exceptions should trump “the normally predominant principle of utilizing all rational means for ascertaining the truth.”[xvii] Thus, Doe Jr. did not provide a “strong showing that adoption of the parent-child privilege would promote sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.”[xviii]

Interestingly, Under Seal does not represent a categorical rejection of the possibility of the parent-child privilege ever being recognized in the jurisdiction. The Court in Jones and Dunford had “declined to recognize a parent-child privilege, but stopped short of issuing a blanket rejection of the privilege.”[xix] The Fourth Circuit, again, in Under Seal left the door slightly cracked to the future possibility that, with the right facts, the privilege might be revived. It concluded that the “strong showing of need” for justifying the creation of a new privilege was simply not met in the circumstances of Doe Jr.’s case. Nevertheless, Under Seal adds to the strong weight of Fourth Circuit case law against the parent-child testimonial privilege, and absent legislation, there is unlikely to be a case in the near future that presents sufficient factual circumstances to warrant its recognition.

*          *          *

[i]Confucius, Analects, available at: http://www.bartleby.com/44/1/13.html.

[ii] Under Seal v. United States, 13-4933, 2014 WL 2699722 (4^th Cir. June 16, 2014).

[iii] Id. at *1.

[iv]26 U.S.C. § 5861 (West) (Providing that it is unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record”).

[v] 2014 WL 2699722, at *1.

[vi] Id. at *2.

[vii] The opinion by the Court merely states that the “government did not intend to call the two minor Doe children as witnesses”, but provides no further explanation for the basis of the Government’s decision not to do so.

[viii] 2014 WL 2699722, at *2.

[ix] Id. at *3.

[x] United States v. Jones, 683 F.2d 817 (4th Cir. 1982).

[xi] Id. at 819.

[xii] Id.

[xiii] United States v. Dunford, 148 F.3d 385 (4th Cir. 1998).

[xiv] Id. at 391.

[xv] Id.

[xvi] 2014 WL 2699722, at *6.

[xvii] Id.

[xviii] Id. at *7.

[xix] Id. at *5.

 

On June 24, 2014, the United States District Court for the District of Oregon ruled that the No-Fly list was unconstitutional because the government does not provide Americans who are on the list any meaningful opportunity to contest their inclusion.

The case, Ayman Latif et al v. Eric Holder et al, involved 13 American Muslims, four of who were veterans, who were not permitted to board flights in the U.S. or fly over U.S. airspace. The plaintiffs alleged that they did not know why they are on the list, and only some were told that are, in fact, on the list. Each plaintiff submitted applications for redress through the Department of Homeland Security Traveler Redress Inquiry Program.

When the DHS receives a complaint through its Redress program, it investigates the complaint and issues a determination letter. The determination letter simply states that an investigation was completed. It does not confirm or deny if an individual is on the No-Fly list; it does not state why a person may or may not be on the list; and it does not provide any reassurances of whether a person can fly again. Sometimes a determination letter will inform the individual that they can seek judicial review in the U.S. court of appeals under 49 U.S.C. § 46110. Plaintiffs’ alleged that this process violated their Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No-Fly List.

Judge Anna Brown agreed. (Opinion can be found here) She recognized that the government had a compelling interest in combating terrorism and held that while the government does not have to get rid of the list, it needs to come up with a better way for Americans on the list to challenge their inclusion. The government must also disclose to those on the list any unclassified information used to justify their inclusion. Judge Brown went on to say that the government could summarize that information or disclose it to an attorney with the proper security clearance. The Justice Department has not stated whether it would appeal the decision.

 

On Wednesday June 25, in a unanimous ruling the Supreme Court held that the police need warrants to search the cellphones of people they arrest. Courts have long allowed warrantless searches in connection with arrests, allowing officers to conduct a full search of the person being arrested as well as any property on or relatively near them at the time they are arrested.

However the majority opinion by Chief Justice John G. Roberts, Jr. brought the Fourth Amendment and its warrant requirement fully into the 21^st century, noting that the vast amount of data contained on modern cellphones must be protected from routine inspection.

The Court came to this decision after hearing arguments in two cases this past term. The first, Riley v. California, involved the arrest of David L. Riley, who was pulled over in San Diego in 2009. After finding firearms in his vehicle, the police searched Mr. Riley’s smartphone and discovered entries they associated with a street gang. A more thorough search of the phone led to information that linked Riley to a murder attempt for which he was later convicted and sentenced to 15 years in prison; a California appeals court said neither search of the phone required a warrant. The second case, United States v. Wurie (transcript of oral argument here), arose from a search of the call log of the flip phone of Brim Wurie, who was arrested in 2007 and charged with gun and drug crimes. Unlike the California court, a Boston appellate court threw out the evidence found on Wurie’s phone.

