Mediation and Family Law Blog
Maryland & Washington, DC
|Posted by Sarah I. Malik on April 15, 2019 at 2:50 PM||comments (0)|
When it comes to divorce, two things come to mind: money and kids. With kids, the issues boil down to custody (physical and legal) and child support. While these are not easy topics to tackle, they are usually better understood by parents beginning the divorce process.
Property, wealth and income, however, are often difficult to understand when determining how they all play out in your divorce. There are three things to understand and categorize when thinking about the $ side of a divorce: Income/earnings, property and debt.
First, a person’s income not only plays a role in his or her child support calculation but also whether or not they will pay or receive alimony. Alimony is agreed upon or awarded in divorces when a person’s ability to earn and be self-supporting may not be at the point to enjoy the standard of living of the parties during the marriage. So, one’s income and ability to be self-supporting at the time of the divorce is determinative of whether alimony is warranted. If it is, then the lesser earning spouse’s award of alimony – the amount and duration of alimony - will be determined based on the time needed to become self-supporting, their eventual earning capacity, their age, their health, the length of the marriage and the reason for the breakdown of the marriage. The latter factors help guide the equitable nature of the alimony award. Alimony, however, is never intended to equalize parties’ incomes and is not intended to be a lifetime pension for the receiving spouse. Alimony is intended, in most cases, to serve as an opportunity for him or her to become self-supporting.
With regard to division of property, both tangible and intangible property are central to a parties’ divorce. Most important is whether the property was acquired during the marriage. Property that was gifted to one person or an inheritance is non-marital property and therefore not subject to division. All other property – which can include bank accounts, retirement accounts, homes, cars, other tangible goods or even businesses – are marital property regardless of how they are titled. Often, people think that because a property was titled in his or her individual name (for example, a retirement account), then such an account is not subject to division and transfer to the spouse. However, that is untrue. If the property was acquired after the marriage, then it is marital. So, for example, if a retirement account was worth $50,000 at the time of the marriage and is now valued at $150,000 at the time of divorce, then the $100,000 is marital property. Similarly, contributions from non-martial funds can be excluded from the analysis of division of marital property. For example, if a person contributed non-marital money toward the down-payment of a home, then that contribution remains his or her non-marital property when determining the marital equity in the home. Maryland courts are required to be equitable in division of marital prperty, not necessarily equal. If helping reach an equitable outcome regarding marital property, the court can order the spouse that has more property in his or her name pay a monetary award to the other spouse to reach a balance of marital property.
Finally, debt is also subject to some division in a divorce. Marital debt is debt which was incurred to acquire marital property and may be divided between the spouses. Spouses are jointly liable for debts in their joint names, although the Court cannot require either spouse to satisfy joint debts. Conversely, a spouse cannot be held liable for the other spouse's debts. To resolve this, the Court (if proper arguments are made) may decide that although the debt is marital (by definition) only the spouse that uses the card will be obligated or the court may decide that they will offset property to cancel a portion of the debt.
|Posted by Sarah I. Malik on January 11, 2019 at 3:20 PM||comments (0)|
Most attorney client relationships begin with an initial consultation. Sometimes these can be over the phone or, more likely, in person. If you have the ability to meet with your attorney in person, do that. If the attorney is someone that you will be working with for weeks, months or even years, getting to know them and determining whether you are compatible is important.
Some family law attorneys provide free initial consultations, which are usually limited to 30 minutes. These types of consultations are more for the attorney to figure out the issues of the case and less about the prospective client getting real advice. Useful initial consultations should last anywhere between 60 minutes to 2 hours and should provide the client and the attorney to both determine whether they can work together moving forward. The attorney is determining whether this is a case he or she can add to their active cases, has issues that are in their area of expertise, and whether the client is one that he or she can work with. The client is determining whether the attorney is someone they can trust and work with and if the attorney’s cost structure is one he or she can afford.
Each initial consultation is different. Much depends on the facts of the case and the procedural posture of the case (e.g., is the person seeking information pre-litigation; have documents already been served; are the parties trying to negotiate a settlement). If you have a good initial consultation, you should expect to understand the attorney’s billing practice (if you are seeking representation), a game plan for the case moving forward and an outline of goals for the case.
In some situations, clients only need or want a consultation only to get some guidance on the case, review a settlement agreement or just check in with an attorney to make sure they are doing everything right.
So, how does one prepare for an initial consultation:
1) Organize and bring all of the paperwork in the case. This can include draft pleadings or court filings, notices from the court, draft settlement agreements and/or correspondence from the opposing attorney.
