Posted on July 07, 2023 in Divorce

Use and possession applies to the family home and family use personal property.

What is considered the "family home"?

In Maryland, the "family home" is statutorily defined as real property in the State that was (1) used as the principal residence of the parties when they lived together, (2) is owned or leased by one or both of the parties at the time of the divorce proceeding, and (3) is being used or will be used as a principal residence by one or both of the parties and a child.

A "family home" does not include real property that was (1) acquired before marriage, (2) acquired by inheritance or gift from a third party, or (3) excluded by a valid agreement.

What is considered "family use personal property"?

The term "family use personal property" is also statutorily defined in Maryland and refers to anything tangible that is used primarily for family purposes.  It is limited to only property that was acquired during the marriage of the parties.  Examples of family use personal property include cars, furniture and furnishings, household appliances, and electronics.

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 Posted on July 03, 2023 in Divorce

In Maryland

Ideally, parties in a divorce proceeding work cooperatively to determine and divide their marital real property and reduce the terms to what will become a portion of a written marital settlement agreement. By proceeding in this fashion, the parties can agree on who has title to the real property owned, who will retain the title to real property, and then work to effectuate the transfer or retention of the same.  Even if one party has already formally instituted divorce proceedings in a Maryland court, it is important to remember that the possibility of reaching an agreement is always available and can often be the best vehicle for a quicker and more affordable way to a final divorce.

If an amicable resolution is not a possibility, then the parties will leave the fate of their real property to a Maryland court.  If a piece of real property is both marital and titled jointly a court can order use and possession (depending on custody of minor children), order the property to be sold or pursuant to the Maryland Annotated Code, Family Law § 8-205:

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 Posted on June 27, 2023 in Divorce

Who are the parties in a Peace Order proceeding?

In a Peace Order proceeding, the person who filed a Petition for Peace Order is called the “Petitioner,” and the person against whom the Petition was filed is called the “Respondent.”

What acts can be grounds for a Peace Order in Maryland?

A person can file a Petition for a Peace Order based on any of the following acts:

• An act that causes serious bodily harm;
• An act that places the Petitioner or Petitioner’s employee in fear of imminent serious bodily harm;
• Assault in any degree;
• False imprisonment;
• Harassment;
• Stalking;
• Trespass;
• Malicious destruction of property;
• Misuse of telephone facilities and equipment;
• Misuse of electronic communication or interactive computer service;
• Revenge porn; or
• Visual surveillance.

 Are Peace Order records open to the public?

In Maryland, most court records are open to the public. Records of Peace Order proceedings are included among the types of records that are open to the public.

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 Posted on June 22, 2023 in Divorce

Who are the parties in a Protective Order proceeding?

In a Protective Order proceeding, the person who filed a Petition for Protective Order is called the “Petitioner,” and the person against whom the Petition was filed is called the “Respondent.”

What are the acts of abuse that can be grounds for a Protective Order in Maryland?

As defined in the Protective Order statute, “abuse” means any of the following acts:

• An act that causes serious bodily harm;
• An act that places a person eligible for relief in fear of imminent serious bodily harm;
• Assault in any degree;
• Rape or sexual offense;
• Attempted rape or sexual offense;
• False imprisonment;
• Stalking; or
• Revenge porn.

Are Protective Order records open to the public?

In Maryland, most court records are open to the public. Records of Protective Order proceedings are included among the types of records that are open to the public.

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 Posted on January 30, 2023 in Criminal Defense

What is Your Right to Remain Silent?

Most people are familiar with Miranda warnings from TV police procedurals and movies: you have the right to remain silent, any statement you make may be used against you, and you have the right to an attorney. In practice however, many people don’t invoke their right to silence or to an attorney. They may think that refusing to speak to police makes them look guilty, or simply wish to assist law enforcement with their investigations. Additionally, police are allowed to lie about the evidence against you, and can withhold information that, if revealed, might cause the interviewee to invoke their right to remain silent. Thus, speaking to the police without an attorney creates a very real risk that a person, even an innocent person, may unwittingly make incriminating statements to police.

The recent news coverage of the October 2021 shooting on the "Rust" film illustrates this point. Alec Baldwin, a wealthy, A-list celebrity, presumably with access to world-class lawyers, waived his Miranda rights and spoke to police without an attorney just hours after the gun he was holding discharged, killing one person, and injuring another. Baldwin’s response makes sense – he had just witnessed a terrible accident, and he wanted to help police understand what happened. For approximately one hour Baldwin spoke to police without an attorney present, describing details of the incident and on set gun protocols. He was not informed until the end of the interview that one of the victims had died. With involuntary manslaughter charges against Baldwin announced just last week, it isn’t yet clear what, if any, role Baldwin’s statement will play in the prosecutor’s case. However, the admissions he made during his police interview will likely foreclose defense strategies that may have otherwise been available to his attorneys.