The Fourth Amendment protects the American people against unreasonable searches or seizures. Subject to a few well-defined exceptions, police ordinarily must obtain a warrant prior to conducting a search or seizure of a person or property. One of those exceptions is a search that is conducted incident to arrest –an officer may conduct a warrantless search of any person arrested. This search includes property located on the person – including pockets, purses, backpacks, even cigarette packs – as well as the surrounding area within the arrestee’s immediate control.[1] This expansive ability to conduct a search without a warrant has been long justified by a need to ensure officer safety and to prevent the possible destruction of evidence.

The Justice Department had argued that cellphones were not materially different from wallets, purses, and address books. Chief Justice Roberts disagreed: “That is like saying a ride on horseback is not materially indistinguishable from a flight to the moon . . . .” In sweeping language the Court determined that the old rules cannot be applied to modern cellphones, which “as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse . . . .” Unlike knives or guns that might be kept in pockets or backpacks, or razor blades that might be kept in cigarette boxes or wallets, Roberts observed that “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. . . . the data on the phone can endanger no one.”

The warrant requirement is an important aspect of the Fourth Amendment jurisprudence. While the Supreme Court observed that this decision would indeed make the job of law enforcement more difficult, in this day and age warrants may be obtained with increasing efficiency at essentially all hours of the day and night. Additionally, although the search incident to arrest exception no longer applies, this is not to say that case specific circumstances would not justify application of another exception to the warrant. The Court noted that, to the extent that a search of a cell phone might “warn officers of an impending danger, e.g., that the arrestee’s confederates are headed to the scene,” there may be another applicable exception such as the exigent circumstances exception.[2]

This opinion signals the Court’s increasing concern about government intrusion into Americans’ private lives through the use of technology. Noting that modern cellphones contain “a digital record of nearly aspect of their lives – form the mundane to the intimate,” Chief Justice Roberts proclaimed:  “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Constitutional law scholar and professor Stephen Vladeck opined that the Court’s ruling should “scare the bejesus” out of those who have vigorously defended the government’s ability to conduct warrantless search programs, such as the controversial NSA surveillance program that continues to make headlines across the country.[3]

The text of the Supreme Court opinion may be found at http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf.

 

 

[1] The extent to which officers may search property found on or near an arrestee is governed by three primary cases: Chimel v. California, 395 U.S. 752 (1969), requires that a search incident to arrest be limited to the area within the arrestee’s immediate control, where it is justified by the interests in officer safety and in preventing evidence destruction; United States v. Robinson, 414 U.S. 218 (1973), held that the risks identified in Chimel are present in all custodial arrests, even when there is no specific concern about the loss of evidence or the threat to officers in a particular case; and Arizona v. Gant, 556 U.S. 332 (2009), permits searches of a car where it is reasonable to believe that evidence of the crime of arrest might be found in the vehicle.

[2]

The exigent circumstances exception to the warrant requirement allows law enforcement to conduct a warrantless search or seizure where police are responding to an emergency or where there is a compelling need for official action and no time to secure a warrant.

[3] Robert Barnes, Supreme Court says police must get warrants for most cellphone searches, Wash. Post, June 25, 2014.

“A HOUSE DIVIDED AGAINST ITSELF CANNOT STAND”

– Abraham Lincoln, Republican State Convention (June 16, 1858), quoting Mark 3:25

Have you heard the one about the couple that split the house after their divorce? She got the inside, he got the outside. Or the story of this couple from Cambodia who cut their house in half after the wife refused to leave?

Bad jokes aside, typically the largest asset a couple has is their home and who gets ownership of the home after a divorce is a hot button issue. A client is often concerned about how long they may stay in the home during a divorce, how a court may divide the interest in the home, and how can they protect their interest in their home.

To answer that question you first have to determine whether the home is marital property. In a divorce proceeding, the court will equitably divide the marital property. Pursuant to the  Marital Property Act, the trial court is then charged with making an equitable distribution of the property. However, you should not confuse “equitable” with “equal.”See Alston v. Alston, 331 Md. 496, 629 A.2d 70 (1993).

The Maryland Family Law Code defines marital property as the property acquired by one (1) or both parties during the marriage, including any interest in real property held as tenants by the entirety. §8-201(e)(1)(2). The Court of Appeals has held that absent evidence to the contrary, it is presumed that spouses hold the family home, including goods and furnishings, as tenants by the entirety. Arbesman v. Winer, 298 Md. 282, 468 A.2d 633 (1983).

Even property purchased prior to the marriage may be considered marital property, or partially marital. For example, if one spouse “gifted” the home to the other during the marriage (i.e. added the other spouse’s name to the title), if the property was held as tenants by the entirety, if the property was comingled with marital funds, or if marital funds were used for its enhancement (i.e. remodeling the home) the court could consider this marital property. See Brodak v. Brodak, 294 Md. 10, 447 A.2d 847 (1982); Noffsinger v. Noffsinger, 95 Md. App. 265, 620 A.2d 415 (1993); Mount v. Mount, 52 Md. App. 538, 476 A.2d 1175 (1984).

