Family Law Blog
Family Law
Getting Divorced? Get Ready for Your New Financial Reality
Hardly anyone has walked away from divorce financially better off than they were before. Contrary to popular belief, people almost never marry intending to split up and lay claim to their spouse’s money. Rather, after a long period of conflict, divorce becomes the only option—and both parties typically find themselves unprepared for their new financial realities. For the individual supporting their ex-spouse, divorce creates obvious monetary burdens. It means bearing a portion of another person’s living costs as well as one’s own—two sets of car payments, food costs, rent or mortgage payments, and so forth. If you’re the higher earner, the good news is that you won’t need to handle these expenses completely or manage them directly. As long as you make your spousal support (and, if applicable, child support) payments on time, all you need to do is worry about your own finances. It’s up to your spouse to figure out the rest for themselves. In fact, lower earners are the ones who often face more difficult obstacles after a divorce. They frequently discover that spousal support alone isn’t sufficient for meeting their financial obligations. They may need to sell property, take a second (or third) job, significantly downsize their lives, or all of the above. It’s worth noting that lower earners are usually women. In the majority of heterosexual marriages, husbands still earn more money than their wives. At the same time, because they’re most likely to get primary custody of the children, women may have greater household expenses—and less freedom to advance their careers—than their male ex-spouses. These unfortunate realities should prompt any woman considering a divorce to carefully plan ahead, determine financial details in advance, and be ready for the unexpected. Regardless of your financial position or the particulars of your marriage, don’t let the impact of a divorce catch you off-guard. Create a budget, set aside enough money for emergencies and unanticipated costs, and consider every possible savings opportunity. Be sure to speak with a trusted legal advisor—your family law attorney can help you control your expenses and protect your assets. Your bank account may take a major hit in the immediate aftermath of the divorce, but the better prepared you are, the sooner you can start building your new life.
August 18, 2023
Family Law
Divorce in New Jersey: Custody
Originally posted on 2/26/2019, no content changes. There are cases in which one of the parents has abandoned their parental responsibilities, suffers from addictions, suffers from a significant mental or emotional condition, or is otherwise unfit to assume either physical or legal custody. In such cases, the specific facts must be carefully analyzed. In such circumstances, one party may have limited parental rights, supervised visitation may be required, or a "Parenting Coordinator" may be utilized. Supervised visitation means that a person cannot be in the presence of their child without appropriate adult supervision. A Parenting Coordinator is utilized to facilitate decision-making when the parents are incapable of doing so themselves. These alternatives should only be used if and when absolutely necessary and only as a last resort. Absent such extenuating circumstances, New Jersey law regarding custody of children can be summarized in the simple principle that the parenting arrangement must be in "the best interest of the child." Notice that the operative words are in the best interest of the child, not necessarily in the best interest of either or both parents. Whatever the parenting arrangement, it must address two basic areas of responsibility: physical and legal custody. Physical custody determines where the child will reside, how many days with each parent and at what times: weekdays, weekends, holidays and vacation periods. Legal custody involves decision-making regarding the child. Decisions such as elective medical care, religious training, schooling decisions and extra-curricular activities are the typical discretionary decisions which are a part of legal custody. In order to determine what parenting arrangement is "in the best interest of the children," the Court must apply specific statutory criteria. Those criteria include: a parent's ability to agree, communicate and cooperate in matters relating to the child; a parent's willingness to accept custody of the child; any unwillingness on the part of either party to allow visitation or contact with the child with the other parent; the relationship of the child with the parent; any history of domestic violence; the safety of the child; the preference of the child when the child is of sufficient age so as to form an intelligent decision; the needs of the child; the stability of the home environments of the respective parents; the quality and continuity of the child's education; the fitness of the parent; the geographic proximity of the parent's home; the extent and quality of time that each parent spent with the child either prior to or subsequent to this separation of the parties; each parent's employment responsibilities; the age and number of children. In most cases, the primary objective should be to maintain a continuing relationship between each parent and the child. The Court will attempt to craft a physical custody arrangement whereby each of the parents will enjoy meaningful parenting time with the child at regular intervals and a legal custody, which allows both of them to participate in the decision making responsibility for the child. There are many books discussing the impact of divorce upon children, and the theories espoused in such books are as numerous as the books themselves. However, there is one common theme in almost all of the reliable literature: the greater the conflict between the parents, the more the negative impact of the divorce will be upon the child. Psychological studies show that there are certain types of parental behavior which almost always adversely affect children. Such behavior should be recognized by both parents, and each should avoid falling into such behavioral patterns regardless of their reason for doing so. Such behaviors include: Denigrating or criticizing of your spouse in the presence of your children; Seeking to make your child your ally or confidant; Involving your child in discussions regarding your divorce; Blaming your spouse for your own shortcomings. If you are unhappy, frustrated or depressed, seek competent psychological counseling; do not tell your child that you would be fine if it were not for your spouse or your spouse's conduct; Engaging in verbal confrontation with your spouse in the presence of your children; Any physical confrontation in the presence of the children; Using your child as a messenger between you and your spouse. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 17, 2023
Family Law
Divorce in New Jersey- Alimony
Originally posted on 2/26/2019, no content changes. Alimony is financial support paid by one spouse to the other. Alimony is in addition to child support and is not related to the needs of the child or the child's emancipation. It is support paid by one spouse to the other solely for the support of the recipient spouse regardless of the needs or status of the children. There are very important differences between alimony and child support, not only in terms of a person's initial entitlement but with regard to the duration, the ability to modify the amount, and the termination of the payments. However, one of the most important distinctions is that child support is not tax deductible by the person making the payments, nor is it considered taxable income to the person who is receiving the payments. Alimony, on the other hand, is tax deductible to the payor and is considered taxable income to the recipient. There are several types of alimony in New Jersey: Reimbursement Alimony is seldom used but is designed to reimburse one of the spouses for their "investment" in the other spouse's career or earning capacity. It is designed to address the situation in which one of the spouses contributed to the college or graduate school expenses of the other, and the marriage terminates before the financial benefits of the enhanced education can be realized. The intent is to repay the person for their contributions to the other party's education or career training. Rehabilitative Alimony is alimony that is designed to enable the recipient to "rehabilitate" their career. If, for example, one of the spouses has interrupted their career to be a stay-at-home parent and now needs additional education, recertification or licensing in order to return to their employment, rehabilitative alimony may be appropriate to sustain their living expenses or to cover their educational expenses until they are able to return to their prior career. Limited Duration Alimony is alimony which is paid for a defined period of time and applies to marriages of 20 years or less. In order to award Limited Duration Alimony, the Court must make a finding that permanent alimony is not warranted because of the length of the marriage, the parties' incomes, or other factors. After reaching the conclusion that Open Durational Alimony is not warranted, the Court may then award Limited Duration Alimony in a specific amount for a designated length of time. Once awarded, the length of the term itself may not be extended, although the amount may be modified. Open Durational Alimony is payable until the death of either party, the re-marriage of the recipient, the cohabitation of the recipient with an unrelated third party or a "substantial change of circumstances" which would warrant a modification of either the amount or a termination of payment entirely, such as good faith retirement at the appropriate age. Other instances of "substantial change of circumstances" may include a significant increase in a party's income, a significant decrease in a party's income, or a medical condition. In determining both the type and amount of alimony, the Court must consider specific factors, including: the needs of the recipient and/or payor; the ability of the payor to make the payments; the duration of the marriage; the parties' age; the parties' physical and emotional health; the standard of living established during the marriage; the earning capacity, the educational levels and employability of each of the parties; the length of absence from the job market of the recipient party; each party's parental responsibilities for the unemancipated children; the time and expense necessary to acquire sufficient training or education in order to return to the employment market; the history of financial or non-financial contributions to the marriage by each party; the amount of equitable distribution by either party and, specifically, the income which such equitable distribution may generate to each of the parties; an unearned or investment income; the tax consequences of the alimony. It is often said that both the recipient and the payor of the alimony should be able to enjoy the "standard of living which was established and maintained during the marriage." However, that concept is much more of a guidepost than an attainable reality in most cases. In all but an extraordinarily high income family, it is simply impossible for both parties to maintain the same standard of living that was enjoyed by them during the marriage. In the vast majority of cases, both parties will have to compromise their marital lifestyle. It is simply arithmetically impossible to divide the post-divorce income into two family units and have each of the units equal the prior single family unit lifestyle. There are very important principles of law which address the situation in which a payor's income increases after the divorce. The application of those principles requires an in depth review by a competent Divorce Attorney. However, the general concept is that the recipient of alimony is only entitled to enjoy the lifestyle and thus receive alimony based upon the payor's income during the marriage and at the time of the divorce. They are not entitled to share income increases, which occur after the dissolution of the marital partnership and without contribution or support from the recipient spouse. On the other hand, if the parties' financial circumstances at the time of the divorce do not enable the recipient spouse to be supported at the standard of living which was enjoyed during the marriage, and the payor's post-divorce income rises to a level that then enables a payment which would maintain the marital standard, a post-divorce increase in the amount of alimony may be warranted. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 15, 2023
Family Law
Collaborative Divorce: The Time is Now
Originally posted on 04/28/2020, content updated on 08/14/2023 “Divorce: a resumption of diplomatic relations and rectification of boundaries.” [i] We were in uncharted waters — living life in lockdown — many, for the very first time, spent prolonged periods together with spouses and children. The stress of extended family confinement and forced comradery has taken its toll on many marriages. Some marriages were already in the midst of breaking apart and others became ripe for divorce. Initially, Courts were closed for all but emergency matters; divorce not being one of them. Recently, the Courts began to expand their repertoire of cases[ii], but the existing ban on the filing of, or hearings on, new “non-essential” matters, translation – contested divorces — remained in effect. So, what can be done now to move forward with a divorce? Since many Courts are refusing to permit the filing of new contested divorce cases, and are courteously abstaining[iii] from moving divorce matters along, the choice of either commencing a divorce in a Collaborative setting or moving an active case from litigation to Collaboration makes eminent sense. Moreover, it all can be undertaken in “cyber-space.” Consultations, negotiations, and group meetings — all aspects of the Collaborative process in divorce can be done from the safety of your home via Skype, Microsoft Teams, Zoom[iv] or any other online meeting platform. What is Collaborative Divorce? Why collaborate? The answer is simple: control, cost, and speed. If you and your spouse: (i) do not want to wait for the Courts to re-open to start or continue a divorce, and are seeking a somewhat kinder/gentler resolution of your marital issues; (ii) wish to keep costs down; and (iii) desire a speedier conclusion to marital problems than traditional divorce litigation, then Collaborative divorce should be of considerable interest to you. A Collaborative divorce most closely resembles mediation; but it is not mediation (as will be discussed below). It is a divorce where the parties side-step combative litigation and instead commit to resolve their issues in a manner that is mutually beneficial. The Collaborative process proceeds in much the same manner as a traditional litigated divorce. The issues are the same: from custody and visitation of the parties’ children, to asset division and support.[v] The parties and their attorneys learn about the issues before proceeding with resolution. Where it differs from litigation is that the parties and their attorneys work together to resolve the case.[vi] The attorneys then prepare a proposed settlement agreement and the parties sign. The divorce is essentially all done on paper. Rarely will a Court appearance (other than an uncontested divorce hearing) be necessary.[vii] Unlike mediation, Collaborative lawyers work both on behalf of their clients and together, as they negotiate and enable resolution. In mediation a mediator facilitates negotiation but is neutral. In Collaborative practice the parties agree to cooperate and actively accomplish a settlement. In mediation, the parties need not retain counsel and do not commit to achieve anything. Thus, absent counsel and a commitment to a non-litigated conclusion, there is a latent risk to a party in mediation, in terms of duress, over-reaching, and lack of informed consent. Proceeding with a Collaborative divorce requires that each party hire a lawyer who engages in Collaborative practice.[viii] Once selected, the parties and their respective counsel will sign an agreement by which both parties commit to the Collaborative process, i.e., transparency of relevant information, mutual problem solving and a mutually beneficial resolution; a win-win if you will. The attorneys and their clients will meet separately, and speak together on as many occasions as is necessary, and then meet jointly (both attorneys, both clients) as often as needed to resolve the divorce. Rather than engage in costly legal battles, attorneys in the Collaborative process guide their clients through dispute resolution, working together with the parties to gather information and generate options for settlement. The attorneys enable and promote problem solving; they can neither promote nor threaten adversarial engagement. A crucial element of a Collaborative agreement is that the parties agree that they will not seek Court intervention for a dispute. If either does, the attorneys must withdraw. Collaborative counsel cannot represent their respective clients in contested hearings in Court. Another essential element of the Collaborative process is transparency, that each party agrees to disclose voluntarily all relevant information. One of the biggest drivers of legal fees in a litigated case is discovery disputes: the effort of one spouse to obtain information that is not forthcoming from the other spouse. In the Collaborative process, both spouses make a commitment to turning over all relevant information; each spouse pledges that he or she will not take advantage of a misunderstanding of the other party, but instead will seek affirmatively to correct any misunderstanding by the other spouse. Collaborative divorce being more transparent, straightforward, and effectual, is usually more cost-efficient. By working together to generate, prioritize and implement alternatives for a solution—instead of provoking anger, enabling blame, and airing long held grievances—there is ample opportunity to strive for quicker results that can satisfy more of both parties’ respective goals. Complete disclosure and facilitated communications with all eyes focused on problem-solving, enable the parties to address and deal with all issues without wasting time on destructive battles. Since the matter is settled out of Court, there is no need for the numerous Court appearances and scheduling dates necessary with litigation. Experience shows that Collaborative divorce cases generally take less time than litigated ones. Finally, last, but not least, Collaborative divorce need not originate as a Collaborative matter. These writers have personally represented individuals in the Collaborative process who chose to leave their litigated divorce actions behind, and decided to reach agreement with their spouse in a much faster manner and with less sturm and drang. Conclusion Particularly in our then-current climate, spouses needed to consider alternatives to the Courts to resolve their differences. Parties wishing to divorce or proceed with their divorce actions were locked out of our adversarial judicial system, and no one knew how long it would take until the Courts returned to normal operations (or a new normal). Some may have wished to wait and prepare for a divorce while in captivity.[ix]But for others the time is now to take their first steps toward resolving their marital problems or, at least, take a turn onto a better route. Times being what they were, the Collaborative divorce process was more appealing than ever before and should have been a strong consideration for many as they maneuvered through the treacherous waters of a post-COVID world. [i] The Unabridged Devil’s Dictionary, Ambrose Bierce[ii] During the past week, judges have been reviewing their non-essential case inventories, looking for ways to move these pending matters forward. These “pending matters” can, in a Judge’s discretion, include some matrimonial cases.[iii]From 1776 , the musical with music and lyrics by Sherman Edwards and a book by Peter Stone. [iv] Be advised that Zoom has been having problems with security; and is not a recommended format. [v]There is full disclosure of all assets, debts, and income without formal proceedings. [vi]The parties can and do often jointly retain other professionals to aid in the process, such as property appraisers or financial consultants. [vii] Some states may require a Court appearance to finalize the divorce. [viii]An attorney specially trained in collaborative practice. [ix] But that is a discussion for another day.
