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.

Up until now, Maryland law did not permit the non-biological, and non-adopotive "parent" (de facto parent) of a child to obtain custody or have visitation with the child when the family was broken apart by separation or divorce unless the de facto parent could prove that the biological or adoptive parent of the child was unfit.  

In a landmark decision, the highest court in Maryland, the Maryland Court of Appeals has ruled that de facto parents now have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis.    

This decision overrules the Court’s previous decision in Janice M. v. Margaret K., decided approximately 8 years ago.  The high court determined that its holding in Janice M. contravened the “universally accepted concept” that children “need good relationships with parental figures and they need them to be stable.” 

While unanimous in their recognition of de facto parenthood, the Judges were split 4-3 on a specific four-factor test for courts to determine if an individual qualifies as a de facto parent.  The factors require

  1. that the biological or adoptive parent “consented to, and fostered” the formation and establishment of the “parent-like relationship with the child;”
  2. that the de facto parent and child lived together in the same household;
  3. that the de facto parent “assumed obligations of parenthood,” such as the child’s care, education and development without expecting payment; and
  4. that the de facto parent was in the parental role for enough time to establish “with the child a bonded, dependent relationship parental in nature,” the high court said.

Source: The Daily Record, Steve Lash, Daily Record Legal Affairs Writer July 8, 2016

For the second year Rockville’s Independence Day celebration will be held in King Farm.   The event will be held from 7-10 p.m. on Monday, July 4th at Mattie J.T. Stepanek Park, 1800 Piccard Drive.   From 5 p.m.-8 p.m. there will be a Peace Gathering in honor of Mattie’s birthday and his legacy of peace.  There will be music, activities, cake, and conversation.  The City of Rockville’s Fireworks Celebration begins at 7 p.m.  Fireworks are expected to begin around 9:15 p.m. (www.rockvillemd.gov/independenceday)

Gaithersburg's 4th of July celebration has a new home. An entire day’s worth of activities – all leading up to a spectacular fireworks display – will take place at historic Bohrer Park at Summit Hall Farm. The Water Park and Mini Golf course open at 11 a.m., the Skate Park opens at 3 p.m. Festival activities begin at 5 p.m. with live music by Millennium and The Lloyd Dobler Effect, strolling entertainers, an interactive DJ, family fun inflatables, lawn games, a food court, activity vendors and more.  The fireworks show begins at dusk, about 9:30 p.m.  Following the fireworks there will be a SummerGlo After Party. The playground will be fully lit and there will be glow-in-the dark giveaways and activities, dancing to the sounds of a lively DJ, and food vendors selling late night snacks. http://www.gaithersburgmd.gov/leisure/independence-day

For separated or divorced parents, summer scheduling can be quite stressful.  Transitioning from school year schedules to summer schedules can be difficult for both parents and children. Following a few simple tips can ensure less conflict and a more enjoyable summer.

Plan Ahead:  Review your parenting plan, separation agreement, and/or court order to determine what is outlined for the summer months.   Do you need to notify your ex-spouse about vacation requests by a certain date?   If so, make sure you do so, in writing.  Will you have your children when you are working?  If so, do you need to arrange camps and/or additional childcare?  Are you planning to travel out of the country with your children?  If so, are passports in order?  Are parental consent forms needed?   If your former spouse needs to provide permission for the children to travel out of the country, make sure you secure that in a timely manner. Don’t wait until the last minute.

Communication is Key: It is common courtesy to provide the non-traveling parent with an itinerary of your trip, even if your Agreement or Order does not provide for this.  Will your children be able to communicate with their other parent while they are away?  Make sure your ex-spouse has all necessary contact information.  If your children will be away from their other parent for an extended time, schedule Face Time or Skype sessions, and send some pictures of the children to your ex-spouse.   Provide your former spouse with information regarding camps and other activities you have enrolled your children in.   Confirm that these activities do not interfere with the other parent’s scheduled time, and if they do, attempt to resolve the issues in advance. To lessen the stress, consider using email and a shared online calendar to keep track of summer schedules. 

Avoid Competitions:  Remember that regardless of your financial situation, your children just want to spend time with you.   Just because your ex-spouse can afford a fancy beach vacation or a trip to Disney does not mean you have to do the same, especially if your finances do not support such a trip.   There are many local activities that you can do with your children that will enable them to create memories to last a lifetime.  Websites such as KidFriendlyDC.com (http://kidfriendlydc.com), our-kids.com (https://www.our-kids.com ), Fairfax Family Fun (http://www.fairfaxfamilyfun.com/calendar-of-events) and montgomerymag.com (http://www.montgomerymag.com ) provide tons of information on local activities happening through out the summer. 

If you follow these tips you and your children should be able to enjoy a fun-filled, stress free summer.   But if conflicts with your ex-spouse do arise, contact Hess Family Law to determine an appropriate course of action.   

Divorced parents often wonder if I remarry, will my child support obligations change?  Generally, remarriage does not affect child support obligations and a new spouse does not become financially responsible for your children.   Even if your ex-spouse is marrying someone very wealthy, your child support obligations will not change.   

A modification can occur if a parent can show a material change in circumstances, such as a material increase or decrease in income, and/or a change in work related childcare or additional expenses. Additionally, if you are remarrying and have new financial obligations within the new marriage, you are still obligated to pay child support from your first marriage and any new obligations will typically not be considered for modification purposes.

However, if you are also paying or receiving alimony, alimony will likely cease upon the remarriage.  The cessation of alimony will likely be cause for a child support modification. 

Because there are many factors that could affect the child support calculation, it may be in your best interest to consult with Ms. Hess at Hess Family Law, or another attorney, regarding your child support issue.

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.

Friday, 22 April 2016 11:16

Happy Passover

Wishing a Happy Passover to all of our friends who celebrate the holiday.  May you find joy in the celebration, whether you are celebrating new traditions or old ones, with family or friends.

Friday, 15 April 2016 13:07

Divorce: Social Media Is Not Your Friend

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

Friday, 08 April 2016 16:52

Divorce by Default

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. 

 

 

Mailing Address

Maryland:
Geraldine Welikson Hess, Esq
Hess Family Law
451 Hungerford Dr,
Suite 119-307
Rockville, Maryland 20850

Virginia:
Geraldine Welikson Hess, Esq
Hess Family Law
344 Maple Ave West,
Suite 355
Vienna, Virginia 22180

Meeting Locations

Rockville, Maryland:
1 Research Court,
Suite 450
Rockville, Maryland 20850
(240) 389-4377
Get Directions arrow2

Fairfax, Virginia:
11325 Random Hills Rd,
Suite 360
Fairfax, Virginia 22030
(240) 389-4377
Get Directions arrow2

Honored among the best divorce and family lawyers in Montgomery County and Maryland by:

ha-cda-hessha-aaml-hessha-sl-hessha-bl-hessha avvo hess 9.5