The Court will consider the following factors in determining how to divide the marital property: “(1) the contributions, monetary and non[-] monetary, of each party to the well-being of the family; (2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan, was acquired …; (9) the contribution by either party of property described in [F.L.] § 8–201(e)(3) [ ] to the acquisition of real property held by the parties as tenants by the entirety;(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and(11) any other factor the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.”

As discussed below, the Court then has three options: the court may 1) award a party use and possession for up to a period of three (3) years; 2) transfer ownership of the home to one (1) party; or 3) order the home sold.

• Use and Possession:

The Court may award a custodial parent use and possession of the family home for up to three (3) years after the divorce. The intent is to preserve stability for the minor child(ren) and allow them to continue living in a familiar community and environment. This remedy is available when the parties have a minor child (minor child includes a child under the age of 18 but may include a person over the age of 18 but is still a high school student. The use and possession term will terminate at the end of the month in which the child graduates). §8-206; §8-210; Kelly v. Kelly, 153 Md. App. 260, 836 A.2d 695 (2003).

The family home is defined as the property “(i) was used as the principal residence of the parties when they lived together; (ii) is owned or leased by 1 or both of the parties at the time of the proceeding; and (iii) is being used or will be used as a principal residence by 1 or both of the parties and a child.” This does not include property before the marriage, by inheritance or gift from a third party, or excluded by valid agreement. §8-201(c)(1).

However, in some circumstances, Maryland courts have determined that homes owned prior to marriage and even where the parties did not live there together, are family homes under the statute.

In Bledsoe, the Husband argued that the property was not the family home under the statute because he had acquired it prior to marriage. The Court of Appeals held that property purchased entirely by one spouse but titled in the names of both amount to a gift and that, because it was the principle residence of the family, it qualified as the family home pursuant to the statute. Bledsoe v. Bledsoe, 294 Md. 183, 448 A.2d 353 (1982).

In Maness, the Husband argued that the home could not be considered the family home because he and his wife had never lived in the home together. The Wife moved into the home prior to the Husband and then, after the Husband had moved in, they slept in separate bedrooms. When the marriage ended, Wife moved out of the home. Nonetheless, the Court held that the  home constituted a family home under the statute because it was the principal residence of the parties and a court could therefore award a party use and possession. Maness v. Sawyer, 180 Md. App. 295, 950 A.2d 830 (2008).

During the Use and Possession period the Court may order either or both parties to pay the rent/mortgage payments, including other debts associated with the home, maintenance, property taxes and insurance. §208(c). After the Use and Possession period has run, the court will order the property to be transferred or sold.

• Transfer:

 The court may transfer jointly owned property, used as the principal residence when the parties were living together, to the other spouse to avoid an inequitable division (the court cannot transfer the property of one spouse to the other. The Court will effectuate the transfer by ordering the transfer outright upon the release of the other party from any lien against the property, ordering that one party purchase the interest of the other, or a combination of both. The transfer of the property is subject to any lien (i.e. mortgage) on the property. § 8–202(a)(3),§8-205. The Court usually disfavors this method.

•  Sale:

In the more common occurrence, the court will order that the property be sold and proceeds divided.  In this situation, the court may also appoint a trustee to effectuate the sale of the home. A trustee is an attorney who will facilitate the sale of the home and will be compensated at the closing (in addition to closing costs, etc).

These are careful considerations and nuances that should be raised to your with skilled legal counsel who are not only aware of the various facets of the law and potential outcomes, but are equipped to present this evidence to the Court at the time of trial.

 (One of the trademarks registered to Pro Football, Inc. d/b/a/ The Washington Redskins)

On Wednesday, the United States Patent And Trademark Office (Trademark Trial and Appeal Board or “TTAB”) canceled the Washington Redskins’ trademark registrations in the start of what is likely to be a lengthy legal battle.

In Blackhorse v. Pro-Football, Inc., the TTAB concluded that the team’s trademarks were disparaging to Native Americans at the time they were registered, in violation of the Trademark Act of 1946. As a consequence of the violation, the TTAB ordered that the team’s trademark registrations be canceled.

At the heart of the TTAB’s ruling was its finding that the meaning of the team name “‘may have disparaged’ a substantial composite” of Native Americans at the times of the trademark registrations. [1] In making this finding, the TTAB relied heavily on a 1993 resolution issued by the National Congress of American Indians. The 1993 resolution condemned the use of the word “redskins,” labeling the term as “pejorative, contemptuous, disreputable, disparaging and racist.” [3]

The TTAB noted that it was reasonable to infer that the NCAI represented approximately one-third of Native Americans between 1967 (the year of the Redskins’ first trademark registration) and 1993. [2] But to adequately ensure that the resolution reflected the views of Native Americans at the times of each of the registrations, the TTAB pointed to a 1972 meeting between the NCAI president and Redskins’ team owner Edward Bennett Williams. [4] At the meeting, the president had represented to Williams that Native Americans found the term to be a racial slur. [5] Additionally, the TTAB noted that trends in dictionary usage from the 1960s through the 1990s reflected a general consensus that the term was disparaging. [6] Relying on this data, the TTAB concluded that the petitioners had shown that “a substantial composite of Native Americans” found the term offensive during the relevant time periods. [7]

While Blackhorse might appear to represent new ground broken in the ever-growing controversy surrounding the Redskins’ team name, it is not really a new case. In fact, a nearly identical action was brought before the TTAB in 1992, when Suzan Harjo and six other Native Americans filed a petition to cancel the registrations. In 1999, the TTAB reached the same conclusion that it did on Wednesday – that the Redskins’ trademarks were disparaging to Native Americans at the time each of the trademarks were registered.