August 14, 2023
Family Law
Divorce in New Jersey - Pretrial Motions and Applications
Originally posted on 2/26/2019, no content changes. Only one to two percent of all divorces go to trial and will ultimately be decided by a Judge. The other ninety-eight percent will be resolved by agreement of the parties as a result of some pretrial procedure or by mediation, arbitration or settled as the trial is about to begin. Therefore, more attention should be directed to pretrial proceedings and much less to the unlikely eventuality of a trial. Pretrial applications to the Court are extremely important and useful. We are often asked what can be submitted and determined by the Court on a pretrial application. The easy (and generally very accurate) answer is virtually anything. Common subjects which are submitted to the Court on pretrial applications are: A temporary support or alimony arrangement. A temporary custody or parenting plan arrangement. The allocation and payment of marital bills and expenses. An advance of counsel fees or litigation expenses. The maintenance of insurance coverage. In addition to this practical scope of pretrial applications, there are a number of applications which your attorney may want to make. For example: To obtain additional documents or information which your spouse is not voluntarily producing. To gain access to real estate or a business for the purpose of appraising it. For the appointment of an independent appraiser. For the production of medical or hospital records when appropriate and relevant. For custody or parenting evaluations As your case continues, there may be more sophisticated, evidential or technical reasons for pretrial applications. For example, your attorney may want to make an application to: Bar your spouse's testimony or production of evidence on matters for which they have not produced discovery. To limit or eliminate certain issues, such as whether or not pre-owned or inherited assets should be included or excluded from equitable distribution. To predetermine evidential issues which may be important to either your side or the other side's presentation of the case. For tactical reasons, your attorney may also want to file a pretrial application to begin to "set the tone" for the case. If your spouse has been uncooperative in discovery and necessitated an unnecessary expenditure of attorney or accountant's fees, your attorney may want to begin to relay that to the Court in support of an ultimate application for an advance of attorney's fees. If, by way of further example, your spouse is interfering with or failing to appear for parenting time, your attorney may want to call that to the attention of the Court because of the impact it will have on the ultimate custody determination. In summary, more time and effort should be expended by you and your attorney on pretrial matters and much less time on trial strategy or preparation if you are interested in an expedient and successful resolution of your case. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 10, 2023
Family Law
“I Want My Day in Court! – But Are You Sure About That?”
It’s become part of our vocabulary…a phrase said by those demanding justice, vindication and validation: “I want my day in court!” However, when it comes to divorce, should that really be the case? Is having your day in court really worth the time, the money, the risk, and the emotional rollercoaster it could send you and your loved ones on? While there’s no “one fits all” answer, there are a few things you should consider before you find yourself raising your right hand while you’re being asked, “Do you swear to tell the truth, the whole truth, and nothing but the truth?” Right off, it’s important to know that most divorce cases never even make it into a courtroom. The most recent figures state just 5% to 10% of divorces ever get that far. Knowing that, the odds are in your favor that with sound legal advice and often a good mediator, a fair settlement can be achieved without an often long and expensive court battle. That said, what could potentially make you part of that exclusive “5% to 10% crowd?” Well first are there any issues that you just can’t compromise on with your former spouse no matter how many back and forth rounds of negotiations have gone on with your attorneys? Is your spouse so obstinate and difficult that for every one step forward you take, they take ten steps back? Are there extenuating circumstances regarding the custody of your children that you strongly believe will cause dire harm to them or your relationship with them? Are you fairly certain that your spouse is hiding certain finances from you that you haven’t been able to get to and don’t feel you can unless they are forced to reveal them under oath? These are all valid reasons, but that doesn’t mean there aren’t as many reasons not to go to court. There are the costs involved. Court fees add up very quickly, lawyers have to often put in countless hours and trials can go on much longer than anticipated. In the end even if the court does rule in your favor, once these costs are figured in, will you even be in the black? You don’t want to end up financially worse than where you started had you settled and that doesn’t even figure in the “emotional costs” associated with an often nasty trial that you and your family will have to endure. Also the vast majority of judges and juries remain impartial. Their decisions are based on the facts, not on emotion. So while you may be confident that you are much more sympathetic than your spouse, that may hold weight in “the court of public opinion” but not in an actual courtroom when the verdict is read. Getting married shouldn’t be a snap decision and getting divorced shouldn’t be an instantaneous one either. But once you are headed down this path carefully weigh the options of a fair settlement versus the risk/reward of going to court. Sandy and Chery at Offit Kurman know each case is unique and present their own sets of challenges. They will be by your side the entire time, making sure whatever decision is eventually made, will be done so together and only after very careful consideration.
August 9, 2023
Family Law
Divorce in New Jersey – ESP, Mediation and Arbitration
Originally posted on 3/15/2019, no content changes Alternative dispute procedures can be very effective in settling your case before trial, which should be every divorce litigant's goal. Trials take a very long time to be scheduled, are often not completed in consecutive days, usually require several days of testimony over several months, are typically extremely expensive, and are almost always used to further polarize the parties. Given that only two percent of all divorce cases are actually decided by trial, every litigant must ask themselves why their case is so different from the rest that it should be included within the two percent of cases that go to trial. There are a variety of alternatives that can be utilized to aid in settlement negotiations or pretrial settlement of a case. In New Jersey, the court mandates the attendance of the Matrimonial Early Settlement Panel (MESP). Matrimonial Early Settlement Panels exist in every County and are free to the litigants. The panels are staffed by two experienced divorce attorneys who volunteer their time for this purpose. The parties, through their attorneys, provide written submissions to the panelists, who then make recommendations as to the proper disposition of the case. If a case does not settle after going to MESP, several counties in New Jersey have Mandatory Economic Meditation, where you must meet with a court-approved mediator to further attempt to settle your case. In addition to the court-mandated Matrimonial Early Settlement Panel proceedings and Mandatory Economic Mediation, the parties themselves always have the right to access private mediation or arbitration. In private mediation, the parties and their attorneys will mutually agree upon an experienced mediator, who then meets with them in an effort to mediate a settlement of the issues which are in dispute. The mediator does not make a decision and, in most instances, does not even render a recommendation. The mediator's function is, generally, to stimulate discussion between the parties and to assist them in coming to a mutually agreed upon settlement. Arbitration, on the other hand, is a decision-making and binding proceeding. There are a number of experienced divorce attorneys and retired Judges who are willing to serve as arbitrators. The parties and their attorneys generally enter into an Arbitration Agreement, which will define the nature and scope of the arbitration. The parties may agree that the arbitration will be conducted on a very formal, Court-like basis or in a very informal proceeding. With very limited exceptions, the arbitrator's decision is then binding. In every case, you, as the client, should understand these alternatives and should review and discuss them with your attorney. Depending upon the facts and issues in your case, one or the other of these alternatives may be a very desirable alternative. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 8, 2023
Family Law
Protecting your Home with a Pre-Nuptial Agreement
It is increasingly more common for at least one person in a couple to have purchased his or her home prior to the parties’ marriage. Often, such a purchase occurs years in advance of the parties even meeting each other. In cases such as these, a pre-nuptial agreement is necessary to preserve that person’s home in the event of a divorce. Assuming the parties move into the pre-marital home of one of them, many issues, including the payment of bills, payment of the mortgage, increase in the value of the home and exclusion of a party in the event of separation or divorce, should all be considerations in a discussion of protecting this asset. Under the Pennsylvania Divorce Code, passive and active increases in the value of pre-marital assets, such as a pre-maritally owned residence, become part of the marital estate. Passive increases mean increases in value due to the passage of time such that the fair market value of the home has risen through the course of a marriage. Active increases include payments to a mortgage or home improvements. Active and/or passive increases can be discussed and potentially exempted from the marital estate through the use of a pre-marital agreement, thus protecting them from equitable distribution or claims of the other party in the event of a divorce. Likewise, in the event of a divorce in Pennsylvania, a pre-nuptial agreement can define a date certain by which a party must vacate a residence, thereby providing the other exclusive possession. Without such a provision or current agreement otherwise, parties are left to make an application for such relief from the Court, and there is no guarantee such a request will be granted during the pendency of the divorce process, which often may take more than a year. Bill payment and maintenance of the household is another issue that can be addressed by a pre-nuptial agreement (and if the parties are not contemplating marriage in the near future, a cohabitation agreement). For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 7, 2023
Family Law
Is My Inheritance Marital Property?
