There are some important issues facing same-sex couples when it comes to divorce in Maryland, now that gay marriage is legal. Since this law is new, it remains to be seen how the Maryland courts will deal with these pending issues. It is therefore very important to work with an attorney, who can help guide same-sex couples in their divorce.
- Alimony tax treatment. Same sex couples do not receive the often favorable tax treatment of Alimony as deductible to the payor and includable in the gross income of the recipient. Instead, same sex alimony payment may give rise to unfavorable gift tax issues.
- Social Security Benefit elections are restricted.
- Federal Tax Filing Status is different. Same sex couples cannot file jointly and therefore are denied those financial advantages.
- Payments of Marital Settlement Awards – This means that property transfers between same sex couples could give rise to whopping tax liabilities, such as gift taxes in cases where one spouse pays the other a lump-sum settlement.
- Transfer of a Family Home – This may give rise to capital gains taxes where heterosexual couples enjoy tax-free transfers.
- Division of Retirement Interests – Where one spouse seeks to transfers part of a qualified retirement plans or tax sheltered annuity to the other spouse, heterosexual couples avail themselves of a court’s order called the qualified domestic relations order (QDRO) in accordance with the federal Employment Retirement Income Security Act (ERISA). Unfortunately same-sex couples end up with tax liability and penalties for early withdrawal.
- Adultery as Grounds for Divorce – Adultery in Maryland is defined as sexual intercourse, which involves the male and female genetalia under current law.
- Adoption/Paternity – Laws relating to presumption of parentage for a child born to one party during a legal marriage and laws relating to adoptions might also have a special impact in certain same sex cases.
We get asked this question all the time. The short answer is that if you are able to afford an attorney, you should have one. At Diamant Gerstein, LLC, we will work with you in any way necessary to make a lawyer affordable for you. We use payment plans, credit card plans, extended payment plans, monthly plans, and so forth. Whatever your financial situation is, there is no reason why a lawyer should not be a realistic option for you. The answer to whether you need a lawyer is simple. Divorce is not a simple area of law. Unlike other areas of law, divorce relies on expertise in tax law, like Innocent Spouse Relief, contracts, rules about retirement accounts and pensions, 401-K’s and stocks. It relies on knowledge of custody laws, both as to physical custody and legal custody and what the courts look at when determining should have primary physical custody of a child and which parent should have legal custody of a child. Physical custody refers to where the child is actually going to reside. Legal custody refers to decision-making as to the serious issues that come up in life: in what religion should my child be raised? Jewish? Catholic? Protestant? Muslim? If my child is involved in a terrible accident, who decides whether to continue the child on life support? If my child needs major dental or orthodontia, who decides whether the child gets braces, and other expensive dental implements? And, who pays for such things? Divorce law requires knowledge of property law, real estate law and implications of property and asset division. Maryland is a tenancy by the entirety (TBE) State. This means that you and your spouse, if you own your home, are presumed to own it as tenants by the entirety. Who lives in the home? Who gets use and possession of the home? If you choose to “buy out” your spouse, the home must be appraised. There are special appraisals done solely for divorcing couples who need to find out the fair market value of their home, and fast. There are also property issues to decide. Who takes what furniture in the home? How do you know if the property within the home is marital property or separate property? How do you know whether you are getting 50/50 of something or whether the court would divide the property in a different way? Maryland Divorce Courts sit as courts of equity. This means that they have the power to divide assets in a way that is equitable, which may not always be 50/50. Was there excessively cruel conduct in your marriage? Did someone cheat and commit adultery? Did one spouse either actually desert the home or constructively desert the home, making the marriage no longer viable? These are all questions a lawyer can help you answer, and a lawyer can further make sure you get what’s fair. That is the real goal: to get you what is fair.
Maryland is a no-fault State to get divorced. However, there are grounds for divorce.
The grounds for absolute divorce in Maryland are as follows:
(1) adultery; (2) desertion that has continued for twelve months without interruption; (3) 12-month separation, when the spouses have lived separate and apart without cohabitation for 12 months without interruption; (4) cruelty of treatment toward the complaining spouse or a minor child of the complaining spouse; (5) excessively vicious conduct toward the complaining spouse or a minor child of the complaining party; (6) mutual consent if (a) the parties do not have any minor children in common; (b) the parties have signed a written settlement agreement that resolves all issues relating to alimony and property division; (c) neither party files a pleading to set aside the settlement agreement prior to the divorce hearing; and (d) both parties appear before the court at the absolute divorce hearing; (7) conviction of a felony or misdemeanor if the defendant has been sentenced to serve at least 3 years or an indeterminate sentence in a penal institution; and defendant has served 12 months of the sentence; (8) insanity resulting in at least 3 years confinement in a mental institution, hospital, or other similar institution , and certain other requirement have been met.
12-month separation—This is the most common way to divorce. The general rule is that you can get an absolute divorce after you have been separated for a year. You have to live separately in order to meet the one-year separation requirement. We are always asked if this means people can live under the same roof but in different rooms. The answer is no. Separate means separate. Two separate addresses. Some people choose to save money by simply “nesting.” This is where, rather than getting two separate residences, the divorcing parties trade off week-by-week staying in the marital home, and when one spouse is in the home, the other is away. Often, a spouse will find a friend’s couch or a relative’s home to stay at if the parties are doing a “nesting” arrangement.
The Maryland limited divorce grounds are the following: (1) cruelty of treatment of the complaining party or of a minor child of the complaining party; (2) excessively vicious conduct to the complaining party or to a minor child of the complaining party; (3) desertion; or (4) separation, if the parties are living separate and apart without cohabitation.
Cruelty of Treatment– the excessively cruel/vicious treatment by one spouse against another or of a child is the definition. Generally, a single domestic violence episode will not qualify for this ground, but depending on the severity of the abuse, it could.
Excessively Vicious Conduct— Not all unpleasant conduct constitutes cruelty. According to Maryland Court of Appeals, your spouse’s actions must be sufficiently egregious that they seriously impair your health or permanently destroy your happiness, to establish cruelty as grounds for divorce. You must demonstrate that your spouse engaged in a continuous pattern of physical violence, threatened physical violence, or committed mental abuse. The misconduct qualifies as evidence of cruelty if it is directed towards you or your minor child. The courts look to the specific incidents of cruelty in the context of the marriage rather than isolated incidents, although one particularly severe incident may constitute cruelty, if your spouse intended to harm you or your child.
Not every act of physical violence constitutes grounds for divorce on the basis of cruelty. The court does not grant immediate divorce for cruelty on the basis of mere unhappiness between spouses. For example, in one case the court found that a single incident of physical violence combined with a pattern of verbal abuse was insufficient to establish cruelty. In another case, a wife showing that her husband having slapped her was insufficient to constitute cruelty, but if there were a situation in which her husband had been punching her, it may be sufficient to show cruelty.
The court recognizes mental anguish imposed by a spouse as a form of cruelty. However, mere name calling or neglect by your spouse is not sufficient to establish cruelty. To establish mental abuse, the courts look to factors such as whether your husband is excessively controlling or makes attempts to limit your access to friends or family. In one case, the court found evidence that a husband required his wife to keep a log of all her activities to be persuasive evidence of cruelty.
As the person asserting cruelty as a reason for divorce, you have the burden of proving facts supporting your allegations of misconduct if your spouse contests the divorce. The courts are not permitted to rely solely on your testimony recounting your spouse’s misdeeds. Rather you are required to produce corroborating evidence, either in the form of witness testimony or in documents such as emails. You may also corroborate claims of physical violence with photographs of bruises or police records.
Desertion—this is where a spouse either actually deserts the home and moves away, showing no desire or intention to return to the house, or constructive desertion, where the spouse has alienated his or her affections towards the other, making it impossible to continue in the marriage. The general rule of thumb is that desertion has been established once the spouse has been gone for six months.
Adultery– If you are seeking a divorce on the grounds that your spouse has engaged in adultery, you’ll need to provide proof. Before you confront your spouse, you should speak with a divorce attorney. This way, you and your lawyer can begin collecting evidence to prove adultery so you can get a limited divorce quickly. Computers and cell phones may be a goldmine when it comes to proving adultery, but as technology becomes more and more prevalent, laws are continually being updated. If you have evidence such as passionate emails or texts, a divorce attorney will carefully evaluate the circumstances under which you obtained the evidence to determine whether it will be considered legal in your Maryland. Other proof of adultery in Maryland can include: cell phone records, travel records, pictures, and live testimony of the paramour, witnesses and/or co-workers.