2) Have a succinct timeline/story of your case. Most family law cases involve a lot of history about the parties’ marriage, children, property issues or all of the above. If there was no time limit to an appointment, just sharing your story could take well over an hour. So, come with the most important points outlined to share with the attorney. As needed, the attorney will ask questions to get more relevant information.
3) Know your personal goals when it comes to your marriage and/or children and be prepared to share those with the attorney.
4) Bring concrete financial information about yourself, spouse and children. This can include your income, your spouse’s income, major expenses for the children (e.g., health insurance, ongoing medical and childcare or tuition), and a list of significant assets that you or your spouse acquired during the marriage (e.g., homes, cars, bank and investment accounts, retirement accounts, businesses, etc.).
5) Come with questions. If you have a list of questions then you can make sure at the end of the meeting, most have been answered by the attorney, if possible at that point.
|Posted by Sarah I. Malik on December 4, 2018 at 11:55 AM||comments (0)|
With the holiday season upon us, challenges in co-parenting are more present than ever. Providing a holiday season that is memorable and stress -free for your children may be the greatest gift you can give them. For co-parents, here are a few tips that can help the entire family enjoy the holidays.
Be on top of the schedule. Review your agreement or court order in advance (especially if you have not looked it for some time) and iron out the specific details with the other parent. Make sure both of you are on the same page regarding timing of exchanges (e.g., a mid-day Christmas exchange) and locations of exchanges. Some parents’ schedules alternate holidays all together (meaning one parent may not have the holiday at all). In such a case, send a friendly reminder to the other parent who does not have the holiday so that there are no unnecessary surprises.
Discuss the holiday schedule in advance with the child. Make clear to your son or daughter who they will be spending the holidays with and when they will be with the other parent. Be open to their concerns, thoughts or questions in how the holidays will actually unfold. Remind them that they will have fun with both parents, but perhaps in different ways.
Incorporate facetime or skype to the holiday season. Especially for young children or if it is the first holiday apart, provide the child with an opportunity to talk and see the other parent if the child wishes.
Enjoy school events. This time of year is filled with holiday chorus concerts or class parties. Discuss the child’s holiday schedule in advance and invite and welcome one another to join in the events even despite the day of the event and the custody schedule. Use these opportunities to let the child see and know that you are both still her parents.
Discuss gifts in advance. Make sure gifts aren’t duplicated or that you are in agreement on the types of gifts for your child. If necessary, set a limit for each parent to spend on the child.
Buy a joint gift. There may be no greater gift for a child than to see his parents coming together for his or her benefit. Find a gift of any price that comes from both of you that makes clear, despite your relationship, you both love him.
Relax and try to enjoy this time. The holidays can be stressful even in the best of times. But, remember that even if with new family dynamics, there is an opportunity to make new memories. Create a new and different tradition with your kids, but don’t let it overshadow old traditions and memories.
|Posted by Sarah I. Malik on October 15, 2018 at 10:15 AM||comments (0)|
A stepparent adoption is an independent adoption where a stepparent adopts the child of his or her spouse. The spouse remains a parent and legal guardian of the child and the other biological parent must provide consent or terminate their parental rights.
There are many reasons why a person may choose to adopt a stepchild:
*The stepparent is playing a very active day-to-day part in that child’s life and has formed a relationship like that of a natural parent and child. Stepparent adoption represent a true commitment and love to the child
*The stepparent, spouse and child can share the same last name
*The stepparent can make important decisions for the child, in which he or she may likely already be involved
*The child can inherit from the stepparent, benefit from Social Security and insurance
What does the process entail in Maryland?
*The stepparent must file a petition to the court to adopt the child
*The non-custodial parent must either give his or her consent to the stepparent adoption or terminate their parental rights. It should be noted that once a parent consents and does terminate the parental rights (and the adoption is final), it relinquishes him or her of the legal rights and responsibilities over the child, such as paying child support or having access to the child.
*If a biological parent is deceased or cannot be located, the stepparent must prove by affidavit or publication of notices that the biological parent cannot be located.
*File all other paperwork with the court (e.g., the stepparent’s health records, income information, consent of a child if the child is older than 10)
*Attend the final adoption hearing where the Judge will take testimony to ensure that the stepparent understands and intends to care for the child as though he was born to him or her. The court will then sign the final Adoption Decree which identifies that the stepparent is now a parent and legal guardian of the child
What happens if the other parent does not consent?