It depends. Isn’t that a lawyer’s answer to just about everything? In Maryland, property acquired by inheritance or gift from a third party or that was owned prior to the marriage is non-marital property. It will not be divided between the parties upon divorce. However, if the inheritance is commingled, it becomes marital. Understandably, this is a very difficult concept to understand. Many lawyers and even judges have a difficult time “tracing” non-marital assets that may have become commingled. Sometimes, it helps to see some examples. Here are a few: If the wife inherits $200,000 from her uncle’s estate during the marriage, and she then deposits all of those funds into a separate account in her sole name, and the funds remain in that account until the date of divorce, those funds and any growth on those funds have remained wife’s non-marital property. That’s the clearest example of non-marital funds remaining non-marital or separate property. In real life, however, things are usually not that clear. For example, if the wife deposits the funds into a bank account in her sole name, and then uses the funds to pay expenses for the family over the years for vacations, children’s schooling, etc., those funds are no longer in existence, and she will not receive credit for having used her non-marital funds for family use. Any funds that remain in the separate account would be non-marital and would continue to be her separate property. Where this gets complicated and requires “tracing” is when some of the non-marital funds are commingled with marital funds. That can happen if funds acquired during the marriage are deposited into the wife’s separate account. The normal growth of the funds, including interest earned on the non-marital funds in the separate account, remains non-marital. However, if any marital funds are deposited into the account, the account loses its non-marital designation, and the entire account may be subject to division as a marital asset. The visual story goes as follows: if you have a swimming pool that is filled 90% with blue water, and a water truck comes in with green water and puts that into the pool, filling it to the brim, everyone knows that it is 90% blue and 10% green, but the water is now aqua, and the blue cannot be separated from the green. The same is true with cash in a bank account. Therefore, if one receives a gift or an inheritance during the marriage or has significant funds prior to marriage and wishes to keep them as non-marital or separate property, those funds should be kept separate, and no marital funds, including income, should be deposited into that non-marital account. Should you have any doubt as to whether or not your inheritance is marital or non-marital, your attorney will be able to help you.
August 4, 2023
Family Law
Divorce in New Jersey - Child Support
Originally posted on 8/11/2019, no content changes. Child support is primarily dependent upon the levels of the parent's income. In those cases in which the parents' combined income is less than $187,200 per year (net of taxes), the Child Support Guidelines will be the baseline determination of the amount of child support. A determination must first be made as to which of the parents is the Parent of Primary Residence and which parent is the Parent of Alternate Residence. The parent with the most overnight time with the child is the Parent of Primary Residence and, thus, the parent to whom the child support is paid. Then, if the parents' combined after-tax income is less than $187,200, the amount of child support to be paid is presumptively defined by the New Jersey Child Support Guidelines and is subject to basically only three variables : The number of overnights per week which the child spends in each parent's home; The total income of the parties; Each party's respective share of the total income. The computer programs which apply the Guidelines automatically take these variables into account. Although the amount calculated under the Guidelines is only presumptive as to the appropriate amount of child support, that presumption will be accepted in the vast majority of cases. In addition to the basic child support, there are certain "extraordinary" expenses most often allocated between the parents in the ratio of their incomes. Typically, such "extraordinary" expenses include, but are not limited to, medical expenses or work-related daycare expenses. In addition to medical and daycare expenses, individual cases and a child's particular needs or interests may justify additional payments. For example, does the child have a learning disability or other educational deficit which may require specialized schooling or tutoring? Does a child have specific musical, athletic or other talents which have been nurtured or supported by the parents through individual lessons, training, coaching or camps? In those cases in which the parents' combined income exceeds $240,000 per year net of taxes, the Court must consider specific factors in order to determine the amount of child support. The factors include: needs of the child; the standard of living and economic circumstances of each parent; all sources of income for each parent; the assets of each parent, or the earning ability of each parent; the child's need and capacity for further education, including higher education; the age and health of the child; the age and health of each parent, and the income or assets of the child, and the responsibility of either parent for other Court ordered support; the reasonable debts of either party. The determination of the child support for such "above guidelines" cases is complicated and somewhat subjective. "Above Guideline" child support requires a complete analysis of the child's needs and the standard of living during the marriage. It should only be done with the advice of a competent attorney. In every case, the parties should also attempt to define when the child will be "emancipated" (meaning that the child support will terminate) and if either party will be required to contribute to the child's college or other educational expenses. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 4, 2023
Family Law
My Spouse has an Income, so Why Would I have to Pay Alimony?
Known Indefinite Alimony Awards in Reported Maryland Cases. The purpose of alimony is not to provide a lifetime pension. Rather, alimony is designed to provide the recipient spouse an opportunity to become self-supporting. Nonetheless, in cases where it is either impractical for the dependent spouse to become self-supporting or in cases where the dependent spouse will be self-supporting but still a gross inequity will exist, a court may award alimony for an indefinite period of time. A court may award indefinite alimony if it finds that: (1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate. Although a significant mathematical disparity in income is not necessarily a sufficient condition to justify an award of indefinite alimony, it is nonetheless a necessary condition. But mathematical disparity is only the starting point of an unconscionability analysis. The court must look to the factors of Maryland Code Ann., Fam. Law § 11-106(b), which provides guidance in determining an appropriate award. Of course, the greater the income disparity, the more likely that it will be found unconscionable, all other factors remaining equal. The court has discretion in determining the length of alimony. In Maryland, it is interesting to note the following cases in which the mathematical disparities of each party’s income were considered in the court’s award of indefinite alimony. In Tracey v. Tracey, 328 Md. 380 (1992), an indefinite alimony award was upheld where the Wife’s post-divorce income was 28% of the Husband’s; in Caldwell v. Caldwell, 103 Md. App. 452 (1995), an indefinite alimony award was upheld where the Wife’s post-divorce income was 43% of the Husband’s; in Blaine v. Blaine, 97 Md. App. 689 (1993), an indefinite alimony award was upheld where the Wife’s post-divorce income was 23% of the Husband’s; in Rock v. Rock, 86 Md. App. 598 (1991), an indefinite alimony award upheld where Wife’s post-divorce income was 20-30% of Husband’s; in Broseus v. Broseus, 82 Md. App. 183 (1990), an indefinite alimony award upheld where Wife’s post-divorce income was 46% of the Husband’s; Bricker v. Bricker, 78 Md. App. 570 (1989), an indefinite alimony award upheld where the Wife’s post-divorce income was 35% of the Husband’s; in Benkin v. Benkin, 71 Md. App. 191 (1987), an indefinite alimony award upheld where the Wife’s post-divorce income was 16% of the Husband’s; in Zorich v. Zorich, 63 Md. App. 710 (1985), an indefinite alimony award was upheld where the Wife’s post-divorce income was 20% of the Husband’s; in Kennedy v. Kennedy, 55 Md. App. 299 (1983), an indefinite alimony award was upheld where the Wife’s post-divorce income was 33% of the Husband’s. Disparity in income is one of the many factors in determining the amount and length of an alimony aw d. Whether you are the dependent or earning spouse, competent counsel should be sought to do a complete alimony analysis in preparing for the resolution of this issue related to a divorce.
August 2, 2023
Family Law
Divorce in New Jersey: Trial
Originally posted on 3/15/2019, no content changes. If you and your spouse have been unable to settle your case between yourselves and none of the settlement alternatives described previously have been successful, it may be necessary to prepare and submit your case for trial before a Judge. The trial of a case has been described by some as being analogous to an iceberg. The tip (or, in this case, the trial itself) is a very, very small portion of the overall process. The remaining 90% is below the surface and is often not seen. A trial involves tedious and time-consuming preparation of witnesses, the preparation of exhibits, marking of evidence and Subpoenaing of witnesses. If your case is going to trial, be absolutely certain that you have reserved enough time from your personal and work schedule to meet with your attorney to prepare the case. Similarly, be certain that your attorney has scheduled adequate time to meet with you, prepare your testimony, be certain that you have all of the evidence and exhibits and that you have a full understanding of the trial process. Any documents which are not current must be updated. Any documents which are not official or certified copies must be replaced by official or certified documents which can be properly moved into evidence. Any witnesses who are going to be utilized must be interviewed and prepared. Any documents or evidence which they will rely upon in their testimony must be organized. Very often, it is extremely important to develop charts or graphs showing the flow of funds into or out of accounts, fluctuations in income, or even simply plotting the growth or loss in value of various assets. There is no such thing as over-preparing for trial. On the other hand, many trials are lost by a lack of preparation. Once the trial begins, there is an orderly, defined and rigid process which is followed. Each attorney will give their opening statements to the Court. In the opening statement, they will outline the case and outline for the Court what they intend to prove and how they intend to prove it. Each witness will then be called to the witness stand and subjected to a direct examination. Every point must be made by asking a question and getting a specific answer. It is a tedious and detailed process. No witness can simply give a long narrative to the Judge. That narrative must be broken down into specific questions with specific answers. At the conclusion of direct examination, every witness will be subject to cross-examination by the opposing attorney. Cross-examination is designed to show conflicts in the testimony, to show a bias or lack of credibility in the witness and to generally undermine the witness's testimony or credibility. Cross-examination is not a pleasant process, and you should be sure that your attorney has fully and adequately prepared you for a cross-examination by subjecting you to a mock cross examination prior to the trial. Remember that when submitting evidence to the Court, your attorney is bound by the Rules of Evidence. Things which are hearsay, which are not within the first-hand knowledge of witness or otherwise do not comply with the Rules of Evidence, are of no value at the time of trial. At the conclusion of the trial, your attorney will submit a lengthy and usually written closing argument and summation to the Court. This document will outline and summarize what has been presented into evidence, what conclusions we want the Court to draw from the evidence and citations to the law which support such conclusions. Following the Judge's decision, either you or your spouse will have the right to appeal. However, the appeal of the case is not simply a "second bite of the apple." There are very limited and narrow grounds for an appeal. You must show that the Judge's findings were not only in error but were "arbitrary and capricious" or that the Judge erred in the interpretation or application of the law. Trials are difficult and expensive and should be considered only when absolutely necessary. There are, however, cases in which the issues are so significant or complex that they can only be resolved by a trial. If that is your case, prepare, prepare, prepare and then prepare some more! For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 1, 2023
Family Law
D.C. Court May Consider Pets’ Best Interest in Awarding Ownership in Divorce Proceedings
Many pet owners treat their pets like children. Now the Superior Court of the District of Columbia may do so as well in divorce or legal separation proceedings, pursuant to a law that recently took effect. The Animal Care and Control Omnibus Amendment Act, which became effective on April 21, 2023, gives the Superior Court for the District of Columbia the discretion to consider the “best interest” of “pet animals” in deciding which party should have the pet after the divorce or legal separation proceedings have ended. The Court may also decide which party should have the pet during the divorce or legal separation proceedings. Until the enactment of the new law, pets were treated solely as personal property in divorce and legal separation proceedings, and there was no provision in the District of Columbia Code permitting the court to consider the pets’ best interest. The “best interest” standard until now has been applied solely to child custody cases. While the statutory provisions pertaining to child custody provide specific factors the Court must consider in child custody cases, the new law does not provide any factors the Court must consider and does not define “best interest,” thereby giving the Court broad discretion to determine how that phrase should be interpreted and applied. The Court might consider a wide array of facts in determining a pet’s best interest, including who cared for the pet and who was most closely bonded with the pet. The Court might also consider evidence that one party mistreated the pet. The new law gives the Court authority to assign ownership of the pet to one of the parties, or the Court may award “joint ownership” of the pet to both parties. The new code provision does not define “joint ownership,” leaving the Court to interpret and apply that phrase. It is possible that the Court will order the parties to share the pet according to an equal time-sharing arrangement or that one party should have more time with the pet than the other party. The statute does not provide any guidance regarding whether a history of domestic violence between the parties should be considered by the Court in determining whether joint ownership should be awarded. Arguably, to protect victims from further harm, the Court should avoid awarding joint ownership in cases involving domestic violence. The phrase “pet animal” is defined as “any animal that is community property and kept as a household pet.” The phrase “community property” is not defined anywhere in the District of Columbia Code. The Superior Court for the District of Columbia and the Court of Appeals have historically referred to property acquired during the marriage or domestic partnership as “marital property.” Perhaps the phrase “community property” is intended to also mean property that was acquired during the marriage or domestic partnership. In disputes regarding ownership of pets between parties who are not married or in a domestic partnership, the “best interest” standard set forth in the new law would not apply. As between nonmarried persons, the Court would view the pets solely as property and must determine who owns the pet by considering who purchased the pet or adopted the pet without giving consideration to who cared for the pet or any other facts that might pertain to the pet’s best interest. Anyone who wants the Court to consider the best interest of a pet must affirmatively request that relief as part of the divorce or legal proceeding. The new code provisions described above are set forth in D.C. Code §16-910(3).
