Category: Family Law
Clear ResultsFamily Law
Saying “I Do” Without Saying Goodbye to Family Wealth
For high‑net‑worth individuals, trusts and family wealth structures are often central to long‑term financial planning. A common question in divorce is whether these assets can be protected from equitable distribution, particularly when a prenuptial agreement (“prenup”) is in place. The answer is nuanced and depends on several interrelated factors, including how the trust is structured, how it is used during the marriage, and the strength of the prenup itself. A well-drafted prenuptial agreement is one of the most effective tools for shielding trust assets from division. Prenups can clearly define: 1) what constitutes separate vs. marital property, 2) how trust interests are treated, and 3) whether income or distributions from a trust remain separate or become marital. If the agreement explicitly identifies trust assets, and any appreciation or income derived from them, as separate property, courts are often inclined to enforce those provisions, provided the prenup is valid (i.e., entered into voluntarily, with full disclosure, and without unconscionability). However, a prenup is not absolute. Courts may scrutinize it carefully, especially in long-term marriages or where enforcement would produce a significantly unfair outcome. Even with a prenup, courts look beyond the document to how the trust functions in practice. Discretionary trusts (where distributions are controlled by a trustee) are more likely to remain protected because the beneficiary spouse does not have a guaranteed right to the assets. Mandatory or vested interests (where the beneficiary has a clear right to receive income or principal) are more vulnerable to being considered marital property. If a spouse has significant control over the trust, such as serving as trustee or having the power to direct distributions, courts may view the trust as a personal asset rather than a protected structure. Even protected assets can lose their separate character if they are commingled with marital property. Examples include: Using trust distributions to fund joint accounts or marital expenses Retitling assets into joint names Relying on trust funds to support the marital lifestyle A prenup can mitigate this risk by specifying that commingling does not convert separate property into marital property, but courts may still examine the facts closely. If trust income is regularly used to support the couple’s lifestyle, a court may consider that income, if not the principal, when determining: spousal support (alimony), child support, overall fairness in property division. Even when a prenup successfully shields trust principal from division, there are important limitations: Support Obligations: Courts may still consider trust income or access to funds when setting alimony or child support. Public Policy Considerations: A court may refuse to enforce provisions that would leave one spouse in extreme financial hardship. Validity Challenges: Prenups can be challenged on grounds such as insufficient disclosure or coercion. To increase the likelihood that trusts and family wealth structures will be shielded: Draft a detailed prenuptial agreement that clearly addresses trust assets, income, and appreciation Maintain strict separation between trust assets and marital property Avoid excessive control over trusts where possible (e.g., consider independent trustees) Document intent and usage of trust distributions carefully Coordinate estate planning and family law strategy, ensuring consistency between trust documents and the prenup A prenuptial agreement can significantly enhance the protection of trusts and family wealth structures in the event of divorce, but it is not a guarantee. Courts look at both the legal framework and the real-world handling of assets during the marriage. For wealthy individuals, the most effective strategy is a combination of careful drafting, disciplined asset management, and aligned legal planning across trust and marital agreements.
July 8, 2026
Family Law
When One Parent Refuses: Getting a Child’s Passport for Summer Travel
Planning international travel with your child can quickly become complicated if your ex-partner refuses to consent to a passport. Under U.S. law, children under 16 generally need both parents’ permission to obtain a passport. Without it, the application is typically denied. What Happens When a Divorced Parent Says No? If parents share joint legal custody, one parent cannot usually get their child a passport. Both parents must consent, however, when disagreements arise, the issue often requires court intervention. A parent seeking travel can file a motion asking the court to: allow the passport application without the other parent’s consent, require the other parent to sign, and/or approve specific travel plans. How Courts Decide Judges focus on the child’s best interests, considering factors like: The purpose and length of the trip The destination and safety concerns Whether travel interferes with the other parent’s time Risk the child may not return Whether reasonable details and safeguards are in place If the trip is well-planned and low-risk, courts often allow it. Courts may order the non-consenting parent to cooperate or permit the passport application without them. The court may also require travel details in advance or adjust parenting time to compensate the other parent. Planning Ahead These disputes can take time to resolve, so early planning is critical. Providing detailed information and attempting to work things out before going to court can sometimes avoid litigation altogether. While one parent’s refusal can delay travel, it doesn’t always stop it. Courts have the authority to step in and allow a passport when international travel is appropriate and in the child’s best interests.
July 7, 2026
Family Law
Understanding Financial Coercion in Family Law Cases
Representing a financially dependent spouse in a family law case often involves more than simply litigating support or property division. In many cases, the dependent spouse may also be experiencing financial coercion, which is a form of control in which one party uses money, access to resources, or economic pressure to dominate or manipulate the other spouse during the marriage or throughout the litigation process. Common Forms of Financial Control in Marriage Financial coercion can take many forms. One spouse may control all bank accounts, restrict access to funds, monitor spending, cancel credit cards, refuse to provide financial information, provide limited spending budgets, or threaten to stop paying household expenses unless certain demands are met. In some situations, the dependent spouse may have little knowledge of the family’s finances because the other spouse historically managed all income, investments, taxes, and accounts. Legal Challenges Faced by Financially Dependent Spouses These dynamics can place the dependent spouse at a severe disadvantage during divorce litigation. A spouse without access to money may struggle to retain counsel, secure housing, pay experts, or even meet daily living expenses while the case is pending. Fear of financial instability can also pressure a dependent spouse into accepting unfair settlement terms. How Courts Address Economic Imbalance During Divorce Family law courts increasingly recognize that economic control can affect the fairness of the litigation process itself. Requests for pendente lite support, attorney’s fees, temporary use and possession of the marital home, and orders requiring financial disclosures may become critical tools in leveling the playing field. Early intervention is often essential to stabilize the dependent spouse financially before meaningful negotiations can occur. Importance of Financial Documentation and Evidence Documentation is particularly important in these cases. Bank records, account access history, spending restrictions, hidden assets, sudden transfers of funds, and communications involving financial threats may all become relevant evidence. Attorneys may also need to work closely with forensic accountants or financial experts when there are concerns about concealed income, business manipulation, or dissipation of assets. Emotional and Psychological Impact of Financial Coercion Beyond the legal and financial issues, financial coercion frequently has a significant emotional and psychological impact. Many dependent spouses experience anxiety, fear, embarrassment, or a lack of confidence in making financial decisions independently. Effective representation often requires patience, education, and helping the client regain a sense of stability and autonomy throughout the litigation process. Advocating for Fairness and Financial Independence Ultimately, representing a financially dependent spouse involves more than seeking support payments or dividing assets. It often requires addressing an imbalance of power that has existed throughout the relationship and ensuring that the dependent spouse has a fair opportunity to participate in the legal process and rebuild financial independence moving forward.
June 8, 2026
Family Law
Protective Orders: Criminal Lawyer or Family Lawyer
It may be best to involve a criminal defense attorney in a protective order case because the consequences often extend far beyond family court. Although protective order proceedings are technically civil matters, they can create significant criminal, constitutional, and long-term legal issues. Hidden Criminal Risks in Protective Order Cases Allegations made during a protective order hearing may expose a person to potential criminal investigation or prosecution. Statements made under oath in a protective order proceeding can later be used in related criminal cases involving assault, harassment, stalking, or violations of court orders. A criminal attorney is trained to evaluate those risks and help avoid admissions that could later expose criminal exposure. In addition, protective orders can carry serious restrictions that resemble criminal sanctions. A final order may require someone to leave their home, lose firearm rights, avoid contact with family members, or face immediate arrest for any alleged violation. Violating a protective order can itself become a criminal offense, even if the underlying family dispute remains unresolved. Protective orders can affect related family law matters, including custody and visitation. Findings of abuse may later influence custody decisions under the “best interests of the child” standard. Because of that overlap, coordination between family law strategy and criminal defense strategy is often critical. Having a family lawyer represent you at a protective order hearing may appear as a posturing tactic to the judge in your family law case. There are also collateral consequences that many people do not initially consider. A protective order can influence employment, professional licenses, military status, security clearances, immigration matters, and housing opportunities, which may impact a family law case or a criminal matter. In most cases, the best approach involves both a family law attorney and a criminal defense attorney working together. Family law counsel may focus on custody, divorce, and long-term parenting issues, while criminal counsel focuses on avoiding criminal exposure.
June 8, 2026
Family Law
AI is Coming to Divorce Court
Divorce litigation has always been a search for the truth. For decades, divorce attorneys have asked the same fundamental questions: Who owns what property? How should assets be valued and divided? What income is available for support? And when children are involved, what arrangements truly serve their best interests? Throughout the years, those questions have not changed. What has changed is the technological landscape in which they are being asked. Artificial intelligence (“AI”) is now entering nearly every profession, and the practice of matrimonial law is no exception. While AI cannot replace the judgment, discretion, and ethical responsibilities of experienced attorneys and judges, it is beginning to influence how divorce cases are investigated, prepared, and litigated. Three developments, in particular, suggest that divorce law is entering a new technological era: the use of AI to uncover financial information, the emerging risk of fabricated digital evidence, and the increasing tendency of litigants themselves to turn to AI for guidance. The Search for Hidden Assets One of the oldest battles in divorce litigation is the search for undisclosed assets. For as long as equitable distribution and community property regimes have existed, spouses have attempted to conceal income, transfer funds into undisclosed accounts, or minimize the apparent value of businesses and investments. In complex cases, uncovering the true financial picture can require months of discovery and painstaking review of bank records, tax returns, and corporate documents. AI is beginning to assist in this process. AI-driven financial analysis tools can review vast quantities of financial data and identify unusual patterns that might otherwise escape detection. These systems can flag repeated transfers to unfamiliar accounts, discrepancies between reported income and actual spending, or unexplained fluctuations in business revenues. In cases involving closely held businesses or high volumes of transactions, AI can help identify areas that warrant closer scrutiny far more quickly than traditional manual review. For example, recently a case concerning a professional practice with thousands of annual transactions, used AI-assisted analysis which detected a recurring pattern of transfers to an entity, newly formed shortly before the commencement of divorce proceedings — an anomaly that justified targeted discovery and expert evaluation. Still, technology alone cannot resolve these issues. AI can identify anomalies, but determining whether those anomalies reflect legitimate business activity or intentional concealment requires professional judgment. Forensic accountants, financial experts, and experienced matrimonial attorneys remain indispensable in interpreting results and presenting them persuasively to the court. AI has become — and with constant innovation will continue to be — a powerful investigative tool. Yet it can never substitute for the human capacity to perceive and interpret the subtle factual nuances of a case, apply the law accordingly, and ultimately serve as the finder of fact. The Emerging Threat of Artificial Evidence If AI can help uncover the truth, it can also be used to manufacture it. Courts across the country are beginning to confront the growing phenomenon of AI-generated content, often referred to as “deepfakes.” With increasingly sophisticated software, it is now possible to create highly realistic audio recordings, text messages, photographs, and even video footage depicting events that never occurred. In the emotionally charged context of divorce litigation, the risk of misuse is significant. A fabricated text message purporting to show financial misconduct, or a manipulated audio recording suggesting threats or coercion, could be introduced as evidence. Even if ultimately disproven, such materials may complicate litigation, increase costs, and prolong disputes, particularly at early stages when courts are making interim decisions about custody, support, or exclusive occupancy of the marital residence. Family law practitioners have always confronted questions of authenticity, but AI raises the stakes considerably. As digital evidence becomes easier to fabricate, courts will likely require more rigorous methods of authentication. Judges, attorneys, and forensic experts will increasingly need to assess not only what evidence appears to show, but how it was created, preserved, and verified. The law of evidence has always evolved alongside technological change. AI is likely to accelerate that evolution. When Litigants Turn to Artificial Intelligence Another development is already underway, though often less visible. Individuals contemplating divorce increasingly turn to AI tools to educate themselves about the legal process before consulting an attorney. AI systems can explain general legal concepts, summarize procedures, and even generate draft settlement proposals. I experienced this first-hand when moments after sending a proposed settlement offer to my client, she ran it through ChatGPT and was advised that the proposed offer was suitable. In some respects, this trend may be beneficial. Divorce is often intimidating and confusing, and access to basic information may help individuals better understand their rights and obligations. At the same time, divorce law is highly nuanced and intensely fact specific. Outcomes often depend on subtle distinctions in financial circumstances, statutory interpretation, and judicial discretion, factors that cannot be reduced to generalized responses. While AI can provide information, it cannot provide strategy, advocacy, or judgment. Those functions remain the province of experienced legal professionals who understand not only the law, but how courts apply it in practice. New Technology, Old Questions, and the Future of Matrimonial Litigation AI will almost certainly change the manner in which divorce cases are prepared and litigated. Financial investigations may become faster and more data-driven. Evidentiary standards may tighten in response to synthetic digital content. Clients may arrive at initial consultations better informed, and sometimes misinformed, by AI-generated advice. Yet the essential work of divorce law will remain stubbornly human. Lawyers must still exercise judgment, advise clients through emotionally charged decisions, and advocate for fair outcomes. Judges must still evaluate credibility, weigh evidence, and craft equitable resolutions for families navigating a profound personal change. In Closing As AI becomes more embedded in the divorce process, courts and practitioners will need to adapt thoughtfully, embracing technology where it enhances accuracy and efficiency, while remaining vigilant against its misuse. The future of matrimonial litigation will be shaped not by machines alone, but by the wisdom with which legal professionals choose to use them.
May 5, 2026
Family Law
When “I Do” Turns Into “You Owe”
Marriage is a partnership — but under the Internal Revenue Code, it is also a financial alliance with serious consequences. Only spouses can file a joint tax return under I.R.C. § 6013(a). And when they do, they are jointly and severally liable for the full tax bill. Not half; not a proportional share; but the whole thing. If taxes aren’t paid, the IRS can track down or sue either spouse for 100% of the debt. For many couples, filing jointly offers lower taxes. But when a return has errors, omissions, or unpaid balances, a joint filing can suddenly become a source of unintentional, and profoundly unfair, exposure. Innocent Spouse Relief enables a “requesting spouse” to obtain relief from tax obligations that rightfully belong to the other spouse. I.R.C. has three pathways for relief. § 6015: (i) Traditional Relief; (ii) Separation-of-Liability Relief; and (iii) Equitable Relief. With each of these paths, however, there is a threshold rule: there must be a joint return. Traditional Relief Traditional relief is appropriate when a joint return includes an understated tax liability resulting from errors made by the other spouse’s unreported income received or improper deductions or credits claimed. In the real world, scenarios can be shockingly audacious: the deduction of business expenses never paid; nondeductible state fines disguised as business write-offs; and personal pet costs described as “home office security.” To be eligible, the requesting spouse must demonstrate that they didn’t know and had no reason to know about the understatement when they signed the return and that it would be inequitable to hold them responsible for 50% of the liability. Traditional relief is an issue for the spouse who legally signed the return in good faith and did not know the numbers were erroneous. The alleged innocent spouse running around using the other spouse’s corporate credit card to pay for household groceries, children’s clothing, and private school tuition can claim to be “innocent.” The request for Traditional relief typically must be made within two years of the IRS beginning collection activity. Separation-of-Liability Relief Separation-of-Liability Relief can be used by spouses whose marriage is ending or has ended. For this relief, a spouse wishing to claim is required to be divorced, legally separated, or widowed; have lived apart from the other spouse for at least 12 months before filing the request. The timing for relief under Separation-of-Liability Relief matters, too. The election must be made within two years of the start of collection activity by the IRS. The IRS can use Separation-of-Liability Relief to appropriately and equitably allocate the deficiency between the spouses based on who was responsible for its occurrence. Equitable Relief Sometimes, a spouse doesn’t qualify neatly under the technical rules of Traditional or Separation-of-Liability Relief. Equitable relief is available for hard, more human situations where the rules lack the flexibility to capture unfairness. To be eligible, the requesting spouse needs to have filed a joint return, be ineligible under the other two provisions, file a timely claim (generally within the 10-year collection period), not been involved in fraud, and not engaged in fraudulent asset transfers. Equitable relief exists even if a piece of liability is technically attributable to the requesting spouse, especially in situations involving abuse, financial control, or coercion. The IRS assesses all facts and circumstances, no single factor prevails. Marital status Economic hardship Knowledge or reason to know the tax would not be paid Legal obligations in a divorce decree Whether the requesting spouse significantly benefited Subsequent tax compliance Mental or physical health In cases of abuse, especially when a spouse controlled finances or instilled fear of retaliation, the scales can tilt heavily in favor of relief. Conclusion A joint tax return is not a piece of paper. It’s a legal imperative with actual repercussions. It's a wise financial move to consider. For some, it becomes an unpredictable liability tied to acts they didn't take in the first place and sometimes didn't even know were possible. Innocent Spouse Relief is there to correct that. It understands that fairness is important. And under good circumstances, it offers a powerful remedy for those who signed in trust but were stuck with the bill. Marriage can be shared, but injustice does not have to be.
