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What's Up Magazine

Leading Lawyers 2015: Question and Answers

May 15, 2015 09:57AM ● By Cate Reynolds
Q. What happens when owners of real estate disagree about whether to sell the property, which owner should be responsible for costs and maintenance, or if the owners (such as an unmarried couple) are separating and cannot agree on what will become of the property?

A. “Sale in lieu of partition” is one solution. If one owner wants to sell, and the other refuses, or if one owner is bearing an unfair share of taxes and other costs, the owner(s) should consult experienced real estate counsel. Essentially, an owner wanting to sell may petition the Circuit Court to order the property sold. If the Court grants the petition, the property may be ordered sold at an auction to the highest bidder and the proceeds, after expenses and lien payoff (if any), will be divided between the parties. An owner who has paid more than his or her share of expenses then may seek reimbursement from sale proceeds.

Jerome l. Feldman, Bernstein & Feldman, P.A.

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Q. Are there alternatives to “going to war” in a family law matter?

A. Mediation and Collaborative Law are two forms of alternative dispute resolution designed to facilitate an amicable resolution in a family law matter vs. an acrimonious trial. Collaborative Law is designed as early intervention before the parties have turned to litigation. Mediation, similar to Collaborative Law, has the goal of reaching settlement, but where the two differ is the overall process. Both Mediation and Collaborative Law are alternatives to “going to war” and worth asking your attorney about during that initial consultation.

Susan Wyckoff, Council Baradel – Attorneys at Law

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Q. Do I need a prenuptial agreement to protect me from debts my spouse incurred before our marriage?

A. Not necessarily, but a prenuptial agreement is useful for many reasons. You do not become legally responsible for your spouse’s debt just because you get married. However, if you take an action to assume responsibility for the debt, like adding your name to a credit card or refinancing an asset to include your name, you may have accepted liability. While a prenuptial agreement may not be required, a prenuptial agreement can address many issues including debts, but remember an agreement between you and your spouse does not bind third parties. Always seek counsel to get advice. Prenups can be beneficial to protect you and help you learn about your spouse and how someone manages their money. Visit HBD’s blog at www.hbdlaw.com to read more!

Lauren A. Torggler, Hillman, Brown & Darrow

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Q. What’s an employer’s “tip credit” and am I using it correctly?

A. Under Maryland and Federal wage and hour laws, employers can credit tips paid directly to employees to satisfy a portion of required minimum wages. In addition to tip credits, “tip pooling” is allowed, but avoid a claim under the FAIR LABOR STANDARDS ACT (FLSA) and ensure you use these tools correctly. Correct wage and hour standards and tips accounting can be confusing and are different under Maryland Law than the Federal standards. The FLSA protects employers and employees. Don’t gamble that you’re doing everything correctly. Make sure you understand the law! Visit HBD’s blog at www.hbdlaw.com to read more.

Brian D. Lyman, Hillman, Brown & Darrow

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Q. What happens to Fido and Fluffy in the Divorce?

A. With two Labradors and a Siamese cat, I understand the importance of our pets. They are, however, still considered property in the eyes of the law. Judges want good results for your animals too, but their powers may be limited to ordering a sale of your pets, if you cannot agree. The Good News is that Pet Custody agreements are becoming more common. Just like our children, our pets matter. How much better to resolve the issues kindly by sharing time and costs, or each taking responsibility for a family pet.

Kendall Summers, Esq., Attorney at Law

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Q. What is required to get an uncontested divorce?

A. If the parties have an agreement regarding all issues, including custody/support, alimony, and property division, or if such issues do not exist, the parties can proceed on an uncontested divorce after being apart for one year. Maryland law requires collaboration to prove the grounds for divorce. Usually, the collaboration requires that a party and another witness verify that the parties have been apart, and not acted as a married couple. Prior to this testimony being presented, a Complaint for Absolute Divorce must be filed which is mutually agreed upon or unopposed.

Michael Malone, Esq., Attorney at Law

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Q. Do I need a lawyer to write a Separation Agreement?

A. While the technical answer is no, do you want to conduct your own brain surgery based on a video from YouTube? Agreements from your local office supply store, free ones from the Internet, or ones from name brand websites do not protect as they claim. An experienced lawyer is familiar with the Court and knows what Judges need to see in your agreement to achieve your goals and protect your future. Remember, the money you save today could cost you if you do not have a well written agreement.

Timothy J. Mummert, P.A., Attorney & Mediator A Collaborative Law Practice

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Q. How does a person who is about to become involved in a family law problem select the right lawyer?