July 26, 2023
Family Law
Postnuptial Agreements Post COVID-19
Originally posted on 05/15/2020, content updated on 07/24/2023 Hope is not a financial plan.[i] The COVID-19 pandemic and the lifestyle slowdown that came with it provided many married couples the opportunity to reassess their marriages. For some, the crisis made their bond stronger. For others, prolonged separation and/or prolonged closeness revealed considerable cracks in their relationship. If you and your spouse fell into this category, with the realization that your marriage may be ending, divorce, in and of itself, is not the only option. The better choice, rather than the immediate finality of divorce, is the creation of a document known as a Postnuptial Agreement. In its simplest terms, a Postnuptial Agreement is a contract signed by the couple at any time after their marriage which resolves all or at least a portion of the financial issues between them. A Postnuptial Agreement survives whether the marriage lives or dies. It can be a simple framework or a detailed road map, limited or expansive in scope, enforceable[ii] regardless of the state of the marriage when entered into. It can and often does provide a cooling off period for the couple; an opportunity to work on their marriage. If the marriage fails, a Postnuptial Agreement will ease and expedite the divorce process; and save the couple legal fees, inasmuch as they previously resolved the financial aspects of the marriage. Why have a Postnuptial Agreement? Oft times a couple does not like the idea of a prenuptial agreement (an agreement prior to the marriage). For some, a prenuptial agreement creates the sense that the marriage is starting off on the wrong foot, or doomed for failure; for others, the romantic ideal that the parties share is shattered by the thought of negotiating marital financial matters before they have even said “I do.” Others just simply refuse because they have no interest in obtaining a prenuptial agreement. With a Postnuptial Agreement the couple can eliminate expensive and acrimonious divorce battles. The spouses, through counsel, contractually delineate their monetary future, and if the marriage succeeds until a death, a postnuptial can prevent inheritance disputes between a person’s surviving spouse and his/her heirs. What Can be Included in a Postnuptial Agreement? Creating a Postnuptial Agreement requires the couple to agree on terms relating to the issues faced in their marriage. Provisions commonly included address: marital debts, credit card debt, or mortgage loans; property and asset division; spousal support amounts (if any) and the length of those payments; family budgets/spending habits; and the manner in which assets will be handled should one spouse pass away (estate planning)[iii]. Other, more unique provisions address: the manner in which the couple would respond to a sudden, dramatic change in their financial situation; transfers of separate property into marital property, and vice versa; protecting retirement assets in the event of divorce, which could lead to a decrease in retirement funds; non-disclosure and privacy provisions, limits on the personal and marital information either spouse may share with third parties; and even, limits to what is shared or discussed on social media. Children and issues concerning the Children, such as custody, visitation, or child support will need to be resolved at the time of the divorce action, either through a settlement agreement or court involvement. Child-related issues cannot be resolved by way of a Postnuptial Agreement, and even if the Postnuptial Agreement contain clauses relating to such, they will not be enforceable. How Can I Assure That My Postnuptial Agreement Is Valid? The validity of a Postnuptial Agreement does not require or mandate an eventual divorce. However, if the decision has been made that a Postnuptial Agreement is the right choice, then proper steps must be taken to ensure its validity. Primary among these steps is the full and fair disclosure of the entirety of each of the spouses separate assets, debts, and income and all of the marital assets, debts and income. Complete disclosure is imperative for enforceability. If one spouse is dishonest and the agreement is designed around information that is either false, inaccurate or incomplete, the Postnuptial Agreement will be considered invalid. The agreement must be signed by both spouses and the execution of the agreement must be completely voluntary. If there are any indications that one spouse was coerced, threatened, or made to sign a Postnuptial Agreement against their will, the agreement will be null. Equally, the Postnuptial Agreement cannot be flagrantly unfair and biased to one spouse. A Postnuptial Agreement that is clearly unjust to a spouse, and could potentially leave them with little to no assets or wealth, will need to be further evaluated to determine if the spouse truly did enter into the agreement voluntarily and knowingly. If this remains in question, the Postnuptial may not be enforceable. Conclusion It is important to address and resolve the financial details of the marriage. It is better to plan when there is peace in a relationship than when there is anger. [i] Many financial commentators and writers take credit for this quote. [ii] Assuming all other requirements of a valid agreement are met. [iii] A Postnuptial Agreement will not take the place of a will, but they can work together, dovetail, to ensure the decedent’s wishes are carried out.
July 24, 2023
Family Law
New Maryland Law Will Remove Long-Existing Barriers to Divorce
Commencing a divorce case will soon be easier in Maryland. As of October 1, 2023, a spouse will be able to file for divorce based on “irreconcilable differences.” This is a monumental change in the law that removes significant impediments to divorce. It has long been the law in Maryland that a party seeking a divorce could not obtain a divorce unless the parties had been living in separate residences for at least 12 months or a party could prove a fault-based ground for divorce such as adultery, desertion, insanity, or cruelty. The new law eliminates those fault-based grounds and removes the requirement that parties reside in separate residences. Parties may still seek a divorce based on a separation, but the time frame has been shortened to six months and the parties may be deemed separated even if they are residing in the same residence, as long as they have been pursuing separate lives. These changes to the law are important because proving a fault-based ground for divorce in many instances could be difficult or impossible and being required to reside in separate homes to establish a 12-month separation was not economically feasible for many couples. Parties who have already filed for divorce and have a case pending in a Maryland court have the option of amending their pleadings after the new law takes effect on October 1, 2023. In addition to obtaining a divorce based on irreconcilable differences or having pursued separate lives for at least six months, parties may also seek a divorce based on “mutual consent” if they execute and submit to the court a written settlement agreement that resolves all issues arising out of the marriage, including alimony, distribution of property, and the care, custody, access, and support of the parties’ children.
July 19, 2023
Family Law
Divorce Economics in the Time of COVID-19
Originally posted on 04/01/2020, content updated on 07/17/2023 “Nothing is more dangerous to [men or women] than a sudden change of fortune.” – Quintilian [i] Nostradamus could not have foreseen a darker economy and—we are told—the worst is yet to come. In the fist week of April 2020, an excess of 3.3 million people have filed for unemployment benefits—a precipitous rise compared to the 832,000 filings of the week before.[ii] A national survey showed one in five households in the United States had their income cut or stopped altogether. [iii] At that point, more than 1,000 deaths in the United States had been attributed to the coronavirus, also known as COVID-19, and the numbers grew in the hundreds each day. Another economic crash was upon us. The economy was going down; but divorce rates were exploding. As the economy faltered, divorce rates rose as self-imposed “sheltering-in-place” put additional stress on marriages already wavering on the edge of the divorce abyss. Couples who already could not bear another day together were confined in the same space 24/7. In New York City, that space can be inordinately small, yet extraordinarily expensive. In short, it is a “pressure cooker” about to explode. This author has already seen a rise in inquiries from couples who cannot bear to be together another moment. But what of those couples who have already jumped into the quagmire of divorce, and now after months—even years—find themselves in their next and last stage—the financial battle? What is to be done where barely one month ago there was a sizeable marital pot to carve up—and now all that exits are bare bones? The financial hardship and instability that were caused by the pandemic and continued as a result thereof bore witness to incomes, assets and property values that had fallen and undoubtedly continued to drop dangerously. Those previously enjoying high levels of income suffered drastic pay reductions, and the prospects of new employment for those unemployed or about to be unemployed vanished. Retirement expectations once buoyed by investment and retirement accounts in the seven figures have dropped in some cases by fifty percent or more.[iv] Support expectations that could not reach the heights of pre-pandemic earnings and spending patterns were not only depressing but difficult for many to comprehend. Splitting debt rather than assets became the reality in many divorces.Trying economic times demand innovative solutions for the unique problems confronting divorcing couples. Two houses demand more to maintain than one. Incurring considerable credit card debt or dipping into retirement funds early leads to inevitable havoc in both parties’ current and long-term financial situations. The matrimonial practitioner is no longer merely the butcher responsible for carving up the fiscal carcass of the marriage; but now he/she must also be a new age philosopher enabling the client’s adjustment from what is expected to what is achievable at least in the foreseeable future. Once the Courts re-opened, they undoubtedly and inevitably found themselves in a myriad of “cases of first impression” when it came to the determination of what was an equitable distribution of marital assets that less than one month prior were flying high, but had reached an all-time low. REAL PROPERTY Divorce almost always means valuing, selling and buying houses or apartments. Historically, divorcing couples wrangled over the post-divorce ownership of the marital residence, the weekend home, or the Pied-a-Terre. Now they battle over who gets stuck with the current expenses of the asset as well as the future debt.[v] The strong U.S. housing market plummeted from the pandemic, financing was questionable and selling and buying a house became much more difficult. [vi] Even if able to sell the family home, the value will likely be below expectations, or what was originally paid and put into the property. For spouses who have been unemployed for a significant period of time, getting financing for a new home will be more challenging than ever. In the past, the most common solution with respect to the marital home was for one spouse to buy the other out. Typically, there were more than the necessary amounts of other assets so as to offset the purchase of the residence by one spouse with an allotting credit to the other vis-a-vie the reallocation of distributive awards or like/kind transfers. Often, where there was lacking in marital offset funds, or liquidity, it was not unheard of for a wealthy relative (a mother or father of one of the parties) to step forward and provide a low interest loan, or provide additional credit by co-signing or offering funds not obtainable from a bank or other lending institution. Those days are gone. Now, the most common solution for the divorcing couple is to retain the house, permitting one or the other to remain in the residence until the market improves, fixing the financial responsibilities of one to the other in retaining the residence, agreeing to postpone final division of the asset until a time in the fixed future, tied often to a child’s attainment of a certain age or emancipation status, or making the sale subject to a triggering event, exercisable by either party (with notice), with a guaranteed base return for the departing resident. Often, and especially at the present time, refinancing the current mortgage, without incurring additional debt, so as to reduce the monthly financial “nut,” is strongly advised, i.e., is a “no-brainer.” In situations where the residence is preserved for a future sale, there is often a two-level structure of support in place — one amount before and another amount after the house is sold. Renting the house to a third party, though often more of a headache than it is worth, may be a viable option for some in the hopes that the near future will bode well for the real estate market. An income can be derived from such a step that will, at a minimum, help offset monthly housing payments. Turning over the costs of utilities to the renter will also relieve some of the financial pressure on the parties. Those who determine to take such a step would be wise to engage a property manager or an accountant to oversee the day to day dealings incumbent upon a landlord. Where minor children are still living at home, some couples may prefer what has become referred to as “nesting.” The parties retain ownership of the home, and either rent or purchase another nearby (smaller than the marital home). Each parent alternates living in the marital residence with the children and in the other residence alone. This not only preserves the residence for sale in an upturned market, but provides an added degree of stability for children thrown into the divorce maelstrom. Short sale, Foreclosure, or Bankruptcy Short sale, foreclosure or bankruptcy are more drastic solutions – and should be considered sparingly as such steps often negatively affect both parties’ financial futures. However, in the long run beggars cannot be choosers. A short sale is the sale of real estate in which the proceeds fall short of the debt owed on the property. It occurs when a borrower cannot or chooses not to pay the mortgage obligation, and the lender decides that a sale at a modest loss is the best option. Both debtor and creditor must agree to the short sale procedure inasmuch as it allows foreclosure to be avoided (foreclosure will involve hefty fees for the bank/lender and poor credit report results for the debtors.) The lender’s agreement to the short sale, however, does not automatically release the borrower from the obligation to pay the remaining balance of the debt, known as the “deficiency.” [vii] In the short sale scenario neither side is “doing the other a favor;” it is simply the most cost-effective resolution of the debt. The lender reduces its exposure to a greater financial loss than would result from foreclosure or continued default. The debtors are able to lessen damage to their credit histories, and to a limited degree control the debt. The short sale is often faster and less expensive than a foreclosure. The lenders acceptance of the short sale does not extinguish the remaining balance unless settlement is clearly indicated on the acceptance of the offer.