April 21, 2026
Family Law
What Happens to Debt in Divorce if a Spouse Files Bankruptcy?
Divorce and bankruptcy are both stressful on their own, but when they overlap, things can become especially complicated. Understanding how these two legal processes interact is critical, particularly when dividing debt. Divorce cases are handled in family court, where a judge determines how marital property and debt should be divided. Bankruptcy, on the other hand, is handled in federal court and focuses on eliminating or restructuring debt. Because these are separate legal systems, one does not automatically control the other, but bankruptcy can significantly impact the outcome of a divorce. In many states, debts incurred during marriage are generally considered marital debt, regardless of whose name is on the account. The court may assign responsibility for certain debts to one spouse, but bankruptcy may impact things. If your spouse files for bankruptcy, especially Chapter 7 or Chapter 13, it may affect debts addressed in your divorce. For instance, if your spouse is assigned a marital debt in the divorce but later files for bankruptcy, they may be able to discharge (eliminate) their obligation to pay. Even if the divorce decree says your spouse must pay a debt, creditors are not bound by that order. If your name is also on the account, the creditor may still pursue you for payment. If your spouse discharges the debt in bankruptcy, the creditor may turn to you for full payment, even if the divorce said otherwise. Not all debts may be discharged through bankruptcy. Under federal law, certain divorce-related debts, like child support, alimony/spousal support, and some other obligations arising from a divorce agreement, may not be dischargeable. The timing of a bankruptcy filing is also important. Filing for bankruptcy before filing for divorce may simplify the divorce by eliminating certain debts ahead of time, or it may appear fraudulent and complicate the matter. A bankruptcy filing can pause parts of the divorce proceedings, particularly those involving property division. A spouse may try to discharge debts assigned to them, potentially shifting financial responsibility back to the other spouse. If bankruptcy is a possibility in your divorce, you should discuss strategies with your family and bankruptcy attorneys, such as closing joint accounts, refinancing/transferring debt into one name when possible, and seeking indemnification clauses in the divorce agreement. While a divorce decree may assign responsibility for debt, it does not eliminate your liability to creditors. If your spouse files for bankruptcy, you could still be on the hook for joint debts, regardless of what your divorce agreement says.
April 8, 2026
Family Law
The Most Common Lies Spouses Tell Their Divorce Lawyer
People rarely walk into a divorce lawyer’s office intending to lie. What they usually bring instead is fear—fear of judgment, fear of consequences, fear that telling the full truth will somehow make everything worse. So they edit. They minimize. They leave things out. And they tell themselves it doesn’t matter; however, it almost always does. One of the most common things clients say early on is some version of “I’ve told you everything.” They believe it at the time. But as the case progresses, details start to surface—an old relationship that wasn’t quite over, a text thread they forgot about, a financial account they assumed was irrelevant, an incident they didn’t think would come up again, or a monetary transfer they didn’t think would be noticed. Divorce has a way of dragging the past into the present, whether you’re ready for it or not. When information emerges late, it puts your attorney on the defensive instead of in control, and that shift can be costly. Another frequent claim is that money doesn’t matter. Clients say they just want out, that they’re willing to walk away from assets or support to keep the peace. That mindset is usually emotional, temporary, and short-lived. Once the dust settles and real life resumes—housing costs, childcare expenses, retirement planning—that earlier indifference often turns into regret. The law doesn’t assume you’ll feel the same way six months from now, which is why your lawyer can’t afford to either. Many people also present their divorce as a story with a clear hero and villain. They insist they’ve done nothing wrong and that all the blame lies with the other spouse. While that narrative may feel emotionally satisfying, it rarely aligns with reality or how judges, mediators, and evaluators see cases. Family court isn’t about moral perfection. It’s about credibility. When someone claims absolute innocence, it often signals that there’s more beneath the surface, and opposing counsel is very good at finding it. Financial honesty is another area where clients often convince themselves they’re being truthful while still withholding information. Money moved before filing, cash withdrawals, side income, business perks, cryptocurrency, or funds held “temporarily” by family members are frequently dismissed as insignificant or unrelated. But financial disclosures are sworn statements, and inaccuracies, intentional or not, can damage a case far more than the underlying financial issue ever would. Then there’s digital behavior. Clients routinely downplay how much they’ve accessed their spouse’s phone, email, or social media accounts. They assume that if the information exists, it must be fair game. But how evidence is obtained matters just as much as what it shows. Illegally accessed material can be excluded and can even create legal exposure for the person who obtained it. When a lawyer doesn’t know the full story behind the evidence, they can’t properly assess the risk. Parents often tell their attorneys that the children are “fine.” Sometimes that’s wishful thinking. Sometimes it’s an attempt to appear cooperative or resilient. But children talk to teachers, to therapists, to friends, and sometimes directly to the court through evaluators. Minimizing concerns doesn’t protect children, and it can make a parent appear disengaged or unaware of what’s actually happening. Dating during divorce is another subject where honesty tends to falter. Clients insist they aren’t seeing anyone, or that it’s not serious, or that it has nothing to do with the case. In reality, new relationships can affect custody dynamics, financial claims, and settlement negotiations, especially if children are involved or marital funds are being spent. And these relationships almost always come to light. Perhaps the most deceptively loaded statement clients make is that they just want things to be “fair.” Fair, however, is a deeply personal concept, not a legal one. Clinging to a personal sense of fairness often leads to prolonged litigation, unrealistic expectations, and mounting legal fees. The law doesn’t divide assets or assign responsibility based on who feels more wronged. It relies on statutes, evidence, and precedent. Clients lie—or half-lie—not because they’re bad people, but because divorce is uncomfortable and exposing. The irony is that these small acts of self-protection usually have the opposite effect. They limit an attorney’s ability to plan, anticipate, and negotiate effectively. They increase costs, delay resolution, and weaken outcomes. A divorce lawyer isn’t there to judge you. They’re there to protect you. But they can only do that with the full picture, even when parts of it are embarrassing, messy, or inconvenient. In divorce, the truth almost always comes out. The only real question is whether it comes out early enough to work in your favor.
March 20, 2026
Family Law
In Depth Crypto Secrets and Divorce: Valuing Hidden Wealth in New York Splits
As cryptocurrency moves from the margins of finance into the mainstream, matrimonial practitioners are increasingly encountering digital assets in divorce proceedings. Assets such as Bitcoin, Ethereum, and other blockchain-based tokens, once considered speculative investments, now appear regularly within marital estates. The presence of cryptocurrency in a divorce raises issues that traditional financial assets rarely present. These assets exist outside conventional banking systems, are often held in decentralized digital wallets, and may be transferred or stored in ways that are not immediately apparent from traditional financial records. As a result, identifying, valuing, and dividing cryptocurrency can present unique challenges during equitable distribution proceedings. Under New York law, cryptocurrency is generally treated as property subject to equitable distribution if acquired during the marriage. However, its technological structure, market volatility, and potential for concealment often complicate discovery and valuation. For matrimonial attorneys and litigants alike, understanding how courts approach digital assets has become an increasingly important component of modern divorce practice. Understanding Cryptocurrency Cryptocurrency is a digital asset that uses cryptographic technology and decentralized networks to verify and record transactions. Unlike traditional currencies issued by governments or central banks, cryptocurrency operates on a distributed ledger known as a blockchain. The blockchain functions as a permanent digital record of transactions maintained across a network of computers. While these transactions are publicly recorded, the individuals behind them are typically identified only by alphanumeric wallet addresses rather than by name. This structure creates a level of pseudonymity that can complicate efforts to identify ownership. Control of cryptocurrency is determined by possession of private cryptographic keys associated with a digital wallet. Whoever holds the private keys effectively controls the asset. Cryptocurrency may be stored through online exchanges, mobile wallets, hardware wallets, or offline storage devices, often referred to as “cold storage.” While the technology underlying cryptocurrency offers transparency because transactions are permanently recorded on the blockchain, it also creates practical challenges when these assets must be addressed in a matrimonial context. Cryptocurrency as Marital Property in New York New York is an equitable distribution state governed by Domestic Relations Law §236(B). Under this framework, marital property is distributed in a manner the court considers fair under the circumstances, though not necessarily equal. For purposes of equitable distribution, cryptocurrency is generally treated as property in the same manner as other financial investments. Digital assets acquired during the marriage are therefore typically considered marital property subject to distribution. Conversely, cryptocurrency acquired prior to the marriage, or received individually by gift or inheritance, may be considered separate property, provided it has not been commingled with marital assets. Practitioners are increasingly encountering cases where one spouse began investing in digital assets years before the marriage, but continued trading during the marriage using marital funds. In those circumstances, careful tracing is often required to determine what portion of the asset may remain separate and what portion may be marital. Discovery and Identification of Cryptocurrency Perhaps the most significant challenge in cases involving cryptocurrency is identifying whether such assets exist in the first place. Traditional financial accounts generate regular statements and leave clear documentary trails. Cryptocurrency, by contrast, may be stored in decentralized wallets that are not tied to any financial institution. As a result, the existence of these assets may not be readily apparent from standard financial disclosures. Ownership of cryptocurrency is not determined by whose name appears on an account, but rather by who controls the private keys associated with the digital wallet. A spouse who controls those keys effectively controls the asset. For this reason, discovery in cases involving cryptocurrency often requires a detailed examination of financial records. Attorneys frequently review bank and credit card records for transfers to cryptocurrency exchanges such as Coinbase, Binance.US, Kraken, Uphold, or Gemini, as well as unexplained withdrawals or transfers that may indicate digital asset purchases. Common discovery tools include subpoenas to exchanges, requests for wallet addresses and transaction histories, and forensic analysis of electronic devices and financial accounts. Although cryptocurrency is sometimes perceived as anonymous, transactions recorded on the blockchain are permanent and publicly available. When analyzed by professionals familiar with blockchain technology, these records can often reveal patterns of transactions and help trace the movement of digital assets. In several recent matters handled by the New York Supreme Court, the Court has permitted expanded financial discovery when credible evidence suggested undisclosed digital asset holdings. As with other financial assets, the failure to disclose cryptocurrency may result in sanctions, adverse inferences, or adjustments to equitable distribution. Valuation Considerations Once cryptocurrency has been identified as part of the marital estate, determining its value presents additional challenges. Cryptocurrency markets are well known for their volatility. Prices may fluctuate dramatically within hours or days, which can complicate the valuation process. In New York divorce proceedings, courts may value marital property as of the date of commencement of the action, the date of trial, or another date deemed equitable under the circumstances. Given the volatility of digital assets, the selection of the valuation date can significantly affect the final distribution. Practitioners often retain financial experts to analyze historical pricing data from major exchanges and determine a reliable fair market value. In cases involving substantial holdings, experts may calculate average pricing over a defined period in order to minimize the impact of short‑term market fluctuations. Methods of Distribution Once cryptocurrency has been identified and valued, the parties or the court must determine how the asset will be distributed as part of equitable distribution. Several approaches are commonly used. In‑Kind Division One option is to divide the cryptocurrency itself between the parties. Each spouse receives a proportionate share of the digital asset. While this allows both parties to share in future gains or losses, it also requires both individuals to maintain secure digital wallets and understand how to manage the asset. Buyout or Offset In many cases, one spouse retains the cryptocurrency while the other receives an offsetting asset of comparable value, such as cash or additional equity in the marital residence. This approach is often preferred when only one spouse was actively involved in managing digital investments during the marriage. Liquidation Another option is to sell the cryptocurrency and divide the proceeds. This approach eliminates the uncertainty associated with price volatility, but may create tax consequences depending on the asset’s appreciation and holding period. Concealment Concerns The decentralized nature of cryptocurrency can make it easier for individuals to attempt to conceal assets during divorce proceedings. Digital assets can be transferred rapidly between wallets or across exchanges in ways that may initially appear difficult to trace. In some instances, individuals attempt to obscure transaction histories by transferring assets through multiple wallets or converting them into privacy‑focused tokens. Despite these challenges, blockchain technology can also work in favor of investigators. Because blockchain transactions are permanently recorded, forensic specialists are often able to reconstruct transaction histories and trace the movement of funds. In practice, experienced matrimonial attorneys are increasingly working with forensic accountants and blockchain analysts to determine whether undisclosed digital assets exist. Tax Implications Cryptocurrency also raises important tax considerations in divorce proceedings. The Internal Revenue Service treats cryptocurrency as property rather than currency. As a result, selling cryptocurrency to divide proceeds may generate capital gains taxes depending on the asset’s cost basis and holding period. Transfers of cryptocurrency between spouses incident to divorce may qualify for non‑recognition of gain under federal tax law. However, the receiving spouse generally assumes the original cost basis of the asset, which can create tax implications when the asset is later sold. Accordingly, tax consequences should be carefully evaluated when structuring any settlement involving digital assets. The Role of Experts As cryptocurrency becomes more prevalent in marital estates, the role of financial and forensic experts in matrimonial litigation continue to expand. Professionals experienced in blockchain analysis and digital asset valuation can assist attorneys and courts in identifying hidden assets, tracing transaction histories, and determining fair market value. In complex cases involving substantial digital holdings, these experts often provide the evidentiary foundation necessary for courts to confidently include digital assets within the marital estate. Conclusion By 2030, the global cryptocurrency market is expected to surpass $3 trillion in value. As digital assets continue to expand within personal and marital financial portfolios, understanding how these holdings are identified, valued, and equitably distributed in a New York divorce has become not merely important, but essential. Coin Market Cap is an online platform that provides data on the cryptocurrency market.
March 13, 2026
Family Law
Cryptocurrency in Divorce: How Courts Handle Bitcoin, Valuation, and Disclosure
As cryptocurrencies become more common, Bitcoin is increasingly showing up in divorce cases. Unlike traditional bank accounts, dividing Bitcoin involves unique issues related to valuation, transfer, and tax consequences. In most states, including Maryland, property acquired during the marriage is generally considered marital property, regardless of how it is titled. If Bitcoin was purchased during the marriage using marital funds, it is typically subject to division. If it was acquired before the marriage, some or all of it may be non-marital property. However, any increase in value during the marriage may still be considered when dividing assets. Bitcoin’s price fluctuates significantly. Courts must determine a valuation date, which could be the date of separation, filing, or trial, depending on the jurisdiction. Because of volatility, the timing of valuation can meaningfully affect the outcome. Some settlements divide the actual Bitcoin amount rather than assigning a fixed dollar value to account for price swings. There are three common methods to dividing Bitcoin: 1) Transfer in-kind: one spouse transfers a portion of the Bitcoin directly to the other; 2) Sell and divide proceeds: the parties agree to liquidate the Bitcoin and the cash is split, and 3) Offset with other assets: one spouse keeps the Bitcoin, and the other receives different marital assets of equal value. Each method has tax and risk considerations that should be analyzed and assessed. Cryptocurrency can raise concerns about hidden assets, especially when wallets or exchanges are not fully disclosed. Courts take nondisclosure seriously. Bitcoin is also treated as property for tax purposes. Selling it may trigger capital gains, so the tax impact should be considered when structuring any division. While Bitcoin is divisible in divorce, its volatility and tax implications make it more complex than dividing traditional assets. Careful planning and clear settlement terms are essential to ensure a fair and enforceable outcome.
March 10, 2026
Family Law
Public vs. Private School in Divorce: Who Decides and Who Pays?
When parents divorce, disagreements about whether a child should attend public or private school are common. The answers to “who decides?” and “who pays?” depend largely on custody and the family’s financial circumstances. Who Decides? School choice is part of legal custody, which governs major decisions about things like a child’s education, medical care, and religion. If parents share joint legal custody, neither parent can unilaterally choose a private school or switch schools without the other’s agreement. If they cannot agree, a judge may decide based on the child’s best interest. Maryland courts apply guidance from cases such as Taylor v. Taylor and Montgomery County Dept. of Social Services v. Sanders, focusing on stability, the child’s academic history, parental involvement, and practical considerations like distance and scheduling. If one parent has sole legal custody, that parent typically has authority to decide the school, although the other parent may challenge the decision if it is harmful or unreasonable. Who Pays for Private School? Even if a private school is chosen, tuition is not automatically required. Courts examine factors like whether the child historically attended private school, whether the family can afford the expense, and whether private education is consistent with the child’s best interest. Private school tuition is often treated as an additional child-related expense and may result in child support adjustment. Courts are more likely to require payment if the child attended private school during the marriage and the parents have the financial ability to continue it. The Bottom Line Educational decisions in divorce should not be about what one parent prefers; instead, they should be about what serves the child’s best interests while remaining financially realistic. If you are facing a dispute about school choice, early legal guidance can help you protect both your parental rights and your financial stability.
