The Thin Man’s Divorce

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“I’ve never been divorced before,”said the thin man sitting across the desk from me. His dark narrow eyes darted back and forth as he nervously sipped the bottled water my receptionist had given him.  He sank into one of the two wing-back chairs in my office. “I don’t know anything about it.  I have a million questions.”

In my line of work as a divorce lawyer I meet all kinds of people. I tried to put the thin man at ease. I put my fingers together in a church steeple, closed my eyes halfway, and leaned back in my burgundy leather office chair in my best Perry Mason imitation. “Well I’ve been divorced twice, so ask me your questions.”  I then proceeded to give him the following answers to his questions one by one.

Question 1.  I had an affair.  Am I going to lose everything in the divorce? 

Adultery gives your spouse grounds for divorce, not the right to 100% of the house, cars, 401(K), and everything else.  Jointly owned properties are divided equally.  The judge can make a marital award to make sure the division is fair.  In determining the marital award, the judge considers several factors.  One of these is who was at fault in the termination of the marriage.  The judge can also make adjustments for any marital funds you have spent on the affair.

Question 2.  Will the court take the children away from me because I cheated?

Adultery may make you a bad spouse but it does not necessarily make you a bad parent.  In Davis v. Davis, 280 Md 119, 372 A.2d 231 (1977), the Maryland Court of Appeals said

Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the children’s welfare.

The court looks at what is in the best interests of the children, not what is in the best interests of the parents.

Question 3.  Can My Spouse Get a Divorced if I Don’t Agree?

While it takes two people to get married, it only takes one to get divorced.   If you don’t want a divorce, you can slow down the process, but a spouse determined to get a divorce can get one.

Question 4. Do I Have to Have a Lawyer to File for Divorce?

It is not a requirement that you hire a lawyer for your divorce.  The Maryland courts have published divorce forms on the Internet and there is a self-help desk at the Montgomery County, Maryland, Courthouse.  We have do-it-yourself divorce help on this website and we have published self-help divorce books.  However, divorce cases can get complicated quickly.  If your case involves child custody, alimony, real estate, retirement funds or other assets, we recommend you hire a lawyer.

Question 5.  Does the Mother Always Win Custody?

In the old days many judges followed the Tender Years Doctrine which presumed that mothers were the better care taker for young children.  Today, however, the standard is best interests of the children.  Many jurisdictions, like The District of Columbia presume that joint custody is in the best interests of the children.

Question 6.  Can a Husband Get Alimony?

Today, there are many cases where the wife makes more money than the husband.  In those cases, husbands are entitled to the same rights as wives including the right seek alimony.

Question 7.  How Much Is All This Going to Cost?

In most cases of a long marriage, the judges in Maryland, Virginia and DC will divide marital assets equally, but they are not required to.  If you make a lot more than your spouse, or your spouse is ill or requires some training to get back in the workforce, you will probably have to pay alimony.  The judge decides the duration and amount.   Once custody and alimony are determined, you can use online calculators to determine child support.  You may have to pay all or a portion of your spouse’s attorney fees as well as your own.

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The thin man sighed and said, “Thank you.  It’s not what I wanted to hear but I feel better knowing than not knowing.  I want you to be my lawyer.  What’s the first step?”

“Sign my retainer agreement and pay my retainer,” I replied as I pushed the document across the desk and held out my Mont Blanc fountain pen.  “I’ll start working on your case immediately.

 

/by James J. Gross

Making a Child Support Arrearage Disappear

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Making a Child Support Arrearage Disappear

Is your child support in arrears? When a parent doesn’t pay court-ordered child support the amount due adds up every month. This is called a child support arrearage.

Sometimes you would like to make the arrearage go away. For example, if you reconciles or child custody changes from one parent to the other, you may think that the child support arrearage should be resolved.

In Harvey v. Marshall, 158 Md. App. 355 ((2004), a father asked the Bureau of Child Support Enforcement (now the Office of Child Support Enforcement or “OCSE”) to extinguish his arrearage when he gained custody of the children.  OCSE said no and the trial court agreed on the basis of Family Law Section 12-104 of the Maryland Code which provides “The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.”

Family Law Section 10-112 of the Maryland Code lays out circumstances where OCSE may abate or settle child support arrearages for less than the full amount due.  There is no such statutory exception for private parties.  In fact, several cases say parents may not waive or bargain away a child’s right to receive support. See, e.g., Corapcioglu v. Roosevelt, 170 Md.App. 572, 606, 907 A.2d 885 (2006).