[viii] The short sale typically remains on a credit report for seven years. A few last comments concerning short sales: (i) always negotiate the waiver of the deficiency; (ii) leave plenty of time, as the approval process can be long and arduous; (iii) if approved and the deficiency waived, the forgiven debt may have tax consequences.[ix] Foreclosure is the process by which the lender obtains a court ordered termination of the borrower’s right of redemption. The lender traditionally obtains a security interest in the property in issue from the borrower who pledges the asset to secure the debt. Upon default the lender is typically desirous of repossessing the property. Courts of equity however, can grant the borrower the right of redemption if the debt is then repaid. While this right exists, the lender cannot be sure that it can successfully repossess the property, thus the lender seeks to “foreclose” the equitable right of redemption.[x] Other lien holders can also foreclose the owner’s right of redemption for other debts, such as for overdue taxes, unpaid contractors’ bills or overdue homeowners’ association dues or assessments.”[xi] A foreclosure generally appears on a credit report for seven to ten years, usually as a settlement, settlement for less than owed or pre-foreclosed redemption.[xii] A foreclosure will have a greater negative impact on a party’s credit than a short sale. Bankruptcy For those with significant liabilities and little or no foreseeable means out of the debt incurred, bankruptcy may be the only option. The parties may choose to declare bankruptcy and file for Chapter 7 or Chapter 13, depending on their financial predicament.[xiii] Where the problem is late mortgage payments, and the parties are desirous of keeping the marital residence out of foreclosure, then a Chapter 13 bankruptcy is the best choice. In a Chapter 13 bankruptcy case, the Court will supervise and restructure the debt, and schedule a payment plan which will typically involve a three to five-year repayment period. [xiv] Once repayments of the debts have been made in accordance with the Court’s repayment plan, then any debt still remaining will be forgiven. A bankruptcy will typically remain on a parties’ credit report for ten years. [xv] A Chapter 7 bankruptcy filing, known as a straight bankruptcy, involves liquidation of all assets that are not exempt. It is the best selection where the parties do not have the income to commit to a repayment plan. In a Chapter 7 bankruptcy filing the Court assigns a Trustee to collect the debtor’s assets in order to satisfy some or all of the debt. Fortunately, most debtors have only what is considered “exempt property” which is defined to include, the family home, family car, household items and clothing. After the non-exempt assets have been sold to pay off as many of the debts as possible the debts remaining are forgiven. The discharge of debts through Chapter 7 may be done only once every six years. FAMILY BUSINESSES When a couple owns a business together, decisions must be carefully made to insure an equitable outcome. It goes without saying that every business and business segment is unique. One universally convenient truth, however, is that the implosion of the U.S. and world financial markets has affected and will continue to affect for the foreseeable future most U.S. businesses. This has caused a whole new series of problems for valuing business for the purpose of divorce quantification and division. Revenue Ruling 59-60, issued in 1959, has long been the golden rule for business valuations, and has stood the test of time when it comes to the fundamental principles of valuing a family business, for divorce or any other purpose. Traditionally, business valuations have used methods based on the then realistic presumption that the historical performance of the business was a legitimate gauge of its future course. Implicit in the mathematical models was the tacit understanding of incremental improvement over a period of time. Most often, the evaluators view the last five years of the endeavor to ascertain its current value. Even if the present year evidenced a lower profit than years before, it is factored in with the prior four. However, this result may be a valuation that is nowhere near the realities of what the recession has done to future revenue forecasts. In the daily changing fiscal environment it was necessary to find ways to fashion an equitable distribution of the business taking into account the uncertainty of the business environment. On the one hand care must be taken so as not to value the business too high thus forcing the person running the business to pay out to the other a large amount that is inconsistent with the current economic conditions, and possible future of the business. Alternatively, the business could be in seriously negative territory at the time of the divorce, yet rebound considerably in years to come. The future, as always, remains a mystery. Thus more complex solutions must be approached than those traditionally utilized when there is a simple buy out of one of the owners at the then determined fair market value of the business – these solutions include: earn-out options; corporate co-existence, and estate planning opportunities. Buy Out, With Earn Out Options Optimally planned, a buy out with earn out options, i.e., where part of the total payment for a business is deferred, may be the best route. In this way, the “seller spouse” receives partial payment of an agreed base value of the business at the time of divorce and a further payment or payments after an agreed period or periods based on future business performance. The buy out/earn out therefore represents a results-based value of the company and may be considered by both parties as the fairest means of valuation and subsequent distribution. The amount of the future payments is based on agreed performance criteria and typically calculated as a multiplier with reference to historical profits although it may be based on turnover or other financial criteria[xvi]. The earn-out period may run from months to years and may include payments at different stages during the period. Typically, the “buyer spouse” will receive a cash sum, or an initial issue of securities, plus the earn-out. Corporate Co-Existence Often the only thing the parties can agree on is that the family business should not be sold or divided at the time of the divorce. This often occurs where the spouses desire to retain their positions in the company, where neither party is willing or able to buy the other out, or where the parties’ children are actively engaged in the business. Of course, each of these reasons requires the parties to be emotionally and mentally capable of co-existing in the business. In order to continue the ongoing business relationship, it is imperative that certain rules be established between the parties, and enforced going forward. These “rules,” would include: (i) the entering into of management agreements to set out specific duties of each spouse in the business, and classify those specific issues that would require the vote or agreement of both spouses, such as any future sale of the business, salary increases, personnel decisions, borrowing, and the like[xvii]; (ii) preparation of employment agreements to address benefits, termination, resignation, and covenants not to compete; (iii) preparation of buy-sell agreements to particularly address the future transferability of stock, and purchase of rights upon the death of one of the spouses, among other items; and (iv) the manner in which to address any shareholder disagreements.[xviii] Estate Planning Prospects Where the parties own all or the majority of their business, they may have available to them a unique estate planning opportunity, especially where the parties’ children participate in the business. The parties, with the help of knowledgeable corporate, and estate planning counsel, create a succession plan for the benefit of their children, that may reduce or eliminate the uncertainty of the manner in which the company will be distributed upon one party’s death, and also take advantage of valuation discounts by putting each of the spouses in a minority position.[xix] This may all be undertaken by the parties while they still maintain joint control over the business. This will also ensure that the parties’ children will have an opportunity to acquire an interest in the business upon the death of either or both parents. RETIREMENT AND DEFERRED COMPENSATION The pandemic has also wreaked havoc on most retirement or deferred compensation benefits, in particular plans such as a 401(k), SEP, or IRA. The “cut off” date for the classification and quantification (without considering the active or passive nature of the increases or decreases in account values) of marital property is the date on which the action is commenced[xx]. The valuation dates for such assets can however, range from the commencement date through the trial date. Over the years, certain standards have developed in determining which valuation date should be applied to particular classes of assets such as retirement and deferred compensation accounts. Now, the existence of an increase in the value of such plans post-commencement will be a rarity. Despite this state of affairs, the Court will still look to such considerations as the active management of the account by one spouse; pre and post-commencement withdrawals and payback amounts and obligations; the selection of the assets in the account; and the risk of the assets decreasing during the action.[xxi] It is important that neither party force the liquidation of retirement assets while values are low. Loses on paper can be tolerated; actual loses realized by sale or withdrawal from retirement accounts, plus the accompanying tax liabilities and penalties, should not be. CONCLUSION Difficult times produce new opportunities; new opportunities give rise to industrious solutions. Now more than ever, divorcing spouses (with knowledgeable counsel), need to exercise patience in the process, clarity in thinking and sound fiscal judgment. [i] Marcus Fabius Quintilian, Roman educator, author of the Institutes of Oratory, published circa AD 95.[ii] “Unemployment Claims Soared to 3.3 million Last Week, Most in History,” Tappe, Anneken, CNN Business, 3/26/20. Cnn.com/2020/03/26/economy/unemployment-benefits-coronavirus. [iii] “Exclusive: Goldman Injects $1 Billion Into Own Money-Market Funds After Heavy Withdrawals,” McLaughlin, Tim. 3/21/20.r euters.com/article/us-health-coronavirus-goldman-mny-mkt-ex. [iv] “How to Protect Your 401(k) From the Coronavirus,” Hartmen, Rachel. 3.12.20. money.usnews.com/money/retirement/401ks/articles/how-to-protect-your-401-k-from-the-coronavirus. [v] Negotiating for and receiving in the divorce an asset at a significantly reduced value can be a benefit for some. When the market recovers the asset could be a boon to the receiver. [vi] The New York Times, “Is Now a Good or Terrible Time to Buy a Home?” nytimes.com/2020/03/21/realestate/coronavirus-pandemic. [vii] Tedeschi, Bob, “Short Sales, A Long Process,” The New York Times, Mortgages, 12/13/2009. [viii] Olick, Diana, “Big Banks Accused of Short Sale Fraud,” CNBC, 1/15/2010; “Mortgage Applications Drop 29% for Week Amid CoronaVirus Crisis.” 3/25/20. www.cnbc.com>real-estate. Olick, Diana. [ix] See IRS Publication 4681. The lender must send the borrower Form 1099-C, Cancellation of Debt, to indicate the amount of debt forgiven. [x] Merriam-Webster’s Dictionary of Law ©2020, Merriam-Webster, Incorporated [xi] Rhodes, Trevor. American Foreclosure: Everything U Need to Know… about Preventing & Buying. McGraw-Hill, April, 2008. [xii] Foreclosure Prevention Resource Center, MortgageBankers Association, 2008. [xiii] “How to Divide the Family Business in a Divorce,” Schnaubelt, Catherine. 3/15/19. forbes.com/sites/catherineschnaubelt/2019/03/15; Cornell, Mark and Ovitt Puc, Kelly, “Debts, Divorce and Bankruptcy, Representing Family Law Clients in a Down Economy,” New Hampshire Bar Journal, Fall 2009. [xiv] 11 U.S.C. Sections 1321 and 1322. [xv] Building a Better Credit Report, Federal Trade Commission Bureau of Consumer Protection, Office of Consumer and Business Education, May 2005. [xvi] “How to Divide the Family Business in a Divorce,” Schnaubelt, Catherine. 3/15/19. forbes.com/sites/catherineschnaubelt/2019/03/15; Sissel, Scott A., “Divorce and the Family Business – What Are the Options?, Business Entities, March/April 2007. [xvii] Id. [xviii] Id. [xix] Id. [xx] DRL Section 236(B) [xxi] Michaelessi v. Michaelessi, 59 A.D.3d 688, 874 N.Y.S.2d 207 (2d Dept. 2009); Pickard v. Pickard, 33 A.D.3d 202, 820 N.Y.S.2d 547 (1st Dept. 2006).
July 17, 2023
Family Law
Family Law Recap: Taking a Break from Your Divorce
Happy summer! Right now, millions of Americans are on vacation, packing for an upcoming trip, or just returning to work. If you’re not currently away yourself, you’ve no doubt encountered a couple (or a couple dozen) out-of-office autoresponder messages in the past few weeks. Clearly, it’s time to take a break. Wouldn’t it be great if you could take a break from your divorce as well? Actually, you can—and you probably should. Even in the best cases, divorce proceedings take a long time. As the days, weeks, and months drag on, the constant stress enacts a heavy toll on all people involved. That doesn’t mean the divorce must necessarily take precedence over everything else in your life. In fact, sometimes it’s best to consciously decide to take a break. Sometimes, when you’re feeling buried in and burnt out by your divorce, the only thing you should do is nothing at all. Of course, doing nothing rarely comes easily these days. People lead busy lives. Many of us are overbooked and underslept. When we do have downtime, we often spend it in front of screens. This near-constant stream of activity and stimulation inhibits one’s ability to rest. It’s also important to recognize that for some people, chronic busy-ness is a coping mechanism—and an unhealthy one. In her book Daring Greatly, renowned vulnerability researcher Brené Brown describes being “crazy-busy” as “one of the most universal numbing strategies.” The idea is that if you don’t have time to process uncomfortable emotions, maybe they’ll go away on their own. The truth is almost always the opposite: those neglected emotions persist and grow stronger. If you’re in the middle of a divorce—or any difficult moment in your life—it’s time to prioritize your first obligation: your obligation to your own well-being. Add rest and relaxation to the top of your to-do list. A little “me time” is good for you in the long run. You’ll come back feeling happier, recharged, poised, and better equipped for the journey ahead. Whatever your future holds, know that you don’t need to go it alone. When you call on an experienced Family Law attorney, such as those at Offit Kurman, you gain a valuable advisor, partner, and advocate. Summer won’t last forever, so take a break—your attorney will continue doing the work for you.