March 9, 2026
Family Law
Flirting with Divorce: Social Media’s Silent Role in Broken Vows
Valentine’s Day is marketed as a celebration of love—roses, cards, public tributes, and carefully curated posts declaring devotion. Yet before posting a perfectly worded caption, sending a private message, or striking up a new connection online, whether accidentally or intentionally, it is worth pausing to consider the consequences. What may feel harmless in the moment can quietly alter emotional boundaries, invite comparison, or create intimacy that no longer belongs outside the marriage. There are no longer just two people in today’s marriages. There is a third, non-human, perhaps thought to be non-threating “person”—social media. However, this third entity is silent, omnipresent, and often more dangerous than any physical affair. Social media isn’t just a distraction; it has become a third party in relationships, quietly fueling suspicion, jealousy, and in many cases divorce. What often begins as harmless scrolling—liking a friend’s post, following a coworker’s stories, sending a meme—can quickly spiral into something far more serious. Emotional affairs frequently start online, where boundaries are blurry, and temptation is constant. A spouse may confide in someone over direct messages, flirt through private chats, or even maintain a hidden online persona. By the time the other partner notices, trust has often already been compromised. Scrolling through curated snapshots of other people’s lives only makes matters worse. Vacations, date nights, and seemingly perfect relationships broadcast online can create an insidious sense of dissatisfaction. Suddenly, your own marriage feels dull in comparison, and small online interactions can take on disproportionate emotional weight. A partner’s “likes” on someone else’s posts or private exchanges with friends can sting more than any overt betrayal because they tap into feelings of neglect and inadequacy. Social media doesn’t merely tempt, it reshapes perceptions of your spouse and your life together, creating tension that can escalate into irreparable conflict. Secrecy is easy in the digital age. Hidden accounts, disappearing messages, and private conversations allow people to hide their activities, creating invisible wedges between spouses. Emotional or digital infidelity often goes unnoticed until the damage is severe, leaving a partner blindsided and questioning the foundation of the relationship. Unlike traditional affairs, social media leaves traces, but the subtlety and constant accessibility make it easy to overlook until trust has already crumbled. Even without physical betrayal, these online dynamics are enough to push a marriage toward divorce. Social media may not be the sole cause, but it amplifies existing cracks until they can no longer be ignored. Divorces today are increasingly influenced by these digital pressures. Emotional cheating, jealousy fueled by constant comparison, erosion of intimacy, and secret online lives create a perfect storm that can tear even strong marriages apart. Public interactions on social media—arguments, passive-aggressive posts, or humiliating comments—only escalate tensions further. The very tools that are supposed to connect us instead divide, distracting from real-world intimacy, and creating conflict that often feels impossible to resolve. Couples who recognize the danger and set boundaries, communicate openly, and prioritize real-life connection over digital validation have a chance to survive, but ignoring the problem can have devastating consequences. Social media has become a silent third presence in marriages, observing, tempting, and reshaping relationships in ways that can be fatal to love. In a world dominated by likes, comments, and notifications, the marriage that survives is the one in which the partners choose each other over the digital world. This Valentine’s Day, love is not proven by what is posted, liked, or shared online. It is proven in what is protected. The most meaningful Valentine’s gesture may not be a public declaration at all, but the quiet decision to guard emotional boundaries and invest fully in the relationship that matters most.
February 10, 2026
Family Law
Smart Strategies for Family Law Clients: How to Avoid Common Mistakes and Keep Legal Costs Down
Family law cases — from divorce to custody and property division — can be stressful and costly. However, most expensive problems are preventable. By staying organized, managing emotions, communicating clearly, and following legal advice, clients can greatly reduce stress, avoid common missteps, and keep their legal bills under control. To put these principles into action, the following guide presents practical steps clients can take to minimize fees and strengthen their case. Don’t Let Emotions Drive Legal Decisions Acting out of anger, fear, or resentment leads to unnecessary filings, impulsive decisions, and continued conflict. Strategic, calm decision‑making almost always leads to better outcomes and lower fees. Stay Organized from the Start Disorganization is one of the most expensive and avoidable client mistakes. Providing financial documents, custody calendars, and communications in a clear, organized way saves your attorney significant time and reduces billable hours. Avoid Involving Children in the Conflict Using children as leverage or pulling them into adult disputes harms both the case and the children. Courts prioritize a child’s best interests, and involving them in conflict often backfires emotionally and legally. Be Honest and Transparent About Finances and Facts Hiding assets, withholding information, or changing your story mid‑case severely damages your credibility and forces your attorney to spend extra time on damage control. In serious cases, it can even lead to penalties. Use Social Media Wisely (or Not at All) Posts, photos, and messages often end up in court, and they can hurt your case. Even seemingly harmless content can be misconstrued or taken out of context, requiring additional attorney time to address. Limiting online activity during your case is one of the easiest ways to avoid unnecessary complications. Communicate Efficiently with Your Attorney Poor communication — either too little or too much — wastes time and money. Limit frequent emotional messages. Instead, group questions into a single email and reply promptly to your attorney’s requests. Follow Your Attorney’s Advice (Not Friends’ Stories) Well‑meaning friends often give advice based on their own experiences, which may not apply legally to your situation. Ignoring your lawyer’s guidance or trying to “win small battles” prolongs the case and increases costs. Avoid Unrealistic Expectations or Unnecessary Battles Refusing reasonable compromise, fighting over minor issues, or making decisions without considering long‑term financial consequences creates delays and expenses. Strategic negotiation often leads to better, faster outcomes. Use Lower‑Cost Legal Resources When Appropriate Ask whether certain tasks can be handled by paralegals or support staff at a lower hourly rate. Being attentive of who performs which task can reduce your overall bill. Consider Mediation or Alternative Dispute Resolution Mediation and collaborative law can resolve disputes earlier and at a lower cost than courtroom litigation. These options are especially beneficial when both parties are motivated to reach a fair agreement quickly. Final Thoughts Most family law problems and expenses stem from the same root causes: emotional reactions, disorganization, and poor communication. Clients who stay prepared, follow professional guidance, and seek emotional support outside the legal process tend to reduce their fees and resolve their cases more efficiently. By focusing on long‑range objectives instead of short‑term battles, you can save significant time, money, and stress during an already challenging experience.
January 30, 2026
Family Law
New York Medical Aid in Dying Will Become Law After Decade-Long Debate
After more than a decade of legislative debate, New York is poised to join a growing number of jurisdictions recognizing a terminally ill patient’s right to medical aid in dying. Governor Kathy Hochul recently reached an agreement with the New York State Senate on the Medical Aid in Dying Act (“MAID”), clearing the final obstacles to enactment. The bill, which had already passed the Assembly following a lengthy and emotional debate, will be signed into law later this month with agreed-upon amendments and will take effect six months after signing. Once implemented, New York will become the eleventh U.S. state, along with the District of Columbia, to codify medical aid in dying for eligible terminally ill adults. Overview of the Medical Aid in Dying Act The MAID Act permits mentally competent adults diagnosed with a terminal illness and a prognosis of six months or less to receive a prescription for life-ending medication. Eligibility is conditioned on strict procedural safeguards designed to ensure voluntariness, capacity, and the absence of coercion. A qualifying patient must personally request medical aid in dying both in writing and orally. Two physicians must independently confirm the terminal diagnosis, prognosis, and the patient’s capacity to make an informed decision. While terminal diagnosis and prognosis are generally clinical determinations, assessments of capacity have historically been among the most contested issues in New York health care and elder law. The law also requires that the request be witnessed by two individuals. Certain parties are expressly prohibited from serving as witnesses, including relatives, individuals entitled to inherit from the patient, health care facility employees, treating physicians, and the patient’s health care proxy or agent under a power of attorney. Additional Guardrails Agreed Upon by the Governor and Legislature As originally passed, the MAID Act included multiple protections for patients and health care providers, including provisions ensuring that participation is voluntary for both physicians and religiously affiliated institutions. As part of the Governor’s agreement with legislative leadership, a series of additional guardrails will be enacted to further safeguard patient autonomy and ensure responsible implementation. These additional protections include a mandatory five-day waiting period between the issuance and filling of a prescription for life-ending medication and a requirement that a patient’s oral request be recorded by video or audio. The agreement also mandates a mental health evaluation by a licensed psychologist or psychiatrist for all patients seeking medical aid in dying. To further guard against undue influence, the law will prohibit anyone who may benefit financially from a patient’s death from serving as a witness or interpreter to the oral request. Medical aid in dying will be limited to New York residents, and the initial physician evaluation must be conducted in person. Religiously oriented home hospice providers will be permitted to opt out of offering medical aid in dying altogether. The agreement also clarifies enforcement, specifying that violations of the statute constitute professional misconduct under the New York Education Law. The six-month delayed effective date is intended to give the Department of Health time to promulgate implementing regulations and allow healthcare facilities to develop compliant policies, procedures, and staff training. Implications and Ongoing Debate Supporters of the MAID Act argue that it provides a compassionate option for terminally ill individuals seeking autonomy and dignity at the end of life. Advocacy organizations point to polling indicating broad public support among New Yorkers. Opponents, including certain religious and disability rights groups, continue to raise concerns about potential pressure on vulnerable populations and the broader ethical implications of physician-assisted death. Although enactment of the MAID Act represents a significant shift in New York law, it is unlikely to settle the debate. Questions surrounding end-of-life decision-making, professional responsibility, and the role of government in matters of life and death will continue to evolve as the law is implemented and tested in practice.
January 16, 2026
Family Law
Penalty Clauses in Prenuptial Agreements: Lessons from the Reported “Cocaine Clause”
Prenuptial agreements have long evolved beyond simple asset division roadmaps. Modern prenups address conduct during marriage, incorporating so-called “penalty” or “incentive” provisions that attach financial consequences to specific behaviors. While these clauses can be powerful planning tools, they also sit at the intersection of contract law, family law, and public policy — an intersection that courts carefully scrutinize. Frequently, penalty or incentive clauses find their way into celebrity prenuptial agreement. Keith Urban is an Australian-American country music performer who has won four Grammys and 15 Academy of Country Music Awards. Nicole Kidman is an Australian-American actress and producer. The couple was married on 25 June 2006 at Cardinal Cerretti Memorial Chapel on the grounds of St Patrick’s Estate, Manly, in Sydney. They have two daughters. Various news outlets are reporting that Keith and Nicole negotiated an extensive, detailed prenuptial agreement before getting married. Interestingly, it appears that one clause of the prenuptial agreement provided a monetary reward to Keith if he maintained his sobriety. Per sources, Keith was to abstain from alcohol and other drugs, including cocaine, and would earn $600,000 per year for doing so. Considering Keith has reportedly been sober since 2006, he could be in line to receive more than $11 million as a result of the alleged prenuptial agreement clause. Penalty clauses in prenuptial agreements generally impose financial consequences if one spouse engages in specified conduct during the marriage. These provisions may be framed negatively (a reduction or forfeiture of benefits upon breach) or positively (financial incentives for compliance.) Common subjects include infidelity, substance abuse, gambling, or other addictive behaviors, and failure to pursue agreed-upon education or employment goals. Other not so common subjects include weight gain, boundaries on family visits— even going so far as to ban specific relatives from making appearances—regulating social media behaviors, clauses protecting pets and money available for their support. A creative mind can find a penalty for the gambit of behaviors. In theory, these clauses allow parties to align financial outcomes with shared values or risk management goals. However, in practice, enforceability is far from guaranteed. Courts typically analyze prenuptial agreements under contract principles, tempered by heightened scrutiny due to the marital context. Penalty clauses raise particular concerns: Public Policy Courts are reluctant to enforce provisions that appear to regulate personal behavior in a way that undermines the marital relationship or encourages divorce. A clause that functions as a punishment rather than a reasonable allocation of risk may be deemed void as against public policy. Fault-Based Restrictions Many jurisdictions have moved away from fault-based divorce regimes. Provisions that effectively reintroduce fault — by attaching severe financial penalties to personal misconduct — may be disfavored. Vagueness and Proof Problems Behavioral clauses often hinge on subjective or difficult-to-prove conduct. What constitutes “use,” “relapse,” or “impairment”? Who bears the burden of proof? Ambiguity can render a clause unenforceable. Unconscionability at Enforcement Even if a clause was reasonable at the time of signing, courts may examine whether enforcement at divorce would be unconscionable given the parties’ circumstances at that time. Whether or not the reported clause would ultimately be enforced, it serves as a useful illustration of how parties attempt to balance compassion, risk allocation, and financial certainty. For practitioners and clients considering penalty clauses in prenups, several best practices emerge: Frame provisions as incentives or risk allocation, not punishment Define conduct precisely and address evidentiary standards Ensure proportionality between the conduct and the financial consequence Confirm full disclosure and independent counsel for both parties Revisit public policy considerations in the relevant jurisdiction Penalty clauses in prenuptial agreements occupy legally sensitive territory. While high-profile examples like the reported Urban–Kidman provision capture public attention, their real value lies in what they teach about careful drafting and realistic expectations. Prenuptial agreements are strongest when they anticipate future uncertainty without attempting to police the marriage itself — a balance that remains as delicate as it is essential. Stay tuned for what interesting penalties may find their way into the potential and highly probable Taylor Swift and Travis Kelce prenuptial agreement.
January 13, 2026
Estates and Trusts
Holiday Harmony for the Sandwich Generation: Boundaries, Delegation, and Self-Care
The holidays arrive each year with that familiar blend of anticipation, nostalgia, and — if we are being honest — a fair amount of anxiety. For members of the Sandwich Generation, that pressure can feel magnified. You are balancing end-of-year school events, office deadlines, holiday parties, travel plans, gift lists, and meal planning while simultaneously managing the medical appointments, emotional needs, and household logistics of aging parents. The season that promises joy often demands more than anyone can give. In the middle of it all, I, like most people, find myself longing for the simpler holidays of childhood, when someone else did the worrying. Yet here we are, stuck in the middle, holding together the needs of multiple generations. If this is your role, you are not failing when it feels overwhelming. You are doing complex emotional and logistical work, and the holidays simply spotlight that reality. This is precisely why remembering three core principles — boundaries, delegation, and self-care — is not just helpful, but essential. These are not indulgences or luxuries, they are survival skills. Boundary-Setting: A Gift to Yourself and Everyone Else The holidays tend to activate our instinct to say “yes”: yes to hosting, yes to attending, yes to keeping every tradition alive. Sandwich Generation members feel even more pressure during the holiday season, as they often operate with already limited bandwidth. Without firm and healthy boundaries, the season can shift quickly from meaningful to unmanageable. Setting boundaries does not make you less generous or less committed to your family; it can mean the difference between sustainable and not. When you clearly identify what you can realistically handle — whether that means declining to host this year, catering instead of cooking, limiting travel, or being upfront about needing to leave an event early — you are honoring your own humanity and limitations. Boundaries also spare your loved ones the silent resentment, not-so-silent commentary, or exhaustion that builds when you push beyond your limits. If set up properly, boundaries can actually improve relationships: they create predictability, reduce friction, and allow you to remain emotionally present. Saying “no” or “not this year” is not a rejection of a person or tradition; it is an act of respect for your energy, your time, and your wellbeing. Delegation: Letting Others Step Into Their Roles Many Sandwich Generation caregivers take pride in being the one who manages everything. This “can do” attitude is essential on many days and certainly comes from a good place. Trying to do all things generally reflects a desire to protect, shepherd, and smooth the path for those who rely on you. But during the holidays, the instinct to take on everything can often become unsustainable. Delegation becomes not merely practical, but vital. And despite what many fear, delegation is not a sign that you are incapable or weak. It is a sign that you recognize the importance of shared responsibility. Whether it means asking siblings to manage a parent’s appointment, inviting older children to take over part of the holiday meal, hiring someone to help with errands, or letting a friend wrap gifts, delegation strengthens your support system. Almost equally important, delegation also allows others to feel invested and helpful: family members and friends often want to contribute but simply do not know how. When you provide concrete tasks, you offer them a pathway to meaningful participation. You are also creating space for your own rest, which ultimately benefits everyone around you. Self-Care: The Foundation That Holds It All Together Pop culture often portrays self-care during the holidays as lighting a candle as you sink into a beautifully drawn bath larger than a bedroom or escaping to a snowy holiday getaway in a picturesque New England village. And while these images reflect the perfect picture, true self-care for the Sandwich Generation often runs deeper and less ideal. Images of self-care instead should be reframed to reclaim the internal resources the season tends to drain. Self-care can be simple: scheduling a quiet hour early in the morning before anyone else wakes up, maintaining your own medical appointments rather than postponing them to accommodate others, stepping outside for a walk, closing your office door for an hour, and giving yourself permission not to attend every gathering. Most importantly, self-care is not something you earn only when everything else is done. It is a non-negotiable part of ensuring you can keep caring for the people who depend on you. Neglecting yourself does not make you more devoted; it makes you depleted. When you protect your own emotional and physical well-being, you are building the resilience the holidays demand and ensuring that you can keep going when the holiday chaos is over. Finding Your Own Pace in a Season of Expectations Being a member of the Sandwich Generation during the holidays means carrying the weight of competing needs — your desire to ensure a magical holiday season for your children and your parents’ needs for care and stability, all while trying to maintain your own sense of center. It is no small task. And yet, with boundaries, delegation, and self-care, you can consciously shape a season that honors both your family and yourself. This year, allow yourself to rewrite some of the holiday scripts. Create new traditions that fit the realities of your life now. Let go of unnecessary pressure and focus on presence instead of perfection. It is possible to protect your energy, share the load, and still create a meaningful season for multiple generations — without losing yourself in the process. The holidays will always be full, but they do not have to deplete you physically and emotionally. By embracing these three principles, permit yourself to experience the season with the steadiness, clarity, and compassion you deserve.
