In a recent Maryland Court of Appeals case, Rose v. Rose, the parties entered into a Separation Agreement which resolved all of their outstanding issues, including alimony. The Agreement provided that Jonathan would pay non-modifiable alimony for a term of eight years beginning January 1, 2012, and ending December 31, 2019. The Agreement further provided that Jonathan’s alimony obligation would terminate “upon the earlier of (a) Jonathan’s death; (b) Andrea’s death; (c) Andrea’s remarriage; (d) Andrea’s cohabitation (as defined by Gordon v. Gordon, 675 A.2d 540 (1996)), or [(e)] December 31, 2019.” On December 14, 2011, a Judgment of Absolute Divorce was entered which incorporated but did not merge the parties Agreement.
In 2016, Jonathan filed a Motion to Terminate Alimony based on the terms of the parties’ Agreement alleging that Andrea was cohabitating with a man as defined by Gordon and therefore alimony should terminate. Both sides presented evidence as to the factors courts may consider as established in Gordon 342 Md. at 308-09:
1. establishment of a common residence;
2. long-term intimate or romantic involvement;
3. shared assets or common bank accounts;
4. joint contribution to household expenses; and
5. recognition of the relationship by the community.
The Gordon court emphasized that the list was non-exhaustive and that no one factor should serve as an absolute prerequisite for finding cohabitation exists. At the conclusion of the hearing, the trial court determined that the evidence was insufficient to establish cohabitation and denied Jonathan’s request to terminate alimony.
On appeal, the Court considered the fact that the trial court noted that the parties expressly incorporated Gordon’s definition of cohabitation as one of the terminating events for the payment of alimony and that the trial court considered each of those factors. The trial court found evidence as to the first two factors; establishment of a common residence and a long term intimate relationship. However, the trial court also found that there were no shared assets, common bank accounts, or joint contributions to the household. Additionally, there was no evidence as to how the two were recognized by the community. The trial court judge stated that “I’m not convinced that there was cohabitation” as defined in Gordon and “I just don’t believe that there was a de facto marriage here.” The Court of Appeals concluded that the trial court’s factual findings were not clearly erroneous or arbitrary and affirmed the decision denying Jonathan’s request to terminate alimony.
Because the parties agreed to the definition of cohabitation as defined by Gordon, the court had no option but to apply the factors as set forth therein. If the Agreement did not tie the definition to the Gordon case, the end result may have been different. This is why details matter. It is important to have an experienced attorney such as Geraldine Hess and Hess Family Law when negotiating a settlement so you can make sure you fully understand the terms of your Agreement.
In the case of Huntley v. Huntley, Charles Huntley discovered just how costly it can be if you fail to affirmatively request relief in your pleadings.
After twenty-eight years of marriage Lydia Huntley filed for divorce. In Lydia’s Complaint she requested, among other things, a monetary award, alimony, a portion of the marital share of Charles’s retirement benefits, and attorney’s fees. Charles filed an Answer in which he denied Lydia’s entitlement to a monetary award and asked the court to deny Lydia an award of alimony. Charles did not request any affirmative relief aside from the grant of a divorce nor did he file a Counter-Complaint. Although Charles subsequently requested a portion of Lydia’s retirement benefits at trial, because Charles did not include such a request in his pleadings, the trial court denied his request.
On appeal, Charles argued that the trial court erred in refusing to divide Lydia’s retirement benefits. He also contended that Lydia was not prejudiced by his failure to request an equitable division of her retirement benefits because they were included on the parties’ Rule 9-207 form as marital property. The Court of Appeals disagreed finding that the only relief Charles requested in his Answer was that the trial court “grant him a Divorce, and deny [Lydia] alimony.” Charles never filed a Counter-Complaint or an Amended Answer requesting that the court make an equitable division of Lydia’s retirement benefits.
The Court noted that although Lydia listed her retirement assets on form 9-207, the facts stated on this form are “admissions by the parties in a judicial proceeding” and admissions are not the same as pleadings. Lydia’s request for a portion of Charles’s retirement benefits did not automatically put her on notice that Charles would request a portion of her retirement benefits. The only way Lydia would be aware of this request would be if Charles indicated such in his pleadings. Charles could have amended his pleadings up until fifteen days prior to trial, but he did not. If Lydia had known that Charles was requesting a portion of her retirement benefits she may have used a different trial strategy and/or requested alternative relief.
The lesson learned from this case is that it is essential to put the other side on notice by including any and all relief you want in your pleadings. If you are considering filing for divorce, and/or have been served with divorce papers and need to file an Answer and possibly a Counter-Complaint, Hess Family Law can provide strategic advice based on your particular situation and goals.
What is parental alienation? Parental alienation is when a parent uses psychological manipulation of a child to damage his or her view of the other parent, often by speaking negatively about the other parent, keeping the child from seeing the other parent, and/or continually questioning the child about the personal life of the other parent. Because of these behaviors, the child often allies him or herself with one parent and rejects a relationship with the other parent without legitimate justification. While not always, parental alienation occurs in high conflict divorces when a parent cannot separate conflict in the marriage from the well-being of the child.