In 2003, however, the U.S. District Court for the District of Columbia reversed the TTAB, concluding that 1) the TTAB’s decision was not supported by substantial evidence and 2) the doctrine of laches applied. [8] In 2009, the DC Circuit ultimately affirmed the District Court solely on the laches issue and never addressed the TTAB’s ruling on the merits. [9] The Redskins thus were able to preserve their trademark registrations.

In 2006, during the pendency of the Harjo case, six new Native Americans filed a petition with the TTAB to cancel the trademark registrations. After the disposition in Harjo, the TTAB incorporated the entire Harjo record into evidence for the Blackhorse case. The TTAB thus made its legal and factual conclusions on what was essentially the same evidentiary record as the Harjo case.

So in light of the DC Circuit’s final disposition in Harjo, why the different result? A new court.

In Wednesday’s ruling, the TTAB pointed out that the America Invents Act, enacted in September 2011, vests judicial review of USPTO inter partes proceedings to the U.S. District Court for the Eastern District of Virginia as an alternative to filing an appeal with the U.S. Court of Appeals for the Federal Circuit. [10] Previously, the alternative venue was the U.S. District Court for the District of Columbia, as seen in the Harjo case. As a result of the change in alternative venues, the TTAB explained that “the passage of the America Invents Act sufficiently changes the circumstances in this case so as to justify revisiting the issue.” [74] Accordingly, instead of following DC Circuit precedent, the TTAB followed its own case law and that of the Fourth Circuit in concluding that laches did not apply to the new petition. Specifically, the TTAB concluded that the petitioners had not unreasonably delayed in bringing their petition, because the Harjo litigation served as an excuse to their inaction. [11] Further, the TTAB reasoned that the Redskins had not shown economic prejudice as a result of the delay. [12]

The lone dissenting judge in the 2-1 decision saw no reason to distinguish this case from Harjo, reasoning that “[t]he consequence of petitioners’ decision to rely on the same evidence previously found insufficient to support cancellation without substantial augmentation is that the evidence before the Board in this case remains insufficient as well.”  [13]

The team is expected to file a petition in the Eastern District of Virginia in the next 60 days. Team trademark attorney Bob Raskopf anticipates that the appeals process will be much quicker this time around, given the Eastern District of Virginia’s (“the rocket docket”) penchant for swiftly issuing decisions. [14]

While the case is on appeal, the Redskins will maintain their trademark registrations.

For other current race-conscious legal issues, see JGL Associate Vijay Mani’s article from May 23. For another opinion on this issue, click here.

 

 

[1] Blackhorse v. Pro-Football Inc. at 1.

[2] Id. at 65.

[3] Id. at 67.

[4] Id. at 70.

[5] Id.

[6] Id. at 70-71.

[7] Id. at 72.

[8] Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.DC 2003).

[9] Pro Football, Inc. v. Harjo, 565 F.3d 880 (DC Cir. 2009).

[10] Blackhorse at 74.

[11] Id. at 78.

[12] Id.

[13] Id. at 83.

[14] Dan Steinberg, Redskins lawyer explains what will happen next with trademark case, Washington Post (June 19, 2014), http://www.washingtonpost.com/blogs/dc-sports-bog/wp/2014/06/19/redskins….

 

In March of 2014, the Court of Appeals considered whether an adult sibling seeking visitation rights with her minor siblings, contrary to their parents’ wishes, should be held to the same standard as third parties seeking visitation.[i] The factual circumstances of In re: Victoria C. presented a ripe opportunity for the Court of Appeals of Maryland to produce a more forgiving standard that recognized the importance of familial relationships other than parent-child. The Court of Appeals, however, declined to take that route.