December 15, 2025
Family Law
Trust Structures Under Fire: What High-Net-Worth Divorce Means for Advisers
What began as a high-asset marital dissolution between John and Laura Overdeck has transformed into a wide-ranging challenge to modern trust planning and the professionals who support it. The litigation now reaches beyond the parties’ marriage and calls into question long-held assumptions about the durability of “irrevocable” trusts—particularly when they are funded during the marriage with assistance from lawyers, trustees, or corporate personnel. Regardless of where the facts ultimately fall, the case is already functioning as a bellwether. It forces practitioners, wealth managers, and corporate stakeholders to confront a reality that has been developing quietly for years: in today’s financial landscape, trust structures and corporate entities are no longer insulated from matrimonial disputes merely because they were designed to be. Background According to the pleadings, Laura Overdeck alleges that billions in marital assets were transferred into a series of Wyoming trusts with assistance from Seward & Kissel and, allegedly, certain Two Sigma employees. Her proposed amended complaint adds claims for fraudulent conveyance, aiding and abetting breach of fiduciary duty, civil conspiracy, and professional negligence tied to what she asserts was a deliberate effort to “divorce-proof” assets. If the amendment is granted, the litigation expands dramatically. It becomes not just a battle over distribution, but a test of how far courts may go in scrutinizing complex trust structures created during the marriage. Why High-Net-Worth Divorce Has Escaped the Bounds of Matrimonial Court For decades, matrimonial courts were the default arena for resolving marital property issues. That model worked when most marital estates consisted of real estate, traditional investments, and business interests that were relatively easy to value. That world is gone. Modern high-net-worth estates are built from layered LLCs, private-equity, and hedge-fund interests, carried interest, offshore vehicles, and sophisticated donor-advised and trust networks. Matrimonial courts simply do not have the jurisdictional tools to penetrate these frameworks. The Limits of the Matrimonial Forum Matrimonial courts cannot: compel discovery from non-party trustees, law firms, or corporate insiders adjudicate claims for professional negligence or fraud award damages against third parties unwind complex asset-protection strategies Their jurisdiction is confined to the spouses and the property they can see. The Turn to Parallel Civil and Trust Litigation Ultra-wealthy spouses increasingly turn to civil courts because they offer: extensive document discovery depositions of advisers and corporate personnel forensic transfer analysis fraud-based claims are unavailable in matrimonial court access to internal corporate records and communications Civil litigation becomes the pressure point — often the only means to learn where assets went and who helped move them. The Unique Sensitivity of Business Interests Hedge-fund stakes, founder shares, carried interest, and private-equity interests are typically: illiquid difficult to value highly confidential nested within multiple tiers of entities When a spouse alleges that such interests were transferred into trusts during the marriage with help from insiders or advisers, courts have shown increasing willingness to probe deeply. In the Overdeck matter, even limited survival of Laura’s claims could trigger unprecedented discovery into Two Sigma’s valuations, communications, and internal planning. That level of inquiry into a prominent financial institution — emanating from of a divorce — is extraordinary. Does This Case “Upend” Trust Law? Not Exactly — But It Does Move the Needle John Overdeck argues that permitting these claims would “turn the trust and estate world on its head.” The core architecture of trust law is not in danger. Trusts funded with separate property and managed by independent fiduciaries remain secure. What is threatened is a set of assumptions that practitioners have leaned on for decades: that an irrevocable trust funded during marriage, even with marital assets, is structurally insulated from later attack. Courts have always possessed the authority to scrutinize transfers made to diminish a spouse’s property rights. They have simply exercised that authority sparingly — until now. What Could Now Be Fair Game If the proposed claims proceed, the litigation may reach: communications among trustees, counsel, and corporate personnel the timing and purpose of trust creation the source of funds used to capitalize the trusts any marital discord surrounding the transfers the role of advisers in facilitating asset migration This is precisely the scrutiny many asset-protection strategies have been designed to avoid. Likely Litigation Path if Amendment Is Allowed Significant Discovery Directed at Two Sigma Even as a non-party, Two Sigma could be compelled to produce: valuation materials communications with trust counsel documentation relating to trust funding internal compliance or governance communications For any major financial institution, that type of probing discovery is disruptive and potentially reputationally damaging. Potential Recharacterization of the Trusts A court could determine that the trusts: were funded with marital property were established to reduce the marital estate constitute fraudulent conveyances That does not rewrite trust law; it applies longstanding equitable doctrine to new financial realities. The Practical Outcome: Settlement The combination of business risk, broad discovery, and corporate exposure makes settlement the most probable resolution. But even a confidential settlement will influence future trust planning by high-net-worth families and their advisers. Why This Trend Is Accelerating in Modern High-Net-Worth Divorce Complex Assets Have Outpaced the Traditional System Marital estates today include: private-equity and hedge-fund interests multi-tiered partnerships offshore entities donor-advised funds family-office holdings extensive trust structures These assets are built for opacity. Matrimonial courts were not. Civil Courts Provide the Necessary Tools Civil litigation allows: subpoenas to third parties depositions of advisers and insiders damages theories forensic tracing document production far beyond matrimonial limits Courts Are Less Willing to Accept Trust Structures at Face Value Judges increasingly ask: Who really controls the trust Was marital money used to fund it Were professionals involved in insulating assets Was the structure created in anticipation of marital discord These questions now shape litigation strategy. The Broader Impact: A New Paradigm in High-Net-Worth Divorce The Overdeck litigation signals a systemic shift. More Aggressive Challenges to Marital-Period Trusts Courts will scrutinize: funding sources timing retained control professional involvement Heightened Exposure for Advisers Law firms, trustees, and family-office personnel may face liability for their roles in asset movement — something historically rare. More Conservative Trust Planning Expect: explicit spousal consents prenups and postnups addressing trusts avoidance of marital-funded transfers earlier and cleaner planning Greater Corporate Entanglement Corporations employing wealthy principals should anticipate subpoenas, discovery burdens, and reputational exposure. Parallel Litigation as the New Normal Matrimonial actions will increasingly run alongside: trust litigation fraudulent-transfer suits professional-negligence claims valuation disputes Conclusion This case is far larger than a single marital dispute. It sits at the crossroads of modern wealth planning, trust law, corporate governance, and matrimonial litigation. Whether Laura Overdeck’s claims ultimately prevail, her legal strategy reflects a new reality: spouses are no longer confined to matrimonial court, and courts are increasingly willing to look behind trust structures when significant marital assets may have been moved out of reach. The message for planners, trustees, and corporate advisers is unmistakable: trusts funded during a marriage with marital assets — and the professionals who touched those transfers—are not beyond judicial reach.
December 4, 2025
Family Law
Preparing for the Tough Questions: Cross-Examination in Divorce Litigation
Divorce proceedings can be emotionally charged, and one of the most stressful moments for anyone involved in divorce proceedings is cross-examination. Whether you are negotiating child custody, spousal support, or asset division, your testimony can significantly impact the outcome. Proper preparation will help you remain calm, focused, and effective under scrutiny. Cross-examination is a tool your spouse’s attorney will use to test your credibility, challenge your statements, and highlight inconsistencies. It is not a conversation; it’s structured legal questioning aimed at uncovering facts that support their case. As you prepare to be crossed-examined, clients are often advised to review the following list: : Review all prior statements, including financial disclosures, deposition transcripts, affidavits, and interrogatories. Ensure you are familiar with the facts, dates, and numbers — don’t rely soley on memory. Be honest. Inconsistencies or exaggerations can be used against you. Listen carefully to each question before answering. Pause to think before answering. Maintain a neutral tone and avoid defensive or argumentative responses. Avoid volunteering extra information. If a question is unclear, ask for clarification. Stick to “yes,” “no,” or brief factual responses, when possible. Your lawyer can simulate cross-examination and help you practice and anticipate tricky questions. Role-playing allows you to practice staying composed under pressure. Focus on maintaining consistency and avoiding emotional reactions. Don’t guess or speculate. If you don’t know the answer, it’s acceptable to say, “I don’t know” or “I don’t remember.” Avoid getting trapped by hypothetical questions that could misrepresent your situation. Dress appropriately and maintain good posture. Avoid fidgeting, eye-rolling, or sighing, which can be interpreted negatively. Show respect to the court, opposing counsel, and yourself. Preparation is the most powerful tool in cross-examination. By reviewing your statements, practicing with your attorney, and staying calm under pressure, you can confidently navigate the process and protect your rights in a divorce case.
November 12, 2025
Family Law
Dividing Private Equity the Smart Way: Protecting Both Sides in Divorce
Private equity assets add a layer of complexity to divorce that goes beyond the standard division of bank accounts and retirement plans. These interests often involve tiered payout structures, vesting schedules, capital commitments, and unpredictable future value. When a spouse holds interests in private equity funds or serves as a General Partner (GP), Limited Partner (LP), or carried-interest recipient, courts and lawyers have to navigate issues that blend valuation, tax, compensation, and property law. The first step is understanding exactly what the spouse owns. This can include limited partnership interests, general partner interests, profits interests, co-investment rights, or carried interest. Each behaves differently and may be treated as either compensation, an ownership stake, or a hybrid. Courts look at when the interest was granted and what it compensates. If the interest was earned for work performed during the marriage, some or all of it may be considered marital property. Interests granted before the marriage, or tied to nonmarital contributions, may be partially or entirely separate. Many cases involve a mixed classification that requires a detailed analysis of vesting, performance hurdles, and labor contributed during the marriage. Unlike publicly traded securities, private equity interests rarely have a clear fair market value. Many are illiquid, subject to complex waterfall structures, or highly dependent on future fund performance. Divorce lawyers typically bring in valuation experts familiar with fund economics. These experts may use discounted cash flow models, scenario analysis, or simulations to estimate a present value. Because private equity interests are hard to value and even harder to divide directly, courts and attorneys often use one of two approaches. Offset Method The spouse who holds the private equity interest keeps it, and the other spouse receives an equivalent share of different assets. This is common when the interest can be valued with reasonable confidence. If/When Distribution Method If the value is too uncertain, the parties agree that future distributions will be shared if and when they occur. This keeps the non-titled spouse from receiving a payout on an asset that may never materialize. Both methods should address tax consequences, capital calls, and potential clawback obligations. Most private equity agreements restrict transfers and do not permit a spouse to become a partner or member. Divorce decrees typically circumvent these restrictions by requiring the titled spouse to remain the legal owner while sharing future distributions pursuant to court order or settlement. If future distributions are to be shared, the agreement must include reporting requirements. These often include providing K-1s, capital account statements, distribution notices, and annual fund updates so both sides can monitor the interest over time. Private equity interests demand careful handling in divorce because they blend compensation, investment value, and long-term risk. When properly analyzed and structured, they can be divided in a way that protects both parties while avoiding unintended tax or financial consequences. The key is early identification, experienced valuation support, and a settlement structure that reflects the realities of private equity economics.
November 11, 2025
Family Law
Can My Spouse Move Away with the Kids? What the Law Says About Relocation During Divorce
When parents separate, questions about where the children will live, and whether one parent can move away with them, often become some of the most emotionally charged and legally complex issues. Before a custody order is in place, understanding your rights and the court’s approach to relocation is essential. If a custody order has not yet been entered, both parents technically have equal rights to the children. However, that doesn’t mean one parent can pack up and leave. Courts view relocation during a pending divorce as a major decision that directly affects the children’s stability and the other parent’s rights. A move, even within the same state, can impact where the case is heard and how custody is ultimately decided. Judges base relocation decisions on the best interests of the child, not the convenience of the parent who wants to move. Factors may include: The reason for the move (new job, family support, safety, etc.) The distance involved and how it affects visitation The child’s age, school, and community ties Each parent’s relationship with the child Whether the move appears to be an attempt to interfere with the other parent’s time If your spouse has already moved or is threatening to, contact your lawyer immediately to determine whether or not an emergency order or injunction is warranted to have the child returned or to stop the move. Once custody is established, a parent who wishes to move usually provides advance written notice-often 60 to 90 days-before relocating. The other parent may then object and request that the court hold a hearing. In Maryland, for example, the court may include language in a custody order that requires the moving parent to file written notice with the court, the non-moving party, or both at least 90 days before the proposed move, whether it’s in-state or out-of-state. If you fear your spouse may move away with your children, speak with a family law attorney immediately. Taking early action may prevent a relocation before it happens. It is also important to document communication — texts, emails, or statements about moving. You may request temporary custody or access orders as soon as possible. Be sure to stay calm and cooperative. Courts tend to favor parents who act responsibly and keep the children’s needs first. Law protects both parents’ rights to maintain meaningful relationships with their children, and judges look closely at whether a move truly benefits the child or simply disrupts the other parent’s bond.
October 21, 2025
Family Law
Keeping Divorce Out of the Spotlight
When a marriage ends, most people want the details to stay between them - not in headlines, social media feeds, or public court records. For high-net-worth individuals, business owners, or anyone with a public profile, privacy can be one of the most valuable assets in a divorce. Fortunately, there are proactive steps you can take to protect it. The best way to keep a divorce private is to stay out of court. Litigation creates a public record, including financial disclosures, allegations, and agreements. Mediation is a resolution option that allows both parties to work through issues confidentially with a neutral facilitator. The collaborative divorce process keeps negotiations in private meetings with attorneys and other professionals committed to settlement. Even if court filings are required, resolving most issues privately first minimizes what ends up in the public file. In high-profile cases, attorneys often include confidentiality clauses in settlement agreements. These can restrict both parties from sharing details about finances, parenting arrangements, or personal matters. If you own a business or have sensitive professional information, a non-disclosure agreement (NDA) can prevent your spouse or their advisors from revealing proprietary or reputational details. While court records are generally public, judges may seal specific documents for good cause, for example to protect children’s identities, confidential business information, or sensitive financial data. Your attorney can file a motion to seal portions of the case to limit public access. Privacy in the digital age goes beyond court filings. Avoid discussing the divorce online and ask friends and family not to share posts about it. Even seemingly harmless comments can fuel speculation or reach the media. If you are a public figure, your attorney may coordinate with a public relations professional to handle inquiries or issue a short, neutral statement that minimizes attention. Use secure email and file-sharing systems when exchanging documents with your attorney. Avoid using joint devices or cloud accounts. Anything stored or sent through a shared platform could be accessed or copied. It’s natural to confide in close friends, but word spreads quickly, especially in small or social circles. Limit detailed discussions about your divorce and resist the urge to “set the record straight.” Silence often protects more than explanation. Nothing draws unwanted attention faster than public conflict. Staying composed — even under pressure — helps preserve dignity, credibility, and privacy. The less drama you create, the less there is for others to discuss. Divorce doesn’t have to mean exposure. With the right legal strategy and careful communication, you can protect your family, your reputation, and your peace of mind while moving forward privately.
