Blog Layout
A Creative Approach to Your Unique Case
Attorney Baum Goes the Extra Mile
Recording on Cell Phone Video Is Ok, Split Decision on Audio-Updated Blog
October 15, 2018
Maryland is a two-party consent state for purposes of recording another person's oral communications. That is, you are not permitted to record someone’s oral communications in Maryland without the other party’s consent. However, there are important exceptions to the two-party consent rule.
The first and most clear exception is that you can video record without violating Maryland’s consent laws. As the Court of Special Appeals recently stated, “a video recording without audio recording or without oral communication is not prohibited under the wiretap statute.” Holmes v. State, 236 Md. App. 636, 654, 182 A. 3rd 341 (2018). (There is a separate statute prohibiting surreptitiously recording in someone’s house. Md. Crim. Law Section 3-903 - Camera surveillance.) If you want to be on the safe side and you want to document an event turn on the video but not audio.
The question of whether you can record audio is less clear. At a recent divorce trial, I successfully argued that the cell phone videos my client took of his wife yelling and throwing knives at him were admissible. The other side’s divorce attorney argued that because his client did not consent to the recording my client violated the Maryland Wiretap Act, Cts. & Jud. Proc. § 10-401 et seq. (2006), that the recordings were inadmissible and that my client should be criminally prosecuted. He said two other judges had accepted his argument and excluded cell phone recordings from being used as evidence—but the other lawyers did not know about the case I found that contradicted that position.
The secret to success in my client’s case was Martin v. State, 218 Md.App. 1, 96 A. 3d.765 (2014), cert. denied 440 Md. 463(2014), cert denied 135 S. Ct. 2068 (2015) in which the Court of Special Appeals held that cell phone recordings are not covered under the state wiretap statute. Recording someone speaking is generally an “interception” for wiretap act purposes. However, the Maryland Wiretap statute only prohibits interceptions if they occur through the use of any “electronic, mechanical, or another device.” CJP §§ 10-401(10) and 10-402(a). According to that case, the Act specifically excludes “telephone” from the definition of an “electronic, mechanical or another device.” Therefore, by using his cell phone to record the incidents, my client was within his rights, the evidence was admitted and he got the divorce he wanted, on the terms he wanted without having to pay any alimony, divide his pension, or pay her attorney’s fees.
However, the Holmes case has muddied the water. In Holmes, the mother secretly recorded a conversation she had with her daughter regarding alleged abuse of the daughter by the mother’s boyfriend. The court emphasized the secret nature of the recording several times in its opinion and never mentioned the Martin case. The Court excluded the cell phone recording on the basis that the cell phone recording violated Maryland’s wiretap statute.
Practice pointer: It is difficult to reconcile the two cases, from the same court (Court of Special Appeals) but with different judges. Clearly under both opinions, one can videotape using the cell phone. If audio is necessary, the cell phone should be visible so that the other side cannot claim it is a secret recording. (The Court acknowledged that under the full logic of its opinion parents could not record audio of their child’s birthday parties, which may be why they emphasized several times the secret nature of the Holmes’ recording.) Of course, if you can get the other side to consent—make sure it’s on tape, even in “the heat of the moment” --then the audio portion of the cell phone recording is also clearly acceptable.
This blog is the opinion of the author and does not constitute legal advice. It should not be relied upon for any purpose; it is presented solely as a discussion point with an attorney of your choosing. It does not in any way create an attorney-client relationship between the author and the reader.