In an earlier decision, Koshko v. Haining, the Court of Appeals recognized that parents of minor children have a fundamental right to make decisions regarding the upbringing of their children, including third parties seeking visitation.[ii] Consequently, third parties seeking visitation contrary to the parents’ wishes must first prove “exceptional circumstances” or show parental unfitness.[iii] In a 5-2 opinion, the Court of Appeals in Victoria C. strengthened the presumption afforded parental decision-making and extended its holding in Koshko to include siblings as “third parties.”[iv]

If any case were ripe for an exception to the third party standard, it was Victoria C. In 2009, the Department of Social Services investigated an allegation of abuse against George C., Victoria’s and her half-siblings’ biological father, which resulted in a finding of “indicated.”[v] The Family Law Article defines an “indicated” finding as “a finding of credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur.”[vi] Victoria C. was sent to live with her aunt in Texas, who returned her to Maryland one year later.[vii] When George C. refused to allow Victoria back into his home, Victoria became a ward of the State and was declared a Child in Need of Assistance (“CINA”) in 2010.[viii]During her CINA proceedings, Victoria requested visitation rights with her siblings.[ix]

The Circuit Court applied principles from the Court of Special Appeals case In re Tamara R.,[x] and found that Victoria met her burden “as required by Maryland’s common law presumption in favor of siblings seeking visitation of their siblings in contested settings” by proving evidence of “harm to herself resulting from the denial of visitation to her minor siblings.”[xi] After this presumption was rebutted by George C. and his wife, the Circuit Court applied Koshko and inferred that Victoria’s half-siblings may suffer deleterious harm if they were separated from their older half-sister.[xii] Accordingly, the Circuit Court authorized supervised visitation between Victoria and her half-siblings.[xiii] While the Circuit Court had no statutory authority to grant visitation rights to siblings, like that which exists for grandparents, it grounded its authority in common and constitutional law bases derived from Tamara R.[xiv]

The Court of Special Appeals reversed the Circuit Court’s decision, with which the Court of Appeals agreed.[xv] The Court of Appeals concluded that the Circuit Court misapplied the “exceptional circumstances” test because it is limited to the “deleterious effects” on the minor children at issue, not the party petitioning for visitation rights. [xvi] The Court of Appeals remanded the case back to the Circuit Court with instructions to focus its inquiry on Victoria’s minor half-siblings.[xvii] While the Court of Appeals assumed the Circuit Court had a jurisdictional basis for granting visitation rights to siblings existed for purposes ofdeciding the merits, it mandated that the parties explore whether that jurisdiction truly exists upon remand.[xviii]

This holding is notable for several reasons. As Judge Adkins emphasized in her dissent in Victoria C.,[xix] this decision diverges from several jurisdictions which hold the right to associate with one’s sibling is a constitutional right.[xx] Notably, Maryland Court of Special Appeals recognized the importance of the sibling relationship in the case In re Tamara R., where the court observed:

[T]he sibling relationship has been widely recognized as an important one, which
will be given significant consideration and protection by courts in cases involving
the family. Recognizing the value in sibling relationships puts in perspective the
importance of the evidence that [an individual] would be harmed by
the denial of sibling visitation.[xxi]

Instead of following the trend from its sister courts, the Court of Appeals determined that siblings should not be accorded a different standard and overruled Tamara R. to the extent that it was inconsistent with its holding in Victoria C. [xxii]

Moreover, this decision may have far-reaching implications. When faced with Victoria C.’s unique factual circumstances, the Court of Appeals still categorized siblings as “third parties” who must first satisfy Koshko before obtaining visitation rights with minor children contrary to parental consent. Consequently, individuals who leave home because of abuse risk severing ties with any minor siblings who remain should they fail to satisfy Koshko.

Importantly, even if Victoria could prove that exceptional circumstances or parental unfitness exists, the Court of Appeals indicated that the Circuit Court may lack jurisdiction to grant such visitation. Indeed, by overruling Tamara R. to the extent it is inconsistent with Victoria C., the Court of Appeals may have overruled the only jurisdictional bases upon which the Circuit Court could grant visitation rights to siblings.[xxiii] The Court of Appeals’ decision in Victoria C., therefore, may make it impossible for any individual, CINA or otherwise, to maintain relations with his or her minor siblings absent parental consent.

*   *   *

Title: A play on words, this title is derived from Judge Adkins’ use of a similarly-titled journal article in her dissent. See In re Victoria C, 437 Md. 567, 595, 88 A.3d 749, 766 (2014) (citing Paige Ingram Castañeda, Comment, O Brother (Or Sister), Where Art Thou: Sibling Standing in Texas, 55 Baylor L. Rev. 749, 774 (2003)), available at http://www.mdcourts.gov/opinions/coa/2014/15a13.pdf.

[i] See id. at 587-88, 88 A.3d at 762.

[ii] See Koshko v. Haining,398 Md. 404, 441, 921 A.2d 171, 192-93 (2007), available at http://mdcourts.gov/opinions/coa/2007/35a06.pdf.

[iii] See id.

[iv] See In re Victoria C., 437 Md. at 592, 88 A.3d at 764.

[v] See id. at 570, 88 A.3d at 750-51.

[vi] See id. at 570 n.4, 88 A.3d at 750.

[vii] See id. at 570, 88 A.3d at 751.

[viii] See id. at 572, 88 A.3d at 752.

[ix] See id.

[x] In re Tamara R.,136 Md. App. 236, 764 A.2d 844 (2000).

