Couples who do not have Substantial Pre-Marital Assets can Benefit from a Prenuptial Agreement.
Most people believe prenuptial agreements are only for the wealthy. However, even couples who do not have substantial pre-marital assets can benefit from a prenuptial agreement. Jason Marks posted an article on Huffington Post, Prenups: Not Just for the Wealthy, where he outlines reasons couples should consider a prenuptial agreement.
1. Protect Future Earnings: A well drafted agreement can protect future earnings of a spouse’s business should the marriage fail.
2. Avoid Future Debts: A prenuptial agreement can address the parties’ respective liabilities and ensure that the debts of one party do not become the responsibility of the other.
3. Provide for Children from a Previous Marriage: Because spouses have certain rights to IRA accounts, life insurance policies and other assets, a prenuptial agreement can provide that these assets be left to the children, rather than to the spouse.
At Hess Family Law we believe that there are additional reasons couples should consider having a prenuptial agreement. Should the parties decide to separate, an artfully drafted prenuptial agreement can address who will move out, the conditions of the move, and the timing of the move. Such a provision will protect the party wanting a divorce so he/she will not be hindered by the other party refusing to separate. If the parties decide to use one party’s non-marital residence as their marital home but the intent is for the home to remain non-marital property, an agreement can state that any payments made by the other party toward the mortgage, maintenance, and/or improvement of the property will be considered a gift and not cause the property to become partly marital.
At Hess Family Law we can help you determine whether a prenuptial agreement is right for you, and if so, we can draft an agreement that will protect you and your assets should your marriage end in divorce.
Summer Vacation Tips for Separated or Divorced Parents
Summer vacation is about to begin in Montgomery County, Maryland which means school time schedules are about to change. How does summer effect separated or divorced families? For many, summer vacation means added stress in trying to modify schedules to adjust to camp, vacations, and less structure.
Here are some tips to make adjusting to a summer schedule easier for you and your children:
- If you have a Parenting Plan, review it. Does anything need to bemodified? Make sure vacations and camp schedules do not conflict with parenting times, and if they do, try to work out a compromise in advance. Do you need additional child care? If so, make sure you and your former spouse have discussed options and made arrangements.
- Try to maintain some consistency. While rules may be more relaxed in the summer, it is helpful for children to have similar rules in both households. Discuss expectations with your spouse or former spouse to try and maintain comparable rules in both homes.
- If you are planning to travel with your children, make sure you are prepared. Review your Agreement to make sure there are no restrictions on traveling with your children. Do you need to provide your former spouse with details about your trip? Even if your Agreement or Order does not provide for this, it is common courtesy to provide the non-traveling parent with an itinerary of the trip. Will your children be able to communicate with their other parent while they are away? Make sure their other parent has all necessary contact information. If passports are needed, make sure they are in order and the other parent has provided permission for the children to travel out of the country, if necessary.
- Have a realistic financial budget. Now that you are separated or divorced your financial situation may not allow you to take a big summer vacation. Even if the other parent can still afford a fancy trip, it does not mean you have to do the same. There are many local activities that you and your children can enjoy. Instead of a week long stay at the beach, you can go for a long weekend. Plan a day trip to an amusement park or plan to try several different parks during the summer. Take advantage of the museums, monuments, and other free or nearly free, activities DC has to offer. Check Groupon or Living Social for fun summer deals on activities for you and your children. With a little planning you and your children can have a terrific summer without spending a fortune.
If you follow these tips your summer should be less stressful and more enjoyable. If you find that you and your spouse are having difficulty agreeing on summer plans, Hess Family Law is happy to assist you in resolving your dispute.
What to Expect at Your Montgomery County, Maryland Family Law Scheduling Conference
Janet has filed her Complaint for Divorce, Custody, Alimony, Child Support and Property Division, and wonders what will happen next? Her Husband, Peter, will need to be served with the papers by someone other than Janet who is over 18 years of age. Once Peter is served, he will have a certain period of time to file an Answer to the Complaint, as well as a Counter-Complaint. A Scheduling Conference is set by the Court when an Answer or an Affidavit of Service is filed.