While the process of ending a marriage can be challenging, the impact of a divorce doesn’t end when you leave the courtroom. It’s the beginning of a series of transitions that touch every part of your life, from legal and financial adjustments to emotional and personal changes. While the process can feel overwhelming, it also offers an opportunity to rebuild and start fresh. Understanding the changes involved after a divorce can make them easier to manage along the way. Updating Personal Information Name Changes Changing your name after your divorce can be an important way to establish your sense of independence. You’ll want to discuss this change during the divorce proceedings so it can be included in the final decree. One of the first steps in a name change is updating your Social Security card. You’ll need your divorce decree as legal proof of the change. Once that’s complete, update your driver’s license, passport, and other identification. Don’t forget to notify your employer, banks, and utility companies to ensure your updated name is reflected across all official records. Health Insurance Divorce can mean losing access to health insurance under a spouse’s plan. Consider options such as COBRA, which allows temporary coverage under your ex-spouse’s plan, or shop for an individual health insurance policy. Address this as soon as possible to avoid gaps in coverage, which could lead to unexpected medical expenses. Credit Cards and Financial Accounts You’ll need to notify your financial institutions of the name change and make certain your ex-spouse’s name isn’t on any of your accounts. It’s easiest to close joint accounts and establish your own credit card to avoid confusion. Updating the information for automatic payments for monthly bills can prevent accidental missed payments during this transition. Updating Your Beneficiaries Divorce is a critical time to update the beneficiaries listed on estate planning documents and other accounts. These changes will reflect your current wishes and avoid unintended outcomes. Wills and Living Trusts: Update these legal documents to ensure your assets go to the right people. Power of Attorney: Assign a new power of attorney if your ex-spouse was previously listed. Health Care Proxies: Choose someone you trust to make medical decisions on your behalf if necessary. Life Insurance Policies: Update the beneficiaries on your life insurance to reflect your current preferences. Retirement Accounts: Review your 401(k), IRAs, or other accounts to ensure the beneficiaries are those whom you intend. Other Policies and Accounts: Don’t forget to check annuities, brokerage accounts, and any additional policies or contracts where beneficiaries are listed. Taking these steps will mean that your estate and financial plans match your new circumstances. For assistance with filing these documents and ensuring they’re legally sound, consider consulting an attorney who specializes in estate planning. Managing Shared Assets and Memberships Handling Shared Memberships Small logistical tasks and corrections will arise in the weeks after your divorce. Shared memberships, such as gym memberships, streaming services, and loyalty programs, can be an unexpected complication. You’ll need to decide whether these accounts should be transferred, canceled, or split. Clear communication with your ex-spouse can help avoid unnecessary disruptions or charges. Other Unexpected Complications In some cases, you might encounter more complicated issues like co-signed loans, timeshares, pets, joint car ownership, or unclear account ownership. These situations can be challenging to resolve, so you may need to seek professional guidance from a financial advisor or lawyer to address them effectively. Easing the Emotional Transition Claiming Your Space Your living environment plays a crucial role in helping you move forward. Rearrange or redecorate your home to reflect this new phase of your life. Even small changes like new furniture, paint colors, or decor can make your space feel like your own and help you establish a sense of independence. Creating New Routines Divorce often means reimagining your daily life. Consider the goals that you may have set aside during your marriage. Whether it’s exploring a new hobby, joining a fitness class, or making time for self-care, creating structure can help you regain a sense of stability. Practical Advice for a Smoother Transition Stay Organized Keep track of all the changes you need to make with a checklist. Include updates to legal documents, financial accounts, memberships, and subscriptions. Staying organized can prevent unnecessary stress and ensure you don’t miss critical updates. Build a Support Network Lean on friends, family, or support groups as you adjust to your new life. Surrounding yourself with people who uplift and encourage you can make you feel less isolated during the process. Seek Professional Help Some steps of this transition require expert guidance, especially if communicating with your ex-spouse is a challenge. A financial advisor can help you manage your assets, and a therapist can provide emotional support. If you need legal advice during the process, the team at the Law Offices of Robert L. Baum would be glad to help. While divorce may feel like an ending, it’s also an opportunity to embrace a new beginning. Take it one day at a time, and don’t be afraid to ask for help when you need it. Remember, every step on this journey helps you build the life you’ve been hoping for.
