Penny is getting divorced and she wants to know the value of the marital home for purposes of dividing or equalizing assets.  She wonders how to go about doing this and whether one method is better than another.  

Licensed Appraiser:

A licensed home appraiser is the most reliable method of valuing the marital home.  However, home appraisal is not an exact science and different appraisers will likely have different results for the value of the home.  An appraisal does provide a defensible and carefully documented written opinion of value and is performed by a licensed, certified professional whose business is to value properties. While a licensed appraiser will likely provide the most reliable home value, this type of appraisal can cost several hundred dollars. 

Comparative Market Analysis (CMA):

An option that will cost less than an appraisal is to request a CMA from a real estate professional. A CMA involves comparing Penny’s home with other homes that have sold or have been listed for sale in the area and placing a value on her home based on this evaluation. While providing a reasonable basis for value, a CMA does not take into consideration condition or uniqueness of the property.  While reliable, a CMA is not as solid as an actual appraisal. 

Online Research Tools:

If Penny does not want to involve a third party, she can utilize online research tools, such as Zillow.com, to estimate the value of her home. While this method may be the easiest and least costly, it is also the least reliable. Penny may be reluctant to spend money on a licensed appraiser or on a CMA; however, having a sense of her home’s true value can be invaluable when negotiating a settlement or presenting evidence at trial, especially if her husband does not agree with her value. 

If Penny’s case goes to trial, since she owns the home, she can testify to the value based on her knowledge gained from sources such as the CMA or online research she has done. However, the actual CMA or research documents are unlikely to be admitted as evidence and therefore won’t be viewed by the judge. If Penny has a formal appraisal, the appraisal report can come into evidence if stipulated to by both parties, and if her husband does not agree, the appraiser can testify in court.  It is not unusual for parties in divorce to disagree regarding the value of the marital home. If the case is being negotiated or litigated and two different values are presented, a formal appraisal will carry more weight than a CMA or value determined by a party based on his/her research.

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. 

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.

Source: Market Watch, Avoid these common mistakes if you’re filing for divorce in January, published January 2, 2017 http://www.marketwatch.com/story/what-not-to-do-when-filing-for-divorce-2016-12-29

Johnny Depp, Amber Heard, and Your Divorce via Time.   This article reminds parties that no matter your financial status it is of the upmost importance to be specific when setting forth terms in an agreement.  Alimony provisions should be specific regarding payment of taxes and receipt of deductions including payments made to third parties.

In a Divorce, Who Gets Custody of Electronic Data? The Lawyersvia New York Times.  A good reminder that you should assume anything you put in a text, email or on social media will show up in court. And, if you have multiple devices that sync, if you leave one device unprotected other persons may gain access to your text, email and other information that you wanted to keep private.

3 Tips For Getting Along With Your Ex-In-Laws via Pop Sugar.   Great tips for getting along with your for in-laws any time of the year but especially during the holiday season.

In Virginia, alimony may be terminated if there is clear and convincing evidence that the spouse receiving spousal support (alimony) has been habitually cohabitating with another person in a relationship analogous to a marriage for one year or more, pursuant to Code of Virginia §20-109. This includes the cohabitation of same-sex couples.

Samantha Cucco and Michael Lutrell entered into a Property Settlement Agreement pursuant to which Michael Lutrell paid alimony to Samantha Cucco.  Mr. Lutrell sought to terminate his alimony payments to Ms. Cucco when he learned Ms. Cucco had been cohabitating with her fiancé, another woman, for over a year.

Ms. Cucco argued that because her relationship was with another woman, she was not cohabitating pursuant to §20-109.  In Luttrell v. Cucco, The lower court agreed with Ms. Cucco, stating that “cohabiting in a relationship analogous to marriage” does not include cohabitation by same-sex couples, and the Virginia Court of Appeals agreed.  The Supreme Court held that the Court of Appeals erred when it concluded that same sex couples cannot cohabit for purposes of §20-109 and the case was remanded back to the lower court.

If you are seeking to modify alimony based on your spouse's cohabitation with another person, it is important to seek the advice of an experienced family law attorney.  Contact Hess Family Law to discuss your particular situation and goals.

Tom returned from a contentious mediation session with his soon to be ex-wife Marta regarding custody of their two boys.   Angry and frustrated, Tom vented to his “friends” on Facebook and tweeted negative comments about Marta.   A week later he posted pictures of his new girlfriend and his boys despite an agreement with Marta that they would not post pictures of their children on social media.  Mediation broke down, in large part because Marta no longer trusted Tom to keep his word.  Through mutual friends and discovery, Marta was able to obtain Tom’s social media postings and used them as evidence during their trial. 

It may seem like common sense, but if you are thinking about divorce, going through a divorce, or are divorced with minor children, you need to think twice before posting or tweeting on social media.  Hess Family Law recommends suspending all use of any social media during the divorce process. 

If you are not willing to suspend your social media usage, then at least take precautions when using social media by checking your privacy settings and limiting the people you don’t know from viewing your posts. 

You should also limit what you post.  If you bad mouth your spouse not only does it make it more difficult to reach an amicable agreement but it makes it more difficult to co-parent and you might lose the ability to share joint custody.  One way to determine if a post or tweet should be sent is whether or not you would want your children to see it.  If the answer is no, don’t post or tweet it. 