July 14, 2023
Family Law
Adult Guardianships – Protecting Your Loved One
When a family member loses the capacity to effectively manage his or her affairs, it may become necessary to ask the court to appoint a guardian to protect that person’s interests. In Maryland, there are two different types of adult guardianships: (a) guardianship of the person, and (b) guardianship of the property. In many instances, both forms of guardianship are necessary. The court will appoint a guardian of the person when it finds that: A person lacks sufficient understanding or capacity to make or communicate responsible personal decisions, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs; and No less restrictive form of intervention is available that is consistent with the person’s welfare and safety. The court will appoint a guardian of the property if it determines that: The person is unable to manage effectively the person’s property and affairs because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance; and The person has or may be entitled to property or benefits which require proper management. Failure to seek appointment of a guardian for a family member who lacks the capacity to manage his or her affairs can have serious, irreversible ramifications for a person’s finances and health. For example, persons who lack the capacity to manage their finances can easily fall prey to scams seeking to take advantage of the elderly. Persons who lack capacity can also mismanage money to the point that all their assets are depleted. A loved one who lacks capacity might also neglect to seek necessary medical care or attend to the day-to-day tasks necessary to ensure that they are safe and healthy. To ensure that a loved one is not put in harm’s way, family members should act with urgency in seeking the appointment of a guardian. The process of seeking appointment of a guardian can be complicated and emotional, but an experienced guardianship attorney can explain the process, prepare all the pleadings that must be filed, and represent you during the trial in which the court determines whether a guardian should be appointed.
July 12, 2023
Family Law
I did not want to get too much “in the weeds…”
I did not want to get too much “in the weeds…” As of July 1st, Maryland became the 21st state where recreational cannabis sales are legal. Anyone over 21 can purchase dried flower, pre-rolled joints, and vape cartridges containing THC and edibles. All it takes is a government-issued ID and a trip to a licensed dispensary. There are about 100 dispensaries across the state open for recreational sales. More are coming. Authorities are a bit concerned about safety on the road, and police have been trained to determine if a driver is under the influence of marijuana. And remember that Federal rules still apply! While marijuana has been a factor in family law cases for decades, the legalization in states like Maryland will take away a parent’s argument that the using parent is criminal. However, the courts may still consider a parent’s use and possession of marijuana in custody cases. This would be similar to the court’s consideration of a parent’s use of alcohol. The court may look at things like the purpose a parent is using marijuana, the amount the parent is using, and the impact of the parent’s use on the children.
July 10, 2023
Family Law
Who Will Pay for Private School After We are Divorced?
The answer is… it depends. Isn’t that a lawyer’s answer to everything? In an ideal world, the parties agree on where their child will go to school, and they have endless funds to cover the child’s educational expenses, so there is no need for lawyers and courts. If that is not the case, the next best thing is to try and reach an agreement regarding the child’s education. In many states, the court may order a parent to contribute to all or a portion of their child’s private school tuition. In deciding on education, the court is to consider what is best for the child. Factors to be considered and weighed by the court may include, but not be limited to, the child’s educational history, the child’s educational needs, the school’s resources, the parent’s ability to pay, the parent’s decision regarding the child’s education while married, and the child’s educational performance history. Absent the court’s interference, the parties may come to an agreement on which school they want their child to attend and how it is to be paid. In some instances, the child is so young the parties may come to a written agreement on a process for determining which school their child should attend. Whether via court or an agreement, finances are typically a large factor. How was tuition paid during the marriage? Are there enough funds to support two households and private schools? Are third parties, like grandparents, contributing to private school expenses? And the list of questions to be considered goes on and on depending on the facts of each family. With the help of a lawyer who understands your child’s needs and your educational goals, ideally, you can come to an agreement on terms that are best for your child. Sometimes, the controversy is so high between the parents that a resolution outside of court is not tenable, and you will want an attorney who is prepared to address the factors to the court to most benefit your child’s educational needs.
July 10, 2023
Family Law
You Want to Get A Divorce? Here’s What You Need to Know
Originally posted 7/6/2020, no content changes. Does anyone go into a marriage thinking about getting a divorce? Doubtful. According to the Centers for Disease Control and Prevention’s National Marriage and Divorce Rate Trends, the rate of divorce in the United States in 2018 was 2.9 divorces per 1,000 people. As with anything, doing your due diligence and finding a great lawyer is going to be step one. What are some ways to find a “great” lawyer? When interviewing your lawyer, don’t be afraid to ask as many questions as necessary to ensure you are comfortable. It is important for you to make sure your lawyer practices family law regularly. Your lawyer should take a reasonable amount of time to listen to your issues and thoroughly discuss your options and the process with you. After going through your options, and you’ve decided to proceed with a divorce, the next step is for you to retain that attorney. Then, your attorney will begin gathering additional information and documentation from you. You should expect your attorney to request that you provide documents reflecting your and your spouse’s income, assets, expenses related to your family, tax returns, pay stubs, appraisals, business records, and more. Don’t worry if you do not have all of this information. Your attorney will help you obtain the information and documents needed. Following the information and documentation gathering stage, your lawyer may discuss the options of settlement, mediation or filing with the court. Should you decide to file with the court, your lawyer will create a Complaint outlining the issues to be determined by the court (ex. custody, access, child support, alimony, division of marital property and attorneys’ fees) and your request as to what you’d like the court to award you. Your Complaint will likely have to be filed with a Financial Statement. The Financial Statement is a detailed document required by the Court, which your attorney should assist you with completing. Even after filing with the court, settlement is always possible and strongly encouraged through discussions between counsel or mediation. With thorough preparation, mediation can be successful, even if not with just one session. Should you be able to settle your matter through counsel or mediation, you will have a brief, uncontested divorce hearing. Should you be unable to settle before trial, you will proceed with a trial, wherein your attorney will present your case to the court for a judge to make a ruling. It should be noted that most cases settle. For instance, we settle over 90% of our cases. The lawyer you choose will help drive the direction of your case, and it’s important to find a lawyer who doesn’t just tell you what you want to hear. You need a lawyer who will explain your options and make a recommendation so you can make an informed decision.
July 6, 2023
Family Law
There is More Than One Way to Get Divorced
One of the most important decisions that a couple makes after they have made the difficult decision to separate and divorce is choosing which process to use to make the significant decisions about the terms of their separation. Many separating parties do not even realize this is a choice that can be made; instead, by default, they fall into a process without making an educated decision concerning their process options. There are five main process options that everyone going through a separation should be educated about: “Kitchen Table” Negotiation: “Kitchen Table” negotiation is characterized by two spouses having conversations and negotiating the terms of their separation directly with one another. One or both spouses may have an attorney in the background, with whom they may consult as needed and who may draft a written agreement. But the spouses primarily engage with one another in the negotiation process. Some spouses are able to negotiate some topics via this method, but not others. For example, spouses may be able to resolve how they are dividing their furniture and furnishings using the “Kitchen Table” method but then need to use another process option to resolve the remaining issues. Mediation: In Mediation, the two spouses work with a neutral mediator whose job is to help the spouses discuss the issues and reach an agreement. The mediator does not represent either spouse and cannot offer advice to either spouse. Either spouse may have their own attorney who they can consult with before and after mediation sessions. If the spouses agree, they may bring their attorneys to the mediation sessions. There are mental health professionals who specialize in mediating parenting issues. Some couples choose to work with a mental health professional-mediator to mediate their parenting plan and then use an attorney-mediator (or another process entirely) to facilitate the negotiation of financial issues. The Mediation process is often used in conjunction with other process options. The Collaborative Process: The Collaborative Process is an out-of-court dispute resolution process in which both spouses have their own Collaboratively trained attorney who represents them and advises them throughout the process. The spouses and their attorneys meet together to discuss the various issues and work together to brainstorm and agree on options that work for both spouses. At the start of the Collaborative Process, the spouses and the attorneys sign an agreement committing that they will only work together in settlement negotiations and that these attorneys will not represent the parties in a contested court litigation. This helps to ensure that both spouses and both attorneys are focused on and properly incentivized to reach an agreement. In the Collaborative Process, spouses commit to disclose all relevant information and documents that are necessary so that both spouses can make informed decisions. In addition, the spouses commit to maintain the status quo until they reach an agreement otherwise. This means that neither spouse can make any significant unilateral changes while in the Collaborative Process. The spouses can choose to retain mental health professionals and financial professionals to be part of the Collaborative team. In these cases, the mental health professionals typically take the lead on parenting issues and address emotional issues that are impeding a settlement. The financial professionals help the spouses gather their financial documents and then prepare cash flow projections and schedules of assets and liabilities to help inform the negotiations. Attorney-Led Negotiations: This is the most loosely defined “process” and can vary considerably, depending on the attorneys involved. In essence, each spouse retains an attorney to represent them in the negotiation. The attorneys communicate directly with one another, and any formal settlement negotiations are exchanged between the attorneys. Often, the attorneys facilitate an informal exchange of documents that both sides have the information they need to engage in informed settlement discussions. The spouses speak with their attorneys to create and respond to settlement proposals. Proposals are exchanged until an agreement is reached, and the attorneys draft a written agreement for the spouses to sign. This process is often used in conjunction with mediation or litigation. The process timeline can vary considerably. Litigation: The Court Process involves filing appropriate paperwork with the Court and asking that a Judge make decisions for you. In litigation, the parties are giving up control over the outcome. But, for parties whose settlement positions are so far apart that reaching an agreement will not be possible or practical, then it may be necessary to have a judge render a decision so that the parties can obtain a final resolution. Litigation is also the only process where you can force an unwilling party to engage; or, if they still won’t engage, then can obtain relief in the absence of their participation after fulfilling certain requirements. The Court process can be very difficult to navigate without legal representation. The financial cost associated with litigation often makes it the most expensive process. There is no one “right” process. In making a process choice, it’s important to consider your individual circumstances to determine which process(es) are most likely to be successful for you. Factors to consider in making this process decision include, but are not limited to, the dynamic between you and your spouse; the needs of your children; the emotional support you and your spouse will need; the technical complexity of the issues; and your financial resources/constraints. In any initial consultation with an attorney, you should be ready to inquire about these process options and engage in an individual conversation about which process(es) may work for you.
June 1, 2023
Family Law
The Current Approach to Adoption Records and Further Need for Change
New Jersey’s Current Policy New Jersey allows an adoptee access to only certain specific records and restricts who can view these records and what kinds of information may be redacted. In May 2014, the New Jersey State Legislature passed a law permitting individuals born and/or adopted in the State of New Jersey, who are at least 18 years of age, to be able to access their original birth certificate beginning in January 2017. In addition to the adoptee, a direct descendant or spouse of the adoptee, an adoptive parent or legal guardian, and/or an agency of the state or federal government may also access the original birth certificate. As the law was passed in May 2014 but not effective until January 2017, birth parents were permitted to submit a request to redact their name or other identifying information before December 31, 2016. Under this law, birth parents MAY submit a contact preference form to the State Registrar, which allows a birth parent to indicate whether or not they would like to, or prefer not to, be contacted by an adoptee. If a birth parent files a contact preference with the Registrar, they must simultaneously complete and submit a family history form. The form includes medical, cultural, and social history information regarding the birth parent. Any birth parent who requests no contact is asked for, but not required, to update their family history information every ten years until age 40 and every five years after that. The Problem With New Jersey’s Current Approach So – what’s the problem with this approach? First and foremost, a birth parent is not required to submit a contact preference form with the State Registrar, and if they choose not to, they have no requirement imposed upon them to complete and submit a family history form. This leaves all of the information and decision-making in the hands of the birth parent and may potentially deprive the adoptee of necessary and essential background information. Notably, a birth parent is not required to update their family history information. This means that if a birth parent submits a form and then in future years either learns of essential biographical or ancestral information or has a major change in health information, they have no duty to report this information. Additionally, an adoptee is not permitted to obtain their birth certificate until reaching age 18. Should any health concerns arise before said age, the adoptee has no opportunity to obtain necessary biological information. Although this legislative change demonstrates a shift in favor of unsealing at least some information, this approach still fails to provide an adoptee with information. It also fails to impose any duty on the birth parent to provide said information. A birth parent does not need to send said information to anyone directly. Still, a duty to file this information with the Registrar would at least allow an adoptee to access this information. New York’s Current Policy On November 14, 2019, Governor Andrew M. Cuomo signed a new bill which was memorialized in Public Health Law 4138 and went into effect on January 15, 2020. This law provides unrestricted access to original birth certificates for all adult-adopted persons. It also allows access to copies of original birth certificates for direct line descendants or legal representatives. The Problem With New York’s Current Approach While this law permits an adoptee access to their original birth certificate, there is no procedure in place or information provided regarding the use of contact registries or access to the background, biological, and medical information. In addition to the lack of awareness surrounding contact registries, this law creates no obligation on behalf of the birth parent to provide updated background information. Other states have made similar amendments to their respective laws in recent years, but the general, larger issue of access to information remains. Without requirements that birth parents file a detailed background and history with their State Registrar and have a continuing obligation to amend and update same, adoptees will lack essential information for their own lives and future generations.