October 16, 2025
Family Law
A Game-Changer for Divorcing Homeowners in Maryland
One of the biggest challenges for divorcing clients is determining how to handle the marital home. Even when both parties agree on who will remain in the home, the refinancing hurdle often proves to be insurmountable, especially given the recent climb in interest rates. Starting October 1, 2025, a new Maryland law will give divorcing homeowners the chance to stay in their home without refinancing. Same loan. Same interest rate. Same mortgage payment. But goodbye to financial entanglement with your spouse. For years, I have counseled homeowner clients on how to keep their home while removing their spouse from liability. Most people can’t pay off their entire mortgage, so it meant having to refinance into a new loan, which often involved higher interest rates, closing costs, and the challenge of qualifying alone. If refinancing wasn’t an option, homeowners would either have to sell the home or convince their spouse to stay financially connected on the mortgage. The options weren’t ideal. Starting October 1, 2025, Maryland is changing the game. A new law requires certain mortgage lenders to allow a divorcing spouse to assume the mortgage, that is, take over the mortgage without refinancing. (House Bill 1018). The spouse assuming the mortgage can keep their same mortgage payment and avoid refinancing fees such as closing costs and appraisals. The law applies to new loans but can also be retroactively applied to loans obtained prior to October 1, 2025, if the divorce decree is entered on or after October 1, 2025. Of course, every law has exceptions. The new law applies to most conventional mortgages, which are commonly used by Maryland families when purchasing a home. It doesn’t automatically cover government-backed loans like FHA, VA, or USDA, or mortgages from major national banks such as Wells Fargo, Chase, or Bank of America. That said, assumption may still be possible with those loans. In fact, we have helped some clients successfully arrange assumptions even before this law has gone into effect. Even though lenders will be required to offer assumption, homeowners will still have to meet the lender’s requirements to qualify for the loan. A skilled family law attorney can assist with crafting a settlement or obtaining a judgment that improves the chances of qualifying and gives families the best opportunity to stay in their home. This new law helps Maryland families worry about one less thing when getting divorced. The law will help families stay in their home, keep children in their same schools, and maintain a sense of normalcy during a time of change.
September 19, 2025
Family Law
Will My Spouse Get My Inheritance in Divorce?
Oftentimes, inheritances are considered separate property and are not divided in divorce. That means if you received money, real estate, or other property through an inheritance that was left specifically to you, it usually remains yours alone. There are important exceptions you need to be aware of: Commingling. If you mixed your inheritance with marital funds, such as depositing inherited money into a joint account or using it to pay for a jointly owned home, it may lose its separate character and be treated as marital property. Using the Inheritance for the Marriage. If inherited funds were used to benefit the family (paying down the mortgage, covering household expenses, or investing in a shared business), a court might find that some or all of the inheritance should be shared. Appreciation or Growth. Even if you kept the inheritance in your own name, any increase in its value during the marriage may be subject to division, especially if your spouse contributed to that growth. For example, if you inherited a rental property and your spouse helped manage or renovate it, part of the appreciation might be considered marital. Prenuptial or Postnuptial Agreements. If you and your spouse signed an agreement about inheritances, the terms of that agreement will generally control. There are actions you can take to protect your inheritance. For instance, keep inheritances separate from marital accounts, title inherited property in your sole name only, keep clear records that trace the inheritance, and consider a marital agreement to define how inherited property is treated in the event of a divorce. Inherited property can become vulnerable if it was commingled or used for marital purposes. Because state laws vary, it’s important to talk with your divorce attorney about your specific situation.
September 17, 2025
Family Law
I Want The House! What It Takes to Keep It After Divorce
For many couples going through a divorce, the marital home is not only their most valuable asset but also their most sentimental asset. If one spouse wants to keep the home, they may need to “buy out” the other spouse’s marital interest. There are several ways to accomplish this, depending on finances, the mortgage, and the overall settlement strategy. The most common way to buy out a spouse’s share is through refinancing the mortgage. The spouse keeping the home applies for a new mortgage in their own name. The new loan pays off the existing joint mortgage. At closing, they may also borrow enough to pay the other spouse their share of the home’s equity. The other spouse is removed from the mortgage and is no longer liable for the debt. The spouse keeping the home gains financial independence and certainty, however they must qualify for the new loan independently, based on their own income, credit score, and debt-to-income ratio. Higher interest rates may also affect affordability. In some cases, a lender may allow an assumption of a mortgage. Instead of refinancing, the spouse keeping the home formally “assumes” the existing mortgage. They take over responsibility for the loan under its current terms. This allows the spouse to keep the existing interest rate and loan terms, which can be especially valuable in a rising interest rate environment. Not all mortgages are assumable, and the lender must approve the assumption. The spouse taking over the loan must still prove they qualify. Some jurisdictions, such as Maryland, are enacting laws that specifically require lenders to allow an assumption incident to divorce, provided the party meets applicable credit and underwriting standards. In Maryland, it also applies retroactively to existing loans (with nuances for conforming vs. jumbo loans). Check your local laws. Sometimes, the buying spouse can offset the other spouse’s equity interest without immediately changing the mortgage. This works when one spouse keeps the home and relinquishes other marital assets of equal value, such as retirement funds, investment accounts, or cash. This avoids immediate refinancing or sale and allows for a creative settlement tailored to the family’s circumstances. The spouse leaving the home may remain on the mortgage unless it is refinanced later, which can impact their credit and borrowing ability. If neither spouse can afford to keep the home,or if it makes more sense financially, the couple may decide to sell. In this scenario, the home is listed for sale, and the proceeds (after paying off the mortgage, costs of sale, and any liens) are divided according to the divorce agreement. This provides a clean break and cash that can help each spouse move forward and eliminates ongoing joint financial ties. However, this can be emotionally difficult, especially if children are still living at home. The timing of the real estate market may also impact the value received. Every family’s situation is different, and the right approach depends on finances, loan eligibility, and long-term goals. Whether through refinancing, assumption, offsetting with other assets, or sale, it’s important to consider both the short-term affordability and the long-term financial implications. Consulting with both a family law attorney and a mortgage professional can help you choose the option that best supports your future stability.
September 17, 2025
Family Law
What to Do If You Are Accused of a Title IX Violation in College
Being accused of sexual misconduct in college is a deeply serious and often overwhelming situation. Title IX investigations can move swiftly, and the stakes are extraordinarily high in terms of academic, professional, and personal consequences. Even if you believe the accusation is clearly false or easily refuted, it is critical not to underestimate how complicated and potentially one-sided the campus disciplinary process can be. Taking the proper steps in the earliest moments after an accusation can make a significant difference in the outcome of your case. Here are the immediate steps you should take if you are accused: Call your parents and call an attorney experienced in college Title IX cases immediately. Even if you are embarrassed, even if the accusation against you is baseless, even if you have evidence proving the accusation is false, and even if you think you can easily explain why you are not at fault, it is critical that you do not attempt to deal with this alone. Why?The college procedures regarding the investigation and adjudication of sexual misconduct cases are stacked against the accused. Unfortunately, mere truth and common sense are usually insufficient to protect you; you need someone experienced to help you navigate the process. The sooner you get an attorney experienced in these cases, the better. Clients have sometimes come late in the process, believing they could manage the investigation or hearing without an attorney, only to face a negative outcome. It is far better to avoid pitfalls from the outset than to attempt to correct mistakes after they occur. You should have an attorney at the first interview with the Title IX investigator and have an opportunity to prepare with the attorney beforehand. Immediately save all texts, emails, social media, and other communications with the accuser to a thumb drive or another safe place. If you can’t readily access the content of your texts, there is software available to help retrieve and save them. Take screenshots of the accuser’s social media postings before and after the alleged incident. If you are blocked or unable to access the accuser’s social media, ask someone else if they can take screenshots. Do NOT contact the accuser, and do not ask your friends to contact the accuser. Most colleges will impose a No Contact Order between you and the accuser, and you do not want to violate that. Even if there is no order, you do not want to be accused of harassment. Do NOT ridicule or speak negatively about the accuser on social media or to others. Refrain from posting about the matter and exercise caution when discussing it with others on campus. Create a chronological outline of relevant events leading up to and after the alleged incident, including your communications with the accuser. Be as thorough and detailed as possible. Include names of witnesses, times, dates, and locations wherever possible. Make a list of individuals who have relevant information and collect their contact information. Keep a log of all communications with the school and Title IX office and save every email and written communication. Download and save your college’s policy and procedures on sexual misconduct that were in effect at the time of the alleged incident, and those in effect currently (policies may have changed.) Final Thoughts College students facing a Title IX investigation often feel shocked, confused, and isolated. But you are not alone, and your future is worth protecting. Seeking qualified legal guidance right away and following these practical steps can help you assert your rights and prepare your defense effectively. What you do within the first few hours and days can have a long-lasting impact. Ensure those steps are the correct ones.
September 9, 2025
Family Law
Who Controls the Money Doesn’t Control the Divorce
It’s very common in a marriage for one spouse to earn most of the income or handle all the financial decisions. But when divorce happens, the spouse who hasn’t managed the money often feels anxious or powerless. The good news is that the law provides protections to make sure both spouses are treated fairly, regardless of who made or controlled the money. During a divorce, both spouses must provide full financial disclosure. That means: Listing income, bank accounts, retirement accounts, investments, and debts Producing tax returns, pay stubs, and account statements Explaining assets like real estate, businesses, or pensions Even if your spouse controlled the accounts during the marriage, they must disclose everything in the divorce. If they try to hide assets, courts can impose penalties or sanctions. Courts understand that one spouse may need money to get by while the divorce is pending. The dependent spouse has options like asking the court for: temporary spousal support (sometimes called “pendente lite” support) to cover living expenses until the divorce is final access to marital accounts to use for reasonable living expenses during the divorce, as long as money isn’t wasted attorney’s fees if one spouse has no access to funds to pay toward attorney’s fees, so both sides can participate fairly In most states, marital property includes income and assets acquired during the marriage — even if only one spouse earned the paycheck. That includes retirement accounts, savings, and property bought during the marriage, which are usually divided fairly (though not always 50/50), and debts, like mortgages or credit cards, are also divided. So even if you didn’t control the finances, you still have a legal claim to your share of what was built during the marriage. If one spouse has been financially dependent on the other, the court may award spousal support. This is not formulaic in most jurisdictions, and instead is based on factors such as: Length of the marriage Each spouse’s income and earning ability Standard of living during the marriage Contributions to the household (including childcare and homemaking) Health of each spouse Age of the parties Cause of the breakup of the marriage The goal is to ensure a fair transition, particularly for spouses who have given up career opportunities to support the family. Before or during the divorce process, the dependent spouse can take steps to protect themselves. For instance, collect as much financial documentation as possible, copy it, and provide it to their lawyer. Inform your lawyer if you are aware of assets, even if you do not have access to the records. If possible, avoid using credit cards to survive. Taking on debt may lead to future complications, speak with your attorney about safer alternatives. If your spouse made all of the money and managed the finances, you are not at their mercy in divorce. The law requires financial transparency, gives you the right to a fair share of marital assets, and provides ways to make sure you have the financial support you need during and after the process. You don’t need to have been the “breadwinner” to be treated fairly in a divorce.
August 19, 2025
Family Law
Can You Start Dating While Divorcing? Legal and Personal Considerations
When couples agree to divorce, one of the first questions that is often asked is: “Can I start dating?” The simple answer is yes you can, but there are things to keep in mind. Even after you’ve filed for divorce, you are still legally married until a judge signs the final divorce papers. That means dating is technically “dating while married.” In most cases today, this won’t stop your divorce from going through. But it can impact issues like custody arrangements, financial matters, and how smoothly the proceedings unfold. If you have children, the court is always focused on what’s best for them. Dating amid a divorce often prompts questions such as: Is the new partner being introduced too soon Does the new relationship disrupt the children’s routine Is it adding stress or confusion for the kids Is the new partner reputable, a criminal, a public figure, etc. Judges want to see stability. Even if you feel ready to move forward, the court may see early dating as a potential distraction from your children’s needs. One of the biggest financial pitfalls of dating during divorce is something called “dissipation of marital assets,” which is a legal way of saying: spending money that belongs to both spouses on things outside the marriage, without your spouse’s consent. Examples include: Buying gifts for a new boyfriend or girlfriend Paying for trips, meals, or hotels with marital funds Using joint accounts for entertainment, rent, or travel related to the new relationship If the court finds that money was spent in this manner, the spouse responsible may be required to “pay it back” by giving the other spouse a larger share of the remaining assets. There are other practical concerns. For instance, negotiations may become more challenging. If your spouse finds out you’re dating, they may feel hurt or angry, which can make reaching an agreement more difficult. Dating while married can be emotionally messy. Divorce already comes with a lot of stress. Adding a new relationship may complicate your own healing process. If you start dating, children must come first. They may need time, as children often struggle with change. Bringing a new partner into their lives before the dust settles may make things harder on them. Tips if You Do Decide to Date Don’t use joint or marital funds on the new relationship Keep your dating life private until after the divorce is finalized Wait to introduce a new partner to your children until things are more settled or you’ve discussed a process with a mental health professional Talk with your lawyer about how dating might impact your specific case There isn’t a law that outright bans dating during a divorce, but between possible custody concerns, financial risks like dissipation, and the emotional toll, it often does more harm than good. If you want the divorce process to go as smoothly as possible, and protect your finances and your kids, the safest choice is usually to wait until the divorce is final before jumping back into dating.
August 19, 2025
LGBTQIA+
Marriage Equality and the Supreme Court: Preparing for the Unexpected
Big news dropped this week, and it’s one of those stories that makes my phone start buzzing with texts from clients, friends, and family asking: “Could the Supreme Court actually take away marriage equality?” Kim Davis, the Kentucky clerk who famously refused to issue marriage licenses to same-sex couples, has asked the Court to overturn Obergefell v. Hodges, the 2015 decision legalizing marriage equality nationwide. For Davis, the appeal is about religious beliefs, but for LGBTQ+ families, it’s about the security of marriages and rights. Can the Supreme Court Overturn Obergefell? For Davis, the case is based on her personal beliefs and most experts think it’s a long shot to undo marriage equality entirely. Still, this Court has surprised us before. Justice Thomas has already suggested revisiting Obergefell, and the fact that the question is back before the Court is a reminder that the fight isn’t over. What Would Happen if Obergefell Were Overturned? If Obergefell were overturned, some states could stop issuing marriage licenses to same-sex couples almost overnight. Old bans and “trigger laws” are still sitting on the books in many states. However, due to the 2022 Respect for Marriage Act, current same-sex marriages would almost certainly still be recognized nationwide. Under this law, if a same-sex couple is legally married in one state, every other state and the federal government must honor that marriage, even if the couple later moves to a state that bans it. Why Does This Matter if You’re Already Married? Some may assume, “Well, we’re already married, so we’re fine.” Not necessarily. Without Obergefell, certain rights could become more difficult to enforce at the state level, such as hospital visitation, inheritance without a will, or the ability to make medical decisions for your spouse. For families with children, especially when only one parent is biologically related, the stakes are even higher. Steps to Take Now Make your family “court-proof.” Ensure you have legal documents in place, including wills, healthcare proxies, powers of attorney, and guardianship documents for kids. Lock in parental rights. A court order, such as a second-parent adoption, is recommended to make parental rights secure, even when both parents’ names appear on the birth certificate. Know your safe states. In areas with an uncertain record on LGBTQ+ rights, it’s important to know where your family would be protected in the event of upheaval. Stay engaged. Local and state protections matter. Back ballot measures and candidates who will uphold marriage equality in your state constitution. Final Thoughts Though it seems unlikely that Obergefell will be reversed in the immediate future, it would be unwise to become complacent or to assume it is beyond challenge. Now is the time to double-check your legal safety net, because the best time to protect your family is before the storm starts.
August 13, 2025
Family Law
Legal and Practical Considerations Before Leaving the Marital Home During Divorce
One of the most common and emotionally charged questions people ask when facing divorce is, “Can —or should— I move out of the marital home before we have an agreement or court order?” The answer isn’t always straightforward. Moving out can have practical, financial, and legal consequences, especially if there are minor children or disputes over property. In most cases, there is no absolute legal requirement to remain in the marital home until an agreement or court order is reached. Adults generally have the right to decide where they live. However, if children are involved leaving without a plan or without understanding the implications may affect custody and parenting time. Courts tend to look at the status quo when making temporary custody decisions. If you move out and the children stay with your spouse, that could set a pattern. In some jurisdictions, one party can ask the court to award temporary exclusive use and possession of the home, especially if children are living there. Moving out doesn’t forfeit your ownership interest, but it can complicate practical issues such as access to documents, personal items, or the ability to oversee the property's condition. If there is domestic violence, threats, or a toxic environment that affects your safety or your children’s safety, moving out may be necessary. In such cases, you should document the reasons why you left and consider seeking a protective order or temporary custody order to clarify parenting arrangements and protect your rights. Your well-being and your children’s well-being always come first. If you have minor children, think carefully. Moving out without taking the children can unintentionally signal to the court that your spouse is the primary caretaker. Moving out with the children without agreement or court order may escalate conflict and may be seen as improper “self-help.” The best approach before moving is to try to reach a temporary written parenting agreement or seek a temporary custody order. Even if you move out, you may still be responsible for paying the mortgage or part of it, contributing to household expenses, and maintaining utilities or insurance. Leaving can also mean taking on the cost of a second household, which may be unsustainable during a pending divorce. If, after weighing these factors, you decide it’s best to move out, you should consult a lawyer and obtain advice, based on your jurisdiction and the specifics of your case. Document your property by making a list —and taking photos— of furniture, valuables, and documents. Secure important records like tax returns, bank statements, insurance documents, passports (take copies so you’re not left without them). Attempt to reach a temporary agreement with your spouse on issues including parenting time, bill payment, and use of property. If you and your spouse can’t agree, you may file a motion for pendente lite (temporary) relief. In such a hearing, the court can decide who stays in the home, who pays certain bills, and sets a temporary custody schedule. These temporary orders maintain stability until the divorce is finalized.