[xi] See id. at 581, 88 A.3d at 757.

[xii] See id.

[xiii] See id. at 581, 88 A.3d at 758.

[xiv] See id. at 587, 88 A.3d at 761.

[xv] See id.

[xvi] See id.

[xvii] See id. at 593, 88 A.3d at 765.

[xviii] See id. at 587, 88 A.3d at 761-62.

[xix] See id. at 595, 88 A.3d at 766-67.

[xx] See, e.g., Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982) (determining that children have a liberty interest in maintaining familial relationship with siblings); Aristotle P. v. Johnson, 721 F. Supp. 1002, 1005 (N.D. Ill  1989) (holding that “children[’s] relationships with their siblings are the sort of ‘intimate human relationships’ that are afforded ‘a substantial measure of sanctuary from unjustified interference by the State’”) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984)); L. v. G., 203 N.J. Super. 385, 398, 497 A.2d 215, 222 (Ch. Div. 1985) (“[T]his Court finds that siblings possess the natural, inherent and inalienable right to visit with each other.”).

[xxi] 136 Md. App. at 259, 764 A.2d at 856.

[xxii] See In re Victoria C., 437 Md. at 593, 88 A.3d at 765.

[xxiii] See id. at 592, 88 A.3d at 764(overruling Tamara R. to the extent that it was inconsistent with Victoria C.).

Everyone has heard that “Nothing is certain except death and taxes.” And, we also know that when you pay your taxes late, there is another certainty: penalties and interest. Now, let’s say you pay your taxes late, you are assessed with penalties and interest, you pay the penalties and interest, but later discover that, in fact, you never owed the tax in the first place. You would then expect to have the tax, along with the penalties and interest, which you paid, to be refunded to you. Right?

Well, if you paid Maryland estate tax, not so fast.

The Comptroller of Maryland’s official position is that interest that accrues due to a late payment of Maryland estate tax is not refundable, even if the estate tax that generated the interest is refundable.

For example, an estate tax return is filed on behalf of a decedent’s estate. The return reflects a tax due in the amount of $400,000. As a result of an innocent error by the Personal Representative, the Maryland estate tax return is filed late and thus incurs penalties and interest. The Personal Representative pays the amount due, which includes interest of $50,000. Subsequently the Personal Representative realizes that the return included property that did not belong to the decedent and as a result the estate actually owed no tax at all. An amended estate tax return is filed, reflecting no tax due and requesting a refund of the tax, penalties and interest previously paid in error. The Comptroller, following the current policy, would refund the tax paid, have the authority to make a determination about whether to refund the penalties paid, but, under these circumstances, retain the interest paid, even though the tax for which the interest was generated, was never actually due. In other words, while the taxes will be refunded, the Comptroller will always keep the interest even if it never should have been paid to the State.

The Comptroller of Maryland’s policy relies on a Maryland Court of Appeals decision from 1972, Comptroller of the Treasury v. Campanella[1]. In Campanella, a timely estate tax return was filed on behalf of the estate. During an audit of the return, it was determined that additional estate tax was due; however by the time the determination had been made and the additional tax paid, the filing deadline had passed and thus interest was due on the additional tax. Subsequently, additional inheritance tax was paid, which reduced the estate tax due. As result, the Personal Representative requested a corresponding refund from the Comptroller along with a refund of the interest paid on that portion of the tax. The Comptroller refunded the tax but refused to refund the interest. The taxpayer appealed the decision to the Maryland Tax Court and the case ultimately came before the Maryland Court of Appeals.

The Court of Appeals found that while the interest assessed on estate tax paid after the statutory deadline was referred to as “interest” and calculated as interest generally is, it was in fact a “penalty” used to ensure timely payment of taxes due. “However, the example cited by the taxpayer and the argument sought to be drawn therefrom, dismisses too lightly the need for the State, in the orderly administration of its fiscal affairs, to establish definite filing dates for tax returns and tax payments which are meaningful. To accomplish this, it is an almost universal practice for governments to impose charges which are incurred when filing or payment is delinquent. This practice serves as an inducement for the taxpayer to be prompt in payment or otherwise incur a penalty in the event that he is tardy.”[2]

The Court then stated that, “All refunds of State taxes are matters of grace with the Legislature,” and went on to review the Maryland statute regarding the imposition of estate tax as well as any refunds. The Court stated that it was unable to find any authorization in the statute that would allow for a refund of interest paid under these circumstances. The Court  closed with, “Should the feeling generally persist that an inequity to the taxpayer exists under Section 5, although it is not all that apparent to us, we suggest that, insofar as future taxpayers are concerned, relief may lie with the Legislature.”[3]

So, be warned, when it comes to estate tax, the Comptroller of Maryland has no intention of refunding any interest you may have erroneously paid, because it is actually a penalty; however they may very well refund the penalty you paid, because well, that is a penalty.