Stepparent adoptions must be navigated carefully. If the other biological parent does not consent, then the adoption may still continue but the adoption is considered contested. The other parent must be notified of the petition and intent to adopt and has a period of time to object to the adoption. Whether or not the parent files the objection, then the court will determine at the final adoption hearing whether the adoption by the stepparent is in the child’s best interest.
|Posted by Sarah I. Malik on October 5, 2018 at 11:55 PM||comments (0)|
We have all heard the phrase, "It's the Little Things in Life." And no phrase could be more true than a child with two parents in two different homes. When it comes to co-parenting, and really all kinds of parenting, the little things go a long way in offering stability, happiness and peace to a child. For co-parents, that means getting along (at least on surface level) for your child. Below are a few simple tips to help any and all parenting relationships:
Smooth Transitions - One of the few times that a child of separated parents sees his parents together is during custody transitions. Be cordial and even kind to one another during this time. Your kids are watching. Say "Hello" and "How Are You?" Look them in the eyes. Exchange bags without any aggression or be helpful in walking the bags to the car or door. If it was a holiday or the other person's birthday, wish them well. These small fleeting moments will put the child at ease and help take any burden off of the child to think that they are at fault for their separation and their troubles (which is a common feeling for a child to have in this circumstance).
Cooperate with School - When it comes to school, have a united front. Share information about any progress you receive from the teacher with the other parent. Try your best to attend parent/teacher conferences together and work together in trying to address social or academic issues. Inform each other of school events in case the other may have forgotten or did not know about it. Show up and sit near each other for school events, especially if your child is performing or presenting. Nothing will make a child's heart lighten more than seeing his or her smiling parents near one another. Finally, do not, I repeat, do not ever confront the other parent about anything related to the child or the divorce/separation on school property. School is often a safe place for a child and allows him or her to escape some of their troubles or worries at home. Bringing it to school will not benefit the child in any way.
Birthdays - Do not make the child's birthday about you. Focus on the child and, if practicable, enjoy a moment together with the birthday kid and the other parent. This can include a quick visit to get ice cream on his birthday or presenting a joint gift. For kids of separated parents, there could be no greater gift than seeing your parents getting along on your birthday.
Encourage phone calls - When you are with your son or daughter, encourage him or her to call or text the other parent even for a minute. This will re-affirm to the child that you appreciate the child's relationship with the other parent and that you will do anything to support it. If you missed a call on your phone from the other parent, make sure to return the call.
Never discuss the separation or divorce issues - This may seem obvious but is one that is broken by nearly all co-parents. Bringing up, even in passing, a frustration or issue with child support or the residential schedule (or even something related to property or alimony) will only put the child in an uncomfortable position or add more confusion to his life. Whether they are articulating it or not, a child in the middle of a separation is dealing with quite a bit: changes in homes, emotional instability and possibly sadness. Do not put more on the child's plate.
The common theme of the tips above is stepping outside of yourself and doing what is best for your child. There is a time and place to be upset with or tough on your ex. In front of the child is never the right place. Children of separation or divorce are going through hard transitions and providing them with opportunities to see their parents being kind, civil and even gracious to one another will go a long way for the child's mental well-being.
|Posted by Sarah I. Malik on July 13, 2018 at 2:45 PM||comments (0)|
Once your child turns 18 and graduates high school, he or she is no longer a child in the eyes of the law. While it may be scary to think that your child is actually an adult, the fact of the matter is that they now have the legal right to govern their own life. So what does that mean for you?
Child Support - The legal obligation to support your child ends. While many parents will continue to support their children in other ways (e.g., help with college tuition, pay their rent, car note, etc.), the obligation to pay the other parent child support in Maryland ends when a child turns 18 or graduates high school, whichever is later. If you are paying directly to the other parent, you can stop. If your wages are being garnished, you need to work a little more closely with the employer and the office of child support enforcement to ensure that it does not continue for long after it is necessary. If parents entered into a written agreement to continue support after 18, then the child support does not end at 18 under that contract.
Health Insurance - If a parent's health insurance plan covers dependents, then a child can usually remain on his or her parent's policy until the age of 26. This applies even if the child gets married, has a child, files his or her own taxes, live outside of the parent's home.
Taxes - Your dependent child must file a tax return if their income requires them to do so. You can still claim a child as a dependent if either they reside with you for at least half of the year, do not provide for more than half of their own financial support and are under the age of 19 during the tax year or are under the age of 24 for full-time students. The IRS treats your child differently depending on whether he or she earns money from work or through investments. If the child (in 2017) earned more than $6,350 of income, then the child must file a personal income tax return.
Medical Records - Once your son or daughter turns 18, he or she is free to make medical decisions on his or her own. The parents are no longer part of the decision-making process of medical issues and may not obtain medical records without the new adult's consent. Consider discussing with your child about adding your name to his or her medical doctor authorization form so that the doctor can release information to you in compliance with HIPAA.
