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. 



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.    

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Mailing Address

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

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

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Rockville, Maryland 20850
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