The short answer is “no.” Your spouse can’t force you to stay married. The term is called involuntary servitude and it’s not legal.
The first step in the division process is deciding whether property is marital or separate property. Spouses who entered into a prenuptial agreement before marriage may have specified that certain property is marital or separate. If there is no agreement, then marital property includes all of the assets and debts the couple acquires during marriage. Property is separate if a spouse owned it before marriage or acquired it during marriage by gift or inheritance. Separate property also includes any property that one spouse can directly trace back to property that began as separate property. Real property held by the couple as “tenants by the entireties” is always marital property unless the couple has a valid agreement stating otherwise.
Marital and separate property can be mixed together—sometimes called “commingling of assets.” For example, both spouses may pay the mortgage on a house that one spouse owned separately before the marriage, or one spouse may deposit separate funds into a joint bank account. Separate funds commingled in joint accounts will remain separate property only if the owner is able to trace the separate funds through financial records, or bank records. If marital funds are used to pay the mortgage or expenses on a separately-owned home, or another separately owned asset that has appreciated in value, a court will apply the “source of funds” rule, which requires determining the value of the separate and marital property in proportion to the contributions. These situations can be very complicated and you’re likely going to need a lawyer who will help you figure out the separate/joint allocation. If spouses aren’t able to decide what belongs to whom, a Judge will have to decide how to apportion the separate and marital interests.
After determining which property is marital property, the couple, or the Court, will generally assign a monetary value to each item. Couples who need help determining values can hire professional appraisers. Some financial assets, such as retirement accounts, can be very difficult to evaluate and may require the assistance of a financial professional, such as a C.P.A. or an actuary.
Spouses can divide assets by assigning certain items to each spouse, possibly with an equalizing payment if one spouse gets substantially more than the other so that the division isn’t equitable, or by selling property and dividing the proceeds. They can also agree to continue to own property together. While this isn’t a very attractive option for most people, as it requires an ongoing financial relationship, some couples agree to keep the family home until children are out of school. Couples who end up in court could find themselves in a similar situation. Maryland law provides that a court may award one spouse the temporary exclusive use not only of a family home, but also certain items of “family use personal property,” such as a vehicle or home furnishings, for up to three years, or until the spouse with exclusive possession remarries.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans, and credit card debts, to one of the spouses.
Couples who don’t manage to resolve property issues on their own will end up going to court to ask for a decision from an arbitrator or a judge. A Maryland court will consider all relevant factors in deciding what kind of property division is fair, including the following:
- the length of the marriage,
- each spouse’s age, health, and physical and mental condition,
- whether a spouse is receiving maintenance (alimony), or has been awarded the use of a family home or other family use property,
- each spouse’s contributions, monetary or nonmonetary, to the well-being of the family,
- each spouse’s economic circumstances,
- either spouse’s contribution of separate property to real property held by the couple as tenants by the entirety,
- how and when one or both spouse acquired specific property, and
- marital misconduct that contributed to the divorce.
How is alimony decided?
Very simply, the Court looks at the need of the receiving spouse and the ability to pay of the paying spouse. Maryland has several types of alimony: temporary, short-term, and long-term or permanent. Temporary alimony lasts only during the divorce proceedings, prior to the final judgment of divorce. This is also called alimony “pendente lite,” which means the award is effective only while the case is pending.
The court may award short-term alimony for a limited time to help one spouse adjust after a divorce. It may award permanent or long-term alimony when one spouse shows that he or she won’t be able to make substantial progress in becoming self-supporting due to age, disability, or illness, or that the spouse’s living standards will be unconscionably disparate even after that spouse has made as much progress as possible towards becoming self-supporting.
When determining whether to award alimony, a Judge may consider a number of factors, including:
- the length of the marriage—anything over ten years is considered a long marriage in Maryland
- the couple’s standard of living during the marriage
- each spouse’s age and mental and physical condition
- the financial needs and financial resources of each spouse
- the requesting spouse’s ability to become self-supporting, and whether further education or training will be required to meet that goal
- each spouse’s contribution to the marriage, whether financial or otherwise, and,
- whether the spouse from whom alimony is requested will be able to meet his or her own needs while paying alimony.
Even though Maryland is a no-fault divorce State, the Court may also consider fault when granting alimony awards. A “fault divorce” means one spouse is at fault for the breakdown of the marriage due to actions such as adultery, abuse, or abandonment. Finally, the court may consider an alimony agreement between the spouses. To calculate the amount of support, the Court may look at both parties’ incomes, standards of living, and monthly expenses. It may also look at each spouse’s investment and retirement opportunities as well as potential tax consequences.
Alimony in Maryland ends if the alimony recipient remarries, either spouse dies, or the court finds a change in circumstances. You may also ask the court to modify the award if you can show that circumstances for you or your spouse have changed so substantially that the current order is no longer appropriate.
The issue of grandparents’ rights is a hot area in family law right now. In fact, Diamant Gerstein, LLC is currently involved in a groundbreaking custody matter involving a grandparent’s right to custody of a grandchild. Grandparents may have a right to visitation with their grandchildren in Maryland under certain circumstances. The governing Maryland case on this issue is Koshko v. Haining, 398 Md. 404 (2007). The rule of law articulated in Koshko provides that, in order for a Maryland court to issue an Order providing for visitation by a grandparent, the grandparent must satisfy a two-pronged test. First, the grandparent must put forth evidence of parental unfitness or exceptional circumstances demonstrating a current or future detriment to the child without visitation from the grandparent. Second, the grandparent must prove that visitation is in the best interest of the child.
In Koshko, the Maryland Court of Appeals first analyzed the case law governing Maryland’s Grandparental Visitation Statute, Md. Code, Fam. Law § 9-102. The court recognized that, from 1993 until July 2000, Maryland courts consistently held that the best interest of the child was determinative when ruling on grandparental visitation rights, and that there was no need to show parental unfitness or exceptional circumstances. This appeared to change in July 2000 with the Court of Special Appeals’ decision in Brice v. Brice, 133 Md. App. 302 (2000), which required a showing of parental unfitness in addition to analysis of the best interest of the child. Thereafter, Maryland’s highest court – the Court of Appeals – required a showing of parental unfitness or exceptional circumstances, prior to any analysis of the best interest of the child, in Shurupoff v. Vockroth, 372 Md. 639 (2003).
The short answer is: it depends. Depending on the complexity of the issues in your case, divorce may be expensive. On the other hand, if you and your spouse have largely agreed to most of the issues in your case, you may only need the assistance of a lawyer to calculate child support, or to come up with an alimony payment, or to assist in dividing remaining property. At Diamant Gerstein, LLC, we pride ourselves on working within every budget, no matter how large or small, to satisfy the needs of the client. Clients are not rubber-stamps. Every client is different, and the issues involved in each divorce are varied.
Collaborative Law (A way to Divorce Amicably, Peacefully and with Dignity)
The collaborative law process puts you and the other side together to essentially mediate and come to an agreement, on all decisions surrounding your divorce. This includes: child custody, child support, property settlement, retirement funds division, alimony and all other issues surrounding your unique case.
If you choose to use collaborative law to resolve your issues, you and the other party must both agree in writing:
- That any exchange of information will be complete and honest, for fully-informed decision-making, there is no hiding-the-ball or making the other chase you for documentation,
- Not to litigate or go to the courthouse and file for divorce during the collaborative process; and, should either side decide to file in court, then each collaborative law attorney must withdraw representation and cannot represent their respective clients in the court proceeding
- To engage in open, free and respectful communication with one another
- To work in a collaborative way toward a written agreement on all issues related to your dispute without resorting to court intervention.
The First Step: Agreeing To Collaborate with One Another
In Maryland, the collaborative law process begins when you and the other side agree to resolve your case outside of court litigation. You each meet with and retain a collaborative law attorney who will give you legal advice and address your individual needs and concerns.
The Second Step: Collaborative Negotiation with Attorneys, and Sometimes Others, Present (A parenting coordinator, a financial coordinator)
Following your agreement to collaborate, all parties and their attorneys participate in a series of 4-way meetings aimed at crafting a resolution that suits each of your needs and concerns, as well as those of your children in a collaborative divorce. The good news is that there is always food and drink available at these meetings! It is supposed to be a friendly process. If both sides decide additional information is needed, they decide together which experts to select and include in the collaborative law process.
The Third Step: Collaborative Resolution/Coming to an Agreement
Throughout the collaborative law process, you and the other party have the ultimate decision-making authority, but you each have the protection of your own attorneys who can give you legal advice and advocate for what is in your best interest.