The Scheduling Conference may be the first of many court dates which Janet and Peter will have before the trial date on their family law case. The Scheduling Conference is the Court’s way to begin tracking their divorce, property, custody and/or child support case, and to schedule the steps in their case’s development.
Typically, a Master will conduct the Scheduling Conference. At the Scheduling Conference, the Master may order Janet and Peter to participate in one or more programs offered by or through the Circuit Court. The Scheduling Conference provides opportunities for Janet and Peter to settle their case without having a fully contested trial.
What Services Might Be Ordered at the Scheduling Conference?
Co-Parenting Skills Enhancement will be ordered, where appropriate, for parties involved in family litigation. The litigants will choose two sessions for attendance at a reasonably convenient time within the framework specified by the Court. The goals of Co-Parenting Skills Enhancement sessions include the education of parents and the provision of necessary tools to remove the children from the adult conflict, in order to encourage a healthy adjustment for children whose parents no longer live together.
Custody/Visitation Mediation will be offered throughout the course of the family contact with the Court. Initially, the parties will be ordered to attend two custody mediation sessions. The goal of mediation is to develop an agreement for the care and custody of the children, or to create a visitation plan, if this is an area of controversy. An agreement reached through mediation may be incorporated into an Order issued by the Court. Mediation sessions are confidential. Parties attend custody mediation without counsel. However, it is important to meet with your attorney prior to mediation so you are prepared to reach a reasonable resolution.
Child Custody Assessments are limited assessments made by the Office of Court Evaluators. The Court may order the parties to meet with the Court Evaluator to obtain background information, review the concerns of each parent, assess the needs of the child(ren) and determine the extent to which the child(ren) have been involved in the conflict. This assessment usually involves four sessions. The parents are encouraged to note areas of agreement such as those related to visitation schedules, holidays, and decision-making with regard to medical and educational preferences. The Evaluator will present an oral review at a conference with the Master, parties and counsel, presenting any agreement reached, outlining areas of disagreement, and making recommendations as to the best interests of the child(ren).
Custody/Visitation Evaluation is a more in depth evaluation of the conflicted family requiring home visits, school reports, submission of therapy/medical reports and collateral contacts in the community. The need for the more extensive evaluation may develop from the Custody Assessment or may be ordered by the Judge or Master in lieu of the Assessment, based upon known circumstances. An Order might also be entered directing the parties to contract for psychological testing as an aid in determining the best interests of the child(ren).
Facilitators are practicing attorneys who offer immediate mediation to litigants from the Master’s hearing room. Facilitators are chosen from a list of experienced counsel approved by the County Administrative Judge and the Family Division Masters.
When you appear for your Scheduling Conference, if you have a disagreement about pendente lite issues (i.e., issues you would like resolved at least temporarily until the day of your trial) the Master may ask you to meet with a facilitator that same day in the courthouse. The facilitator will give you practical advice concerning what you may expect if your case goes to trial. He or she will help you reach a settlement the day of your Scheduling Conference.
If you reach an agreement on pendente lite or other issues, you may be able to avoid the time and expense of returning to court for a pendente lite or other hearing. Any agreement you reach with the help of a Facilitator can be incorporated into an enforceable court Order.
Alternative Dispute Resolution (ADR) is available to parties to settle property issues. ADR is conducted by practicing attorneys with substantial expertise in the domestic field. Selection of the ADR mediator is from an approved list designated by the County Administrative Judge and maintained by the Differentiated Case Manager. Parties attend ADR with counsel.
Best Interest Attorney may be appointed by the Court to specifically represent the best interests of the child(ren) of the parties. In most cases, the cost of this representation will be borne by the litigants.
Child Privilege Attorney may be appointed as a neutral guardian to act for a child in waiving or asserting the psychiatrist-patient privilege. This type of appointment is frequently referred to as a Nagle v. Hooks appointment and derives its name from the Maryland case requiring this representation to protect the child’s best interests. In most cases, the cost of this representation will be borne by the litigants.
