What is Hearsay?

Hearsay is a statement made by someone out of court, which is then used in court, to prove what was said in the statement.

For a more technical definition, see Rule 801(c) of the Maine Rules of Evidence, which says, “Hearsay means a statement that: (1) The declarant does not make while testifying at the current trial or hearing; and (2) A party offer in evidence to prove the truth of the matter asserted in the statement.”

Generally, hearsay is not allowed to be introduced into evidence pursuant to Rule 802 of the Maine Rules of Evidence.  However, there are many exceptions to this rule. The exceptions can be found ­here­ in Rules 801(d), 803, and 804.

Continue reading “What is Hearsay?”

What is “Marital Property” in Maine?

Marital property in Maine means all property acquired by either spouse after the commencement of the marriage, regardless of whether title is held individually or jointly.

Under Maine law, the following is not considered marital property: (1) property acquired by gift, bequest, devise or descent; (2) property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent; (3) property acquired by a spouse after a decree of legal separation; (4) property excluded by valid agreement of the parties; and (5) the increase in value of property acquired prior to the marriage, and the increase in value of a spouse’s non-marital property.

In a proceeding for divorce or legal separation, the court will set apart each parties non-marital property, and then divide the martial property equitably. The court views marriage as a partnership and shared enterprise, and will put less weight on which spouse purchased the property, and focus more on how the division can be most equitable. Equitable division does not mean equal division, and in most circumstances the property division will not be completely equal.

When dividing the marital property, the court will consider the following factors: (1) the contribution of each spouse to the acquisition of the property, including the contribution of a spouse as a homemaker; (2) the value of the property set apart to each spouse; (3) the economic circumstances of each spouse at the time of the division.

Screen Shot 2017-09-04 at 2.26.39 PM

In certain situations, non-marital property can become marital property during the marriage.  First, the property may be commingled over time, making it difficult to determine if it’s non-marital or marital property.  Second, the non-marital property may become marital property through the process of transmutation. Transmutation occurs when the parties display a clear intent to treat their non-marital property as marital.

If you find yourself contemplating a divorce or legal separation, contact Attorney Eric Thistle to discuss options to protect your marital and non-marital property interests.

Disclaimer: This article is intended to provide general information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author and the reader.

Parental Rights In Maine

A separation from your partner or spouse is never easy.  One of the most common questions parents have when separating is, “what will happen with the children?”

In Maine, the courts use the “Best Interest of the Child” standard to determine the child’s residence, and parent-child contact.  The Best Interest standard does not favor either parent, and instead balances all the relevant factors to determine what is best for the child. In fact, the court favors continued parent-child contact with both parents, and encourages shared parental rights and responsibilities.

Screen Shot 2017-08-13 at 8.19.38 PM

Maine statute 19-A §1653(3) states, first and foremost, the court considers the safety and well-being of the child.  The court also considers the following factors:  (A) the age of the child; (B) the relationship of the child with the child’s parents and any other person who may significantly affect the child’s welfare; (C) the preference of the child (if old enough); (D) the duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity; (E) the stability of any proposed living arrangements for the child; (F) the motivation of the parties involved and their capacities to give the child love, affection and guidance; (G) the child’s adjustment to the child’s present home, school, and community; (H) the capacity of each parents to allow and encourage frequent continuing contact between the child and the other parent; (I) the capacity of each parent to cooperate in child care; (J) methods for assisting parental cooperation and resolving disputes and each parents willingness to use those methods; (K) the effect on the child if one parent has sole authority over the child’s upbringing; (L) the existence of domestic abuse between the parents; (M) the existence of any history of child abuse by a parent; (N) all other factors having a reasonable bearing on the physical and psychological well-being of the child; (O) A parent’s prior willful misuse of the protection from abuse process; whether the child is beast-fed; (P) the existence of a parent, or household members, conviction for a sex offense; (Q) and whether allocation of some or all of parental rights and responsibilities would best support the child’s safety and well-being.

As you can see, there are many factors that the court considers when determining what is in the best interest of the child. However, the court may not consider one parent over the other based on their gender or the gender of the child. 19-A §1653(4).  Fathers, don’t automatically assume the mother is going to get sole parental rights and responsibilities.  And likewise, mothers, don’t assume you will automatically get everything you want without a fight.  This is where it helps to have an experienced family law attorney on your side to advocate for your interests.

It is also important to note that the court may not take into consideration the fact that one parent has left the family home, if the departing parent has been physically harmed or seriously threatened with physical harm by the other parent and that threat of harm was causally related to the departure; or when one parent left the family home by mutual agreement, or at the request or insistence of the other parent. 19-A §1653(5).

Separating from your partner or spouse with children involved is not easy.  Don’t just hope for the best.  Contact Attorney Eric Thistle today to schedule a free consultation.

 

Disclaimer: This article is intended to provide general information about Maine law. This article does not constitute an attorney-client relationship between the author and the reader.