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.

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

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.

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.