Blog Posts
Family Law
Cohabitation Agreements: Protecting Assets and Income of Unmarried Couples Residing Together in DC
Unmarried couples residing together in the District of Columbia would be wise to execute a cohabitation agreement defining their rights and responsibilities to avoid substantial financial risk. The District of Columbia is one of a small number of jurisdictions in the United States that recognize “common-law marriage.” Contrary to popular belief, there is no minimum amount of time that couples must live together to form a common-law marriage. Instead, a couple forms a common-law marriage in the District of Columbia when there is cohabitation following an express mutual agreement, which must be in words of the present tense, to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage. A common-law marriage can be formed without any marriage ceremony or marriage license. A well-drafted cohabitation agreement signed and notarized by both parties will unequivocally explain that the parties do not intend to form a common-law marriage. The agreement should also clarify that each party will retain their own assets and income and assume responsibility for their own debt if and when the relationship ends. In the absence of a cohabitation agreement, one of the parties to the relationship might file a complaint for divorce in the Superior Court for the District of Columbia, asserting that the parties formed a common-law marriage. If the Court concludes that the parties formed a common-law marriage, the Court can order one party to pay spousal support to the other, depending upon the facts of the case. The Court can also equitably distribute property and debt acquired by the parties from the date of marriage to the date of divorce, except property acquired by gift or inheritance, and order one party to reimburse the other party for attorneys’ fees incurred in the divorce proceeding. Even if the parties never formed a common-law marriage, the party who denies the existence of a common-law marriage will have to engage in lengthy and costly litigation to prove that the parties were never common-law married to avoid having his or her assets and income divided by the Court. The attorneys’ fees involved in defending against a false common-law marriage claim can be substantial. To avoid costly and time-consuming litigation and protect your income and assets, anyone planning to reside with another person in a romantic relationship or already residing with another person in a romantic relationship should promptly seek the assistance of an attorney in preparing a cohabitation agreement.
December 21, 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
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
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
New D.C. Law Will Remove Divorce Waiting Requirements
The Council of the District of Columbia has passed a law that will eliminate the requirement that spouses live separate and apart without cohabitation before filing for divorce. On December 3, 2023, the Council passed D.C. Act 25-322, which deletes from the D.C. Code the requirement that spouses either be separated for six months if the separation is mutual and voluntary or for one year if the separation is not mutual and voluntary. The bill is awaiting congressional review and should be approved in early 2024. After the bill is approved by Congress, parties seeking divorce need only establish that they no longer wish to remain married. The new legislation is significant because it will allow parties to seek court intervention immediately rather than having to wait six months or a year before filing for divorce. D.C. Act 25-322 is also significant because it adds a new requirement that the Court take into consideration the history of physical, emotional, and financial abuse by one party against the other in awarding alimony and distributing marital property and debt. Finally, the legislation adds a provision to the D.C. Code that gives the court discretion to award exclusive use of the family home or any other dwelling unit available for use as a residence while the divorce case is pending. A copy of D.C. Act 25-322 is available online at B25-0042 – Grounds for Divorce, Legal Separation, and Annulment Amendment Act of 2023 (dccouncil.gov).
December 18, 2022
Family Law
Avoid the Common Mistake of Commingling Assets
In divorce cases, it is not unusual to find that a client has at some point during the marriage commingled nonmarital assets with marital assets, making it difficult or impossible to prove that the assets should be retained by the client at the time of divorce. In Maryland and the District of Columbia, assets acquired by a spouse prior to the marriage or by gift or inheritance are that spouse’s nonmarital property. Commingling of assets occurs when a marital asset is mixed in with a nonmarital asset. One example of this common mistake is when a client has funds in a bank account that existed prior to the marriage and then begins depositing funds earned during the marriage into that same account. Another example is when a spouse receives an inheritance or a gift during the marriage and commingles the inherited or gifted funds with marital funds acquired during the marriage. In those situations, the separate property can lose the quality of being nonmarital, meaning that the commingled funds might be deemed marital property and divided by the court at the time of divorce. To ensure that nonmarital assets will not be deemed marital property at the time of divorce, the best course of action is to keep them separate during the marriage by maintaining a separate bank account. It is also prudent to execute a prenuptial agreement prior to the marriage identifying which property will remain nonmarital at the time of divorce. To prove that an asset is nonmarital at the time of divorce, retaining documentation is vital. Account statements are frequently used to prove that funds in an account are a spouse’s nonmarital assets. If you have nonmarital assets that you want to remain your separate property, hold on to those old account statements establishing how and when you acquired the assets because they might not be available from banks or other financial institutions 10, 20, or 30 years later when you are getting divorced. It might also be necessary to employ a forensic expert to prove that the assets are nonmarital, depending upon the situation. Everyone goes into their marriage hoping it will last forever, but you would be wise to avoid the common mistake of commingling just in case it doesn’t.
May 16, 2022
Family Law
Consider Whether an Expert is Necessary for Your Family Law Case
In “My Cousin Vinny,” arguably one of the best movies of all time, the character Mona Lisa Vito, played by Marisa Tomei, testifies as an automotive expert in a criminal case and provides an opinion about an automotive issue (positraction) that wins the case and results in the acquittal of two young men charged with murder. Experts are often necessary in litigation to provide professional opinions on complex issues in a wide range of cases. In any family law case, one of the strategic decisions a client must make with their attorney at the outset is whether to hire an expert. The following are some of the experts that parties to a family law case should consider hiring depending upon the issues in your family law case: Forensic accountant: Investigates whether a party has hidden assets and income, traces parties’ assets to nonmarital sources such as premarital assets, inheritance or gifts, or rebuts claims by the opposing party that certain property is nonmarital or marital. Business evaluation expert: Determines the economic value of a business owned by one of the parties in a divorce case so that the Court can consider the value of the business in the distribution of marital property. Real estate appraiser: Determines the value of the marital home, vacation homes, commercial properties owned by the parties, and any other real property that may be subject to distribution. Custody evaluator: Makes recommendations as to legal and physical custody of children after interviewing the parties, third parties, and the children, observing the parties and children, reviewing relevant documents, and in some cases performing psychological testing. Vocational expert: In cases involving claims for alimony, testifies as to the ability of a party to obtain and maintain employment and the amount of income the party is capable of earning. Attorneys’ fees expert: A lawyer who has substantial experience practicing family law and opines as to the reasonableness of attorneys’ fees incurred by the parties for the purpose of obtaining an award of attorneys’ fees or opposing a claim for attorneys’ fees. Courts often impose deadlines for the designation of experts early in the case. Failure to designate an expert by the court-ordered deadline can result in a party not being permitted to have an expert testify. An expert will explain complex issues to the Court in the presentation of your case and can rebut the opinions of experts hired by the opposing party. An expert can also provide valuable advice during the discovery process, preparation for trial, and settlement negotiations. That is why it is so important to retain an expert in accordance with the court’s deadline and have the expert begin working on the case. It also helps to have an attorney who knows the expert, has worked with the expert in the past and is confident that the expert will provide compelling testimony and opinions that will be accepted by the court at trial.
May 6, 2022