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 Posted on April 12, 2021 in Business Counseling, Litigation & Transactions

Being appointed an agent under a financial power of attorney, or as a Court-appointed guardian, comes with a significant delegation of authority.  However, it is important to know that such delegation of power is not without limits.  For example, an agent can only exercise powers specifically granted under the power of attorney document.  And, in the case of a guardianship, the guardian is obligated to periodically account for the Court of their efforts on behalf of the ward.  And, of course, a fiduciary under either scenario cannot abuse their power or use their power unlawfully.

Recently, the Court of Appeals issued an opinion that provides yet more useful guidance for fiduciaries.  In United Bank v. Richard Buckingham, et al., the Court answered the following two certified questions from the United States District Court for the District of Maryland: (1) whether changing beneficiaries on a life insurance policy constitutes a conveyance under the Maryland Uniform Fraudulent Conveyance Act; and (2) whether a guardian of property has the authority to change beneficiaries for a life insurance policy of the ward.

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 Posted on March 29, 2021 in Business Counseling, Litigation & Transactions

After the enactment of the Tax Cuts and Jobs Act in 2017, the limitation on an individual’s ability to itemize tax deductions resulted in higher income tax for many Maryland business owners.  On May 8, 2020, Maryland enacted legislation allowing pass through entities (primarily LLCs, partnerships and S corporations) to elect to pay tax on a member’s distributive share at the entity level.  As a result, the taxable gross income of individuals receiving distributive shares of the entities net income is less.  In addition, the election creates a federal income tax deduction for the business that is not subject to the $10,000 itemized deduction limit established by the Tax Cuts and Jobs Act.

Single member LLCs, partnerships and S corporations are the most likely beneficiaries of the pass-through election and they should carefully consider their options.  C corporations and Schedule C taxpayers that are ineligible for taxation at the entity level should seek counsel to determine if restructuring may be beneficial.

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 Posted on January 19, 2021 in Business Counseling, Litigation & Transactions

WeWork.  WeLitigate.

We Holdings LLC and We Company (collectively “WeWork”) is a privately held company that leases office space on a short-term basis.  Following a failed IPO in 2019, the company was faced with a liquidity crisis.  In response, the board of directors formed a special committee (the “Special Committee”) to evaluate strategic alternatives to the IPO and to negotiate a potential transaction to save the company.  The Special Committee was comprised of two directors.  Together, the two Special Committee members and entities affiliated with them held over 34 million shares of WeWork.

On October 22, 2019, the Special Committee entered into a Master Transaction Agreement with Softbank Group (“SBG”) which contemplated a tender offer, equity financing, and debt financing.  On November 22, 2019, SBG made a tender offer to purchase shares from WeWork.  Issues arose shortly thereafter and on April 1, 2020, SBG terminated the tender offer.  On April 7, 2020, at the direction of the Special Committee, WeWork filed suit against SBG.  WeWork’s co-founder, Adam Neumann, also filed suit.  The suits were consolidated by the Court of Chancery of the State of Delaware (the “Court”) into In re WeWork Litigation (“WeWork”).

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 Posted on January 04, 2021 in Business Counseling, Litigation & Transactions

The Statutory Right to Purchase Shareholder Stock in the Dissolution of a Close Corporation

In Bartenfelder v. Bartenfelder, 248 Md. App. 213 (2020), the Court of Special Appeals considered whether a complaint by a stockholder in a close corporation seeking the appointment of a receiver triggers the right of another stockholder to purchase the complainant’s stock in the company under § 4-603(a) of the Corporations and Associations Article (“CA”) of the Maryland Code.  The Court held that “in the absence of a petition for dissolution, the request for a receiver does not trigger the statutory purchase right.”  Id. at 219.  In other words, the purchase right in CA § 4-603(a) applies only in the context of a dissolution proceeding.

The Facts and Procedural History

The case arose out of a dispute between Kimberly Bartenfelder and Thomas Bartenfelder.  Mr. Bartenfelder and Ms. Bartenfelder were the sole stockholders of two Maryland close corporations, Bartenfelder Sanitation Service, Inc. and Bartenfelder Landscape Service, Inc. (together, the “Corporations”), and the sole members of a Maryland limited liability company, 3340 Forge Hill LLC (the “LLC”).  Id. at 219–20.

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 Posted on December 30, 2020 in Family Law

What is a peace order?

By Maryland statute, a peace order is a court order that requires another person to stay away from you and not contact you. Do not confuse a peace order with a protective order. If you are related to the other person, have a sexual-type relationship with the other person, or are a victim of sexual assault, you should consider a protective order, not a peace order.  A peace order is for issues with a neighbor, co-worker, stranger, etc., and it only applies if you do not have a familial or intimate relationship with the other person.

Where do I file for a peace order in Maryland?

If you need to file for a peace order, visit the clerk’s office of your local District or Circuit Court, Monday through Friday from 8:30 a.m. until 4:30 p.m.  If the District or Circuit Court is closed you may file for a Peace Order with your local District Court Commissioner. They are generally available 24 hours per day, 7 days per week. You can locate your nearest District Court Commission on the Maryland Court’s website here. This site also has links to the Petition For Peace Order Form and the Peace Order Addendum Form that the Court will require you to fill out.

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