Theoretically, a child support arrearage can only disappear when OCSE abates it under Section 10-112.  As a practical matter, we have seen them disappear, perhaps erroneously, in cases with only private parties, too.

 

 

/by James J. Gross

Life Insurance in Divorce

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Life insurance in divorce

Divorcing spouses and parents have varied life insurance needs. Whenever one or more persons are financially dependent on another’s earnings, there is what the life insurance industry refers to as an insurable interest.

In families of two married parents with young children, the primary wage earner often has life insurance coverage equal to several years earnings. The benefit to the financially dependent spouse and the children is obvious. The benefit to the insured party is the peace of mind that comes from knowing your loved ones are provided for in all events.

Often, both spouses carry life insurance coverage because both are employed or, if one is not employed, the stay at home spouse is providing services that would have to be purchased in the event of her, or his, untimely death.

Upon divorce in families with children there is still the same basic economic need for life insurance coverage to protect the child support payments. The children generally would be the beneficiaries of the policy – directly or through a trust. The insured still benefits from knowing his loved ones will be provided for.

Life insurance proceeds paid during the insured’s children’s minority would be needed and would benefit the insured’s children just as they would if he or she died while the children were minors and the insured was married to the other parent at death.

But the dynamic is different in divorce. The insured views the insurance coverage as benefiting the ex-spouse. Often there is hard bargaining around how much insurance coverage there will be, how long it will be in place or how quickly it decreases, and whether the spouse can be the trustee of the trust to which the insurance proceeds are paid.

I’ll explore this further in future posts.

/by Michael Callahan

Who’s Your Daddy? A Unique Child Support Solution

A judge makes a decision that creates a unique child support solution

A woman sued a man for child support in Brazil for her daughter, now nine years old, who was born after a casual fling.  The judge ordered a DNA test and it came back identifying the man as the father.

Which Twin?

But the man denied he slept with the woman.  It turned out that he had a twin brother.  The woman could not say positively which of the twins she had slept with.

So, the judge ordered the second twin to take a DNA test and it came back as a match as well.  The second twin denied that he slept with the woman.

Faced with a Solomon-like puzzle, Judge Filipe Luis Peruca issued his decision that created a unique child support solution.

“It’s evident that the defendants, from adolescence, took advantage — and continue to take advantage! — of the fact that they are identical twins,” he wrote in the ruling. “It became clear that they used each other’s name to attract as many women as possible and to hide instances of betrayal in their relationships.”

The Two-Father Child Support Solution

The judge ordered that the names of both men be added to the child’s birth certificate. He also ordered each man to pay $60 a month in child support and to collectively pay 50 percent of the child’s school and medical expenses.

That is twice as much child support usually awarded to children with a similar economic background in Brazil.

/by James J. Gross

Mother Recovers $150,000 in Child Support 50 Years After Divorce

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You may be able recover past due child support payments some day.

You may be able recover past due child support payments some day. Consider this case.

Toni Anderson of California divorced Donald Lenhart in the early 70s.  Anderson had custody of their 3-year-old daughter, Lane Lenhart. Donald was ordered to pay $160 a month in child support.

“He made the first payment,” Toni said. “I was so excited, I will never forget. I deposited in my account and it bounced.”

Donald moved to Canada and paid nothing for the next 49 years.

“I struggled a lot,” Toni said. “I lived from paycheck to paycheck and I had to take a couple jobs. It was a detriment to my daughter because I really wasn’t there for her.”

Missed Child Support Payments Impacts the Child

Her daughter, now 52 years old, reflects on the negative impact of the past due child support payments.

She said, “It was a challenge for me because mom was always working, always had to support us so she was never around. That was hard.”

Toni discovered that Donald had moved back to the US and was living in Oregon. He owned a house and a boat.

She located her old court papers. She notified Donald that he owed her $153,090 in back child support, interest and attorney fees. Donald has agreed to pay.

Statute of Limitations for Child Support

There is no statute of limitations for child support in California. The Maryland statute of limitations is 3 years to bring a contempt action.  If there is a written agreement under seal to pay child support, you have 12 years from the date the payment is due to sue.  You can also ask the court for a judgment for back child support.  The judgment lasts for twelve years and it s renewable.  It also accrues interest at 10% per year.

 

/by James J. Gross

Four Wrong Ways to Respond to a Divorce Settlement Offer

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Wrong Ways to Respond to a Divorce Settlement Offer

Settling your divorce case out of court is almost always better than a divorce trial.  Knowing how to respond to a divorce settlement offer is important.