Psychological Evaluations are conducted by private practitioners in the community and the expense of the testing and evaluation is borne by the parties. Participation may be ordered by the Court upon motion of the opposing party or upon recommendation of the staff of the Office of Court Evaluations. Psychological evaluations may be sought when it becomes apparent during the Custody Assessment that the Court will benefit from the more in-depth Custody/Visitation Evaluation with psychological testing as an adjunct to arriving at a decision in the best interests of the child(ren). In most cases, the cost of this representation will be borne by the litigants.
Psychological Evaluations and/or Therapy may be ordered by the Court during the pendency of a case when there is a demonstrated immediate and significant concern. Ongoing therapy may be ordered as part of the ultimate decision in a contested custody/visitation case. In most cases, the cost of this representation will be borne by the litigants.
Psychological/Custody Evaluations are conducted by privately retained psychologists (or psychiatrists) who conduct relevant testing to assist in determination of custody issues in the best interests of the child(ren). Referrals may be made during initial case proceedings or with regard to a change of custody or modification of visitation issues. In most cases, the cost of this representation will be borne by the litigants.
Private Custody Evaluations may be permitted by the Court under certain circumstances. If the parties demonstrate a need, a qualified private practitioner, possessing at least the designation of LCSW (Licensed Certified Social Worker), may be permitted to provide a suitable custody evaluation. In most cases, the cost of this representation will be borne by the litigants.
Drug and Alcohol Testing or the Urine Monitoring Program is available when an allegation of substance abuse arises or may be requested as part of a Custody/Visitation Evaluation. A one time testing or referral for twice weekly monitoring can be ordered, by consent, and counsel or the parties will be notified of all results.
What are the Different Tracks a Case Can be Assigned?
Track 0 is the fast track for uncontested cases. In this track the complaint is filed simultaneously with an Answer, Joint Request to Schedule an Uncontested Divorce Hearing, and Child Support Guidelines, where appropriate.
The Family Department Screener/Clerk reviews the pleadings and dockets the case. The computer automatically schedules the case for a 10-minute or 30-minute hearing. The length of the hearing is dependent upon whether all items are checked on the Joint Hearing Request.
All Family Law cases in which a summons is issued begin as Track 1. The track designation will be confirmed or changed at the Scheduling Conference.
The Family Division Master conducts the Scheduling Hearing, confirms or changes track, and if the case remains Track 1, sets the case for an Uncontested Divorce Hearing.
Track 2 cases are those that have no contested physical custody issues. They are cases involving any or all of the following issues: visitation, legal custody, alimony, child support, earnings withholding, limited property, pension, costs, attorney fees, and divorce.
Track 3 cases involve physical custody and any or all of the following issues: visitation, alimony, child support, earnings withholding, property, pension, costs and attorney fees, divorce. In a Track 3 case, a custody hearing will be held prior to a hearing on all other issues.
Track 4 cases are those cases that have complex issues such as extensive property holdings, complicated business valuations, significant assets held in various forms, pensions, alimony and other support issues, as well as custody, visitation and divorce. Track 4 cases are assigned to a Family Division Judge who will conduct all hearings and consider additional services and/or changes or adjustments in timing of events through the completion of the case.
Guidelines to Managing Your Divorce
A new client recently came to Hess Family Law seeking advice regarding her separation and divorce. The breakup of her marriage turned her world upside down and was compounded by stress, depression, and pain. She wondered how she would ever manage to get through the divorce process and cope with her new reality.
At Hess Family Law, not only will we discuss the legal aspects of your family law matter, but from the very first meeting, we will talk to you about your goals and what you want your life to be like after your divorce has concluded. Throughout our representation we will revisit your goals and discuss whether they remain the same or if they have changed.
Leo Averbach posted on Huffington Post, How to Manage Your Divorce: Six Guidelines. They are as follows:
1. Take one step at a time;
2. Don’t hold onto the past, learn from it;
3. View divorce as a process, with distinct stages: Shock/denial; Rage; Anger; Sorrow/depression; Acceptance; Growth and emergence.