A. 1) Start by checking the lawyer’s rating in Martindale-Hubbell, a publication which rates attorneys based on evaluations from one’s peers. 2) Inquire of friends who have been through a similar situation. 3) Inquire of lawyer friends you may have. 4) Ask people at the courthouse who work for the court in the family law division. 5) Confer with more than one lawyer to make certain that you are comfortable with the person selected. Lawyers are not “one size fits all.” Determine what you are looking for—super aggressive, cerebral, or warm and fuzzy. Look for someone who is responsive in getting back to you, who will not delegate duties to others, and who specializes in the issues that are likely to be involved in your case. This is a very important decision—select wisely.

Ron Naditch, Ronald M. Naditch, P.A.

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Q. Should I have a trust?

A. A trust may help you accomplish your objectives: hedging against your own possible disability by having a structure in place to seamlessly manage your affairs if necessary; protecting young or inexperienced children until they reach sufficient age and understanding to manage for themselves; providing long-term financial care for a disabled child; making available your assets after your death for the benefit of your loved ones while insulating those assets from their creditors; effectuating state and/or federal tax planning. The key is to tailor your estate plan to you and your family. No particular planning tool is a one-size-fits-all solution; trusts are highly flexible, useful planning tools.

Frederick R. Franke, Jr., The Law Office of Frederick R. Franke, Jr., LLC

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Q. What is a donor advised fund?

A. A donor advised fund is a simple and flexible way to give to charity now, or to create a source of funding for charitable giving by future generations of your family. Under federal tax rules, if a donor’s control over a fund owned by a charitable organization is limited to giving advice, and the charity is not obligated to follow the donor’s advice, then the contribution to the fund is deductible as a charitable contribution if the other requirements for deduction are satisfied. The fund can be a great tool to bring families together to agree on annual charitable gifts.

Frank Campbell, Holden & Campbell

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Q. How does the court decide who should have custody, and are there different types of custody?

A. In deciding a custody arrangement, the courts look to the best interests of the child or children. So, if you are seeking custody, your job is to convince the court that the children’s interests are best served by being placed in the custody arrangement you are requesting. Basically, there are two forms of custody: legal and physical. Legal custody concerns decision-making authority, which could be joint or sole. Physical custody relates to where the children reside/where they sleep.

Hollie S. Cutler, Law Offices of Hollie S. Cutler, LLC

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Q. My partners and I have a Limited Liability Company (“LLC”). Do we need a written operating agreement?

A. Maryland law doesn’t require a written agreement unless an LLC’s organizing documents make a specific election. Since most standard forms for registering LLCs do not have that specific election, if you formed your LLC yourself a written agreement might not be required. While you are provided some protections under Maryland’s Limited Liability Company Act, as your business grows potentially costly legal problems can be avoided through having a written operating agreement that addresses issues such as management, allocation of profit and loss, transfers of interest and other vital business matters.

F. Joseph Gormley, Gormley Jarashow Bowman L.L.C.

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Q. What should I do if I think I have a claim?

A. You should seek legal advice as soon as possible, as attorneys are trained to evaluate potential claims. If you consult with an attorney promptly, there is also a greater likelihood that you will remember more facts and will be able to provide more details regarding your potential claim. Prompt consultation with an attorney also increases the possibility of preserving evidence that might otherwise be lost or destroyed and decreases the riskof failure to commence an action within time limits established by law.

Iliff, Meredith, Wildberger & Brennan, P.C.

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Q. A servicemember I know has been accused under the Uniform Code of Military Justice, is under investigation, or is subject to administrative action.What can I tell him/her?

A. Many people believe military personnel relinquish their Constitutional rights. In fact, they retain most rights, and the UCMJ even affords greater protection in certain circumstances. Various adverse consequences can result from an investigation, even if charges are never actually filed. Often the military tries to take administrative action, such as non-judicial punishment, discharge or denying promotions. Servicemembers retain rights during these processes. There are also ways to challenge such decisions through government agencies and Federal courts. Hiring an experienced military law attorney can help protect your acquaintance’s career and the benefits that go with it.

Michael Marinello, Kagan Law Group, LLC

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Q. How can I afford to hire an attorney for my Social Security Disability, Long Term Disability, Workers’ Compensation, or Personal injury case if I have no income?

A. All of these cases are handled on a contingency fee basis. That means you don’t have to pay the attorney at all unless you win your case. The attorney’s fee will be a percentage of the amount that you recover from winning your case. The percentage varies according to the type of case. The fee percentages for Social Security Disability and Workers’ Compensation cases are regulated by the governmental agencies. In addition, our law firm will waive the cost of any expenses unless a recovery is made on your behalf.

Michael Steinhardt., Steinhardt, Siskind and Associates, L.L.C.

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Q. Do I need a lawyer if I’m injured in a car accident?