By committing to the collaborative law process, both sides agree to work out their differences in the manner that best suits them, while still receiving the expert advice of an attorney. This is an important step toward an amicable resolution of your dispute and establishes cooperative and respectful communication between both sides, whether in a collaborative divorce or general dispute.
Sharon T. Diamant is a collaboratively-trained divorce attorney and is certified by the Administrative Office of the Courts, Family Administration Division. She participates in the low bono and pro bono Collaborative Divorce Group and regularly assists clients seeking a collaborative divorce.
Child Support and Child Support Modification
Diamant Gerstein, LLC handles hundreds of child support cases each year. Sometimes, circumstances change that require a modification, or a change, in child support. Even though child support is usually decided by a mathematical formula, we help our clients gather the evidence to ensure the correct numbers are applied using the latest appropriate software. Child Support calculation is based on:
- Parental Income
- Physical Custody (whether both parents have more than 128 Overnights)
- Child’s Health Insurance Costs.
- Out-Of-Pocket Medical Expenses.
- Psychological Counseling.
- Monthly Day Care & Camp Costs
Modification Of Child Support
When income, the child’s needs and/or physical custody of a child changes in a material way, it might be time to recalculate child support.
Child support contempt matters are typically heard by a Magistrate before proceeding to a Judge.
Office Of Child Support Enforcement Hearings (OCSE)
The Office of Child Support Enforcement can file cases to modify support, or an individual can file to change support in the Circuit Court. The Office of Child Support in Montgomery County, Maryland is located at 51 Monroe Street, Rockville, MD 20850. Usually, the child support agency will summons both parties to appear for an initial hearing in front of an agent working for the Office of Child Support. Having an attorney is helpful for the purpose of effective negotiation. We have a track record of obtaining favorable results for clients based on negotiation skills and knowledge of the local procedures.
At the outset, if you have children and/or property issues in your divorce, you should seriously consider hiring a lawyer. A lawyer will help you figure out all issues relevant to your unique situation, and at Diamant Gerstein, LLC, we pride ourselves on making it as affordable as possible to have competent, zealous, legal representation. Below, you will find a general list of topics to consider:
- Access to Information & People: Educational and medical records; teachers, doctors, pediatricians, therapists
- Medical Emergencies: Decision-making, notification, legal consent in case of emergency
- Daily Schedule: Children’s living arrangements for a typical week, homework, sports schedule, dance, etc.
- Holidays: Secular and religious holidays, birthdays, reunions, Jewish and Christian holidays
- Vacations: Summer vacations, winter and spring breaks, travel
- Transportation: Pick-up and drop-off arrangements
- Parental Change of Residence:Restrictions, notice to other parent
- Decision-making (legal custody): Major decisions about education, medical treatment, religion, discipline, safety
- Renegotiation: Periodic review of parenting plan, building in flexibility as the children get older
- Conflict Resolution: Structure for settling any future disputes
Division of Property
- Full Disclosure: Gathering and sharing of financial information and documentation concerning all assets and debts
- Procedure for Division:
• Marital vs. non-marital
- Some Categories of Assets:
• Other Personal Property
• Bank Accounts
• Accounts Receivable
• Stocks, Bonds, Funds
• Real Estate
• Life Insurance
• Business Interests
• Pensions, IRA, 401(k), etc.
• Patents, Stock Options, etc.
- Some Categories of Debts:
• Bank Loans (e.g., car loans)
• Loans on Life Insurance
• Personal Loans
• Credit Cards
Child Support & Alimony
- Budgeting: Children’s expenses and parents’ expenses
- Income: Identifying all sources of income, from all sources
- Child Support: Calculating basic support level, school tuition, extraordinary medical expenses, childcare expenses, camp fees
- Alimony: Amount and duration
- Adjustments: Cost of living, changed circumstances
Other Financial Issues
- Medical Insurance
- Life Insurance
- College Tuition & Expenses
• Joint or separate returns?
• Dependency exemptions
• Dividing refunds & liabilities
• Alimony vs. child support
At Diamant Gerstein, LLC, we can help you with any criminal charge you receive, to include any and all traffic tickets, violations of probation, protective orders, peace orders, drunk driving, drugged driving, infractions on college campuses, in dorms, and in federal court. Sharon T. Diamant was a prosecutor for the Montgomery County State’s Attorney’s Office for ten years. During that time, she prosecuted thousands of crimes, everything from burglary and bad checks, to drunk driving, hit and run, narcotics charges, police misconduct, financial crimes, and sexual offenses against children. Having been a prosecutor, and knowing how the system works, Sharon can help you figure out your best possible defenses and likely outcomes if you are found guilty. In addition, having been a prosecutor for so many years, Sharon knows how to analyze a criminal case from both angles and can assist a criminal defendant obtain a great result in court and keep any points, fines and jail terms to a minimum.
Often times, a criminal defendant will wait until a day or two before court to hire an attorney. This is never a good idea. In order to have a criminal defense lawyer have the time needed to review your case, speak with the prosecutor, request all evidence and discovery in your matter, and prepare for court, you should consider hiring an attorney immediately after receiving the tickets in your matter or being arrested. If you cannot afford an attorney, a criminal defendant should go and interview with the Office of the Public Defender right away.
A jail sentence generally means a sentence of eighteen (18) months or less. Such sentences are often served at a local detention center. In Montgomery County, the local detention center is located in Clarksburg, Maryland. A prison term generally refers to a term of imprisonment of more than eighteen (18) months. Such sentences are served at prison facilities, which are located in various parts of Maryland, the most notable of which are in Jessup, Maryland and in Baltimore, Maryland.
It should be noted that, at the near-completion of an inmate’s sentence, he or she may be eligible for a work-release program. Programs such as the Pre-Release Center (PRC) in Rockville, Maryland, help offenders prepare for life back in the outside world by providing job training and assistance to offenders who need employment. PRC is an arm of the jail but the inmates are housed in dorms rather than prison cells, and the inmates are encouraged to seek and/or obtain employment during the day, while sleeping at the facility at night. Home passes are available for inmates who have exhibited good behavior.
We at Diamant Gerstein, LLC get asked this question all the time. In short, if you have a traffic offense, such a drunk driving offense, it cannot be expunged. Traffic offenses do not get expunged in Maryland. However, if you have never been convicted of a traffic offense, you may be a good candidate for probation before judgment. Section 6-220 of the Criminal Procedure Article allows a Court, when in the interest of public safety, to strike a conviction on one’s traffic record, thus eliminating the points and the jail sentence.
If you have been convicted of a criminal offense, the law in Maryland allows you, or your lawyer, to file a Motion for Reconsideration. A Motion for Reconsideration must be filed within ninety (90) days of the conviction date. The Motion can be held sub curiae by the Court, which means it is not acted upon. Once you have completed your probation, paid restitution owed, any court costs, and completed an alcohol treatment program, drug treatment program, AA meetings, Mothers Against Drunk Driving program, or any of a number of other conditions of probation a Judge may Order, the Court can revisit your conviction and strike it from your record. Once the conviction is stricken, a defendant may move to have the conviction permanently expunged from his or her record.
A peace order is a form of legal protection for anyone who is experiencing problems with an individual, including someone in a dating relationship, a neighbor, a stranger, or anyone else. Peace orders do not covered married people. The Peace Order enables an individual (Petitioner) who wishes to be left alone to ask the Court to order another person (Respondent) to stay away and refrain from any contact with you, to include harassing and offensive contact, and third-party contact.
You can only get a Peace Order against a person if you are not eligible to get a protective order against the person. You can only get a Peace Order if you are a Maryland resident, or if the act covered by the Peace Order law happened in Maryland., choking, shooting, stabbing, shoving);
- An act that places you in fear of serious imminent bodily harm;
- Assault in any degree;
- Rape or sexual offense (including attempts);
- False imprisonment;
- Trespassing; or protection when the courts are closed
When the District Court is closed, a Petitioner may file a Petition for Peace Order (Petition) with the District Court Commissioner’s office. Commissioner offices are open and available 24 hours a day, 7 days a week around the state. A Petitioner can access a Commissioner either by going to any on-duty Commissioner’s office or by telephoning an on-call
At the Commissioner’s office, you will be asked to fill out a form, called a Petition. On this form, you will list the reasons why you are seeking protection. It is important to list every example of physical abuse and threats; the history of harm or harassment caused by the Respondent; any previous or pending actions between you and the Respondent; and the relief you are seeking. If necessary, you may also write on an additional sheet of paper and attach it to the Petition.