Many people don’t know how to use principled negotiation techniques to reach a divorce settlement. Here are some examples of the wrong way to respond to an offer:

Give an Ultimatum.

I received a response to a divorce settlement offer last week that was dead on arrival.  It said its terms were “non-negotiable”.  I have never seen that work.  Instead it closes down the settlement discussions.  The same can be said for deadlines pulling the offer, like “You have one week to say yes to this counteroffer or it is revoked forever.”  A lawyer I know expressed a better attitude when he said, “Everything I’ve got is negotiable.”

Respond Indirectly.

If you receive an offer that numbers the issues, like (1) child custody, (2) child support, and so on, don’t start your response by telling me that your spouse won’t agree to a visitation schedule. Respond in the same order, using the same numbers, and propose a visitation schedule that you want.  Save the blame for court.

Throw Out Everything.

I have received more than one letter from opposing counsel that my client‘s offer is ridiculous or unreasonable or unacceptable.   What am I supposed to do with that?  It would be more helpful for them to say which items are unacceptable and propose a counteroffer.

Go Backwards.

The purpose of negotiation to is reduce difference between offer and counteroffer until you reach a settlement.  If you are increasing the difference, you are not going anywhere.  Once you have offered alimony of $2,000 a year, it will be impossible to get your spouse to accept $1,000 a month in the next round of negotiations.

The right way to respond to an offer of settlement is through principled negotiations.  That means you respond specifically and directly only to the items in dispute, state your objections clearly, and propose compromises.

/by James J. Gross

Couples with Children Added to Maryland Mutual Consent Divorce

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The Maryland legislature added Mutual Consent as grounds for divorce for couples without minor children in 2015 to allow divorce without a waiting period if the parties had a written agreement.  Section 7-103 of the Family Law Article of the Maryland Code.

Now the legislature has added couples with minor children to the statute so long as (a) a Maryland Child Support Guidelines Worksheet is attached to the Agreement if the Agreement provides for child support, and (b) the court finds the sections of the Agreement with respect to the children are in the best interests of those children.

The law, if not vetoed by the Governor, will take effect October 1, 2018.

/by James J. Gross

Get the Facts First: A Story

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Most mornings before the courthouse opened, all the lawyers and judges could be found at the Silver Spoon Diner.  Although they would soon be battling it out, there was a convivial atmosphere in the diner, among the clink of dishes and the babble of discourse.

Judge Cullen sat across the booth from attorney Clark.  Clark took some papers out of his briefcase.  “What would you do in this case?” Clark asked the judge.  “I’ve got paystubs that say the husband pays $300 a month for health insurance and a year end statement that says he paid $5,000.  Which one should I use for the child support guidelines?  Should I just use the one most favorable to my client?  Or prepare two guidelines and let the court decide?”

Judge Cullen blew on his coffee to cool it, then opined “Get the facts first.”

“What do you mean?” asked Clark, taking a bite out of his blueberry muffin.

“Does the husband have an attorney?” Judge Cullen inquired.

“Yes,” answered Clark.

“Then call the attorney and ask why there is a discrepancy in the health insurance premiums on the pay statements.”

Clark reached for his cell phone inside his suit jacket which was on a hook attached to the booth.  He dialed the number and had a brief convesation over the din of the diner.

“Well?” said the judge.

“He says the husband took her off his health insurance after the first few months of the year so the premiums went down.”

“Mystery solved,” said the judge, handing the bill for his coffee to Clark.

 

 

 

/by James J. Gross

Material Change in Circumstances Required to Change Virginia Child Support

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by Michael F. Callahan

In Virginia, you need a material change in circumstances to obtain a change in child support.  A material change means one that is 1) relevant to child support and, 2) of sufficient magnitude to justify a change in support.

In a modification case, the court applies the child support guidelines to the new facts.  In an administrative review of child support, support may be modified if the new determination changes support by 10% or more and at least $25.00.

There is no such minimum change rule in court cases, but the process requires time, effort and money, so minor increases or decreases are probably not worth pursuing

/by James J. Gross

Child Support Enforcement in Virginia

Who handles child support enforcement in Virginia? For services in the determination, collection and administration of child support, you can contact the Division of Child Support Enforcement (DCSE) in the Virginia Department of Social services.  The DCSE has broad authority to determine and to modify child support but cannot modify a court determination of support.

/by Michael Callahan