For some divorcing or separating couples, parental alienation is a concern. In an article for DivorceMagazine.com, Russell J. Frank, Esq. discusses how to recognize parental alienation. Behaviors such as listening in on a child’s phone conversation with the other parent, excluding or withholding information about the child from the other parent, using the child as a spy, and refusing to grant reasonable requests to a change in the custody schedule, may lead to parental alienation. These behaviors create a moral dilemma for the child as they struggle to remain loyal to both parents.
Sharing inappropriate or misleading information with the child about the divorce and/or the other parent is another red flag. Allowing the child to determine whether or not they see the other parent, despite having a timesharing schedule also leads to alienation. These behaviors can be emotionally and psychologically damaging to the child. If allowed to continue, the child may become physically, emotionally, and psychologically, separated from the other parent.
If you suspect that your spouse is alienating the children, it is important to seek professional advice from a licensed therapist and/or a family law attorney such as Hess Family Law to discuss your specific case and concerns.
Are you thinking about divorce? If so, you are not alone. While January has been dubbed divorce month, the first three months of the year are often the busiest with filings beginning to rise in January and continuing to increase through March. Several experts speculate that the reason divorce filings increase during this time period is because most people want to get through the holidays with their family intact. According to Kathryn Smerling, a New York City psychotherapist, “for couples with kids, it can be especially important to “hold things together” during the holidays.” Once the holidays are over, people begin to gather information and decide whether divorce is the path they want to take.
Due to the changes in the tax code, 2018 may prove to be an even busier time for divorce. Under the new bill, alimony paid by one spouse to the other will not be tax deductible, and the spouse receiving the alimony no longer has to pay taxes on it. However, the change won’t take effect until 2019, setting up 2018 for a potential increase in divorce filings.
If you are considering divorce, Hess Family Law can provide advice based on your particular situation and goals. More information can be read on the Hess Family Law Blog Post Are You Surprised Divorce Filings Rise In January and Contemplating Divorce? Three Things You Should Do Now.
Did you know that in Montgomery County, Maryland the testimony and evidence needed to receive a recommendation for an uncontested divorce have changed? There are now fewer requirements so it is easier than ever before to present the uncontested divorce testimony.
You no longer need a corroborating witness to testify about the grounds for divorce in Montgomery County, Maryland. You no longer need to ask a parent, sibling, neighbor, co-worker to come to court to testify to corroborate that you satisfy the grounds for divorce.
You no longer need to prove the marriage that you are trying to end actually took place. You no longer need a witness who attended the wedding ceremony to testify as to the marriage. You no longer need to produce a copy of the marriage certificate as an exhibit.
The only witness that needs to testify is the Plaintiff party requesting the divorce. The Plaintiff's testimony still needs to prove that the grounds for divorce, and all other requirements for divorce are satisfied. And, if the Defendant wishes to be restored to the use of a former name then the Defendant will need to testify.
Despite these changes that make it easier to be successful at the uncontested divorce hearing, it is still helpful to have a lawyer represent you at the uncontested divorce hearing, especially if there are any child support, alimony or division of retirement assets issues.
If you are considering divorce, Hess Family Law can provide advice based on your situation and/or goals.
You may have heard of dating apps, now there are apps that help couples split up. Technology and apps are an integral part of our lives and it is no surprise that apps and online sites are attempting to help couples navigate the divorce process.
However, divorce is rarely simple or easy. If couples have issues involving alimony, child support, custody, retirement, and/or property, using a divorce app does not make a lot of sense. Additionally, the laws vary in different states and couples that use online apps to help them divorce may not be receiving sound legal advice.
Mistakes that may be made in a "do it yourself" divorce can't always be fixed, and/or the fix may be much more expensive than it would have been if an attorney was hired and it was completed correctly from the outset. In the article "Up next: Swipe right for a divorce" the pros and cons of divorce apps are explored.
If you are considering divorce, Hess Family Law can provide advice based on your particular situation and goals.
If you are contemplating a separation and divorce there are four things that every spouse should do before they separate:
Obtain copies of your credit report
You are entitled to a free credit report every 12 months from the three credit reporting companies, Equifax, Experian, and TransUnion. Click here to request a report from all three companies. Consider requesting a report from only one of the companies. Once you have the report, carefully review the report. If anything looks worrisome go ahead and request a report from one of the two remaining companies to see if they report the same worrisome item. Determine which accounts are held in your name and which you are a joint holder. Sometimes a spouse opens an account listing you as a joint or authorized user without your knowledge, which is why it is important to review your credit report. Be mindful of any accounts and debt for which you are the primary account holder as you are legally liable for those debts and failure to pay those debts timely will negatively impact your credit. You still have one or two free credit report requests remaining and should request another free report a few months later to see if your credit has changed.