Arguing your case on social media will not win your case and could damage it.  While your post that highlights why you should have custody and why your spouse should not may garner you sympathy from your friends, it may also backfire if brought to your spouse’s or the court’s attention. 

If your case is litigated, the Judge will look at objective and subjective factors when making a determination.   Negative comments made on social media may not weigh in your favor because they may show poor judgment and poor decision making abilities, two qualities that are important for parenting and co-parenting.   You may also appear as a bully, which will not weigh in your favor. 

Ask yourself if your spouse could misinterpret a post.  While it may seem harmless to you, will they feel attacked or find a way to use it against you?   Also, resist the urge to check in or post every time you go out.   Again, your spouse can use this as evidence against you.

If you have an agreement to not post pictures of your children on social media without your spouse’s consent, don’t do it.  Violating the terms of an agreement, even if it seems minor to you, could have serious consequences.  If your spouse or the court have evidence that you don’t follow court orders, or that you don’t keep your word, then your spouse may be awarded more of the responsibility because you are not reliable or trustworthy, or credible.

If you are concerned that your spouse may use your social media postings against you, the best thing you can do is take a break from social media while your divorce is pending.   If this is not possible, then heed the advice above to minimize any negative impact your social media posts or tweets may have on the outcome of your case.

Source: Social Media and Divorce:  Why You Should Put The Keyboard Down and Log Out, Ashley Tate Cooper December 12, 2015

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. 

If you are recently separated or divorced it is important to maintain good credit.   If you allow your credit score to fall you may have difficulty buying or renting a home, obtaining insurance, buying or leasing a car, or finding a job.   So, what can you do to maintain or improve your credit especially when you may feel overwhelmed financially?

Amy and Curtis Arnold, in their Huffington post article, How to Improve your Credit Score After Divorce, have the following suggestions:

Establish New Credit:  Closing joint accounts and establishing accounts in your own name is a good step toward maintaining good credit.  Initially, your credit score might go down because you have less credit available to you, but if you reestablish credit, that dip should be temporary. 

Review your Credit Reports:  You are entitled to a free credit report every 12 months from the three credit reporting companies, Equifax, Experian, and TransUnion.   Go to annual credit report,  to request all three.  Once you have the reports, carefully review them and 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.  

Pay Bills on Time:  If you are considering paying bills late, or worse, not paying at all, you should reconsider.  This action could be extremely detrimental to your credit.  One missed bill payment or a late mortgage payment could affect your ability to purchase a home and/or open accounts in your own name down the road.   If you think you might be late with a payment, contact the lender or creditor, explain your situation, and ask for an extension.   While there is no guarantee that they will agree, if they do, your credit will not be damaged, so long as you pay according to any new agreed upon terms. 

Work with a Family Law Attorney:  Mr. Arnold’s article recommends working with an attorney who focuses on family law.   Having an attorney who you trust and who can advocate for you is important at this time when emotionally you may not be able to make rational or reasonable decisions.  If you and your spouse are not able to agree on finances, a family law attorney, such as Geraldine Welikson Hess at Hess Family Law, can help you review your options and seek assistance from the Court when necessary. 

Educate Yourself:  If you were not the spouse in charge of finances, now is the time to educate yourself. Read articles, talk to a financial advisor, and gather information.  Knowledge equals empowerment. 

Be Wary of Retail Therapy:  Divorce can be emotionally difficult.  Oftentimes people turn to retail therapy to ease their pain.  However, this could lead to significant debt and/or depleting savings.  Before making a purchase, determine whether you really need the item.  Ask yourself why you are buying the item and think about how it will affect you financially down the road.  You may also benefit by talking with your attorney and/or a financial advisor about the pros and cons of spending vs. savings while you are going through the divorce process.  Taking a moment to consider options often leads to better financial decisions.

April 15th, the day you must file your tax returns or request an extension, is fast approaching.  If you and your spouse separated during 2015, you may be wondering how to file your taxes.   If you were not divorced on or before December 31, 2015, the IRS considers you married for 2015, even if you lived separate and apart for the majority of the year.   Therefore, you must either file a joint tax return together or you each can file your own married, filing separately tax return.   If you entered into an Separation Agreement that addressed how tax returns would be filed then your Agreement will dictate how to file.  Absent an Agreement that addresses tax filings, then you likely have a choice whether to file jointly or married filing separately.

For many families, filing a joint return will result in the most tax savings for the family as a whole. However when it comes to cash refunds and cash flow, there may be reasons why it benefits some spouses to file married filing separately.  Thus, it is important that you first consult any Agreement you may have, and then consult with your accountant and/or family law attorney to review your options.   If you decide to file separate returns, be aware that only one parent can claim head of household and/or dependency exemptions related to the children.  Therefore if you do not already have an agreement with regard to these issues it is important to communicate with your spouse just prior to or shortly after filing to avoid you both claiming the exemptions.  If both you and your spouse claim the dependency exemptions you may be more likely to be audited.   If you both claim the exemptions it is likely that the spouse who filed their return first will get the benefit of  the exemptions.   

If you file married filing separately, you and your spouse can later on decide to amend to file a joint return.  If you file a joint return, you cannot later amend to file married filing separately.  But be aware that if on April 15th you file for an extension, rather than filing your actual return,  the act of an extension may later prevent you from amending your married filing separately return to a joint return.  Before filing for an extension you should consult with your accountant for advice regading any impact the extension will have on your ability to amend your filing later on.