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.
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.
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.
Social and/or religious reasons often prompt individuals to inquire about annulment rather than a divorce, because there is a difference. An annulment is when the court determines that a valid marriage never existed. A divorce is when the court terminates a valid marriage.
Although an annulment may be desirable to some, annulment is only available in very limited circumstances. In order to be granted an annulment in Maryland, one of the following legal grounds must be met: Duress, Fraud, Mental Disability, Bigamy, Consanquinity or Age.
Duress: The party seeking the annulment was coerced into getting married at the time of the wedding ceremony and was in fear of great bodily harm if they did not get married.
Fraud: One spouse defrauded the other to convince him/her to get married. For fraud to be a basis to annul a marriage, it must be something that affects the health or well-being of the parties or the children of the marriage. Additionally, once the fraud has been discovered the innocent spouse must not continue to reside with the other spouse otherwise the fraud ground has been waived;
Mental Disability: One spouse was mentally incapable of getting married;
Bigamy: One spouse was legal married to another person at the time of the marriage;
Consanguinity: The parties are more closely related than first cousins;
Age Limits: If a spouse is under the age of 18, unless the underage spouse is 16 or 17 and had parental consent or is 15 and pregnant and had parental consent.
What happens with children of annulled marriages? Children of an annulled marriage are considered legitimate unless it can be clearly proven that the husband did not father the children. Just like with a divorce, when a marriage is annulled, the judge can still decide issues like custody, visitation, child support, alimony and attorney’s fees. The court can also divide any property the spouses have acquired.
If you are contemplating divorce and believe an annulment may be a better option, Hess Family Law can help you determine whether or not you have legal grounds for such a proceeding.
Couples over 50 are twice as likely to get divorced as people of that age were twenty years ago. A Bowling Green University study found that the divorce rate for people 50 and older doubled from 1990 to 2010. This trend has been coined, “Grey Divorce”, referring to the demographic trend of an increasing divorce rate for older ("grey-haired") couples in long-lasting marriages. Older divorcees must consider the consequences divorce may have on their retirement. Often couples over 50 have been married for twenty or more years and have substantial assets and debts between them.
A recent Washington Post article points out the unique financial issues couples face when divorcing during their retirement years. The author, Rodney Brooks commented, “divorce is not good for your retirement. That nest egg you worked so hard to accumulate must now be split and support two households instead of one.” If one or both spouses are still working, retirement may not be feasible as early as they may have planned. If already retired, retirement funds may be split leaving both parties unable to maintain their current lifestyle.
Health benefits are another major concern. Once divorced, the dependent spouse may no longer be covered on the other spouse’s plan leaving them to have to find alternate health insurance, sometimes at a high cost. Another issue that often arises is that one spouse handled all of the financial issues during the marriage. When a couple divorces, the less knowledgeable spouse is at a significant disadvantage. According to Kathleen Grace, managing director at United Capital and author of Prince Not So Charming: A Romantic Tale of Financial Independence, “9 out of 10 women will be solely responsible for their finances at some point in their lives.” Because many women choose not to work while they raise children, this statistic is significant.
Regardless of your age, if you are considering divorce, it is important to seek the advice of an experienced Family Law Attorney. Hess Family Law can provide expert advice based on your particular situation and goals.
What happens if you file for divorce and properly serve the divorce papers on your spouse, but your spouse does not file a response with the Court within the required time allowed?
You are not stuck, you can still proceed to get divorced in the State of Maryland. You must file with the court a Request for An Order of Default, file an affidavit and proof stating that your spouse is not currenting serving in the armed forces. The proof can be obtained by visting the Department of Defense Servicemembers Civil Relief Act (SCRA) website, and print out your search results. Once the court issues the default you can then request a hearing for divorce and the process can proceed without your spouse. What happens if your spouse suddenly decides to respond and participate? The default is likely to be set aside and the case will proceed with both parties participating. The issues, especially custody and visitation, are so important that Judges don't like to proceed in divorce cases without hearing evidence from both spouses.
There are many reasons why people do not initialy respond to the divorce papers. Sometimes it is denial of the divorce, sometimes it is financial inability to hire a lawyer or figure out how to file without a lawyer, sometimes it is because a spouse is hoping that the matters can be resolved outside of court, with or without the use of an attorney or mediator.
People Magazine reports that although Gwenyth Paltrow filed for divorce on April 20, 2015 her husband, Chris Martin, did not file a response with the Court. Ms. Paltrow now has the option to request that the court proceed on a default judgment. In all likelihood this is a situation where Mr. Martin and/or Ms. Paltrow want to resolve their issues outside of court with their lawyers, mediators and business managers.
Divorce filings rise in the month of January because couples tend to wait until after the holidays to separate. James McLaren, past president of the American Academy of Matrimonial Lawyers commented that in the month of January “we see a significant increase in people seeking out divorce advice and, ultimately, filing. The number of filings is one-third more than normal.” Similar trends are seen in the U.K.: 1 in 5 couples plan to divorce after the holidays, according to a recent survey of 2,000 spouses by legal firm Irwin Mitchell. The survey also found that instructions to lawyers to file for divorce are also up 27% so far this month compared with an average month.
Many theorize that the rise in filings at the beginning of the year is due to couples not wanting to dampen the holidays with news of a divorce. Those hoping for an amicable resolution once the divorce proceedings are filed may consider whether their spouse will be so eager to settle if the holidays are marred by a separation and talk of divorce. Additionally, there may be concern that a disgruntled spouse could use the divorce as an excuse to spend more on gifts then he/she otherwise would have spent. While running up credit cards and draining bank accounts can happen at anytime of the year, a spouse may be less likely to do so after the holidays.
Waiting until after the craziness of the holidays has passed gives parties more time to plan and prepare. In order for an attorney to have a clear understanding of income, assets, and expenses parties will need to begin collecting financial documents. End of the year statements are an important piece to the financial picture. Many of these documents are not available until the end of December or the beginning of January.
If you are considering divorce, Hess Family Law can provide advice based on your particular situation and goals.
Source: Reuters, Considering divorce? Good reasons to wait for January, Geoff Williams, December 4, 2015
Marketwatch.com, Why January is a popular month to file for divorce, Quentin Fottrell, January 6, 2015
- Not have any minor children in common;
- Submit a written settlement agreement to the Court, signed by both parties that resolves all issues of support, and property;
- Neither party may seek to set aside the written settlement agreement before the divorce hearing and
- Both parties appear at the divorce hearing.
- A limited divorce can now be granted on the grounds of a separation. The separation no longer has to be voluntary on the part of both parties, and there no longer has to be no reasonable hope or expectation of a reconcilation.
- The residency requirement for divorce grounds occuring outside the State of Maryland have been reduced. A party may file for divorce after having resided in Maryland for at least 6 months before filing. The residency requirement used to be a year.