 

[1] Comptroller of the Treasury v. Campanella, 265 Md. 478 (1972)

[2] Campanella at p. 483-484

[3] Campanella at p. 487-488

  This past  January, I wrote about the University of Maryland v. ACC legal saga.  As you may recall, in November 2012, Maryland announced it was leaving the ACC for the Big Ten.  In response, the ACC brought suit against Maryland in North Carolina state court seeking a declaratory judgment that a withdrawal payment provision in the ACC Constitution was a valid liquidated damages clause enforceable against the university.  The ACC alleged that Maryland’s withdrawal from the ACC subjected the university to a mandatory penalty in the amount of $52,266,342.  My previous post concluded with the news that that Maryland had just filed a 53-page counterclaim alleging antitrust violations by the ACC.  The counterclaim was widely interpreted as an application of serious and resolute settlement pressure. It is becoming increasingly clear that both sides would like to see this lawsuit resolved prior to Maryland’s July 1 departure date.  On that day, the ACC will welcome the University of Louisville into its conference, and Maryland will officially become a member of the Big Ten.  To that end, the two adversaries have mutually agreed upon a mediator to explore the possibility of settlement.  The ACC’s willingness to participate in arbitration suggests that the conference is willing to accept less than the $52 million and that they recognize considerable risk in moving forward with further litigation. The Honorable John R. Jolly, Jr., the Chief Special Superior Court Judge for Complex Business Cases for the North Carolina Business Court, signed the order appointing Bethesda, Maryland based neutral, Jonathan B. Marks, Esq., as the arbitrator.  According to the order, mediation must be completed no later than July 10, or nine days after Maryland is scheduled to depart the conference.  Mr. Mark’s decision will likely provide final resolution to this matter, as time is of the essence and there will only be substantially curtailed appeal opportunities. Like Mr. Marks, Joseph, Greenwald & Laake represents individuals and businesses when submitting disputes to arbitration or mediation.  The Firm’s lawyers have appeared before all major arbitration tribunals and have represented clients in hundreds of mediations. Final resolution appears to be on the short term horizon.  The attorneys at JGL are following this matter closely.  Be sure to check back frequently for updates.  Feel free to contact Jarrod Sharp with any questions at jsharp@jgllaw.com.

On May 27, 2014, in State v. Hailes,the Maryland Court of Special Appeals made important rulings regarding several evidentiary issues. The Hailes court held that a “hard blink” can be a statement, that a “Dying Declaration” does not require actual imminent death, only a belief of imminent death, and that the Confrontation Clause of the Sixth Amendment does not suppress a dying declaration.[1]

Melvin Pate was shot in the face on November 24, 2010. His injuries were severe; Pate was told he would live a few days at most. On November 26^th and 27^th, detectives showed Pate photo arrays. Pate blinked hard when shown a photo of Jermaine Hailes and another individual, identifying them as his assailants. Miraculously, Pate survived for several more years, but eventually passed away on November 27, 2012 as a result of his injuries. Hailes was indicted for first-degree murder on December 11, 2012.[2]

Hailes moved to suppress Pate’s out-of-court identification, alleging that Pate could not communicate and that it violated Hailes’s rights under the Confrontation Clause.[3] Hailes prevailed on his motion and, in an unusual twist of procedure, the State took an interlocutory appeal.[4] For the first time in Maryland, the court had to determine whether Pate’s hard blink was an admissible Dying Declaration, and whether its use violated Hailes’s Sixth Amendment rights.

Prior to Hailes, “Maryland ha[d] not yet directly ruled on blinking as a form of communication by a witness.”[5] While hard blinking is not the traditional means of communication, the court said, this does not make it an ineffective means. It was clear that “Pate understood the questions asked and communicated the answer the only way he could.”[6] Without further ado, the court concluded that, “we now hold that blinking is a legally acceptable mode of communication.”[7]

A Dying Declaration is a statement made by a victim who believes his/her death is imminent.[8] To be admissible, the statement must concern the cause or circumstances giving rise to the impending death.[9]

Somewhat uniquely, Pate made his Dying Declaration, but lived for two more years. The court determined that it is the belief of imminent death that determines whether it is a Dying Declaration.[10] What occurs thereafter is of little significance. Pates’ subsequent survival did not negate his belief that he would die soon at the time he made the identification.

The court declared Pate’s Dying Declaration “in robust health” before turning its analysis to Crawfordv. Washington and the Confrontation Clause.[11] Crawford requires “a prior opportunity for the cross-examination of all out of court declarations that [are] ‘testimonial’ in nature.”[12]

After a foray into the history of dying declarations, the court determined that the Confrontation Clause does not apply to Dying Declarations, and so the Confrontation Clause’s requirements need not be satisfied. The court found a nearly unanimous approach, beginning with Crawford[13]and expanded by Giles v. California,[14] and sixteen other jurisdictions,[15] The court quoted Giles and reasoned that, “the statements were admissible only if the witness apprehended that she was in such a state of mortality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertion.”[16]  The Hailes Court found this “juggernaut of persuasive authority irresistible,” and Maryland “join[ed] the ranks” and declared that a “Dying Declaration…is exempted from the coverage of the Confrontation Clause.”[17]

Because the Confrontation Clause does not apply in the first place, further related analysis is unnecessary. A court considering a Dying Declaration need not analyze whether the statement is testimonial, the purpose of the statement, whether it is an excited utterance, or other indicia of the reliability of the identification process.[18]

Hailes may appeal this ruling.