July 28, 2025
Family Law
Privacy, Public Image, and Legal Strategy in Celebrity Divorces
When celebrity couples divorce, the public follows the drama with the same intensity as a red-carpet premiere. Yet behind the headlines are important lessons about the delicate balance between privacy, public image, and sound legal strategy—especially when clients live under a microscope. Celebrity clients are brands. Their business interests, endorsement deals, and future earning potential can hinge on how their divorce is perceived by the public. As legal counsel, we must weave reputation management into every legal decision—from the timing of filings to the phrasing of public statements, to courtroom demeanor, and even potential warding off of gossip outlets from incorrectly spinning the narrative. As a family lawyer practicing in New York and New Jersey, I’ve both followed celebrity divorces and represented public figures. While there are many takeaways, for clients in the public eye, privacy isn’t just a preference. It’s a key part of the legal strategy. Privacy Is a Legal and Strategic Asset Joe Jonas’s and Sophie Turner’s divorce became global tabloid fodder. What began as a Florida divorce filing escalated into federal litigation when Ms. Turner claimed that Mr. Jonas had wrongfully removed their children from the United Kingdom. A media frenzy ensued, magnified by her public outings with Taylor Swift, a former Jonas partner. Despite having a prenuptial agreement and eventually reaching a confidential settlement,the couple endured severe public scrutiny. Their case underscores the strategic value of privacy-preserving mechanisms: strong non-disclosure clauses, sealed filings, private judging, and mediation over litigation. A public filing can spiral fast. Counsel should always explore alternatives that shield sensitive matters from public consumption. Public Image and Legal Outcomes Are Intertwined Kevin Costner and Christine Baumgartner’s contentious split made headlines not just for the numbers—she reportedly sought $248,000 in monthly child support—but for the tone. The case sparked media debates over lifestyle expectations, motives, and personal relationships. Ultimately, the court awarded less than half the requested amount, and the couple’s prenuptial agreement significantly shaped the resolution. What mattered wasn’t just the law,it was the public narrative. Media coverage heavily influenced public sentiment and, arguably, the legal posture of both parties. For attorneys, it serves as a reminder that in high-profile cases, public perception often aligns with, and sometimes precedes legal strategy. Social Media Is the New Courtroom When Britney Spears and Sam Asghari’s marriage ended in 2023, legal documents played second fiddle to social media speculation. Instagram posts, anonymous “sources,” and cryptic captions fueled widespread rumors. Although their prenuptial agreement guided a swift financial settlement, public narratives spun far beyond the facts. For attorneys, digital platforms introduce new vulnerabilities. Social media can jeopardize confidentiality, erode legal positioning, and fan the flames of conflict. Today, we must counsel clients on digital discretion,often in the initial consultation. Consider integrating social media clauses into engagement letters and encourage clients to pause or limit online activity until proceedings conclude. Strong Prenuptial Agreements Limit Conflict In contrast to some messy public splits, Sofia Vergara and Joe Manganiello’s 2023 separation unfolded with minimal drama, thanks in part to a robust prenuptial agreement. Though high-profile, their divorce has remained relatively quiet—no drawn-out disputes, no major media spectacle. A sharp contrast is Angelina Jolie and Brad Pitt’s still-ongoing legal battles. For clients of all financial levels, especially those entering second marriages or high-net-worth unions, a well-crafted prenup provides clarity and reduces conflict. It sets expectations, simplifies asset division, and, most importantly, preserves dignity. International Elements Complicate Everything Shakira and Gerard Piqué’s breakup, though not a divorce, exemplifies the complexity of international family law. Their custody negotiations involved multiple countries, tax jurisdictions, and cross-border parenting issues—all while facing intense media attention. Notably, they managed to resolve custody matters privately and amicably, without involving the court. Their approach illustrates the importance of clear, enforceable agreements—especially when children and multiple jurisdictions are involved. For lawyers, global cases demand coordination with foreign counsel, tax advisors, and translators. Early identification of international legal issues—such as passport control, travel restrictions, and Hague Convention risks—is essential. Unapproved relocations or custody changes can lead to serious legal consequences. Lessons from the Spotlight Celebrity divorces amplify the same tensions present in many high-conflict separations,just with brighter lights and louder headlines. But they also offer valuable guidance: Prioritize Privacy: Strong confidentiality clauses and alternative dispute mechanisms can shield clients from public fallout. Manage Reputation Strategically: Legal decisions have PR consequences; coordinate with media professionals early. Integrate Social Media Protocols: Digital missteps can derail even the best legal strategies. Leverage a Strong Prenuptial Agreement: Well-drafted agreements prevent costly, public battles. Plan for International Complexities: Jurisdiction matters. So do passports, treaties, and global tax laws. Promote Dignity Over Drama: The emotional cost of conflict often outweighs the financial one. Celebrity divorces are messy, dramatic, and endlessly dissected. But behind the paparazzi and public statements are real people navigating loss, transition, and legal complexity. For attorneys, these cases offer enduring lessons—reminders that in the pursuit of justice, strategy must go hand-in-hand with empathy and discretion.
July 1, 2025
Family Law
Navigating the Unique Challenges of LGBTQ Divorces in a Changing Legal Landscape
The legalization of same-sex marriage in the United States in 2015 with the landmark Obergefell v. Hodges decision marked a monumental step toward equality. However, the journey does not end with marriage; LGBTQ couples face unique challenges when it comes to divorce. While the process may seem similar to that of heterosexual couples on the surface, the reality reveals nuanced differences rooted in evolving laws, social norms, and disparities in legal protections. Understanding these distinctions is crucial for navigating the complexities of LGBTQ divorces and protecting one’s rights in a constantly shifting legal world. Key Differences Between LGBTQ and Heterosexual Divorces Legal Recognition and the Length of Marriage: Problem For many LGBTQ couples, legal recognition of their relationships began far later than their commitment to one another. States only began recognizing same-sex marriages at different times, leaving couples who were together for decades without a legal timeline for their unions. When it comes to divorce, courts often calculate marital property division, spousal support, and other factors based on the duration of the legally recognized marriage, not the entirety of the relationship. This discrepancy can lead to inequitable outcomes. For example, an LGBTQ couple that was together for 20 years but legally married for only five years may see their financial obligations and property rights evaluated based on the shorter timeline. Custody and Parental Rights Child custody is one of the most contentious areas in divorce, and LGBTQ couples face unique hurdles. Many LGBTQ families rely on alternative reproductive methods, including Artificial Reproductive Technology (ART), surrogacy, adoption, or donor insemination. If only one partner is the biological or legal parent, the non-biological parent’s parental rights may not be automatically recognized, even if they were actively involved in raising the child. This can lead to complex custody battles where courts may prioritize biological connections over emotional bonds. Discrimination in Court While legal protections for LGBTQ individuals have improved, implicit biases still exist within the court system. Some LGBTQ individuals may encounter judges or attorneys who lack experience with or understanding of same-sex family dynamics. This can result in decisions that do not fully account for the nuances of LGBTQ divorces. Division of Assets and Property In LGBTQ divorces, asset division may be complicated by how property and financial arrangements were managed before same-sex marriage became legal. Property acquired before legal recognition of the relationship may be deemed separate property rather than marital property, creating challenges when dividing assets equitably. How to Protect Yourself in an LGBTQ Divorce Preparing and understanding your rights are essential to safeguarding your interests in this evolving legal world. Here are key steps LGBTQ individuals can take to protect themselves: Legal Protections Before Marriage For those entering a marriage, creating a prenuptial agreement is one of the most effective ways to protect assets and clarify financial arrangements. A prenuptial agreement can specify how property will be divided and how spousal support will be managed in the event of a divorce. For those already married, a postnuptial agreement can serve a similar purpose. Address Parental Rights Proactively LGBTQ couples with children should ensure both parents’ legal rights are established, even before a divorce becomes a possibility. For non-biological parents, this may involve formal adoption or obtaining a court order recognizing their parental status. By securing legal parentage, non-biological parents can strengthen their custody and visitation claims in the event of a divorce. Keep Comprehensive Records In cases where the length of the relationship predates legal marriage, maintaining records of financial contributions, shared property and joint decision-making can be invaluable. These records can help demonstrate the extent of the partnership and support equitable asset division during a divorce. Consult an Experienced LGBTQ Divorce Attorney Given the unique legal and social dynamics of LGBTQ divorces, working with an attorney who has specific experience in LGBTQ family law is crucial. Such attorneys understand the complexities of same-sex relationships and can advocate effectively for your rights. Stay Informed About Changing Laws The legal landscape for LGBTQ individuals continues to evolve. Court rulings, legislation, and shifting political climates can impact rights related to marriage, divorce, custody, and more. Staying informed about changes in the law can help you anticipate challenges and adjust your approach as needed. The Ever-Changing Legal Landscape for LGBTQ Divorces While the right to marry was a monumental victory, LGBTQ couples still face challenges that heterosexual couples typically do not. For example, the potential for the Supreme Court to revisit Obergefell v. Hodges or other related rulings creates uncertainty about the durability of marriage rights. Additionally, state laws governing issues such as parental rights, property division, and spousal support vary widely, leading to disparities in how LGBTQ divorces are handled across the country. Recent challenges to protections for LGBTQ individuals, including attempts to narrow the interpretation of anti-discrimination laws and redefine parental rights, underscore the need for vigilance. Advocating for continued progress and awareness ensures equality in the family law system. Conclusion LGBTQ divorces, while sharing similarities with heterosexual divorces, present unique challenges rooted in legal history and societal biases. By understanding these differences and taking proactive steps to protect their rights, LGBTQ individuals can navigate the complexities of divorce with confidence. In an ever-changing legal world, preparation, advocacy, and informed decision-making are the keys to achieving equitable outcomes and safeguarding hard-won rights.
April 17, 2025
Family Law
Why You Need to Update Your Estate Planning After a Divorce
Divorce is a major life change that affects far more than just your relationship status. One crucial—but often overlooked—aspect that needs immediate attention after a divorce is your estate plan. Failing to update your estate planning documents can lead to unintended consequences that may not align with your new reality or wishes. Here’s why updating your estate plan after a divorce is essential: Your Ex-Spouse May Still Be in Control Many people name their spouse as the executor of their will, trustee of a trust, or as a power of attorney for healthcare and finances. If you don’t change these designations after a divorce, your former spouse could still be legally empowered to make life-altering decisions on your behalf or manage your assets if something happens to you. What to update: Will and trust documents Powers of attorney (medical and financial) Health care directives Your Beneficiaries Might Not Reflect Your Current Intentions A divorce doesn’t automatically remove your ex-spouse as a beneficiary from all accounts and policies. Life insurance, retirement accounts (like IRAs or 401(k)s), and transfer-on-death designations often bypass your will—meaning your ex could still inherit these assets unless you update them. What to review: Life insurance policies Retirement accounts and pensions Payable-on-death or transfer-on-death accounts Investment accounts and bank accounts Guardianship of Minor Children If you have minor children, your estate plan likely includes a guardian designation. While the surviving parent (your ex) is usually the default guardian, you might want to designate a backup guardian if your ex becomes unable or unwilling to care for the children. What to consider: Updating guardian nominations in your will Including provisions for minor children in trusts Your Financial Picture Has Changed Divorce usually involves the division of assets and liabilities, which can dramatically alter your financial situation. Your estate plan should reflect your current assets, liabilities, and goals—whether that means protecting your children’s inheritance, funding a trust, or planning for long-term care. What to update: Asset and debt inventory Trust funding and asset titling New financial goals and obligations You Might Want to Name New Trusted Individuals Whether it's a sibling, adult child, new partner, or trusted friend, you’ll likely want to name new individuals to serve in key roles within your estate plan—such as executor, trustee, or power of attorney—now that your former spouse is no longer in the picture. Divorce is emotionally and logistically complex, and it’s easy to overlook your estate plan in the process. But making these updates is vital to protect your assets, your wishes, and your loved ones. Consulting with an experienced estate planning attorney can help ensure everything is properly revised and legally sound. Remember: an outdated estate plan can be just as risky as not having one at all.
April 14, 2025
Family Law
How to Divide Retirement Accounts During Divorce Amid Market Fluctuations
Dividing retirement accounts during a divorce is already complex, but the process becomes even more complicated when you factor in market volatility.. Stock market fluctuations can dramatically change the value of retirement accounts, which makes equitable distribution a moving target. Understanding the impact of these fluctuations—and planning accordingly—can help divorcing couples avoid unnecessary losses and ensure a fair outcome. Understanding the Basics: Types of Retirement Accounts Before discussing market impact, it’s important to recognize the common types of retirement accounts: Defined Contribution Plans (e.g., 401(k), 403(b), IRAs): These fluctuate based on the performance of the investments within them. Defined Benefit Plans (pensions): These are typically based on years of service and salary, with less direct impact from market swings. Roth vs. Traditional Accounts: Roth accounts are funded with after-tax dollars; traditional accounts grow tax-deferred and are taxed upon distribution. Each account type has different rules for division and tax implications, which need to be considered in light of market performance. The Challenge: Market Volatility Retirement accounts tied to stocks, mutual funds, or exchange-traded funds (ETFs) can experience wide swings in value. If assets are divided based on a snapshot in time—say, the date of separation or a particular court hearing—the actual value distributed could be significantly different by the time the account is divided. Example: If a 401(k) is worth $200,000 on the separation date but drops to $180,000 before it’s divided, the spouse receiving their share may end up with less than intended unless safeguards are in place. Options for Dividing Accounts Amid Fluctuations Use Percentage-Based Division Instead of awarding a fixed dollar amount, divide the account by a percentage. For instance, awarding one spouse 50% of a 401(k) ensures they receive half of the value at the time of division, regardless of market changes. Use Qualified Domestic Relations Orders (QDROs) Wisely For employer-sponsored plans like 401(k)s and pensions, a QDRO is necessary. This legal document outlines how the plan should be divided and allows for the transfer without taxes or penalties. The QDRO must specify division as a percentage, not a flat dollar amount, especially in volatile markets. Consider Timing Carefully If markets are highly unstable, it may be worth pausing division until some stability returns. Alternatively, couples can agree to an average value over a specific period (e.g., last 30 days) to avoid basing the division on a market peak or trough. Account for Investment Type Some investments within retirement accounts may be riskier than others. If one spouse receives mostly equities while the other gets more stable bond funds, it could create an imbalance in future value—even if the division looks fair on paper at the time. A financial advisor can help rebalance the allocations for fairness. Tax Consequences Matter Traditional accounts will be taxed upon distribution. If both spouses receive different account types (e.g., one gets Roth, the other gets Traditional), the net value could be very different. These tax effects should be a factor in negotiations. Post-Division Market Movement Once retirement assets are divided, each party is typically responsible for gains or losses moving forward. It’s essential to clarify the “cut-off” date for shared responsibility in the divorce agreement. Dividing retirement accounts in a fluctuating market is as much about strategy as it is about fairness. Consulting a divorce financial planner or an attorney with experience in high-asset divorces can help ensure the division is equitable, tax-efficient, and insulated from unnecessary market risk. In the end, clear communication, well-drafted legal documents, and smart timing can all help protect your financial future during an emotionally charged and financially complex time.
April 11, 2025
Family Law
We Are Going to Trial! How Your Divorce Lawyer Will Prepare You for Court
Going to court can be a stressful and emotionally charged experience. Your divorce lawyer will play an important role in preparing you for court, ensuring that you understand the legal proceedings, and helping you present your case effectively. Here’s what you can expect during the preparation process: The Legal Process If necessary, your lawyer will explain the legal steps involved in your divorce case, including hearings, motions, and the trial. They will inform you about the judge’s role, courtroom etiquette, and any specific rules or procedures that apply in your jurisdiction. Gathering and Organizing Evidence To build a strong case, your lawyer will help you collect and organize all necessary documents, such as financial records, property deeds, tax returns, and any evidence relevant to child custody or spousal support. They will also guide you on how the evidence will be presented in court. Preparing Your Testimony Your attorney will work with you to develop a clear and compelling testimony. This includes: Reviewing key facts and potential questions you may be asked. Practicing responses to cross-examination by the opposing attorney. Coaching you on how to remain composed, honest, and confident while on the stand. Addressing Potential Challenges Every divorce case has challenges, whether it’s disputes over asset division, custody battles, or allegations made by your spouse. Your lawyer will anticipate potential arguments from the other side and prepare counterarguments to protect your interests. Mock Court Sessions To boost your confidence, some attorneys conduct mock court sessions where you can practice presenting your case in a simulated courtroom setting. This exercise helps you get comfortable speaking in front of a judge and responding to questioning. Guidance on Courtroom Behavior Your attorney will provide instructions on appropriate courtroom conduct, including: Dressing professionally to make a good impression. Speaking respectfully to everyone in the courthouse, including the judge, opposing counsel, bailiffs and security guards. Avoiding emotional outbursts or unnecessary conflicts. Maintaining a calm and composed demeanor throughout the proceedings. Final Review and Strategy Discussion Before your court date, your lawyer will review all aspects of your case with you, addressing any last-minute concerns and refining your legal strategy. They will ensure you feel ready and reassured about the upcoming proceedings.