The Challenge of Conflicts within Families Conflicts within families are often deeply personal and emotional due to the shared history of those involved. These disputes can range from minor misunderstandings to significant disagreements that threaten the stability and harmony of the family. Going to court can often make matters worse by creating financial stress and fractured relationships. The less formal mediation process provides a calmer alternative that can lead to a positive result. What is Mediation? Mediation is a voluntary, private process where a neutral third party, called a mediator, helps people talk through their issues to find a mutually acceptable solution. Unlike going to court, mediation focuses on collaboration, cooperation, and keeping relationships intact by addressing everyone's needs and interests. The mediator does not impose a decision but helps guide the conversation to promote understanding and agreement. The Mediation Process A standard mediation process involves several steps: Initial Meeting : The mediator meets with the parties to explain the process, establish ground rules, and ensure all participants are willing to engage in the process. Statement of Issues : Each party presents its understanding of the issues at hand, allowing the mediator to understand the conflict's context and underlying concerns. Negotiation and Agreemen t : Through a guided process, the parties work towards a mutually acceptable agreement. The mediator drafts the final resolution, which can be formalized as a legally binding document. The timeframe to reach an agreement depends on the extent and complexity of the conflict but usually involves more than one session. Benefits of Mediation in Intra-Family Disputes Confidentiality : Unlike court proceedings, which are often public, mediation sessions are private, ensuring that sensitive family matters remain within the family. This privacy lets everyone talk openly without worrying about being judged or exposed. Financial Considerations : Legal battles can be lengthy and expensive, draining family resources and causing financial strain. Mediation, on the other hand, usually involves fewer sessions and lower costs. Preserving Relationships: Mediation focuses on cooperative problem-solving and communication, which can help preserve and even improve relationships. By addressing the root problems and promoting understanding, mediation can create a more peaceful and respectful family atmosphere. Common Uses of Intra-Family Mediation Intra-family mediation can address various types of conflicts, including: Divorce and Separation : Mediation helps couples navigate the complexities of divorce or separation, including property division, child custody, and support arrangements. Inheritance Disputes : Mediation can assist in reaching agreements that honor the wishes of the deceased while addressing the concerns of surviving family members. Caregiving Responsibilities : Mediation provides a platform for family members to discuss and agree on caregiving responsibilities and financial contributions for elderly or disabled family members. Guardianship: Mediation helps families resolve disagreements about guardianship arrangements for minors or incapacitated adults, ensuring decisions are made in the best interests of the individual. Business Succession : In cases where family businesses are involved, mediation can facilitate discussions on succession planning, roles, and responsibilities. When Mediation May Not Be Appropriate While mediation offers many benefits, it is not suitable for all situations. Mediation is unlikely to be effective in cases involving: Domestic Violence : When there is a history of domestic abuse, the power imbalance between the parties may hinder open and fair communication. Severe Mental Health Issues : If one or more parties suffer from severe mental health conditions that impair their ability to participate meaningfully in the process, mediation may not be effective. Lack of Willingness : Mediation requires active participation and a willingness to listen, and negotiate. If either party is unwilling to engage in the process, mediation will be more frustrating than helpful. Working with an Experienced Mediator Mediation provides a respectful and constructive approach to resolving intra-family disputes. As an alternative to litigation, it offers the benefits of confidentiality and cost-effectiveness while helping to preserve family relationships. If mediation seems like a beneficial process for your situation, we encourage you to consider working with our experienced legal team at the Law Offices of Robert L. Baum.
The family law landscape in Maryland has undergone groundbreaking changes that come into effect on October 1, 2023. Read on to get the full scoop.
A common misperception is the couples in Maryland must wait one year of separation to obtain a no-fault divorce. That is not the case. Indeed, Maryland has become one of the most liberal divorce states. In 2015 the Maryland Legislature added a new ground for divorce—“Mutual Consent.” Fam. Law. Art. Sect. 7-103(a)(8).Under that law, as initially enacted,if a husband and wife (1) do not have minor children in common, (2) come to a written alimony and property settlement agreement (including retirement accounts), (3) do not seek to set the settlement agreement aside before the divorce hearing, and (4) both parties appear for the uncontested divorce hearing, then they can get divorced without having to wait for a one-year separation. Indeed, they did not have to be separated at all. That statute worked so well that the Maryland legislature expanded it to divorcing couples with minor children. They also took away the requirement that both parties appear at the divorce hearing (but, as with all divorces, the party requesting the divorce must appear). The current statute provides for divorce based on mutual consent if: the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to: alimony; the distribution of property, including the relief provided in §§ 8-205 and 8-208 of this article; and the care, custody, access, and support of minor or dependent children; The parties attach to the settlement agreement a completed child support guidelines worksheet if the settlement agreement provides for the payment of child support; Neither party files a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules; and After reviewing the settlement agreement, the court is satisfied that any terms of the agreement relating to minor or dependent children are in the best interests of those children. The impact has been profound. No longer will couples have to worry about who is moving out so that the one-year separation clock starts ticking. Rather they can negotiate a full agreement, oftentimes using mediation or collaborative law, while still residing together. Once the full agreement is in place they can promptly get divorced if all of the conditions are met. Divorces based on one-year separation will be limited to those situations where the parties cannot agree to settlement terms and need a trial. For the 95% of the divorce cases that settle, waiting for a year will be a thing of the past.