After submitting the Petition, you will appear before a Commissioner to explain your reasons for seeking relief. As the person seeking relief, you hold the burden of proof by “reasonable grounds” to establish that an act or incident occurred between you and the Respondent. As such, it is important that you disclose any proof of abuse and/or harassment you may have, including, pictures, police reports, medical records, witnesses, etc.sry home.
The Commissioner will forward the Interim Peace Order to law enforcement as well as the District Court. Thereafter, a law enforcement officer will immediately serve the Respondent with a copy of the Interim Peace Order.nThe Interim Peace Order will expire at the end of the second business day after issuance or, if the District Court is closed on that day, the next day the District Court is open.
You must attend a Temporary Peace Order hearing to extend the length and scope of protection contained in the Interim Peace Order. If the other side has not received a copy (i.e. been served), the court will issue a Temporary Peace Order and serve the Respondent with notice of the final hearing
Whether you received an Interim Peace Order or submitting a Petition for the first time, you will appear before a Judge to explain your reasons for seeking relief. As the person seeking relief, you hold the burden of proof by “reasonable grounds” to establish that an act or incident occurred between you and the Respondent. As such, it is important that you disclose any proof of abuse or harassment you may have, including, pictures, police reports, medical records, witnesses, etc. Unlike a Protective Order, the Judge must also find it likely that the Respondent will commit a similar act in the future.
The Court shall immediately forward the Temporary Peace Order to law enforcement to locate and serve the Respondent with a copy of the order. The Temporary Peace Order will state the day, time and location of a final hearing for a Final Peace Order.
The Temporary Peace Order shall remain in effective for not more than seven (7) days after law enforcement has given the Respondent a copy of the order (i.e. service). If the court is closed on the day the order is due to expire, the order shall remain in effect until the second day on which the Court is open. The Judge may extend the order, as needed, up to thirty (30) days to serve the Respondent or for good cause.
You must attend a Final Peace Order hearing to extend the length and scope of protection contained in the Temporary Peace Order. The Judge will schedule another hearing that will be held in one (1) week.
At the Final Peace Order hearing, if the Respondent has been served with a copy of the Temporary Peace Order but fails to appear for the hearing, you can ask the Judge to enter a Peace Order against the Respondent – this is called a Default Order.
If the Respondent is present at the hearing, the Respondent may or may not be represented by a lawyer. When the case is called, both you and the Respondent will have a chance to tell the Judge what happened which led you to file the Petition. This is a formal hearing and the rules of evidence apply. As the person seeking relief, you hold the burden of proof by “a preponderence of the evidence.” Please note that the Judge who hears the case may not be the same Judge that presided over the Temporary Peace Order hearing, so it is important that you repeat all the reasons why you are seeking relief, this includes submitting into evidence any documentation of the act or incident (police report, hospital records, photographs, etc.) and calling witnesses on your behalf. Be aware that the Respondent or the lawyer will ask you questions in cross-examination and will have an opportunity to disprove your case. Do not be surprised or upset if the Respondent lies about what happened. At the conclusion of the hearing, the Judge will decide whether an act occurred and whether it is likely that the Respondent will commit a similar act in the future.
A protective order is similar to a peace order, except it is good for up to one (1) year. Protective orders are reserved for spouses, certain family situations, and relationships that have ended. They are not for neighbors arguing over landscaping, friends who have had disagreements, and non-family situations.
Once you have either pled guilty to an offense or have been found guilty of an offense, you may be placed on a period of probation. This is a time when the Court keeps an “eye” on you to make sure you stay out of trouble and do what the Court has asked of you on probation. Common terms of probation can include: Staying out of trouble, refraining from drinking alcohol and using or abusing drugs, paying restitution and fines to the court or to a victim, attending Alcoholic Anonymous (AA) or Narcotics Anonymous (NA) meetings, attending sessions at the Mothers Against Drunk Driving seminars, and installing an interlock on your car. After the recent death of Montgomery County police officer Noah Leotta, many are pushing for stricter laws concerning drunk driving, to include ignition interlock on all first-offenders’ vehicles. The name of the law is “Noah’s Law.”
If you do not do every condition asked of you on probation, you may be charged with a violation of probation. Probation officers are not your friends. They are employed by the State of Maryland to supervise offenders and assure that offenders are in compliance with the Order that a Judge has passed.
If you do not do everything asked of you on probation, a probation officer will file a violation of probation and file it with the Court. You will receive a court date requesting you answer to the charges, or the allegations, your probation officer has made. Often times, a violation of probation can result in additional jail time, additional fees, an extension of probation, and other punishments. It is very important you do not attend a violation of probation hearing without an attorney.
The juvenile system is a totally separate and unique system from adult court. In the juvenile court, the accused is not a defendant. Rather, he or she is a respondent. The goal of the juvenile court is to rehabilitate a child rather than to label he or she as a criminal. The juvenile offender timeline is vastly different than the adult timeline. While an adult must be tried for a criminal offense within a certain period of time, known as a “Hicks Date,” a juvenile offender must be brought to trial, called “adjudication,” very quickly. The juvenile court retains jurisdiction over a juvenile offender up to and including his or her twenty-first birthday. Because of this, he or she may stay under the watchful eye of the Court and the Department of Juvenile Services (DJS) for years.
Juvenile offenders are not “jailed.” They may be sent home with an ankle bracelet, known as home electronic monitoring. They may reside at a group home, or a group facility. In extreme cases of violence, drug abuse, runaways, and incorrigible children, a child may be sent out-of-State to live at a lockdown facility where he or she has access to schooling, counseling and other resources offered to the juvenile offender.
The juvenile’s offender record is sealed and is not available for public knowledge. As a former prosecutor, Sharon T. Diamant handled some of the County’s worst juvenile sexual offenders. One of said offenders formed the basis for what ultimately because a sexual offender registry for juvenile sexual offenders.
Civil, not criminal, penalties
In Maryland, possession or use of less than 10 grams of marijuana is not a criminal offense. Possession or use of up to 10 grams of marijuana is still illegal, however, and carries civil penalties.
Fines for possession of small amounts of marijuana
Because it is not classified as a crime, possession of up to 10 grams of marijuana does not result in arrest, jail time, or a criminal record. Possession or use of marijuana is not legal, but in these cases involving small amounts of marijuana, the penalties are civil in nature.
Penalties under the new law
Fine of $100
Fine of up to $250
Third (or later) offense
Fine of up to $500
Court appearances and drug treatment
Under the new law, even though the possession of up to 10 grams of marijuana is not a criminal offense, violators who are under the age of 21 must appear in court and may be ordered to drug treatment. Violators who are 21 or older must appear in court after a third offense, and may be ordered into drug treatment.
You need to hire a lawyer. Drunk driving is really serious. Being charged with driving under the influence (DUI) is a serious infraction. It means, among other things, that your blood alcohol concentration (BAC) posted at a level of 0.08% or higher. You can be sentenced:
- License revocation: Up to 6 months.
- Fine: $1,000
- Imprisonment: Up to 1 year
- 12 points on your license
- License revocation: Up to 1 year. Required Ignition Interlock Device
- Fine: $2,000
- imprisonment: Mandatory minimum of 5 days. Maximum 2 years
- 12 points on your license
- Mandatory participation in an alcohol abuse assessment and program.
You can be charged for DWI if your BAC is 0.07% or higher:
In many cases, people who end up on the lower end of the BAC spectrum but fail miserably on a field sobriety test end up with this charge. Officer judgment is a major factor.
- License suspension: Maximum 60 days.
- Fine: $500
- Imprisonment: Up to 2 months
- 8 points on your license
- License suspension: Maximum 120 days.
- Fine: $500
- Imprisonment: Up to 1 year
- 8 points on your license
Penalties go higher if you have a passenger who is a minor or if you are facing a third charge.
In addition to the possible criminal charges above you will also face penalties with the Maryland Motor Vehicle Administration for failing or refusing to take a chemical test. You have the option to request a hearing with the Office of Administrative Hearings if you believe you can show cause as to why your license should not be suspended. You must request a hearing within 10 days of receiving a order of suspension. The fee to request a hearing is $150. You will be notified of the date and time of your hearing.
If you do not prevail at the hearing or do not request one you will have your license suspended for:
Refusing a Chemical Test:
- License suspension: 120 days or IID for 1 year (1st offense)
- License suspension: 1 year (2nd offense)
Failing a Chemical Test:
- License suspension: 45 days (1st offense)
- License suspension: 90 days (2nd offense)
Ignition Interlock Device
Maryland requires anyone convicted of driving while impaired to install an Ignition Interlock Device (IID) on their vehicle as a condition of reinstating their license. If you are required to have an IID you must have it installed by an approved dealer. You will pay a fee for the installation and a monthly monitoring fee.