March 19, 2025
Family Law
The Dos and Don’ts of a High-Asset Divorce
Divorce is not easy, and when substantial assets are involved, the process becomes even more complex. High-asset divorces should be approached with the goal of fairness and financial security for the family. I’ve compiled some dos and don’ts to consider when going through a high-asset divorce. The Dos Hire an Experienced Attorney A lawyer with experience in high-asset divorces is important to protecting your financial interests. They will understand the complexities of asset division, tax implications and spousal support calculations. Assess and Document All Assets Work with your legal team to compile a thorough inventory of all assets, including real estate, investments, business interests, retirement accounts and valuable possessions. Comprehensive documentation can prevent disputes and ensure transparency. Consider Mediation or Collaborative Divorce Litigation is emotionally and financially costly and time-consuming. Discuss mediation or the collaborative process with your attorney to negotiate settlements more amicably and efficiently. Understand Tax Implications Property division and spousal support have significant tax consequences. You and your legal team should work with a financial advisor, accountant, or other tax expert to understand how different settlement options will impact your financial future. Protect Your Business Interests If you own a business, discuss ways to safeguard your interest with your attorney. Working with a business valuation expert and legal structuring can help mitigate financial damage and reach a resolution sooner. Think Long-Term Prioritize a settlement that ensures long-term financial stability rather than focusing on short-term gains. Consider future expenses, retirement, and the impact of market fluctuations. Maintain Financial Privacy High-asset divorces can attract unwanted attention. Work with professionals who can help keep your financial matters confidential and protect sensitive information. Discuss with your attorney whether Confidentiality Agreements or Non-Disclosure Agreements should be considered. The Don’ts Don’t Hide Assets Concealing or attempting to conceal assets can lead to legal penalties and a loss of credibility in court. Full financial disclosure is crucial to ensuring a fair division. Don’t Make Emotional Decisions Divorce is emotionally charged by nature, but making decisions based on anger or resentment can lead to financial regret. Approach negotiations with a clear and strategic mindset. Try to treat it more like a business deal. Don’t Rush the Process High-asset divorces take time. Both parties need time to gather and analyze data before negotiations begin. Rushing can result in unfavorable settlements, overlooked assets, and long-term financial issues. Don’t Overlook Prenuptial or Postnuptial Agreements Give a copy to your attorney if you have a prenuptial or postnuptial agreement. Such agreements can significantly impact asset division and protect individual wealth. Don’t Ignore Legal and Financial Advice Some individuals make the mistake of relying solely on their judgment or advice from friends. Professional legal and financial guidance is essential for making sound decisions. Don’t Neglect Estate Planning After divorce, update your estate plan, including wills, trusts, and beneficiaries, to reflect new financial and personal circumstances. Don’t Engage in Public Disputes Avoid airing grievances publicly, whether on social media or in social circles. This can harm negotiations and damage reputations. A high-asset divorce requires a strategic and informed approach to protect financial interests and ensure a fair settlement. By following these dos and don’ts, individuals can navigate the process effectively while minimizing unnecessary conflict and financial loss. Working with experienced professionals will provide clarity and help secure a stable financial future post-divorce.
March 19, 2025
Family Law
Examining the US Supreme Court’s “Reverse Discrimination” Case: Fueling the DEI Fight
On February 26, 2025, the U.S. Supreme Court heard oral arguments in Ames v. Ohio Department of Youth Servicesi . This case that could significantly impact the standards for proving employment discrimination claims under Title VII of the Civil Rights Act of 1964. The central issue is whether plaintiffs from majority groups, such as heterosexual individuals, must meet a higher evidentiary standard, showing that the background circumstances of the alleged discrimination support the suspicion that the defendant is that unusual employer who discriminates against the majority (the “background circumstances test”), in order to establish a prima facie case of discrimination. Background Marlean Ames ("Ames"), a heterosexual woman, began working for the Ohio Department of Youth Services in 2004 ("DYS"). In 2019, she applied for a promotion to a newly created bureau chief position but was passed over in favor of a gay woman who had not applied for the role. Subsequently, Ames was demoted to her previous secretarial position, resulting in a significant pay cut, and her former role was filled by a gay man. Ames filed a lawsuit alleging that these employment decisions were based on her sexual orientation, constituting discrimination under Title VII. The district court granted summary judgmentii in favor of the DYS applying the “background circumstances test;” and finding that there was no evidence that the DYS is among the unusual employers who discriminate against the majority. The U.S. Court of Appeals for the Sixth Circuit affirmed this decision, concluding that Ames had not met this heightened evidentiary standard. The Supreme Court Agrees to Hear the Ames Case The Supreme Court agreed to hear Ames’ appeal to address the disparate application of the “background circumstances test” across various circuitsiii. During oral arguments, several justices expressed skepticism about the validity of imposing a higher standard on a majority group. Justice Neil Gorsuch noted the “radical agreement” between both parties that federal employment laws should impose the same requirements on all plaintiffs, regardless of their majority or minority status. Justice Amy Coney Barrett raised concerns that ruling in Ames’ favor could potentially open the door to more employment discrimination lawsuits by making it easier to bring reverse discrimination cases. However, Ames’ counsel argued that eliminating the “background circumstances” rule would not lead to a flood of new cases, citing the experience of circuits that do not apply this heightened standard. Repercussions of the Decision A ruling in favor of Ames could have significant implications for employment discrimination litigation. It would eliminate the additional evidentiary burden currently placed on majority-group plaintiffs in certain circuits, thereby standardizing the requirements for establishing a prima facie case under Title VII. This could lead to an increase in reverse discrimination claims, particularly in contexts involving diversity, equity, and inclusion initiatives. Conversely, if the Court upholds the “background circumstances” requirement, majority-group plaintiffs would continue to face a higher threshold in proving discrimination claims, potentially discouraging such lawsuits. The Supreme Court’s decision is expected by early Summer 2025, and once handed down, has the potential to equalize the legal framework for all discrimination claims under Title VII, ensuring that the statute’s protections are uniformly applied, irrespective of the plaintiff’s majority or minority status.
March 10, 2025
Family Law
Tracing Offshore Accounts in Divorce: How to Uncover Hidden Assets
Offshore accounts are appealing to those trying to hide money because they offer banking secrecy in certain jurisdictions, lax reporting requirements compared to domestic accounts, and complex structures involving shell companies, trusts, or cryptocurrency transactions. However, financial secrecy laws have weakened in recent years due to international regulations, making it harder for individuals to conceal offshore accounts completely. Hiding money offshore often leaves clues. Be alert if your spouse suddenly becomes secretive about finances, transfers large sums to foreign entities, owns international businesses or trusts, reports significantly lower income than expected, and/or has foreign tax filings or receives mail from offshore banks. If any of these signs are present, it’s time to take action. Start with Financial Records Carefully review all available documents, including: Tax Returns: Look at Schedule B (foreign accounts), Schedule D (capital gains from international investments), and FBAR (Foreign Bank Account Report) filings. Bank & Credit Card Statements: Identify unexplained wire transfers to foreign banks or unknown entities. Loan Applications: These often list all assets more honestly than tax returns. Work with a Forensic Accountant Forensic accountants specialize in uncovering hidden assets by analyzing financial patterns, tracing wire transfers, and identifying discrepancies that may indicate offshore holdings. They use advanced financial tracking methods to follow money trails. Leverage Legal Discovery Tools Your attorney can use various legal means to force disclosure of offshore accounts, including requiring your spouse to answer written questions under oath, demanding financial documents related to foreign assets, questioning your spouse under oath about offshore holdings, and/or issuing subpoenas to compel banks, accountants, and business partners to provide financial records. Utilize International Regulations & Reporting Laws Many offshore jurisdictions are now subject to financial disclosure agreements including: FATCA (Foreign Account Tax Compliance Act): Requires foreign banks to report U.S. account holders to the IRS. Common Reporting Standard (CRS): Facilitates global exchange of financial data between governments. Bank Treaties & International Agreements: The U.S. has information-sharing treaties with various countries that can help uncover hidden accounts. Hire an International Asset Tracing Expert If your spouse has business dealings or financial ties in a specific country, an international investigator with expertise in that jurisdiction’s banking laws can be invaluable in identifying hidden assets. Seek Court Orders & Legal Action If your spouse refuses to disclose offshore accounts, your attorney may request contempt of court orders for non-compliance, injunctions to freeze assets before they are moved, and/or orders to compel disclosure of offshore financial records. Don’t Overlook Cryptocurrency & Digital Assets Many individuals hide wealth in cryptocurrency wallets, offshore digital banks, or decentralized finance (DeFi) platforms. Forensic accountants can analyze blockchain transactions to uncover hidden crypto holdings. Tracing offshore accounts in a divorce is complex, but not impossible. With the right combination of forensic accounting, legal tools, and international regulations, hidden assets can be uncovered. If you suspect offshore accounts in your divorce case, consult an experienced attorney and financial expert to ensure a fair and transparent division of assets.
February 18, 2025
Family Law
Co-Parenting a Child with Medical Issues Post-Divorce
Divorce is challenging under any circumstances, but when a child has medical issues, teamwork is key. Effective co-parenting is crucial to ensure your child’s health and emotional well-being while navigating medical appointments, treatments, and daily care. Some pointers for successfully co-parenting a child with medical needs after divorce are outlined below. Regardless of past disagreements, both parents must put their child's well-being first. This means setting aside personal conflicts and making joint decisions that prioritize the child’s medical care. Keep communication focused on the child’s needs rather than lingering relationship issues. A structured medical plan should be a key part of your co-parenting agreement. This plan may include: Primary care responsibilities: Who will take the child to doctor’s appointments and therapy sessions? Emergency protocols: What steps should be followed in a medical emergency? Medication and treatment schedules: Clear documentation of medication dosages, therapy sessions, and specialist appointments. Ensure both parents have access to medical records and communicate any changes in treatment. Clear and consistent communication is essential. Use tools like co-parenting apps (e.g., OurFamilyWizard, TalkingParents) to share medical updates, upcoming appointments, and concerns. If face-to-face communication is difficult, rely on written communication to keep emotions in check and ensure accuracy. Medical expenses can be significant, so both parents should agree on how to handle costs. Discuss things like who provides health insurance, how out-of-pocket expenses will be divided, and how unexpected medical expenses will be paid. A written agreement can prevent future disputes. Children with medical conditions often thrive on routine. Ensure both homes follow a consistent schedule for medication, therapy, diet, and rest. Disruptions in care can negatively impact their health, so cooperation is key. Medical conditions can be unpredictable, requiring last-minute schedule changes or adjustments to custody arrangements. Both parents should remain flexible and willing to accommodate each other when emergencies arise. If communication becomes strained, consider involving a mediator, family therapist, or parenting coordinator. These professionals can help facilitate discussions and create solutions that serve the child’s best interests. Divorce can be emotionally challenging for any child, but those with medical issues may feel additional stress. Encourage open conversations about their feelings, reassure them of both parents' love, and work together to create a stable environment. Conflicting medical opinions can create tension. Work together to make informed decisions, consulting with doctors, specialists, or medical advisors when needed. If disagreements persist, mediation or legal counsel may be necessary. Caring for a child with medical needs is demanding, and co-parenting adds another layer of complexity. Ensure you’re also taking care of your own mental and physical well-being so that you can be the best parent possible. Co-parenting a child with medical issues after divorce requires teamwork, patience, and mutual respect. By prioritizing your child’s health, maintaining open communication, and working together, both parents can provide the stability and care their child needs to thrive.
February 17, 2025
Family Law
New York Takes a Progressive Step with Uncontested Joint Divorce
On January 31, 2025, the Chief Administrative Judge of the State of New York announced an inventive pilot program designed to change how the court system processes divorces, introducing the concept of "uncontested joint divorce" to simplify the divorce process for New Yorkers. While uncontested divorces have been available to New Yorkers since 2010, this new route to divorce allows eligible couples to file and sign their divorce papers together, neither party taking the role of “plaintiff” or “defendant.” It is targeted at reducing the emotional and financial burdens often associated with traditional divorce proceedings. Unlike the traditional divorce process, where one spouse typically initiates the proceedings by alleging one or more of the statutory reasons for ending the marriage, joint divorce recognizes that couples can maturely agree to end their marriage without assigning blame, consenting to a joint divorce on the uncontested divorce basis of the “irretrievable breakdown” in the marital relationship for a period of at least six months (otherwise known as a “no-fault” divorce). To qualify for a joint divorce, both spouses must mutually consent to the divorce and agree on all terms relevant to their particular marital elements, including property division, child custody, parenting time, and support arrangements. Couples can submit a single petition outlining their settlement, which can lead to quicker resolution times compared to traditional divorces and forestall needless tension as they navigate and acclimate themselves (and their family) to their new status as a divorced couple. This program presents various advantages for couples seeking to dissolve their marriages amicably. Not only does it hope to foster a positive environment for negotiation, but it also acknowledges the emotional strain of divorce and seeks to aid in promoting healing over conflict. For couples with children, the joint divorce framework can pave the way for healthier co-parenting arrangements by encouraging collaboration and mutual respect. By prioritizing the well-being of children, parents can establish a supportive foundation for their post-divorce relationship. To provide fairness and promote healthy communication, the program encourages couples to engage in mediation or counseling services before finalizing their joint petition. This step aims to ensure that both parties fully understand the implications of their decisions and maintain a constructive dialogue. By eliminating contentious litigation, joint divorce aims to reduce legal fees for couples. Since the need for prolonged court battles is minimized, couples can save money and allocate resources more effectively. And though the joint divorce process is designed to be cooperative, the court’s ultimate involvement will not be diminished inasmuch as the courts will still examine every submitted agreement for compliance with state laws and to ensure that agreements are fair, reasonable, not overreaching, and in the best interests of any children involved. The courts can and will reject agreements that do not comply with the legal and equitable requirements of New York’s laws. This new program represents a significant positive shift in New York's approach to processing divorces. It reflects changing societal attitudes toward marriage, divorce, and conflict resolution. As more couples prioritize cooperation and transparency, this reform may lead to a cultural shift in how divorce is perceived and managed. As couples embrace this new paradigm, it is essential for those considering divorce to stay informed about their rights and options under this law. Consulting with experienced family law attorneys can help ensure that all agreements are legally sound and that the best interests of all parties involved, particularly children, are upheld.
February 12, 2025
Family Law
Defending Women from Gender Ideology an Individual’s Sex Is Not a Simple Matter
On January 20, 2025, President Donald Trump issued the executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This directive mandates that all federal agencies recognize only two biological sexes -- male and female -- defined at conception. It requires the replacement of the term “gender” with “sex” in official documents and policies and prohibits the use of gender-affirming language and practices within federal operations. Additionally, the order restricts the use of federal funds for gender-affirming care and disallows self-selection of gender on government-issued identification, such as passports and visas. The executive order’s strict binary definition of sex may conflict with existing anti-discrimination laws that have been interpreted to protect individuals based on gender identity. Notably, the Supreme Court’s decision in Bostock v. Clayton County (2020) held that discrimination based on gender identity or sexual orientation constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. By mandating a binary understanding of sex, the order could undermine these protections, leading to potential legal challenges. The order rescinds previous directives that promoted diversity, equity, and inclusion (DEI) within federal agencies and among federal contractors. This includes the revocation of Executive Order 11246, which had prohibited discrimination by federal contractors and required affirmative action to ensure equal employment opportunities. The removal of these protections may lead to increased discrimination claims and legal disputes concerning employment practices. By prohibiting self-selection of gender on federal identification documents, the order may create conflicts with state policies that recognize non-binary or transgender identities. This inconsistency could lead to legal challenges regarding the recognition of gender identity across different jurisdictions and the potential violation of individual rights to privacy and equal protection under the law. The prohibition of federal funding for gender-affirming care, including within federal prisons, raises legal concerns related to the Eighth Amendment’s prohibition against cruel and unusual punishment. Denying necessary medical care to transgender individuals in federal custody could result in litigation alleging deliberate indifference to serious medical needs. Civil rights organizations, including the American Civil Liberties Union (ACLU), have signaled intentions to challenge the executive order in court. Legal arguments are likely to focus on conflicts with established anti-discrimination laws, constitutional protections under the Equal Protection Clause, and precedents set by the Supreme Court affirming the rights of transgender individuals. President Trump’s executive order represents a significant shift in federal policy regarding the recognition of sex and gender. Its implementation is poised to have far-reaching legal implications, particularly concerning anti-discrimination protections, federal employment practices, identification policies, and access to medical care. As legal challenges emerge, courts will play a crucial role in determining the order’s alignment with existing laws and constitutional principles.