May 31, 2023
Family Law
Smart Home Devices and Domestic Abuse
Originally Posted 5/13/2019, no content changes. Modern homes are increasingly powered by internet-connected devices, from speakers to televisions, from thermostats to door locks, from security cameras to baby monitors. For some, this so-called “smart” technology can make life a little more convenient. For survivors of domestic violence or abuse, however, it’s fast becoming a vector for physical and psychological torment. The American Academy of Matrimonial Lawyers (AAML) recently published an article about the myriad ways abusers are weaponizing smart home devices. AAML notes that such devices “are set up by one spouse/partner but used by both spouses/partners.” It’s a situation that can create an uneven—and, at times, terrifying—power dynamic when the couple splits up and the person who has moved out of the house “wishes to destroy the emotional or mental calm of the other spouse.” In one example, an ex changed their partner’s alarm time on an Echo device from 7 am to 2 am. In another, a man spoiled his ex-wife’s food by switching off the refrigerator. Other reported incidents involve people surveilling their exes through speakers and TVs and turning up the heat remotely during summer months. In some cases, abusers seek to damage not only the psyches of their victims but survivors’ credibility as well. An article in domesticshelters.org offers a horrific pair of anecdotes: “Another abuser would repeatedly unlock a survivor’s home and car doors remotely. When the survivor tried to report it, the abuser petitioned the judge in their children’s custody case that this was a security issue he was worried about, making the survivor appear as an unfit mother. Another abuser would unlock a survivor’s electronic front door, go inside and take just one item from her home at a time, like a bracelet or a pair of shoes. The survivor kept thinking she was losing things and, in some respect, her mind along with them. She knew reporting these missing items to the police without any proof of a break-in would sound outrageous.” What can you do to protect yourself? First, make a list of all smart devices in your home and make sure you’re able to access and control each one. Change the passwords for every device as soon as a partner or spouse moves out and periodically thereafter. If you suspect that someone is spying on you, harassing you, or tampering with your home, speak to your lawyer immediately. The attorneys of Offit Kurman’s Family Law Practice Group can help you protect your home and family and obtain logging information for later use in court.
May 12, 2023
Family Law
How to Prepare for Divorce
Whatever brought you to the decision to consider divorce, as with most situations, knowledge is power. If you have determined that your spouse is considering separation or divorce, or if you have decided that you have tried to resolve matters and are ready to part ways, consulting with an experienced family lawyer will provide you with information so that you can make informed decisions. One of the first steps you should take is to prepare a chronology of events from the date of your relationship, noting important dates. The chronology need not be in great detail, but organizing your thoughts and recollection will be very helpful when it’s time for you to explain your situation to your attorney, counselors, mediators, etc. “Once and done” will relieve you of the need to review your history over and over again. Your attorney will request a summary of your and your spouse’s income, expenses, assets and liabilities. You will need to provide information as to what accounts, property, etc., is jointly or solely owned by one or both of you or if the assets are owned by a corporation or partnership. Generally speaking, you will be asked to provide the following documents: Income tax returns for the past five years Recent pay stubs for you and your spouse Bank statements for all joint and separate accounts Estate plans, including trust information Shareholder or partnership agreements Titles to cars, boats, airplanes, etc. Information regarding cryptocurrency Retirement plan statements Investment account statements Information regarding all debt - including mortgages, HELOC Accounts, personal loans, etc. Investment account statements Information regarding inheritance that you or your spouse received Information regarding pre-marital assets or gifts received from someone other than your spouse (or that your spouse has received from someone other than you) Be aware that your attorney will ask you to complete a financial statement, so becoming knowledgeable of your regular expenses will be very helpful. Consider counseling, which will be very helpful during this stressful and emotional time. Choose a divorce attorney who is recognized as an expert in this field. Sandy and Cheryl are both Fellows in the American Academy of Matrimonial Lawyers as well as the International Academy of Family Lawyers, having been recognized by their peers and the Court as experts in the field of Family Law. In addition, both Sandy and Cheryl have been included in Best Lawyers, Super Lawyers and other publications.
May 11, 2023
Family Law
How to Protect Your Privacy
While you will be sharing a great deal of information during the divorce process, it is important for you to take steps to protect your privacy. You will be required to produce financial documents, and you may also be required to provide copies of emails and text messages. Emails and texts between yourself and your attorney are protected due to privilege. However, the same is not true as to communication with others. If you believe that your spouse has access to your computer, iPad or phone, you should take steps to protect your privacy. You may want to purchase a new iPad or computer that you use only when communicating with your counsel or your therapist. If you do that, ensure that you are using a password that is difficult to break, such as a phrase. It is natural to want to discuss the divorce process with friends and family, but that may be to your detriment if too much detail or strategy is shared. This is a good reason to confide in a counselor or therapist to discuss the process and your feelings.
May 11, 2023
Family Law
New York’s Laws Fail to Recognize Gender Neutrality
"How are you supposed to be believed about the harm that you experience when people don't even believe that you exist?[1] The legal system has long been criticized for its lack of inclusivity and support for marginalized communities. One such community is the gender non-binary or genderqueer community. People who identify as they/them often encounter challenges in accessing justice, as the legal system is structured around a gender binary. New York's laws assume that individuals identify as either male or female, and they often fail to recognize, let alone support, those who do not conform to these traditional gender roles. In New York State, there is currently no legal recognition of non-binary gender markers like "they/them" on government issued identification documents. As a result, people who identify as they/them are often stripped of their rights and may face discrimination and exclusion in various aspects of their lives, including access to healthcare, education, employment, and housing. In addition, legal documents, such as identification cards, passports, and birth certificates, also present challenges for those who identify as they/ them, as these documents require gender marker designations. This results in many people being misgendered or having to conform to a gender identity that does not accurately represent who they are. Moreover, the legal system's lack of support for those who identify as they/them is particularly concerning when it comes to cases involving domestic violence and sexual assault. These individuals often face additional barriers to accessing justice and may be further marginalized by the legal system. Opposition From Conservative Groups There has been some opposition from conservative groups who argue that recognizing non-binary gender markers on identification documents goes against traditional gender norms and could lead to confusion or fraud. However, advocates for non-binary recognition argue that it is a necessary step towards greater inclusivity and recognition of all individuals, regardless of their gender identity. Ultimately, the decision to recognize non-binary gender markers on identification documents will be up to lawmakers and policymakers. There are solutions, however, to address the concerns raised by conservative groups regarding non-binary recognition on identification documents. One potential solution could be to provide educational resources and training for government officials and individuals on the importance of recognizing non-binary gender markers. Another solution could be to implement safeguards to prevent fraud, such as requiring additional documentation or verification. Some other types of safeguards that could be implemented include biometric identification technologies, such as facial recognition, fingerprinting, or iris scanning. These technologies can be used to verify an individual's identity and prevent fraud. However, it is important to balance the need for security with the need for inclusivity. This requires a careful consideration of the potential impact on non-binary individuals and ensuring that any safeguards do not place an undue burden on them. It also requires ongoing dialogue and collaboration between stakeholders to ensure that the needs of all individuals are being met. In Conclusion The inclusion of non-binary gender markers in government-issued documents would have a significant impact on the lives and experiences of non-binary individuals in New York State. It would provide them with greater recognition and visibility and help reduce discrimination and exclusion based on gender identity. This could also lead to improvements in healthcare, housing, employment, and other services that are often difficult for non-binary individuals to access. Ultimately, it will require a collaborative effort between lawmakers, advocates, and community members to find a solution that addresses concerns while also promoting inclusivity and recognition of non binary individuals. There are ongoing efforts to push for legislative changes and updates to the current system to be more inclusive of non-binary individuals. Organizations like the National Center for Transgender Equality and the New York Civil Liberties Union are actively advocating for these changes. It is important for non-binary New Yorkers to consult with a lawyer who has experience navigating the legal issues related to gender identity. This can include issues related to changing legal documents, accessing healthcare services and other services, and experiencing discrimination or harassment. _________________________________________________ [1] -- Alok Vaid-Menon, Beyond the Gender Binary
May 10, 2023
Family Law
College Decision Day – Now, Who Pays?
May 1 is an important and exciting day for high school seniors around the country, as this day is known as National College Decision Day. On May 1 each year, high school seniors are required to have made their formal commitment to the university they intend to attend by accepting their offers of admission and placing their college deposits. While some states have laws that grant courts the authority to order a non-custodial parent to contribute to a child’s college expenses, New Jersey does not have this requirement. Instead, New Jersey law grants the court the discretion to require that divorced or separated parents both contribute to a child’s college education and related expenses. In Newburgh v. Arrigo, 88 N.J. 529 (1982), the Supreme Court of New Jersey set forth several factors to consider in determining parents’ college contributions. These factors include: whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; the effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education; the amount of the contribution sought by the child for the cost of higher education; the ability of the parent to pay that cost; the relationship of the requested contribution to the kind of school or course of study sought by the child; the financial resources of both parents; the commitment to and aptitude of the child for the requested education; the financial resources of the child, including assets owned individually or held in custodianship or trust; the ability of the child to earn income during the school year or on vacation; the availability of financial aid in the form of college grants and loans; the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and the relationship of the education requested to any prior training and to the overall long-range goals of the child. Id. at 545. Subsequent case law in New Jersey has narrowed the obligation for contribution to a period in which there is an affirmative request and subsequent agreement or Order directing each party’s contribution. See Gac v. Gac, 186 N.J. 535 (2006). If you are looking to require your ex-spouse/partner to contribute to your child’s college contribution, here are some tips to consider to help achieve a favorable outcome: Assist your child in first obtaining all available loans, scholarships, grants, and aid. Keep the other parent informed of what schools the child is considering, the tuition costs, etc. If the two of you do not reach an agreement as to how the costs will be paid by May or June immediately preceding the child’s metrication to university, you should make the appropriate application to the court to avoid application of Gac. We strongly recommend that you consult with a knowledgeable family law attorney licensed in New Jersey regarding the facts and nuances of your matter, as all cases are fact sensitive and specific to the family involved. If you would like to discuss this issue or any other with us, please contact us by email at Emily.Ingall@offitkurman.com and msmith@offitkurman.com or by phone at 929-476-0046 or 267-338-1378.