4. Know what you want and make it clear;
5. See the calamity as an opportunity;
6. Build a new life.
At Hess Family Law we will assist you in understanding and following these guidelines. By doing so, together we can make the divorce process easier to manage.
Ground Rules for the Separated or Divorced and Dating: Introducing a New Partner to Your Children
Karla has been divorced for two years. She has been dating Ethan for eight months and wonders if she should introduce him to her three children. Are there any “rules” for dating with children?
Marina Sbrochi’s article Dating with Kids: 5 Ground Rules For Introducing Your New Partner To Your Kids recommends that Karla wait at least six months before even thinking about introducing Ethan to her children. Why wait? Ms. Sbrochi suggests that it takes at least six months before you really begin to know someone. Karla’s children do not need to become attached to a man who may not remain in her life.
Karla believes her relationship with Ethan is serious. What ground rules should she follow when she introduces him to her three children?
1. No Expectations. What does this mean? Do not force the relationship. Have the meeting be casual and let everyone get to know each other.
2. Group Setting. Karla should introduce Ethan as a friend. She can plan a small get together with other people her children know so the meeting does not feel forced. Karla should plan at least five group meetings so the children can get to know Ethan in a relaxed atmosphere without any pressure. Karla and Ethan should refrain from showing affection. For now, he is just a friend.
3. Go Slowly. While Karla and Ethan have known each other for 8 months, the children have just met him. It is important for Karla to take her time and follow the cues of her children. Karla should talk to them if they seem unhappy or angry.
4. One Mom, One Dad. Karla’s children may worry that Ethan will replace their father. It is important that Karla reassure the children that they will only have one mom and one dad.
5. Rules for the New Family. Merging families can be complicated. Karla and Ethan need to discuss expectations, discipline, money, education, and any other issues that may affect them. If and when can Karla update her Facebook status to “in a relationship” and post pictures of herself and Ethan together as a couple? At Hess Family Law, we recommend that Karla use caution when posting information about her personal life on any social media sites. Even though Karla has been divorced for two years, custody issues can always be modified. While Karla and her ex-husband may have a good relationship, situations can change. If Karla believes that updating her status will not be a problem, she should certainly wait until her children have been introduced to Ethan and understand that he is more than just a friend.
Can You and Your Spouse Divorce and Still Run a Business Together?
What happens when a couple decides to divorce and they own a business together? Typically, one party buys the other party out of the business and the bought out party leaves the business immediately, or they stay on as an employee for a short period of time while they transition to new employment and/or new employees can be trained to take over the bought out spouse’s role in the business. However, can a couple continue to run a business even though they are no longer husband and wife? Some would say, no, one party should step aside. Bryan Borzykowski, in his article “When Couples Divorce But Still Run the Business Together” published in the New York Times New York edition and on NewYorkTimes.com, suggests it can be done, but not without effort from both parties.
You may be wondering how can you continue to run a business with someone you are divorcing? Not everyone’s situation will allow for a continued business relationship even though their personal relationship has failed. But, if you are considering continuing your business relationship there are a few issues that must be addressed.
First, you must have respect for one another. Without mutual respect, the business relationship will not succeed. Even if you are angry with your spouse you can make the business relationship work if you have trust and respect.
Second, it is important to communicate clearly and do what you each agree to do for the business. A therapist can assist in working out problems when communication becomes difficult.
Third, sign a Business Agreement. Often, married business partners do not have a written shareholders agreement. It is essential to have an agreement that sets out the details of your business arrangement including what happens when one partner wants to leave or sell the business.
Finally, you must assure your employees that you both are committed to working together. Often times, employees take sides when a marriage disintegrates. If you are going to continue your business relationship and have it work, it is important to tell your employees together that although your marriage is ending, the business will continue as usual. Being upfront with your employees will alleviate rumors and reinforce job security.