If your license was revoked due to a DUI or DWI offense, you will need to attend an Alcohol Education Program before applying for a new one. The program is designed to steer you clear of any future incidents involving intoxicating beverages and cars―unless from a seat in a taxi or bus.
The course also takes a physiological route and analyzes each participant to determine whether there is a more serious problem involved with abuse or dependency. If you fall into this category the division will require you to undergo more intensive therapy in the form of a treatment program.
Reinstating Your Driver’s License
Before you can even think about having your license reinstated you must satisfy a minimum portion of your suspension. This is based upon the number of total times your license has been revoked:
- 1 revocation waiting period: 6 months.
- 2 revocations waiting period: 12 months.
- 3 revocations waiting period: 18 months.
- 4 or more revocations waiting period: 24 months.
After you have satisfied this time period you will have to call the Driver Wellness and Safety Division at (410) 768-7000 and request your license be reinstated. The department will walk you through the process of applying to have your Maryland driver’s license reinstated. You may hire a lawyer to go through this process.
Drunk driving cases are very serious. A court will want to know you are taking the charges seriously. To that end, I encourage all of my clients to immediately enroll in and complete an alcohol education course. To determine what course is best for you, an alcohol treatment provider will first do an evaluation to determine whether you are a social drinker, or whether you are considered a problem-drinker. They will ask you a series of questions to make this determination.
Once the treatment provider makes a decision as to the best course of treatment for you, you will generally either do a 6-week alcohol education program, or a more in-depth 26 week program that will include some Alcoholics Anonymous, or AA, meetings.
Yes, please see below.
|Billngual Counseling Center||11301 Georgia Ave, 2nd floor Wheaton, MD 20902||301-942-7821||Assessment Fee $60.00|
|Circle Treatment Center||424 N Frederick Ave, Suite 3A Gaithersburg MD 20877||301-258-2626||Assessment Fee $ Variable|
|Counseling Plus, Inc.||8561 Fenton St, Ste#230 Silver Spring MD 20910||301-565-9001/301-565-9002 (Spanish)||Assessment Fee $ Variable (Free 4:30PM)|
|Counseling Inst. Of Suburban Maryland||4400 East/West Hwy, Suite#26 Bethesda MD 20814||301-654-7021||Assessment Fee $|
|D.A. Wynne Associates, Inc.||11900 Parklawn Dr, Suite#120 Rockville MD 20850||301-468-5663(Rockville)301-439-6700(Silver Spring)||Assessment Fee $30.00|
|Family Health Center||16220 S. Frederick Ave. Suite#219 Gaithersburg MD 20877||301-963-7222||Assessment Fee $70.00|
|Harrison & Foldbnuson PC||2923 Olney-Sandy Spring, Suite E Olney MD 20832||301-570-4400||Assessment Fee $150.00|
|MD Counseling Center||20 Courthouse Sq, Suite#202 Rockville MD 20850||301-424-5955||Assessment Fee $110.00|
|Metro Counseling Service||15719 Crabbs Branch Pkwy Rockville MD 20855||301-670-8181||Assessment Fee $125.00|
|Outpatient Alcohol Services||416 Hungerford Dr. Suite #209 Rockville, MD 20850||301-762-1383, 240-418-5772||Assessment Fee $100.00|
|Stepping Stone Treatment||2801 Colston Dr. Chevy Chase MD 20818||301-588-2622||Assessment Fee $80.00/Sessions $35.00|
|White Flint Recovery||14838 Rothgeb Dr. Rockville MD 20850||301-294-6545||Assessment Fee $100.00|
Intensive Outpatient/Inpatient Rehabilitation Programs
Kolmac Clinic – (301)589-0255 / www.Kolmac.Com
Avery Road (Inpatient + Long-term Residential) – 301-762-5613
The District Courts around the State of Maryland hear traffic cases. The Office of Administrative Hearings sets cases before the Motor Vehicle Administration. If you are arrested for drunk driving, or drugged driving, you will have the option to go before an OAH Judge. These Judges hear cases involving a person’s driving record in cases involving driving suspended, driving on a revoked license, and drunk driving cases.
If you receive a payable traffic ticket where jail time is not a possibility, you have several options: either pay the ticket online or through the mail, pay the ticket in person at the District Court nearest you, request a waiver hearing and “plead guilty with an explanation,” or plead not guilty and have a hearing before a Judge. For these final options, it is often helpful to hire an attorney to try and avoid high fines and points on your traffic record.
Ignoring a ticket is never the right answer. The Maryland Motor Vehicle Administration may assess points on your license if you plead guilty or the court finds you guilty of the violation. If you don’t respond within 30 days, the District Court will notify the Motor Vehicle Administration to begin the driver’s license suspension process. If the police officer did not check “This is a payable citation” on your traffic ticket, you must appear in court for trial (for example, in a DUI case). The court will mail you a summons informing you of the trial date.
If you requested a waiver hearing or trial, the District Court will mail you a date to appear in court. In a waiver hearing you can ask the Judge to reduce or waive your fine. You can also ask the court to give you probation instead of a conviction. There is a possibility that your fine could be increased, up to a maximum of $500. You can explain to the judge why you committed the offense, or explain extenuating circumstances.
The officer who issued your ticket will testify, and you will have an opportunity to present your side of the case. You may present witnesses’ testimony or other evidence. You are responsible for alerting your witnesses of the date, time, and location of your trial. You may choose to have a lawyer represent you. After hearing all of the evidence, the judge will decide whether you are guilty or not guilty. If the court finds you guilty, you have the right to an appeal within 30 days of your trial date. There are non-refundable court costs for filing an appeal. If you change your mind and decide you don’t want to go to court, you can pay the fine at any time up until your court date to avoid going to court. If you don’t appear for your court date, the District Court will notify the Motor Vehicle Administration to begin the driver’s license suspension process.
See a lawyer right away. A lawyer will explain any defenses you may have to the crimes for which you are charged. Do not ignore your tickets. If you don’t appear in court on a charge that carries a potential jail sentence, the court will issue a warrant for your arrest, called a bench warrant. A bench warrant allows any peace or law enforcement officer in a State in which the warrant was issued to arrest you and take you before a Commissioner for a bond.
If you receive a Notice to Appear as a witness in a traffic case, the date, time and court location appears on the notice. Call the court the day before the trial date to confirm that the case is still on the docket. If you are unable to appear on the scheduled date, notify the court in writing prior to that date by mail. Include the citation number, defendant’s name, trial date and location, a brief explanation of why you are unable to attend, your name and your daytime phone number.
The length of your trial or hearing can vary by county, and can depend on the number of cases scheduled. Many courts are trying to reduce the time you have to spend in traffic court by scheduling cases on an hourly basis.
The red light, speed monitoring, school bus monitoring, and electronic toll cameras are installed and/or operated at the expense and direction of the locality or municipality or, if on a state highway or toll facility, by the Department of State Police or Maryland Transportation Authority. Complaints about the location or operation of these cameras should be sent to the address on the citation. In most cases this is the address of the police or state agency.
As stated on the red light, speed monitoring, school bus monitoring, and electronic toll violation citations: “Payment of the penalty amount for the violation will not result in points and cannot be used to increase your insurance rates.”
Various vendors manufacture the cameras used in red light, speed monitoring, school bus, and electronic toll traffic programs. For information on how these cameras operate, contact the local police department in the municipality where the camera is located or, if on a state highway or toll facility, the Maryland State Police or Maryland Transportation Authority.
For any other questions, contact the Customer Service number on the back of the citation or the jurisdiction where the citation was issued. These citation programs are operated by local and municipal governments (or, if on a state highway or toll facility, the Maryland State Police or Maryland Transportation Authority. Maryland courts only handle these citations if the person who was issued a citation requests a trial date or disputes liability.
In District Court cases, you may plead “guilty” or “not guilty.” There is no Not Guilty Agreed Statement of Fact. And, there is no plea of “innocent.” A guilty plea results in the charge becoming a part of your record. In the case of a traffic ticket, MVA could assess you points. In traffic cases, you may plead “guilty with an explanation” and appear for a hearing. The hearing presents you with an opportunity to explain to the judge why you committed the offense and request that your fine be reduced or waived or ask that you be given probation rather than a conviction because of extenuating circumstances. Lowering your fine is at the discretion of the judge. There is a possibility that your fine could be increased, up to a maximum of $500. If the judge renders a guilty verdict, you have the right to an appeal. There are non-refundable court costs for filing an appeal. If you wish to plead “not guilty,” you must request and appear for a trial where the officer and any witnesses will be present.