Academic Records - Under the Family Educational Rights and Privacy Act, a parent has certain protections and rights when it comes to access to their child's academic and educational records. However, once a child turns 18, that right transfers from the parent to the child. So, even if you are paying for the child's college tuition, you may be restricted in obtaining educational records (e.g., transcript) directly from the college or university. In some circumstances, however, a school may share some information about the student's education record (e.g., the student is claimed as a dependent for tax purposes, if the student's health or safety is at issue or if the student has violated any laws or policy regarding alcohol or controlled substances).
If it is not abudentently evident, once your son or daughter turns 18, you lose a lot of access as a parent when it comes to their life on paper. Have an open dialogue before their birthday to set reasonable expectations about how you will support them (financially or otherwise) and how it is important to remain involved when it comes to important matters will help them (and you!) transition to adult-hood.
|Posted by Sarah I. Malik on May 31, 2018 at 11:40 PM||comments (0)|
The Maryland legislature recently passed a new law that permits Mutual Consent divorces in cases where the parties have minor children. This law becomes effective October 1, 2018.
Under the current rule regarding the mutual consent divorce, only parties without minor children (they can have adult children) can get a divorce under this ground so long as they have resolved all of their issues regarding alimony, maritaly property and debt in a signed agreement. The parties can, but are not required, to be living separate and apart. The only other requirement is that the parties must both attend the final divorce hearing.
Under the new law, the grounds of mutual consent divorce are expanded to parties with minor children. However, the parties must also have a signed settlement agreement that provides for the alimony, property, care, custody, access, and support of minor or dependent children. The parties must also include a child support guidelines worksheet to the settlement agreement. Finally, both parties must also attend the divorce hearing. As in any case where the court reviews an agreement regarding minor children, if the court is satisfied with the terms of the agreement relating to minor or dependent children to ensure that they are in the best interests of those children, it will grant the absolute divorce.
Parties can still pursue a divorce on the other grounds for divorce:
*Conviction of a felony or misdemeanor (if other conditions are met)
*12 month separation if the parties have lived separate and apart
*Insanity (if other conditions are met)
*Cruelty of treatment toward complaining party or minor child
*Excessively vicious condition toward the complaining party or minor child
|Posted by Sarah I. Malik on April 11, 2018 at 10:00 PM||comments (0)|
PRINCE GEORGE'S COUNTY OFFICE OF CHILD SUPPORT ENFORCEMENT EX REL. LASHAUN POLLY (DECEASED) v. DOUGLAS BROWN
April 5, 2018
The Court of Special Appeals reversed the circuit court's ruling, finding that the minor child's grandmother may receive the child support payments escrowed to the minor child's deceased parent and that the trial court cannot eliminate a parent's child support arrears upon the death of the other parent.
Mother (Polly) and Father (Brown) were parents to two children. During mother's life, Brown was ordered to pay child support for both children through the Office of Child Support Enforcement. In September 2014, when the children were ages 17 and 10, Polly passed away and the children's maternal grandmother, Willie Mae Polly, began caring for the children. The Office of Child Support Enforcement began holding Brown's child support payments in escrow after the mother's death. In April 2016, the Office then sought to intervene and have the child support funds released to the maternal grandmother.
Approximately four months later, the circuit court awarded custody of the youngest child to Brown. Following the change in custody, Brown filed a motion in August 2016 to terminate the child support payments, eliminate his child support arrears and order the Office of Child Support Enforcement to release the escrowed child support payments back to him because the child was now be living with him. The trial court ultimate granted Brown's requests. The Office of Child Support appealed the court's ruling on releasing the escrowed funds to Brown and eliminating his arrearages.
In reversing the trial court's decision the Court of Special Appeals held that the trial court did have legal authority to release the escrowed funds to the grandmother. Generally, child support is an obligation paid to the child and not to the parent; therefore, the parent's obligation to pay child support does end upon the death of the other parent. See Newkirk v. Newkirk, 73 Md. App. 588 (1988). The circuit court could have released the funds to the grandmother because she cared for the minor children after their mother's death, despite the fact that the grandmother had no legal authority over the children.
Additionally, the circuit court could not wipe out Brown's child support arrearages because of Polly's death. Family Law section 12-104(b) provides that a court "may not retroactively modify a child support award prior to the date of the filing of the motion for modification." The case of Harvey v. Marshall, 389 Md. 243 (2005) further provides that this retroactive modification prevents a court from wiping out child support arrearages. Because Brown's motion to modify child support obligations was filed in August 2016, any arrears accumulated prior to this date remained and could not be eliminated by the court.
The complete opinion can be found here: https://mdcourts.gov/data/opinions/cosa/2018/2417s16.pdf