Establish Credit Independently
If you do not have your own credit, start small and build up ideally before you separate from your spouse as you may need to rely on credit during your separation. Apply for a credit card that has a small credit limit, such as one from a local department store or financial institution. Once you have the credit card, make sure you use the credit but always pay your bills in full and on time so you can build an excellent credit history. After several months of paying on time, you can apply for another card and continue paying those bills on time as well. Eventually, you will establish excellent credit in your own name. However, don’t spend more than you can pay, otherwise you will tarnish the good credit you are trying to build.
Have your own bank account
Opening a bank account in your sole name is a good step toward establishing good credit. When you open a separate bank account, consider using a different bank from your spouse. Mistakes can be made if you continue to use the same bank, for example, accounts can be linked or statements misdirected.
Make copies of important documents
Copy your three most recent tax returns and all the documents that support the assets and liabilities that you and your spouse have, including life insurance policies. If you have a claim related to non-marital or separate property, take all the documents that support that claim with you. If there are bills that are in your name, make a copy so you can monitor the account to be sure that it gets paid in the future. Finally, if there are any documents or photos that are irreplaceable bring them with you.
For additional information on maintaining good credit read Maintaining Good Credit During and After Divorce on the Hess Family Law Blog.
Does the circuit court have jurisdiction to resolve a custody dispute if the parents are living together, regardless of whether the parents are married? The answer is yes.
In Ricketts v. Ricketts, 393 Md. 479, 501 (2006), the Court of Appeals held that a court had such jurisdiction in a divorce action even if the parents were sharing the same household and even if the court declined to grant a divorce. In a recent Court of Special Appeals case, Holbrook v. Newell, the holding of Ricketts was extended to cases where the parents are unmarried.
While the court has the authority to make a custody determination even if the parties are still living together, it may not be in a party’s or a child’s best interest to make such a request. No two custody cases are the same and each case is determined by a subjective analysis of factors related to a child’s best interests. If you are contemplating a custody action, Hess Family law can provide advice based on your particular situation and goals.
Kevin and Kate separated after fifteen years of marriage. Two months after their separation, Kevin took his girlfriend on an all expenses paid vacation to Hawaii. While there, he purchased several pieces of jewelry for her. When Kate learned of these expenditures she was furious and immediately contacted her attorney to see what action could be taken.
Although the general rule is that property not in existence at the time of the divorce cannot be divided as marital property because it no longer exists, there is an exception to this rule. When one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown, and it is used with the intention of reducing funds available for division between the parties, dissipation may be found.
At trial, Kate must prove that Kevin used marital funds for other than a family purpose with the intention of reducing the funds available for equitable distribution. The burden then shifts to Kevin who must show the expenditures were appropriate. If he cannot prove that the funds used were for marital or family purposes the court may give Kate a monetary award to make things equitable. While there are exceptions to the rule, gifts to third parties especially when they are not the parties' children or close family members, is generally considered dissipation.
Dissipation is not easy to prove. Before spending a lot of time and money on the issue, Kate and her attorney should consider the likelihood of being able to meet their burden of showing that 1) funds were used and were not used for a family purpose and 2) the funds were used solely for the purpose of reducing the marital funds to be equitably divided. Kate may want to start by reviewing credit card statements and bank account withdrawals to see what funds were used and where the funds were used. Kate and her attorney may also want to consider whether it is worth the expense of retaining a forensic accountant to help identify missing or used assets but before incurring such an expense they should weigh and balance the likelihood of being able to prove that the funds were used solely to reduce the assets to be equitably divided. If the funds were used for any other purpose, then no dissipation can be found.
For more information read: What Is Dissipation Of Assets In Divorce And What, If Anything, Can You Do About It? By Jeff Landers, November 1, 2016 Forbes.com
January typically brings a surge in divorce filings as people decide to start the New Year with a clean slate. According to John Slowiaczek, President of the American Academy of Matrimonial Lawyers, a spike of 25% to 30% in divorce filings occurs every year in January. Why do people decide to file for divorce at the beginning of the year? When a relationship is already tenuous, the holidays often bring tension, emotion, and financial burdens, which often trigger a spouse to file for divorce. If you are contemplating divorce, here are three things you should do now:
1. Be strategic and gather information before rushing to file and escalating the situation. Make copies of end of year statements, W-2’s, 1099’s and other relevant financial documents. Have your team and a plan in place before moving forward. Also, don't make any big financial decisions or changes immediately after the holidays if you are feeling tired or emotional.
2. Treat your divorce like you would a business deal. Starting with an aggressive approach can quickly increase the financial and emotional costs of your divorce. Being respectful and thinking before you act will serve you well in the long run.
3. Put together a team of professionals. A psychologist can help you make sure that you are thinking clearly; a certified financial planner can help you understand the financial implications of divorce; and a family lawyer can explain the legal aspects so you can understand your rights and what options you have before you move forward.
If you are considering divorce, Hess Family Law can provide advice based on your particular situation and goals. More information can be read on the Hess Family Law Blog Post Are You Surprised Divorce Filings Rise In January.