When a verdict is rendered— either by a jury or judge—the actual decision is either “guilty” or “not guilty.” There is no finding of “innocent.” If there is a finding of “not guilty,” it simply reflects the fact that the prosecution failed to prove guilt beyond a reasonable doubt. Common resolutions of cases other than by findings of “not guilty” and “guilty” include:
- Nolle Pros. The State opts to end the prosecution and dismisses the charge.
- Stet. A stet is like an inactive docket, where the charges sit on a back burner, assuming the defendant does what he or she is supposed to do. The State may reopen the case without the need for the defendant to be recharged, if the defendant has not lived up to his or her end of the bargain. A case may be reopened because of the defendant’s arrest on additional charges or his/her failure to live up to some agreed-to-condition within a reasonable time after the entry of the stet. Often times, a stet will come back to life as a criminal case when a person fails to pay fines, gets arrested again or fails to finish a drug/alcohol treatment program or alternative community service hours.
- PBJ-Probation before judgment. This is a common resolution in many District Court trials and is done pursuant to Courts and Judicial Proceedings, Section 6-220. The defendant is found guilty or pleads guilty. However, the final entry of judgment is technically suspended. This gives the defendant an opportunity to request expungement of his record upon successful completion of the conditions or probation. Note that traffic records do not get expunged, only criminal records. A criminal record is separate from a traffic record in Maryland.
At Diamant Gerstein, LLC, our experienced litigators can help you with a variety of civil claims,including claims involving tenants who have destroyed rental properties, non-paying customers, nail salon contracts, personal injury claims, and more.
If you are facing civil litigation (i.e., a lawsuit), you may have many questions regarding the process. Our firm’s civil litigation lawyers will be able to provide you with answers to your questions and guide you for the duration of your case. We have the skill and the experience that you will need, and endeavor to explain the process, to furnish the information our clients need about the process, and most importantly, to answer all of our clients’ questions. The following are a few of the common questions we are asked:
If someone sues you, or you decide to sue someone else for money, the litigation process begins. The defendant answers and/or brings a countersuit or brings in another party who the defendant thinks is the better party to be held financially responsible. The parties then engage in discovery (exchange of information about the matter in dispute). Mediation or alternative dispute resolution often occurs after discovery is completed. The process ends with a trial, if needed, and if a party is dissatisfied with a result, he or she can appeal the decision. In reality, most litigation matters end before trial because the parties reach an agreement and resolve their issue.
“Discovery” refers to a process where the parties involved in the law suit, acting through their lawyers, have the chance to “discover” from the other party information and documentation that would be helpful to their case. This is important for you to understand because if you are involved in a litigation process, you will not only have the right to obtain information from your opponent, but you will also have to make available to your opponent. Wrangling about discovery issues is common in business litigation cases, sometimes lawyers have to file motions in Court to compel the other side to respond to the discovery process. You should expect to spend a significant amount of time searching for and copying e-mails and other evidence. If you have a legal dispute, it is illegal to destroy evidence. Once you know that a dispute exists, make every effort to preserve the evidence.
In a sole proprietorship, the owner of the business can be held liable and responsible for anything that goes wrong. A corporation can protect your personal assets from business liabilities in a way that sole proprietorship cannot. You should also remember that liability insurance can be inexpensive. Apart from paying claims that are insured against, the advantage of an insurance policy is that the insurance company must supply a lawyer to defend you against any claim that would be covered under the policy, whether the claim is meritorious or not.
Depending on the dispute, you may be able to pursue arbitration or mediation as a form of conflict resolution. When you have a dispute within a business or partnership, you have one of three choices. You can either leave it be, sue them or choose another alternative. These alternatives such as mediation and arbitration can be extremely beneficial as they cut down on costs and reduce the amount of time spent in court, as opposed to litigation. To learn more about these options, it is highly recommended that you obtain a qualified Maryland civil litigation attorney, such as the lawyers at Diamant Gerstein, LLC.
Civil litigation costs largely depend on the client. If you are the type of person who wants to “fight,” and have your day in court, you can expect to pay a large sum of money. Lawyers charge by the hour, and there is a tremendous of amount of work needed to prepare a case for court. At Diamant Gerstein, LLC, we will always give you alternative options to keep costs down. If you are seeking to reduce costs, arbitration or mediation may be positive alternatives to litigation. We offer a case evaluation for your convenience so that we can outline for you the general cost and options you have.
The Statute of Limitations is the time period in which a lawsuit may be pursued after a particular incident or offense. Once this time is over, legal action against the particular party, company or individual is barred, and you can’t bring a claim. It is really important to have a lawyer look at your case before the Statute of Limitations expires. Protect and utilize the rights you have been given and pursue your legal recourse, and fast!
Tax & Business Law
Jason P. Gerstein is a licensed attorney with an MBA in Tax and Finance and an LLM (Master’s Degree) from Georgetown Law School in the area of Taxation. He is an expert in the field and can help you with any tax issue you may encounter.
An offer in compromise allows you to settle your tax debt for less than the full amount you owe. It may be a legitimate option if you can’t pay your full tax liability, or doing so creates a financial hardship. At Diamant Gerstein, LLC, we can counsel you on various options you may have with your tax issues.
If you’re financially unable to pay your tax debt all at one time, you can make monthly payments through an installment agreement. This can help to reduce or eliminate your payment of penalties and interest.
It is highly recommended you hire an attorney to help with your tax problem. Taxpayers often commit to higher payments than they can afford when they try and negotiate with the IRS on their own. If you owe over $10,000, Diamant Gerstein, LLC does not recommend you attempt to set this or any other arrangements on your own.
A monthly payment plan can be set up to pay back the taxpayer’s tax liability. The IRS has guidelines as to what amount they will accept and the time frame they will accept it in. A financial statement is required from the taxpayer before our firm can negotiate an installment agreement. If the debt is under $50,000, Diamant Gerstein, LLC can help offer a stream-lined agreement.
An Offer in Compromise is another option that can lower the total tax liability owed by the taxpayer due to financial constraints. This is a very popular solution advertised by most firms, but not available if the taxpayer has the ability to pay the debt.
Jason P. Gerstein has the knowledge and experience needed to know what the IRS will accept in each situation. Our skilled team can negotiate on your behalf and help obtain an agreement that is reasonable for you.
An Audit requires an examination of a business or individual returns and transactions. This requires expertise in tax issues and transactions, as well as accounting procedures. A complete review of all documents that will be associated with the audit must be performed. Sometimes, an audit seems like it may only cover one or two years, so taxpayers and businesses think they can handle it on their own. After the audit of the one year is done, other years may become flagged. You need a strategy before you ever enter into an audit. Having a tax professional to help you organize your documents is key and can mean a world of difference in the outcome of your audit.
Many Taxpayers try to handle an audit on their own. They think they are saving a few dollars and will be okay on their own. What often happens is the audit costs them more, than if they were to hire representation and have they negotiate better terms. Auditors are highly-skilled, and they are well-trained individuals who know how to get more information than you are legally required to provide.
Jason P. Gerstein will review all your audit documents and help explain them to you. He will advise you as to what items you need to provide and which ones you do not. He will help you gather, compile and organize your documents. This will make the auditor know you are prepared, make their job easier, the process more streamlined. After the audit is complete, the Firm will contact you with the findings and explain them to you. If you are not satisfied with the outcome of the audit, Jason P. Gerstein will discuss your appeal options.
- We will relieve you of the obligation of talking to the auditor. We will do all of the talking for you.
- We will speak directly to the agency on your behalf.
- We will be available to answer any questions you may have about the process.
- We will communicate with the auditor and answer their questions about your tax returns.
- We will help prepare legitimate arguments on your behalf and present them to auditor.
- We will help provide any follow up documentation requested by the auditor.
- We will perform detailed analysis and research on your specific case.
- We will negotiate on your behalf.
- We will help settle any claims with the IRS.
- We can help with appeals process if necessary.
The IRS assesses penalties and interest on tax liabilities so over time taxes due years ago can increase from hundreds to thousands of dollars. The IRS will sometimes lower or eliminate these fees if we can offer a reasonable cause for non-payment or non-filing (death, illness, fire, lack of funds, etc.) We recommend paying the tax prior to making the request.