May 10, 2023
Family Law
Current Policy on Sealing Adoption Records and the Need for Change
Beginning in the early 1900s, almost every state in the United States enacted legislation to permanently seal an adoptee’s original birth certificate and the records from the adoption proceeding. The process of sealing an adoptee’s birth records originated to protect adoptees from social attitudes and stigmas towards illegitimacy. Throughout the early 1900s, the prevailing view was to keep records sealed until the adoptee became an adult when they could then receive their records and their birth parent’s information. Only after World War II did states enact statutes that sealed the adoption records for all parties, and the only way to release these records was by court order. This type of sealed records statute is one that most states still retain today. The process of sealing an adoptee’s birth records originated to protect adoptees from social attitudes and stigmas towards illegitimacy. In the 1970s, adoptees began challenging the sealed records process as they asserted their right to know their biological background, medical history, and related information. These challenges were brought in largely due to changes in society, specifically surrounding stigmas and views on race and religion, as transracial adoptions became popular. In many instances, society started to view adoption as a blessing. Award-winning actress and singer Kristin Chenoweth has publicly stated how she feels about her adoption — “an adoption is a full circle blessing.” In terms of her feelings regarding her birth mother, she said, “I knew my birth mother loved me so much that she wanted to give me a better life.” Chenoweth’s statements reflect a change in how society views adoption, specifically that the negative stigmas prevalent in the 1900s are no longer prevalent today. States that have passed this type of legislation require agencies to write complete adoptive profiles on the adoptee and their biological parents at the time of their adoption placement. State legislatures began responding to adoptees’ assertions of their “right to know” by enacting provisions allowing adoptees access to non-identifying information about their adoption. States that have passed this type of legislation require agencies to write complete adoptive profiles on the adoptee and their biological parents at the time of their adoption placement. Although this profile gives an adoptee some information, such as the demographics of their birth parents, states are still in control of how much information can be shared. Most only allow non-identifying information, usually consisting of descriptive details about an adoptee’s birth relatives. This information includes the date and place of birth, age of the birth parents, general physical description, race, religion, and medical history of the birth parents at the time of birth. States that have passed this type of legislation require agencies to write complete adoptive profiles on the adoptee and their biological parents at the time of their adoption placement. On the other hand, identifying information consists of names, addresses, employment, and additional information that may lead to identifying the birth parents. While non-identifying information can provide an adoptee with some sense of their background, many jurisdictions still limit the release of this information. In attempting to limit the release of information, most adoption statutes provide for all records to be sealed unless specific circumstances are met, such as a compelling demonstration of good cause, the protection and/or promotion of the welfare and best interest of the child, or medical necessity. Other states have implemented a system of good cause, establishing a burden on the requesting party to demonstrate that there is a medical or psychiatric need for the sealed information and that the information is not attainable elsewhere. In attempting to limit the release of information, most adoption statutes provide for all records to be sealed unless specific circumstances are met… However, as adoptions have become more popular and the stigmas surrounding the non-traditional family have subsided, some states have implemented programs that, while limiting, do provide adoptees with some information. For example, states such as Arkansas and Iowa have created Mutual Consent Registries. These registries are one method used to arrange the consents that are required for the release of identifying information, wherein an individual directly involved in an adoption (either the birth parent or the adoptee) can indicate their willingness, or lack thereof, in having their identifying information disclosed. However, as adoptions have become more popular and the stigmas surrounding the non-traditional family have subsided, some states have implemented programs that, while limiting, do provide adoptees with some information. While states have certainly made progress in an adoptee’s access to information in the 20th century, many of these systems are ineffective because they are not properly or commonly advertised, and there are no informational guidelines in place to demonstrate how they work. Additionally, states have made small but significant changes in recent years, and minimal information is publicized regarding the changes in place and how they impact adoptees. Curious about what your state’s laws are? Stay tuned for updates on New York and New Jersey's current laws, recent amendments, and recommended improvements.
April 26, 2023
Family Law
The State of Artificial Reproductive Technology Today
The best way to predict the future is to create it. – Abraham Lincoln. April 23-29, 2023, is National Infertility Awareness Week® (NIAW). NIAW is a movement founded in 1989 by The National Infertility Association. Its mission is to empower us all, change the conversation around infertility, raise awareness about fertility issues and promote better access to fertility care for people who need it. For most individuals and/or couples trying to have a baby, when the conversation of conceiving through natural means ends, a new dialogue begins that which focuses on having a baby with the help of artificial reproductive technology. Introduction The field of artificial reproductive technology, "ART," has made significant advancements since its inception in the mid-20th century. With the ability to manipulate and control the human reproductive system, ART has revolutionized the way we approach infertility and has also presented new ethical and legal challenges. This article will provide an overview of ART, its past, present, and future, and the myriad of legal and ethical issues it faces. Clinical Definitions, Historical Discrimination, Familial Reality and Legal Concerns Clinically/historically/ discriminatorily, infertility is a reproductive disorder defined as the failure to achieve a clinical pregnancy following at least 12 months of unprotected heterosexual intercourse1. It can be related to female factors, male factors, both, or remain unexplained. In women, it is commonly caused by ovulatory dysfunction, tubal obstructions, and/or endometriosis. In men, it is often a result of abnormalities in sperm production and function or sperm duct blockages. In helping people to have the children they desire, ART challenged and altered forever conventional clinical and societal definitions of "family." It threw open the doors for those wanting to be single parents (with no need for a partner) and has broken down the barriers for members of the LGBTQIA+ community to create their own families. The nuclear family is still often considered as an entity defined only by biological ties, even though living arrangements with children (families) have become increasingly diverse in recent decades, with unmarried families, adoptive and stepfamilies, and families with same-sex parents becoming increasingly common. ART adds to this growing complexity by providing treatments to single people and gay and lesbian couples, as well as to heterosexual couples to whom the conventional definition of infertility applies.2 These former groups have also been described as facing "social infertility." 3 The use of ART worldwide has led to the conception and birth of over nine (9) million babies since being implemented in the United Kingdom in 19784. ART, as it is commonly known, refers to any technique used to assist in the conception of a child without sexual intercourse. The most common methods of artificial reproduction include in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), and gamete intrafallopian transfer (GIFT). There are various legal considerations when it comes to artificial reproduction. There are various laws and regulations governing these practices, including requirements for informed consent, screening and testing of donors and surrogates, and restrictions on the use of certain types of genetic material. One of the key issues is related to parental rights and responsibilities. In many cases, the child conceived through artificial reproduction will have genetic material from one or both parents who are not legally recognized as the child's parents. This can create complex legal situations, particularly if the parents separate or divorce. Another legal issue that arises in the context of artificial reproduction is the question of who has control over the genetic material used in the process. This includes issues such as sperm and egg donation, surrogacy, and embryo adoption. There are various laws and regulations governing these practices, including requirements for informed consent, screening and testing of donors and surrogates, and restrictions on the use of certain types of genetic material. Additionally, there are ethical considerations to be taken into account. Some people may have moral objections to certain methods of artificial reproduction, such as using donor eggs or sperm or creating embryos for the purpose of research. Overall, the legal landscape around artificial reproduction can be complex and is constantly evolving. It is important for individuals considering these techniques to consult with legal and medical professionals to ensure they fully understand their rights and responsibilities. ________________________________________________ 1 https://www.cdc.gov/reproductivehealth/infertility/index.htm 2 Zegers-Hochschild F., Adamson G.D., Dyer S., Racowsky C., de Mouzon J., Sokol R., Rienzi L., Sunde A., Schmidt L., Cooke I.D., Simpson J.L., van der Poel S. The International Glossary on Infertility and Fertility Care, 2017. Hum. Reprod. (Oxford, England) 2017. 3 Daar J. Yale University Press; 2017. The New Eugenics: Selective Breeding in an Era of Reproductive Technologies. [Google Scholar] [Ref list] 4 https://www.ncbi.nlm.nih.gov/pmc/articles The Past The first successful in vitro fertilization (IVF) was achieved in 1978 by Dr. Robert Edwards and Dr. Patrick Steptoe in the United Kingdom. This groundbreaking event paved the way for numerous developments in ART, including intracytoplasmic sperm injection (ICSI), pre-implantation genetic diagnosis (PGD), and cryopreservation of eggs, sperm, and embryos. Legal regulation of ART began in the 1980s, with the United Kingdom being the first country to pass laws governing ART procedures. The U.S. followed suit with the passage of the Fertility Clinic Success Rate and Certification Act of 1992 and the creation of the American Society for Reproductive Medicine (ASRM) in 1944. This author's home state of New York did not "get with the program" until the Child-Parent Security Act of 2021. Present ART has become more widely available and accessible over the years, with clinics offering a variety of treatments and services to individuals struggling with infertility. In addition to IVF and ICSI, ART now includes egg and sperm donation, surrogacy, and gestational carrier arrangements. The legal landscape of ART is complex and varies from state to state and country to country. In the U.S., there is no federal regulation of ART, with each state having its own laws and regulations. This has led to a patchwork of laws that can be confusing for patients and providers alike. One of the most significant legal challenges facing ART today is the issue of parental rights. With surrogacy and gestational carrier arrangements, the question of who has legal rights to the child can be complicated. Additionally, the use of donor gametes raises questions about the rights of the donor and any resulting offspring. Future Advancements in ART technology are rapidly evolving, with researchers exploring new techniques to improve success rates and decrease risks. One area of focus is the use of artificial intelligence (AI) to analyze large datasets of patient information to identify factors that contribute to successful outcomes. Another promising development is the use of gene editing technology to address genetic diseases and disorders. While still in the early stages of research, this technology has the potential to revolutionize the field of ART by allowing parents to screen for and eliminate genetic diseases before implantation. Back to the Future: Legal Concerns With all the good news about ART, there are some serious issues, namely, the regulation of fertility clinics and other providers of fertility services. In many countries, including the United States, fertility clinics are subject to strict regulations that govern everything from the storage and use of genetic material to the types of services they can offer. These regulations are designed to protect patients and ensure that fertility treatments are safe and effective. Another legal consideration is the use of donor material in assisted reproduction. When donor eggs or sperm are used to fertilize an egg, there may be legal issues related to parental rights and responsibilities. Additionally, there may be questions around the ethical implications of using donor material, particularly when it comes to issues related to identity and family relationships. Another recent development that has significant legal and ethical implications is the use of donor eggs and sperm, which can allow people who are unable to conceive naturally to have children. However, this technology also raises questions about the rights of donors and the potential for unintended consequences, such as the possibility of unwitting incest between donor-conceived siblings. Another important aspect of infertility and the law is the legal rights and responsibilities of parents who conceive through these technologies. For example, in cases of surrogacy, legal agreements must be put in place to establish custody and visitation rights for the intended parents as well as the surrogate mother. Similarly, in cases of egg or sperm donation, legal agreements must be put in place to establish parental rights and responsibilities. Other legal concerns related to infertility may include issues around adoption, paternity and genetic testing, and the use of reproductive materials after death. It is important for anyone dealing with infertility to consult with an experienced attorney who can help navigate the legal landscape and protect their legal rights and interests through the process. It is also important to consider the role of insurance and other financial considerations in fertility care. In many cases, infertility treatments can be expensive, and insurance coverage may be limited or nonexistent. This can create significant barriers to access for individuals and families who need fertility care. Overall, there are many legal and ethical considerations to think about when it comes to assisted reproductive technologies. As we continue to explore the potential benefits and drawbacks of these technologies, it is important to strike a careful balance between innovation and regulation and to prioritize the needs and interests of patients above all else. Back to the Future: Ethical Concerns There have been several recent technological advancements in fertility treatments that have significant implications for the legal and ethical considerations surrounding assisted reproductive technologies. Some people argue that these technologies blur the line between natural conception and artificial intervention and that they represent a potential threat to human dignity and autonomy. Others argue that these technologies have the potential to improve the lives of millions of people around the world who struggle with infertility and other reproductive issues. One of the most important developments in this area is the use of in vitro fertilization (IVF) with pre-implantation genetic testing (PGT). This technology allows doctors to screen embryos for genetic abnormalities before they are implanted in the uterus, potentially reducing the risk of certain genetic disorders and increasing the chances of a successful pregnancy. However, PGT also raises serious ethical concerns, as it allows parents to select embryos based on their genetic characteristics, such as gender and physical characteristics, potentially leading to a future in which only certain traits are valued, and others are deemed undesirable or even unacceptable; which could lead to discrimination or perpetuate harmful societal norms. To balance these competing concerns, it is important for society to engage in open and transparent discussion about the use of PGT and to ensure that regulations are in place to prevent abuse of this technology. This could include limiting the types of conditions that can be screened for, as well as creating oversight committees to review and approve PGT applications. Additionally, it is important for individuals and families to have access to accurate and unbiased information about PGT, so they can make informed decisions about whether or not to use this technology in their own fertility treatment. By considering both the potential benefits and ethical concerns of PGT, we can work towards a more equitable and responsible approach to healthcare. Finally, there has been growing interest in the use of artificial intelligence (Al) and machine learning to improve the accuracy of fertility diagnosis and prediction. While these technologies have the potential to revolutionize fertility care, they also raise concerns about data privacy and the potential for biased algorithms to perpetuate existing inequalities in healthcare. Overall, the recent technological advancements in fertility treatments have significant legal and ethical implications, and it is crucial that we carefully consider these issues as we continue to develop and implement new and innovative technologies in this field. Conclusion Infertility and the law is a complex, multi-faceted issue that encompasses a range of legal and ethical considerations. Laws governing these practices vary state by state and country by county and may include regulations around consent, screening, and financial compensation. ART has come a long way since its inception in the late 1970s, and its future is promising. However, as technology advances, legal and ethical challenges will continue to arise. It is crucial for lawmakers and healthcare providers to work together to create clear and comprehensive regulations that protect the rights of patients and any resulting offspring.
April 13, 2023