Study Finds Children of Divorce Much Better Off When Parent’s Find Ways to Co-Parent and Maintain Civility.
Are you wondering how you can help your children during and after divorce? Robert Hughes, Jr.’s blog post discusses this very topic. A study has found that children of divorce fare better when their parents learn to co-parent and maintain civility when dealing with each other. Continued conflict creates damaging stress and interferes with a child’s ability to learn how to manage their own emotions.
At Hess Family Law, we recommend that you have an agreement or court order that provides specifics in an effort to eliminate future conflict so that you and your spouse can develop positive interactions in the future rather than arguing over items that could have been resolved. For example, your agreement or order should include visitation dates, times and other important details. We understand that sometimes clients want flexibility and life often requires it. If you and your spouse or former spouse are co-parenting and maintaining civility, you can always choose to agree for a particular visitation to change the pick-up date, time, or location. The benefit of having specifics in your agreement is that it provides a default plan if you cannot agree to do something different, and therefore lessens the need to argue.
There are many resources available to parents who are divorcing, such as therapists and mediators, who can help with communication and problem solving. Parenting plans can be drafted to address specific concerns and allow both parents to be involved in their children’s lives. A new resource developed by Sesame Workshop called “Little Children Big Challenges:Divorce,” provides a series of activities both online and offline for parents and children. The website is designed to help children ages 2-8 understand their parent’s divorce and provides parents advice on how to talk to their children about divorce in an age appropriate manner.
Cara and Sam share custody of their two children, Molly, 12 and Alex, 7. Lately, Cara and Sam cannot agree on anything. Conversations always end with harsh words, many times in front of the children. Cara and Sam realize there has to be a better way to exchange information but they are not sure where to begin.
Communication between separated or divorced parents can be difficult, even if the split was amicable, and for those whose break-up was acrimonious, communicating can be impossible. However, despite how much you may never want to speak to your spouse or ex-spouse again, if you have children, communication is inevitable.
Pamela Paul, author of the New York Times article, Kramer.com vs. Kramer.com, suggests that handling communication through email and text messages helps reduce emotional exchanges between parents. It is “joint custody-at a distance”. Parents who are having trouble communicating can use email to schedule pick-ups, drop offs, and daycare when children are sick. If a parent is running late, a quick text message can alert the other parent without arguments or harsh words.
While email may solve communication problems in some cases it can also make them worse. Email can be used as a weapon against the other parent. It is easy for an angry spouse or ex-spouse to use email to attack and criticize which can result in a never ending string of emails. One solution is to use a “form” email which only includes basic details such as where and when for visitation. Adding more information opens the door for continuous dialogue.
Divorced or separated parents may also find that they are receiving many email messages a day. If this happens, you can set up a system where you respond to all non-emergency emails in one email response on a set day of the week each and every week. Let the other parent know that this is how you will be handling non-emergency email so they do not think you are ignoring them or wonder if you received the email.
Another tool Cara and Sam can use to keep organized is an online shared calendar, such as Google calendar. Cara and Sam can add each of the children’s activities, school events, birthday parties, etc. so both parents have access to the information without having to verbally communicate. Cara and Sam can also allow their pre-teen Molly to access the schedule so she can confirm whose house she will be at on any given date.
As many divorced or separated parents know, technology is not without its faults. Email and text messages can often be misinterpreted and many times humor, irony, or sarcasm can get lost. Emails can be ignored just like phone messages. When discussions, negotiations, and/or arguments are done via email or text messaging, they create a permanent record that could be used in future litigation. So, what is a parent to do? If you cannot verbally communicate, it is better to use email and text messaging then to not communicate at all. Never send an email or text message in the heat of an argument. Write the message but do not send it until you have had a chance to cool off. Then, reread the message and ask yourself if it is something you would want a judge to read. If so, go ahead and send the message. If not, rewrite your response before pressing send. While technology has its draw backs, if used properly, it can make managing children in two households a lot easier.
Will Divorce Affect My Homeowner’s Insurance?