Filing late If you do not file your return by the due date, you may have to pay a failure-to-file penalty. The penalty is usually 5 percent for each month or part of a month that a return is late, but not more than 25 percent.
Failure to Pay Penalty The failure-to-pay penalty is calculated based on the amount of tax you owe. The penalty is .5 – 1.5 percent for each month the tax is not paid in full.
Failure to File Penalty The failure-to-file penalty is calculated based on the time from the deadline of your tax return to the date the return is actually filed. The penalty is 5 percent for each month or part of the month that the tax return is late, up to a total maximum penalty of 25 percent
Accuracy Related Penalties The two most common accuracy related penalties are the “substantial understatement” penalty and the “negligence or disregard of the rules or regulations” penalty. These penalties are calculated as a flat 20 percent of the net understatement of tax.
At Diamant Gerstein, LLC, Jason P. Gerstein can provide legal assistance in your commercial leasing and landlord-tenant matters. He has substantial experience in matters regarding commercial leasing disputes, representing both landlords and tenants in transactions and litigation. He is also an expert in contracts, including both commercial and retail contracts.
Transactions and Litigation Services:
- Lease negotiation
- Breach of lease
- Commercial Leasing
- Holding-over actions
- Non-payment/ejectment actions
- Landlord’s Liens
- Rent abatement
- Constructive eviction
- CAM disputes
- Code violations
Many married taxpayers choose to file jointly because of the many benefits this filing status offers them. However, filing jointly also makes both spouses jointly and severally liable for any tax, interest and penalties. This is true even after the spouses divorce. Unfortunately, problems can arise when a spouse fails to report income or takes improper deductions or credits on the tax return (or fails to file a return at all), as the other spouse remains liable. Fortunately, there are a few ways that persons who were unaware of their spouse’s illicit tax activities can relieve themselves of liability. Innocent spouse relief basically relieves a spouse of joint and several liability from the tax you owe if your spouse (or former spouse) did not report income, improperly reported income or improperly claimed credits or deductions. Under the tax laws, all of the following must be true to qualify for this type of relief:
- You filed a joint return with a tax deficiency that is solely attributable to your spouse’s erroneous item (e.g. credits, deductions, etc.)
- At the time you signed the return, you did not know or have reason to know that there was an understatement of tax
- Considering the facts and circumstances, it would be unfair to hold you liable for the tax deficiency
- Separation of liability relief allocates the owed tax between you and your spouse or former spouse, lessening the amount for which you are liable. It is available if at least one of the following is true:
- You are widowed
- You are divorced or legally separated from the spouse with whom you filed the joint return
- You have not been a member of the same household as the spouse with whom you filed the joint return at any time during the year before you sought relief
- Even if you don’t qualify for Innocent Spouse Relief, equitable relief may be available. To qualify for this type of relief, you must prove that, under all the facts and circumstances, it would be unfair to hold you liable for the underpayment or understatement of tax. In addition to this, you must meet other requirements listed in Publication 971 to qualify for equitable relief.
- Successfully obtaining relief from joint and several liability for taxes can be an uphill battle. To maximize your chances of success, it is vital to have the advice of an experienced tax attorney throughout the process.
First, you are an employer if you have a worker in your home, working full or part-time. If during any calendar quarter of the current or preceding calendar year there is a total payroll of $1,000 or more to an individual(s) performing domestic service, the domestic employer is liable.
If a Domestic Employer is liable to pay quarterly unemployment insurance taxes, the employer must submit a Combined Registration Application no later than twenty days after the first day of services performed. Employers may use the following link to file the Combined Registration Application via the Internet at New Employer Account Registration or contact the Employer Status Unit at the telephone number listed below. The Division of Unemployment Insurance will establish an unemployment insurance account for the employer and assign a ten digit account number. A liable employer is required to file a Contribution and Employment Report each quarter.
Jason Gerstein has nearly 20 years of experience with businesses and domestic employers’ tax issues, and he can help you with any tax issue you may have. Give him a call at 301-335-5123.
An employer is an individual or employing unit, which employs one or more individuals for some portion of a day. Besides the multitude of regular employers, such as manufacturers, retailers, etc., it also includes special types of employment that are sometimes overlooked by employers. These special types and liability requirements are:
Agricultural Employer – if during any calendar quarter of the current or preceding year the employer paid cash remuneration of $20,000 or more to individuals performing agricultural labor; or employed at any time ten or more individuals for a portion of a day in any twenty weeks in the current or preceding calendar year, then the agricultural employer is liable.
Domestic Employer – if during any calendar quarter of the current or preceding calendar year there is a total payroll of $1,000 or more to an individual(s) performing domestic service, then the domestic employer is liable.
Farm Crew Leader – if a crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963; or the crew leader provides mechanized equipment which substantially all the individuals operate or maintain, provided the individuals are not employees of another employer, then the farm crew leader is liable.
Employment is defined as any service performed for remuneration (payment) whether full-time or part-time. This also includes salaries paid to corporate officers who are employees of the corporation (including close and subchapter S corporations).
One of the most common employment exclusions is an “independent contractor.” The criteria for independent contractor status are: The individual who performs the work is free from control and direction over its performance both in fact and under the contract; and The individual customarily is engaged in an independent business or occupation of the same nature as that involved in the work; and The work is: (a) outside of the usual course of business of for whom the work is performed, or (b) performed out-side of any place of business of the person for whom the work is performed.
When independent contractor status is in question, employers must document that all three of the criteria above are satisfied. An independent contractor should have the appropriate licenses, file business tax returns, and may have his/her own federal identification number and UI account number. The Code of Maryland Regulations (COMAR) provides additional guidance for making the proper determination regarding workers. The landmark Maryland Court of Appeals decision, DLLR v. Fox (PDF document, 94KB, download Adobe Acrobat for free) also provides insight into the analysis of the classification of independent contractor.
You can open an unemployment insurance employer account by filing a Combined Registration Form. Employers should submit a Combined Registration Form no later than 20 days after the first day of business. This single registration form covers obligations to seven State agencies. The employer only completes sections that apply to his/her business. Instead of filing a paper Combined Registration Application, you may file the application on the Internet at Maryland Comptroller’s Office. To request a registration form, call (410) 225-1313 in the Baltimore area or toll free on 1-800-492-5524.
Taxable wages include total remuneration paid up to the taxable wage base limit of $8,500 before any deductions are made.
The following wages are taxable:
- Meal and lodging provided by an employer to an employee, unless the meals and lodging are provided on the employer’s premises for the employer’s convenience.
- Tips which are reported pursuant to Section 6053 of the Internal Revenue Code.
- Payments to workers for: (a) dismissal; (b) vacations; (c) sick leave (for first six months only); and (d) advances to employees for travel or other expenses for which no accounting or reporting to employers is required.
- Payments by the employer of the employee’s share of Social Security (except for payments made by domestic and agricultural employers).
Notation: The Federal Unemployment Taxable (FUTA) wage base remains unchanged at $7,000.
Not-for-profit organizations classified under Section 501(c)(3) and exempt from income tax under Section 501(a) of the Internal Revenue Code, and state and local government entities and subdivisions may elect to finance their UI costs by reimbursing the state dollar for dollar for benefits charged against their accounts, in lieu of paying quarterly UI taxes. Not-for-profit organizations are required to post a bond of a specific dollar amount. Questions concerning not-for-profit status and/or requirements may be directed to the Unemployment Insurance Employers Line on (410) 949-0033 for callers in the Baltimore area or toll free on 1-800-492-5524.
The election of the reimbursement method for newly formed not-for-profit organizations must be made in writing to the agency within 30 days of coverage under the law. Once electing the reimbursement method, Maryland law only permits an employer to change his/her option after two years on written notice to the Assistant Secretary not less than 30 days prior to January 1 of the year the new options becomes effective (if approved).
Billing for benefits chargeable to the not-for-profit organization or government entities is made via the “Statement of Reimbursable Benefits Paid,” (DLLR/DUI 64-A). This quarterly statement lists all claimants collecting benefits during the previous quarter. Organizations receiving this form have 15 days from the “Date of Invoice” to file a written protest. Interest is charged for any late payments.
Services performed within Maryland, or both within and without this state are to be reported to Maryland if:
- The service is localized in Maryland; or,
- When there is employment in more than one state and some service is performed in the state where the base of operations is located, then the earnings are to be reported to that state where the individual’s base of operations is located. If no services are performed in the state with the base of operations and some services are performed in the state where direction or control is received, then the earnings are to be reported to the state where the individual’s direction or control is received. If there are no services performed in the state where the base of operations is located or where direction or control is received, then the individual’s state of residence is to be used.
