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


Tuesday, 22 November 2016 16:15

Happy Thanksgiving

Today and everyday at Hess Family Law we are grateful for our wonderful clients and friends.  We wish everyone a Happy Thanksgiving.

For those of our clients and friends who are newly separated or divorced, the holidays can be a difficult time. We wish you well as you embark on establishing new holiday traditions.  If you are looking for tips and inspiration please read Thanksgiving Tips for the Newly Separated, and/or Surviving the Holidays Part 2: Thanksgiving.  

    In October, Governor Larry Hogan elevated Judge Jeanne E. Cho from the District Court where she has been a Judge since 2012 to the Circuit Court. The governor also appointed Debra L. Dwyer to the Circuit Court.  Judge Cho and Judge Dwyer fill vacancies created by the legislature. The Montgomery County Circuit Court now has 24 Judges. 

    The Montgomery County Circuit Court also has five Family Law Magistrates, formerly called Family Law Masters.  Family Law Magistrates hear evidence and make proposed findings and recommendations to a Judge. If neither party takes exceptions to the Magistrates recommendations then the Magistrates recommendations are incorporated into a court order signed by a Judge.  If one or both parties take exceptions (exceptions are similar to an appeal) within 10 days of the recommendations of the Magistrate, then a Judge will review the transcript, and may hear from the parties and or take additional testimony/evidence.  The Judge must use then his or her own independent judgment to decide the outcome.

Monday, 07 November 2016 14:38

Family Law In The News

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.

Rarely, if ever, should joint legal custody be awarded if the parents cannot effectively communicate with each other concerning the best interest of the child, unless there is a strong potential for effective communication in the future.  The Court of Appeals in 1986 in the case of Taylor v. Taylor determined that the capacity of parents to communicate and reach shared decisions affecting the child's welfare to clearly be the most important factor in the determination of whether an award of joint legal custody (and also relevant to shared physical custody) is appropriate.  

Recently, in an unreported 2016 case, Santo v. Santo, the Court of Appeals affirmed a Circuit Court decision awarding joint legal custody to parents who could not effectively communicate.  The Santo case is the rare case in which the Court determined that joint legal custody was in the best interest of the children even though the parents could not effectively communicate with one another.  Joint custody was necessary so that both parents would remain informed and the children would have an opportunity to have a relationship with both parents.  The Court also held that no one major factor, such as ability to communicate, is more important than any of the other factors that are considered by the Court when making an award of joint custody.  

In order for joint custody to work when the parents were not able to effectively communicate to make shared decisions the Santo Court assigned final decision-making authority to each of the parents. In the event the parents were not able to reach shared decisions Mr. Santo was given final decision-making authority regarding education, religion and medical issues while Ms. Santo was given final decision-making authority regarding the children's therapist. In Santo, the Court of Appeals affirmed that trial courts in Maryland are authorized to use final decision-making provisions in joint custody determinations.  


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.   

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Geraldine Welikson Hess, Esq
Hess Family Law
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Hess Family Law
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