A. Yes! Your lawyer can resolve the property damage (free of charge), get you a rental car, recoup the diminished value of the vehicle, help with Personal Injury Protection (PIP), and find additional coverage. Your lawyer knows the value of the case based on trying similar cases and will provide leverage against the insurance company. He or she will also negotiate health insurance liens and outstanding medical bills. So get the best personal injury trial lawyer you can find as early as possible.

Debbie Potter, The Jaklitsch Law Group

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Q. What Asset Protection Laws are available in Maryland?

A. A relatively new trust, an “inter vivos QTIP trust,” can now be used in Maryland. Under this new law, one spouse may create a trust for the other spouse but retain the right to receive income or principal back if the donee spouse dies first. The rules are very precise, but if followed carefully, the trust is not subject to the donor’s creditor claims. For example, a high risk spouse could create this trust for a low risk spouse with spendthrift provisions and fund the trust with non-retirement assets.

Randall D. Fisher, Fisher Law Office

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Q. I want to expand or rebuild my waterfront house. What approvals will I need, and from whom?

A. Construction on or near the water is highly regulated. Local land use and Critical Area restrictions need to be considered carefully, including zoning use restrictions, impervious surface and vegetative disturbance limitations, buffer impacts and replanting standards, setback requirements, height limitations, and septic disposal constraints. If there are unavoidable impacts to wetlands, or if you are contemplating work on a bulkhead or pier, you may also need State and Federal approvals. There may be additional constraints imposed by easements, covenants, and other title restrictions. Waterfront construction can be complex, and you should consider retaining experienced professionals to guide you through the process.

Benjamin S. Wechsler, Linowes and Blocher LLP

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Q. When I meet with a lawyer for the first time, what should I do to prepare for the meeting and what questions should I ask?

A. The first meeting is critical, an exchange of information and the creation of your working relationship with your attorney. Before you meet, send your attorney copies of relevant documents and a concise timeline of events. Be honest. Disclose all relevant facts, even if some are problematic. Write down your questions. Do not hesitate to ask about the costs, the qualifications of who will be working on your case, the proposed strategy and risks.Expect clear and responsive answers. Beware of hype. You are hiring a lawyer, not a cheerleader.

Rignal W. Baldwin, BaldwinLaw LLC

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Q. What debt will be discharged in a chapter 7 bankruptcy, and what happens to my house and car?

A. A bankruptcy filed under chapter 7 of the US Bankruptcy code will discharge every debt you have a legal obligation to pay, except domestic support obligations, student loans, and tax debts that have been incurred in the last three filing years. Your home mortgage and your car loan will also be discharged. The difference with these debts is that the lender or bank has a lien on your home or car, which was authorized by you as collateral to ensure the repayment of the debt. Under the bankruptcy code you can elect to keep either the home or car or both. This election is memorialized in what the bankruptcy code refers to as a reaffirmation agreement. By entering into one of these agreements, you are treating the debt as if you never filed bankruptcy as to that debt and, therefore, it follows that you will keep the home or car you reaffirm.

Tate M. Russack, RussackLaw

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Q. What should I do if I get into a car accident?

A. If you are involved in an auto accident it is very important to (i) call the police; (ii) exchange information with the at-fault driver getting insurance information, driver’s license number and tag number (with the advent of smart phones — it is super easy to simply take pictures of all of these things); (iii) take a picture of the property damage and the location of the accident; (iv) seek medical treatment, and (v) contacta lawyer.

John Leo Walter, Esquire, Eastern Shore Legal

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Q. Why should I use an attorney to prepare my Will when I can create my own Will using an internet service?

A. Various internet services certainly provide an opportunity to create your own Will. However, inevitably, when using such a service, unintentional mistakes will occur. If the mistake is revealed after your passing, your heirs could end up spending thousands of dollars in legal fees to rectify the mistake. Creating an estate plan that accomplishes your estate planning goals is very important. An attorney can help you to understand the applicable estate, tax and other relevant laws with the ultimate goal of creating a customized estate plan that works for you.

Maria Worthington McKenna, Council Baradel – Attorneys at Law

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Q. Do I really need to confer with an attorney when buying, selling or developing real property?

A. Conferring with an attorney before contracting to buy or sell property can save a lot of time and money down the road. This is particularly true if there are potential environmental issues related to the property, as a property owner could potentially be responsible for its environmental problems, even if the new owner did not cause the problem. Also, there are significant restrictions associated with building on or re-developing property near the water, and an attorney can help her client through the maze of local, state and federal laws applicable to waterfront development.

Susan Ford, Council Baradel – Attorneys at Law

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Q. Do I really need a lawyer to start a business?