The objective is for all services performed by an individual for a single employer to be covered under one state law, wherever the services are performed. Employers may elect to cover an employee through a Reciprocal Coverage Agreement between states. For additional information, contact the Unemployment Insurance Employers Line on (410) 949-0033 in the Baltimore area or toll free on 1-800-492-5524.
Maryland employers are required to pay their quarterly unemployment insurance taxes by the quarterly due date, four (4) times each year. For employers filing on the WebTax online application:
- Pay by E-Check (free) at the time of the filing, through the application
- Pay by Credit Card (the greater of $1.00 or 2.5% of the tax due) at the time of the filing, through the application
- Pay by paper check and mail to P.O. Box 17291 Baltimore, MD 21297-0365
- Pay by E-Check (free) after the time of the filing, directly at the provider’s site at Official Payments’ E-Check web site.
- Pay by Credit Card (the greater of $1.00 or 2.5% of the tax due) after the time of the filing, directly at the provider’s site at Official Payments’ Credit Card Web site.
- Pay by ACH Credit after obtaining approval from DLLR by using the Electronic Funds Transfer Guide.
An employer pays taxes on the first $8,500 of wages paid to an employee in the calendar year. An example of excess wages for one individual follows: If an employee earned exactly $8,500 in the first quarter of the calendar year, the employer would have zero excess wages in the first quarter because the entire amount of wages is taxable. If the employee earned $7,000 in the second quarter of the same calendar year, the amount of excess wages in the second quarter would be $7,000 because the employer had paid taxes on the first $8,500 in the first quarter. Apply this calculation to all employees to determine excess wages for each employee, and then add excess wages for all employees. This grand total is entered as excess wages for your filing. For additional help computing excess wages, you may use the free Excess Wage Calculator in an Excel Spreadsheet format.
The Offer in Compromise (OIC) is a program that allows a Maryland taxpayer to settle their delinquent taxes for LESS than the total amount the IRS claims they owe.
To ensure a quality submission and with a greater possibility of an approval of your Offer in Compromise you must retain the services of a proven Maryland Tax Attorney, like Jason P. Gerstein, who has both the expertise and the relationship with the IRS to get the job done for you.
Once all the accurate information has been gathered, the lawyers at Diamant Gerstein will prepare an offer and submit the proper documentation and forms that will put you and your case for an Offer in Compromise in the most favorable light possible with the Internal Revenue Service.
Over the years, the Comptroller of Maryland has taken many steps to insure that the taxpayers pay their tax dues, mostly by implementing new collection tools. For example, since January 2000 the Comptroller has been participating in the Federal Tax Refund Offset program, a cooperative program with the Internal Revenue Service that allows the Comptroller to intercept the federal income tax refunds and apply them to satisfy delinquent state income tax liabilities. The Comptroller has started its own new program to catch tax-evaders called “Caught in the Web” initiative, an online list of delinquent individuals and businesses. On their website, the Comptroller lists not only the individuals who owe delinquent personal income but the owners of businesses who owe some of the largest tax liabilities for corporate income, employer withholding and sales and use tax for all the world to see. Also, under the Corporate Charter Project the Comptroller sends out numerous warning letters every day to delinquent corporations that are not in bankruptcy and do not have payment plans in order to collect business tax liabilities. Upon receiving such a notice, the corporations have 15 days to contact the Comptroller to resolve the issue or possibly face forfeiture of the corporate charter. Furthermore, the Comptroller is now more empowered to collect the tax dues since the requirement that the Comptroller get a court order for a direct wage garnishment and a bank attachment no longer exists.
In sum, a well-functioning Offer in Compromise program will both enhance the taxpayer’s future compliance and secure collection of revenue that may not be collected through any other means. The Comptroller needs to make more serious efforts to adopt a tax policy that serves two purposes: meeting the government’s need for revenue and valuing the taxpayer’s well-being. And one way to do this is by strengthening the Offer in Compromise program, not by implementing more traditional enforced collection tools.
If you are unable to pay the Internal Revenue Service for taxes you owe, you may be able to qualify for a tax payment plan. The IRS calls such payment plans an Installment Agreement. Maryland offers similar tax payment plans. While most would prefer to obtain an offer in compromise, which reduces the total tax debt, many will not qualify because either their income is too high (by IRS standards) or the taxpayer has too many assets, which includes home equity. Thus, that taxpayer’s only option may only be to request a payment plan.
What is an Offer in Compromise?
By filing an Offer in Compromise, you are offering to pay less than the full amount of your tax debts to the Internal Revenue Service. The IRS, at its discretion, may accept less than full payment of your tax debts if there is doubt as to whether the IRS could ever collect the full amount of tax debt or if there is doubt as to whether you are actually liable for the tax debt. Submitting an offer in compromise is one of five ways to get out of tax debt.
What are the terms and conditions of the Offer in Compromise?
In a nutshell, you agree to:
- Pay the offer amount in the Offer in Compromise.
- File your tax returns on-time and pay your taxes on-time for the next five years.
- Let the IRS keep any tax refunds, payments, and credits applied to your tax debts prior to submitting your Offer in Compromise.
- Let the IRS keep any tax refunds that would have been payable to you during the calendar year that your Offer in Compromise is approved.
If your Offer in Compromise has been approved, you need to make sure the IRS does not revoke your Offer. At all costs, make sure that you:
- File your taxes by April 15th for the next five years.
- Pay your taxes by April 15th for the next five years. If you owe, your taxes must be paid in full by April 15th. Make estimated payments to make sure you don’t have a balance due.
If the IRS revokes your Offer in Compromise, they will reinstate the full amount of your tax liability, add on penalties and interest, and begin aggressive collection efforts.
Can I pay “pennies on the dollar” to settle my tax debts?
The marketing slogan, “pay pennies on the dollar,” is misleading.
In a successful offer in compromise, the taxpayer pays less than the full amount taxes, penalties and interest. However, the taxpayer must prove that the amount he or she is paying is equal or more than the reasonable collection potential as determined by the IRS. The reasonable collection potential, broadly speaking, is the IRS’ best guess about how much money you could come up with in the next 24 months to pay off your tax debts.
How long does it take to get an Offer in Compromise?
It will take one to two years to complete the Offer in Compromise process.
Is there a fee for submitting an Offer in Compromise?
The IRS charges a user fee of $186 to process an Offer in Compromise. You must pay this fee whether you prepare the Offer yourself or hire a tax professional. If you are living below the poverty line, the IRS will waive the fee if you request a fee waiver.
What if I don’t qualify for an Offer in Compromise?
If you don’t qualify for an Offer in Compromise, you should consider setting up an installment agreement to pay off your tax debts. You will want to seek the help of a tax professional to evaluate alternatives for handling your tax debts.
If you do not qualify for an Offer in Compromise, here is how to qualify for an Installment Agreement:
To qualify for an installment agreement, the taxpayer will need to be current with their ongoing tax obligations. In addition, the taxpayer will need to ensure that all required tax returns have been filed. In many situations the taxpayer may be required to file financial reports showing their income, expenses and available assets. Depending upon the amount due and time required to pay the amount, the IRS may require documentation of your income and expenses.
If the taxpayer owes a substantial amount to the IRS, then the payment may be in excess of what the taxpayer may be comfortable paying. Unfortunately, the IRS may require you to make certain lifestyle changes in order to make the payments. Further, the IRS may require you to include the income of your significant other, even if you are not married, as an available resource. When IRS required payments are excessive, the taxpayer may be eligible for an offer in compromise or may want to consider filing for bankruptcy to reduce the tax debt. Further, a tax attorney, like Jason P. Gerstein, may assist you by appealing unreasonable payment requirements or rejected installment agreements.
A benefit of an installment agreement is that the IRS will no longer be able to pursue most collection actions against the taxpayer, such as a levy against wages or property. Thus, if you agree to make a $300.00 payment, the IRS will not be able to seize your wages to collect additional amounts. The IRS payments will be in equal amounts over the designated payment period. The installment agreement will not stop penalties or interest from accruing in addition to a nominal fee to establish the agreement, so a taxpayer should also consider bank financing in the alternative.
Once the taxpayer has an installment agreement in place, the taxpayer will need to continue making all required current tax payments and file all tax returns. If the taxpayer becomes further indebted to the IRS, the IRS may cancel the installment agreement for the older debts and resume collection actions. In addition, the taxpayer’s future tax refunds will be seized and applied toward the debt. Such additional payments will, however, reduce the installment agreements duration.