Mary and David recently separated and David is living in an apartment. Mary wonders if she can change the joint home owner’s insurance policy to her name only. Since the home owner’s policy is in both parties names, it cannot be changed without David’s consent. Prior to the divorce David might have limited coverage under the home owner’s policy for the items he took to his new residence, but he needs to consider renter’s insurance. Mary is considering changing the locks and the alarm code for the marital home. Before she does this, she should consult with her attorney to discuss the pros and cons of taking this action.
One year later Mary and David divorce. As part of their settlement agreement, Mary kept the house and David remains in the apartment that is nearby so he can be close to their three children. The couple agreed that David would take ½ of the artwork and antiques, as well as one of the computers. David also took his jewelry, including a Rolex watch and diamond cuff links. Mary and David wonder what they need to do with regard to the homeowner’s insurance policy.
Mary needs to contact the insurance company and determine whether she is listed on the policy. If not, she needs to obtain insurance in her name. If the policy is in both their names, she needs to advise the insurance company that David is no longer an owner of the home. Mary needs to review her personal property limits too. Since David kept many of their joint assets, Mary may be able to save money by reducing her personal property coverage. Changing the locks and updating or adding a security system may make her eligible for a discount. Also, if Mary refinances the home she needs to provide the mortgage lender with any updated insurance information
Now that David is living in an apartment, he may believe there is no need for home owner’s insurance. However, David needs to obtain renter’s insurance. Since David kept ½ of the artwork and antiques and owns other valuable personal property, he will need to make sure his personal property is insured.
Automobile Insurance and Divorce:
Susan and John have been separated for a few months. They have agreed that they will each keep the vehicle they regularly drive. Susan wonders what will happen to the automobile insurance once they are divorced. Will one of them need to obtain a new policy? Can John remove her from the policy without her knowledge or consent? What about their teenage son? Who will pay for his insurance? Many recently separated or newly divorced couples have similar questions. Below are some tips for separating your automobile insurance policy.
If you and your spouse have joint insurance, that is you are both named as insureds on a policy, the insurance company should not delete one of you from the insurance plan, or change the insurance without consent from both of the insureds. To be sure, you may want to call your insurance broker or insurance company to find out their policy.
When you applied for your insurance you informed the insurance company where the automobiles would be primarily garaged, and the average driving distance to work. If you and your spouse are living separate and apart it is more likely than not that there is a change in either the garage location and/or the distance to work. You may want to update your policy information although this could result in a change in the premiums.
If your separation will be for an extended time, you may want to consider separating your insurance policies prior to your divorce. From a liability standpoint this could be for the best since you could each be held responsible for each other’s liability in the event of an accident while you are both covered on the same insurance policy.
After the divorce, you should get separate car insurance. If you stay with the same company, you should be able to keep any credits you have for being a safe driver or loyal customer even though you are applying for a new policy. To obtain the best rates, make sure you compare auto insurance quotes. Your current insurance company may not give you the best rates after a change in marital status even after any safe driver or loyal customer credits.
Typically, insurance coverage for teens is expensive since teens have not had time to develop a good driving record. Additionally, males under the age of 26 typically have higher rates than females of the same age. Usually the easiest and least expensive way for a teen to obtain auto insurance is for a parent to add the teen to their policy. A parent can add a teen to their policy by listing them as a driver, or, if the teen has his/her own vehicle and the parent is also on the title of the teen’s vehicle, then the teen’s vehicle can be added to the parent’s policy. Either way, a parent’s rates will increase. Usually, if a child resides more frequently with one parent then the child should be covered by the insurance policy of that parent. If the child is spending a lot of time with both parents and uses both parent’s cars rather than the teen’s own car, then it might be wise to have the teen insured on both parent’s insurance. If possible, you should consider whether the expense to cover your teen will be shared, and if so equally, or if one parent will pay the premium. If the cost of insurance for a teen is a new expense, and child support is calculated as an “above guidelines case”, meaning the parents combined income is $15,000 gross per month or more, then a child support modification might be appropriate.