A. I believe consultation with an attorney is essential when starting a business. While it is possible to fulfill the basic requirements to start a business without legal counsel, a knowledgeable attorney can provide invaluable insight and guidance with regard to choosing the proper type of entity (LLC, Corporation, Partnership, etc.), the legal and tax implications of that choice, and the legal requirements and proper operation of the business after formation. Making the correct decisions in the beginning prevents the expenditure of time, energy, and money to fix the problems later.

Patrick J. Fitzgerald, Ewing, Dietz, Fountain & Kaludis, P.A.

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Q. How has criminal law pertaining to drug possession changed in Maryland in the past year?

A. On October 1, 2014, Maryland decriminalized the possession of small amounts of marijuana. As it stands now, Maryland law has changed in that possession of less than 10 grams of marijuana, absent other escalating circumstances, is no longer punishable by imprisonment but rather by a civil citation and a fine. Note, however, that charges for possession of 10 grams or more of marijuana, possession with the intent to distribute, and possession of paraphernalia are still punishable by imprisonment under Maryland law. Also note that possession of marijuana, in any amount, is still illegal under federal law and punishable by potential jail time.

Kyle K. Kirby, Law Offices of Stevens Palmer, LLC

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Q. Do I really need a lawyer to settle my case if I have been injured in an accident?

A. If injuries are involved, the smart choice is to promptly contact counsel.  Your attorney can act promptly to investigate and collect evidence before it is lost and help prevent insurance companies from taking advantage of you while you are vulnerable and recovering from your injuries.  An attorney will also assist with the lien claims of your health insurer and help safeguard your rights and the rights of those who care about you.

Melanie J. Barney, Jacobs & Barney

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Q. I was arrested in Maryland for DUI/DWI, I’m a first offender, do I needrepresentation?

A. Unlike criminal charges, drunk driving charges involve two distinct processes—the administrative process (MVA) and criminal trial. It is common for DUI arrestees to get advice from all sorts of unqualified people, including family, friends and lawyers who do not specialize in DUI defense. That’s a mistake. Your driving privilege may be suspended even as a first offender. You face incarceration even as a first offender. A lawyer specializing in DUI/DWIs can guide you through the MVA, the criminal proceeding and recommend treatment optionsif appropriate.

Stephanie A. Shipley, Shipley Law Firm

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Q. Will my bankruptcy appear on my credit report and how will it affect me?

A. Yes, for 10 years, but consider the better credit risk that you are after filing: you will have the same income, few or no debts, an ability to repay new loans, and you cannot file Chapter 7 again for another six years. Lenders make loans based on current credit worthiness more than any other factor. There are exceptions, but you will probably have little difficulty in re-establishing credit after this is over.

Cami Russack, RussackLaw

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Q. What debt will be discharged in a chapter 7 bankruptcy, and what happens to my house and car?

A. A bankruptcy filed under chapter 7 of the US Bankruptcy code will discharge every debt you have a legal obligation to pay, except domestic support obligations, student loans, and tax debts that have been incurred in the last three filing years. Your home mortgage and your car loan will also be discharged. The difference with these debts is that the lender or bank has a lien on your home or car, which was authorized by you as collateral to ensure the repayment of the debt. Under the bankruptcy code you can elect to keep either the home or car or both. This election is memorialized in what the bankruptcy code refers to as a reaffirmation agreement. By entering into one of these agreements, you are treating the debt as if you never filed bankruptcy as to that debt and, therefore, it follows that you will keep the home or car you reaffirm.

Tate M. Russack, RussackLaw

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Q. How can I protect my property if I am getting a divorce?

A. Maryland law protects certain property interests. Property that is acquired by a spouse through gift from a third party or inheritance is that party’s nonmarital property, as is premarital property. Likewise, property that is directly traceable to these sources may be considered nonmarital property. Consequently, it is important to keep records regarding your nonmarital property. Another practical way to protect your assets is to seek resolution through mediation and/or negotiation, both of which are usually less expensive than litigation. Regardless of which process you choose, it is important to consult legal counsel early to gain an understanding of your rights.

Donna Schaeffer, Council Baradel – Attorneys at Law

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Q. I have a small business. Can I review my employees’ email?

A. It depends on factors such as: whether the email is from a business or personal account; company policies; where the email is stored; and other factors. Beware of the forbidden fruit: if you open Gmail on your employee’s company-issued computer and the employee’s personal Gmail user name and password are already filled in, you may not click through and peruse their Gmail! Think of it like the front door to your employee’s house—if it is unlocked, that doesn’t mean you have permission to enter.

Susan Stobbart Shapiro, Council Baradel – Attorneys at Law