by Samantha ChanHow Procedural Rules Preserve Your Options in Court
Many people think court cases are decided by dramatic testimony, persuasive arguments, or who is “right.” All of these things may be decisive in some cases, but in many cases, the path to a positive outcome has much to do with understanding and following court procedural rules.
One common frustration I hear from clients is that litigation doesn’t work the way they expect it to.
“Why do we have to file all these pleadings and motions if I already have the photos, evidence, and documents to show the judge I’m right?”
While pleadings, motions, and discovery may feel unnecessary to someone who doesn’t work in the legal system, procedural rules frequently control how a court is even permitted to decide a case.
An example I saw in practice recently illustrates the importance of filing a counterclaim in an appropriate case. A counterclaim is a claim asserted by the defendant against the plaintiff in the same case. Procedurally, it transforms the defendant from a purely reactive party into one with an independent claim for relief. That distinction matters more than most people realize.
A Real‑World Example from Family Law
Consider a divorce case:
The plaintiff files a complaint for absolute divorce. The defendant files an answer and a counterclaim for absolute divorce. Both pleadings allege essentially the same facts and request the same relief: that the parties be divorced. At first glance, the counterclaim may seem unnecessary. But timing and procedural posture can change quickly.
In one recent case, on the day of the hearing, the plaintiff decided she was not ready to proceed with the divorce. Had the defendant only filed an answer, without also filing a counterclaim, the court would have been left with no pending claim from a party ready to move forward. But because the defendant had filed a counterclaim, the court still had a live, ripe claim before it. The judge was able to proceed and grant the divorce based on the defendant’s counterclaim, even though the plaintiff no longer wished to go forward that day. That is the power of a counterclaim.
The Broader Lesson: Procedure Preserves Your Options
This principle is not unique to divorce or family law. Similar issues arise across civil litigation:
- Contract disputes: A defendant who agrees that money is owed but believes the plaintiff breached the contract first. Without a counterclaim, the court may only proceed with the plaintiff’s claims.
- Partnership/shareholder disputes: A business owner is removed from a company but fails to file a counterclaim alleging that the removal violated the company’s governing documents. By failing to assert that claim at the outset, the owner may lose the opportunity to challenge whether the required procedures were followed.
- Landlord‑tenant cases: A tenant agrees that rent has not been paid, but failing to file a counterclaim asserting habitability issues may prevent the court from considering those issues at all.
In each of these situations, the underlying facts may be straightforward, but the procedural posture could determine the outcome. If you are involved in litigation or responding to a lawsuit, understanding the procedural landscape may be critical. An experienced attorney’s role is not only to advocate on the merits, but to protect your ability to obtain relief by navigating those rules correctly.
by Eleanor HuntMy Spouse Just Asked for a Divorce. What Do I Do Now?
If your spouse approaches you and says that they want a divorce (or says that they have actually filed for divorce), you may be caught off guard. As you process the situation, there are several key issues to consider.
Marriage Counseling
You may explore marriage counseling. If you feel that your marriage is not beyond repair, it may be prudent to initiate a conversation about engaging in marriage counseling together. If your spouse is unwilling to commit to marriage counseling, then you might want to seek an individual therapist to provide you with a safe space to process your feelings.
Property Distribution
If marriage counseling is not an option or is unsuccessful, then it is important to begin preparing for divorce. One of the most consequential aspects of divorce is the distribution of property. In Maryland, spouses may reach their own agreement on how their property will be divided; however, if they are unable to do so, the court will decide. First, the court will classify property as either “non-marital property,” “marital property,” or “hybrid property.” Non-marital property is typically owned by one spouse; examples include property acquired prior to marriage, acquired from a third party by gift or inheritance, or traceable to any of those sources. Md. Code Ann., Family Law § 8-201(e)(3). A party may generally keep their non-marital property, and it is not subject to division.
Marital property is property acquired by one or both parties during the marriage. Md. Code Ann., Family Law § 8-201(e)(1). Marital property may include the marital home, home furnishings, bank accounts, investment accounts, retirement assets, and automobiles. All marital property is subject to division, so the court will determine its value and make an equitable distribution of it. Hybrid property refers to property that is part non-marital and part marital, and it may also be subject to division.
While this is not an exhaustive explanation of the court’s authority and process in divorce proceedings, it sets the stage for the importance of obtaining your marital and non-marital property records. As a starting point, you can create a detailed list of your and your spouse’s assets and liabilities, including those held individually, jointly, with third parties, etc. Next, gather supporting financial documentation for the past several years, such as financial statements, tax returns, and income records.
Child Custody
If you and your spouse have minor children, start brainstorming ideas about where you plan to live post-divorce and what you feel may be the best custodial arrangement for the children.
The process of preparing for divorce can be quite overwhelming, especially if you are unfamiliar with Maryland law pertaining to divorce and custody matters. To ensure you are best equipped for your divorce, you may want to consider consulting with a divorce lawyer.
by Steve LewickyCourt of Appeals rules that Maryland must recognize valid out-of-state same-sex marriages
On May 18, 2012, the Maryland Court of Appeals issued a decision in the case of Port v. Cowan and held that valid out-of-state same-sex marriages will be recognized as valid in Maryland. The two parties to the case, Jessica Port and Virginia Anne Cowan, were married in California in 2008. They separated two years later, and Port ultimately filed a divorce complaint in Maryland. The trial court denied the request for a divorce, finding that their same-sex marriage was not valid, and was contrary to the public policy of Maryland. In its opinion, the Court of Appeals reasoned that, for purposes of the application of Maryland’s divorce laws, a foreign state judgment should be enforced and honored if it is not statutorily prohibited in Maryland, and is not repugnant to Maryland public policy. The court noted that the threshold for “repugnancy” in this context is very high and that Maryland statutory law does not expressly state that foreign same-sex marriages are void. The Court reviewed Maryland statutes and executive branch policies and interpreted them to demonstrate that recognition of valid foreign same-sex marriages is consistent with Maryland public policy. Therefore, the Court held that Maryland courts have the power to adjudicate divorce actions between same-sex parties that are validly married in another state.