The American Psychological Association has published an article that neatly sums up the benefits to the entire family if the parents can work out a separation agreement without going to trial. https://www.apa.org/helpcenter/healthy-divorce.aspx. It reminds us that divorce mediation can be “a good alternative to court proceedings” and that “research shows that mediation can be beneficial for emotional satisfaction, spousal relationships, and children’s needs.” Those statements also apply to Collaborative Law. Studies time and again show that how the parents get along post-separation and post-divorce are the best predictors of how the children will fare. If the parents can effectively co-parent then the children will usually adjust to the split. If the parents continue to fight then the children will remain (or become) torn which can have lasting, negative impacts on them. The article also mentions the benefits of using psychologists during the divorce process. Social workers are also beneficial. It is difficult but not impossible to find mental health professionals who will accept health insurance. I keep a list of psychologists and social workers that have experience in helping people with marriage and family issues. If you would like some referrals please let me know.
The following article , published in the investment newsletter “The Motley Fool” reminds us that protecting retirement savings during a divorce is important, and third-party mediation or collaborative law may be the best way to protect what was accumulated during your marriage. Remember, you’re better off owning your share of the retirement accounts than having to pay those funds to your lawyer for divorce litigation.
Maryland Court of Appeals Reverses Itself and Recognizes De Facto Parents
I am among the first trained attorneys in Collaborative Law and still believe in its usefulness. However, its use peaked a few years ago and now it is used infrequently, and virtually only in divorce cases. Why? First and foremost, Collaborative Law got a bad reputation for being very expensive. In the early days most cases had two lawyers, two therapists, a financial neutral and others. Cases would cost tens of thousands of dollars, not settle and the parties would have to hire new lawyers to litigate the case (the Collaborative Law attorneys could not further represent their collaborative law clients if the case proceeded to court because of the Collaborative Law recusal provisions.) Furthermore, newly minted Collaborative Law attorneys saw every divorce case as a collaborative law case, when in most instances the issues could be settled more quickly and less expensively through mediation. So parties lost faith in recommendations for recommendations to resolve a case through collaborative law. In Maryland, Collaborative Law attorneys have done a lot of work to reform the collaborative law process, to make it quicker, cheaper and simpler. Collaborative Law 2.0. Collaborative law has gone from being over-utilized to under-utilized. While it should still be the exception rather than the rule, It deserves a second look. With that in mind, I commend you to the Maryland Collaborative Practice Council’s information. Its mission is to “support Collaborative Practice Groups, advocate statewide on legislative, executive, and judicial initiatives, and to advance the use of the Collaborative Process as a method of dispute resolution.” They offer the following information on collaborative practice:
Lorriane C. Ladish Posted in the Huffington Post the Following 10 Tips for Successful Co-Parenting. Although this list is geared towards mothers, I think it is useful for either mothers or fathers:
A recent article in the Washington Post highlights how courts are trending to awarding fathers more time with their young children, even when the child is an infant. Titled “What’s more important than breast-feeding a baby? Giving a father time with his child” https://wapo.st/2gm0Xkq?tid=ss_mail&utm_term=.64728a23e3c5 the article discusses how a local court rejected a mother’s claim that the father should not have overnight visits because she could not pump enough milk for the father to feed the infant during that time. Despite the mom’s insistence that the child should only be fed breast milk, the Court ruled—by two different women judges-- that the child should also be fed formula so that the infant could spend overnights with the father. Bottom line: at least after the child was six month’s old, the child’s time with the father was more important than the mother’s desire that the child only be fed breast milk. When I started in family law, the Montgomery County Circuit Court handed out a packet stating that the customary access schedule for fathers was every-other-weekend and maybe a mid-week dinner or overnight—after the child was at least three years old. Overnight visits for newborns to at least three years was unheard of. Even the American Bar Association published a book of access schedules, that did not recommend overnights for infants. In a trial I had about ten years ago, the judge found that both parents were fit parents to have custody, and so he explicitly stated that he was ordering the “usual” custody schedule of every other weekend and weekday overnight to the father. Today, it is unlikely that the judge would rule that way. It is common for courts to award father’s equal custody of the children, or at least close to equal custody of the children. Why? To a large extent, judges are more accepting that fathers are equally qualified to raise children and that the children deserve to have both children equally in their lives. Of course, and I can’t say it enough, studies show that the best predictor for how children will fare after a divorce is how well the parents co-parent. Fighting over a night here or there is not good for the children or the parents. If the children are caught in the middle for years of post-divorce strife then they are less likely to do well. Related to that is that parents who successfully resolve custody issues through mediation or collaborative law have a much greater likelihood of the agreement being followed and the strife lessened.