[1] State v. Hailes, No. 2384, Sept. Term, 2013, 2014 WL 2191405 (2014).

[2] Id.

[3] Id.

[4] The court determined that the State’s appeal is authorized because it arises from constitutional grounds. Id. at p 2, citing to Md. Code, Courts and Judicial Proceedings § 12-302(c)(3).

[5] Hailes at p. 9.

[6] Hailes at p. 10.

[7] Hailes at p. 10.

[8] Md. Rule 5-804(b)(2).

[9] Id.

[10] Hailes, supra.

[11] Id.at p. 11.

[12] Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

[13] Crawford, 541 U.S. at 56. (“The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay cannot be disputed. Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are.”)

[14] Giles v. California, 554 U.S. 353, 128 S.Ct. 2678 (2008).

[15] Hailes at p. 17.

[16] Giles, 554 U.S. at 362.

[17] Hailes at p. 18.

[18] Hailes at p. 19-23.

In my previous postI talked about the Islamic concept of Mehr, Mehrieh or Dowry.  This post will discuss how Maryland Courts may address the issue of Mehr or Mehrieh when an Iranian family, married in Iran, and now living in Maryland, files for divorce in Maryland.

My Iranian divorce clients, who were married in Iran, almost always ask me: “Can I get my Mehr or Mehrieh when I file in Divorce.”  The Answer is: it depends.

And it depends on how a Maryland Court looks at the concept of Mehr or Mehrieh.  There are many good arguments for and against the concept of Mehrieh under Maryland divorce laws.

Arguments for Mehr or Mehrieh

1. It is a Gift.  Maryland divorce laws treats an engagement ring as a gift before the marriage and therefore cannot be divided in a divorce.  So, it could be argued, that there is little difference between giving spouse a 5 carat diamond engagement ring as opposed to a promise (or gift) for 100 gold coins, which is what happens under the Muslim Faith and is referred to as Mehr, Mehrieh or Dowry.

2. It is a Contract.  In many Middle Eastern cultures, the Mehr, Mehrieh or Dowry is in writing.  Therefore, if held to be valid contract under Maryland law, a spouse can enforce her right in civil court under contract laws rather than in family court under divorce laws.

Arguments against Mehr or Mehrieh

1. Same as Alimony:  Maryland law provides an income dependent spouse (the spouse that has no money or doesn’t work) the right to obtain support from his or her spouse.  That support is referred to as Alimony.  Depending on the length of the marriage and other factors, alimony can be for determined period of time or indefinite.  The purpose of alimony is to provide monetary support to the other spouse so that he or she can maintain a certain living standard.  The purpose of alimony is very similar to Mehr, Mehrieh or Dowry.  In Middle Eastern countries, the Mehr or Dowry serves as a form of security or money the wife could use in the future for her own benefit upon marriage breakdown.  Therefore, an Iranian spouse cannot get her Mehr and Alimony.

2. Fairness:  That one cannot apply for divorce under Maryland Law and obtain all the benefits of the marital rights in Maryland and go back to her home country and attempt to collect her Mehr, Mehrieh or Dowry.

Other jurisdictions have also taken a similar approach.  The common approach is that if Dowry is treated as gift on top of the 50% presumptive entitlement to family assets, most often men are left with less than 50% of the family assets and a large ‘gift’ they have to pay the wife at the time of marriage break down, which doesn’t appear to be fair.

In general, Courts acknowledge the concept of Mehr, Mehrian or Dowry as a religious right or a tradition, but cancel or void it due to the following factors:

• 1) The total family assets may be worth less than the amount of the Mehr.;
• 2) The Mehr contract was negotiated shortly before marriage and therefore not enough thought or negotiation took place before the signing;
• 3) The parties did not seek independent legal advice;
• 4) The contract was negotiated between the parents and not the parties and is therefore not binding;

Notwithstanding the above arguments, in most cases, given the uncertain outcome, most litigation on this issue are costly.  Therefore, the majority of cases resolves where the woman decides to go for a 50/50 split on the family assets and obtain alimony in the United States and then go to Iran and sue for their Mehr. This means that the husband, upon entering Iran, Iraq or any country that enforces Mahr, has to pay it before being able to exit the country.

The best way to prevent the above is to enter into a Marital Settlement Agreement in the United States that specifically addresses the issue of Mehr, Mehrieh or Dowry.  This way each party is protected.

There are international development on this issue, particularly in Canada which has a high population of Iranian immigrants.  Any new developments on this issue will be further updated on our Blog.