February 6, 2025
Family Law
Why Divorce Lawyers Are Busy After the Holidays
The holiday season, with its emphasis on family gatherings, goodwill, and celebration, might seem like an unlikely time to consider divorce. However, for many couples, the stress and emotional intensity of the holidays often bring underlying marital issues to the forefront. As a result, divorce lawyers frequently see a surge in inquiries and new cases at the start of the new year, making January a peak season for divorce consultations and filings. The "New Year, New Start" Mentality For some individuals, the beginning of a new year represents a fresh start. This "New Year, New You" mindset often leads people to reevaluate their lives, including their relationships. Couples who have been struggling may view January as an opportunity to break free from an unhappy marriage and start anew. Holiday Stress Magnifies Marital Strains The holiday season is a time of high expectations. Families aim to create perfect celebrations, but the financial pressures, packed schedules, and family dynamics can amplify tensions in already strained relationships. Disagreements over money, parenting, or extended family obligations may come to a head, leaving one or both partners feeling that divorce is the only solution. Staying Together "For the Kids" Many parents delay divorce proceedings until after the holidays to avoid disrupting their children’s celebrations. They prioritize giving their kids one last holiday season as a united family, even if the marriage is irreparably broken. Once the holiday decorations are packed away, these couples often proceed with reaching out to divorce attorneys. The Role of Social Media and Comparison During the holidays, social media feeds are flooded with images of seemingly happy families enjoying picture-perfect moments. For individuals in struggling marriages, these posts can deepen feelings of dissatisfaction and loneliness. The stark contrast between their reality and the idealized versions of others’ lives may push them toward seeking a divorce. Preparing for the Surge Divorce lawyers and family law firms are well aware of the post-holiday uptick in divorce cases. Many firms use December to prepare for the influx, ensuring that their teams are ready to handle consultations, paperwork, and court filings. Some even offer informational sessions or promotional campaigns in January to assist potential clients during this challenging time. Moving Forward For those considering divorce after the holidays, it’s important to approach the process thoughtfully. Consulting with an experienced divorce lawyer is a critical first step in understanding your rights and options. Additionally, seeking support from therapists or counselors can help individuals and families navigate the emotional complexities of divorce. While the start of a new year can be a difficult time for couples ending their marriage, it also represents an opportunity for growth and a chance to create a more fulfilling future. Divorce, while challenging, can ultimately lead to a healthier and happier life for all involved.
January 13, 2025
Family Law
Dividing Christmas Ornaments and Other Personal Property in a Divorce Case
Divorce is a challenging process, and dividing personal property often adds emotional complexity. While big-ticket items like homes and retirement accounts might take center stage, sentimental belongings—such as Christmas ornaments, family heirlooms, and collectibles—can be just as contentious. Understanding the legal framework and adopting practical strategies can help ensure a fair and amicable resolution. Legal Considerations Marital vs. Separate Property: Generally, items acquired during the marriage are considered marital property and subject to division. Property inherited by or gifted to one spouse during the marriage typically remains separate property, as long as it has not been commingled with marital assets. If Christmas ornaments were acquired before the marriage or gifted individually, they might be classified as separate property. State Laws on Property Division:Community Property States: In these states, marital property is divided equally. Equitable Distribution States: Property is divided based on fairness, which may not always result in a 50/50 split. Sentimental vs. Monetary Value:Courts may not assign monetary value to sentimental items, but they may recognize their importance to both parties. If the parties cannot agree, a judge may make the final decision. Practical Strategies for Dividing Sentimental Items Create an Inventory: Begin by making a detailed list of all personal property, including Christmas ornaments, holiday décor, and other sentimental items. Include photographs or descriptions to avoid disputes over the condition or identity of specific items. Identify High-Priority Items:Each spouse should separately identify items that hold the most sentimental value to them. This process can help pinpoint areas of potential compromise. Negotiate and Trade:Consider trading items of comparable value. For example, one spouse might take the Christmas ornaments while the other keeps another collection of sentimental value, such as photo albums. Use larger assets, like furniture or electronics, to balance out inequities in sentimental property division. Collaborate During the Holidays:If children are involved, consider creating a shared holiday tradition, such as alternating who uses certain ornaments or decorations each year. Split ornaments into meaningful categories (e.g., “childhood,” “collected during marriage”) to ensure an equitable distribution. Use a Neutral Mediator:Mediation can be a helpful tool for resolving disputes over sentimental items. A neutral third party can provide guidance and help diffuse emotionally charged discussions. Tips for Minimizing Conflict Focus on the Big Picture: Remember that sentimental items, while important, are part of a larger process. Keeping the focus on achieving a fair overall settlement can reduce tension. Consider Duplication:In some cases, items like photographs or digital holiday keepsakes can be duplicated, allowing both parties to retain a copy. Consult an Attorney:An experienced family law attorney can provide insight into how local courts handle personal property disputes and guide negotiations. Conclusion Dividing Christmas ornaments and other personal property in a divorce requires a balance of legal knowledge, emotional intelligence, and practicality. While these items may not have significant monetary value, their emotional worth can be immense. By approaching the process with fairness, flexibility, and empathy, divorcing spouses can navigate this delicate aspect of property division with dignity and respect.
December 18, 2024
Family Law
Hanukkah and Parenting Time: Balancing Tradition and Family Dynamics
Hanukkah, also known as the Festival of Lights, celebrates the miracle of the oil that lasted for eight days in the Holy Temple in Jerusalem. During Hanukkah, many families gather to light the menorah, exchange gifts and enjoy latkes and sufganiyot. For divorced families, Hanukkah can present unique challenges when it comes to parenting time and holiday schedules. Balancing the celebration with the needs and expectations of all parties involved requires thoughtful planning, flexibility, and understanding. Some elements to consider include: Open Communication, Flexibility and Compromise: Open and clear communication between parents is essential for planning a holiday schedule that addresses where the children will stay, which traditions will be celebrated and ensures everyone feels included. Flexibility ensures both parents can share in the festivities, allowing children to connect with both sides of the family. Creating New Traditions: If one parent cannot be present for certain nights of Hanukkah, it’s a great opportunity to start new family traditions that blend the needs of both households. This could include pre-recorded video calls to participate in the menorah lighting or sending gifts in advance to ensure children feel that both parents are present, even if physically apart. Respecting Religious and Cultural Sensitivities: In families where different parents or stepparents come from various religious backgrounds, it’s important to be sensitive to any religious observances or practices. Finding ways to include both religious and secular elements in the celebrations may provide a path toward mutual respect and understanding. Children’s Needs: The needs and emotions of the children are central to any co-parenting plan. For younger children, maintaining familiar rituals is important for security and consistency. If children are older, their involvement and input in holiday arrangements may play a significant role in the decision-making process, particularly if they have developed strong connections to specific traditions or people. Holiday Gift Giving: The exchange of gifts is common during Hanukkah and ensuring that both parents can contribute to the gift-giving experience is important. Some families opt to give all gifts on one particular night, while others may stagger the presents over the course of the eight days. In a co-parenting situation, planning gift-giving ahead of time avoids overlap or competition while ensuring the children feel equally valued. Consider the Impact on Extended Family: Hanukkah often brings extended family together, including grandparents, aunts, uncles, and cousins. Making special arrangements to include one side of the family while ensuring the other is not left out may require flexibility, understanding, and some negotiation. Amidst the logistical challenges of co-parenting during Hanukkah, it’s important to focus on creating a positive and meaningful experience for the children. While the children may not fully understand the complexities of the co-parenting arrangement, they will remember the joy of celebrating the holiday with their loved ones. Ultimately, Hanukkah offers an opportunity for families to come together and reflect on the values of light, joy, and resilience—values that can be celebrated by all, regardless of the circumstances.
December 17, 2024
Family Law
Will the Denial of Gender Affirming Care for Transgender Youth Become the Law of the Land?
On December 4, 2024, the U.S. Supreme Court is scheduled to hear U.S. v. Skrmettii, perhaps the most important trans rights case the justices have ever heard. The landmark case asks whether discrimination against people based on their gender identityii violates the Constitution, a question the Court has never answered. A decision against the trans plaintiffs in Skrmetti could potentially upend the entire legal framework protecting Americans from gender discrimination of all kinds and have a widespread impact on the availability of care for all youth, regardless of sex, nationwide.iii Last year, on March 22, 2023, the Tennessee House of Representatives passed HB1, a law amending the Tennessee Code banning gender-affirming care for transgender minors with a diagnosis of gender dysphoriaiv. The law also criminalizes healthcare providers who administer treatment for transgender youth. More than half of the United States – 26 states, in fact – have passed such bans in recent years.v Tennessee’s Law prohibits all medical treatments that allow a minor to identify with, or live as an individual inconsistent with their assigned sex, and treat the discomfort or distress from a discordance between their biological sex and asserted identity.vi Tennessee’s ban does permit these same hormone medications when they are provided in a way that Tennessee considers “consistent” with a person’s sex designated at birth. Tennessee’s ban has now forced transgender youth who were being treated with puberty blockers and hormone therapy to halt all such care. Transgender teens are now forced to detransition and experience the unwelcome physical effects of puberty that may be mentally and physically debilitating and ultimately destructive, not to mention arduous to later change. Skrmetti comes to the Supreme Court five years after the Court decided a case entitled Bostock v Clayton County, Georgiavii. The Court in Bostock ruled that the 14th Amendment to the U.S. Constitutionviii (the “Equal Protection Clause”) bars discrimination in employment based upon an individual’s “sex,” interpreting the word “sex” to include one’s sexual orientation and gender identity. In its decision, the Court declared that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”ix The Skrmetti plaintiffs’ argument opposing the ban created by Tennessee is based on already existing constitutional law; namely that Tennessee’s ban restricting gender-affirming care for transgender adolescents is a clear example of discrimination on the basis of sex, making it a violation of the Equal Protection Clause of the 14th Amendment of the Constitution. Tennessee’s argument in support of the ban is based on the continuation of historical legal and moral traditions.x The state argues that the Court should ignore their own precedent in Bostock and pay no attention to the Equal Protection Clause; that the Court should expand on its ruling in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and permitted states to ban abortion. Skrmetti will be a major test for the Court; are they willing to stretch Dobbs to allow states to ban other health care? The court’s ruling could serve as a stepping stone toward further limiting access to abortion, IVF, and birth control.xi Although the decision that is ultimately issued by the Supreme Court in Skrmetti will be confined to Tennessee,xii it will have ramifications country-wide. Potential Outcomes There are a range of different outcomes that are foreseeable in a final ruling.xiii A ruling in favor of the Skrmetti plaintiffs could return the case to the lower courts to apply the appropriate standard of review for improper sex-based classifications. A ruling in favor of the Skrmetti plaintiffs that determines that the Bostock definition of “sex” applies, and that the Tennessee ban discriminates on the basis of sex (which violates the Equal Protection Clause), would result in the law being found to be unconstitutional and the Court would strike it down. If the Court upholds the ban, the Tennessee law would remain in effect, depriving trans minors from receiving hormone therapy, greenlighting similar bans already enacted in other states, and potentially emboldening even more states to pass similarly restrictive laws and perhaps even more draconian bans.xiv If the Court agrees that there is discrimination based on transgender status but that that does not fit within the definition of discrimination based on sex, there would be significant damage to any future case regarding transgender rights. However the case is decided, it is likely to have a significant impact on how much deference courts give to bans on medical care to treat gender dysphoria. Conclusion Twenty-six (26) of the fifty (50) states in our union have banned youths from receiving essential medical care for gender dysphoria, throwing the lives of the young people in those states into shambles. What will happen in the months following the December 4th oral argument resulting in the Court’s decision in Skrmetti we must all wait anxiously and expectantly. In the meantime, it is useful to ponder the following facts: Every major medical association including the American Academy of Pediatrics, the American Medical Association (the “AMA”), and leading world health authorities have supported gender affirming care as evidence-based care that transgender people should be able to access (i.e., medically necessary health care), and a best practice. The AMA itself has undertaken a myriad of studies indicating that the failure to provide gender-affirming care can lead to (among other things) dramatic increases in suicide attempts, as well as increased rates of depression and anxiety. While the Supreme Court will specifically address whether transgender youth can be banned from accessing hormone therapy, puberty blockers, and similar medications, the case does not address surgery for transgender youth, which is rarely performedxv. The Court will only determine the challenge to Tennessee’s transgender health care ban under the Equal Protection Clause of the Constitution. It will not decide that portion of the case that argues it is the due process right of parents to make health care decisions for and with their children without governmental hindrance. The Supreme Court’s determination to hear Skrmetti comes after a number of states have enacted restrictions on school sports participation for transgender people, bathroom usage and drag shows. At least 24 states now have laws barring transgender girls and women from competing in certain women’s or girls’ sports competitions. At least 11 states have adopted laws barring transgender girls and women from girls’ and women’s bathrooms at public schools and, in some cases, other government facilitiesxvi. If the Supreme Court agrees with Tennessee’s ban, there is nothing stopping states from banning or restricting other kinds of health care – like what gets covered under Medicaid. A Supreme Court ruling endorsing Tennessee’s ban just because it disagrees with who that treatment is being given to — would enable the government to control people’s health decisions and enact other blatantly discriminatory policies.xvii i Awaiting U.S. Supreme Court citation. Underlying proceedings (i) preliminary injunction granted in part and denied in part, L.W. v. Skrmetti, 679 F. Supp. 3d 668 (M.D. Tenn. 2023); and (ii) preliminary injunction stayed, L.W. v. Skrmetti, 83 F.4th 460 (6th Cir. 2023). ii Transgender, is defined as “[a]n internal sense of being male, female or something else." American Psychological Association, 49 Monitor on Psychology, at 32. iii https://www.vox.com/scotus/385198/supreme-court-transgender-united-states-skrmetti iv As defined by the Mayo Clinic “gender dysphoria is different from simply not conforming to stereotypical gender role behavior. It involves feelings of distress due to a strong, pervasive desire to be another gender.” https://www.mayoclinic.org/diseases-conditions/gender-dysphoria/diagnosis-treatment/drc-20475262 v Over the past two years, the number of states with laws/policies denying gender affirming care has increased from four (4) to twenty-six (26) states (AL, AR, AZ, FL, GA, IA, ID, IN, KY, LA, MO, MS, MT, NC, ND, NE, NH, OH, OK, SC, SD, TN, TX, UT, WV, WY ). vi Tennessee-2023-HB0001-Chaptered.pdf vii 140 S. Ct. 1731 (2020) viii No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ix See Bostock. x That Tennessee has a duty to protect the bodily integrity and health of its residents, especially vulnerable individuals, particularly children, which duty includes the protection of such individuals from harmful and avant- garde medical impositions. And that Tennessee also has a responsibility to its residents to “hold steady, the law’s proper and vital recognition of an objective sexed human nature . . . that male and female are not interchangeable constructs, but divinely ordained realities. See, https://tennesseestands.org/commentary/preserving-the-created-order-reflections-on-usa-v-skrmetti.” xi https://www.aclu-nj.org/en/news/supreme-court-case-trans-health-care-explained xii The State of Kentucky is also a party to the case, so the Court’s decision will effect Kentucky residents as well. xiii https://yaledailynews.com/blog/2024/11/18/law-school-hosts-panel-on-how-united-states-v-skrmetti-puts-transgender-healthcare-on-the-line/ xiv https://lambdalegal.org/lw-v-skrmetti-faq/ xv A recent Journal of the American Medical Association showed 3,600 procedures for transgender patients ages 12 to 18 over the past decade; by contrast, 229,000 U.S. teens had surgical procedures to affirm their cisgender identities in a single year, including breast reductions for boys, or breast augmentation for girls. xvi https://www.lgbtmap.org/equality-maps/youth/sports_participation_bans xvii Comments from Michael Ulrich, associate professor of health law, ethics and human rights at Boston University’s School of Public Health and School of Law at https://19thnews.org/2024/10/how-the-supreme-court-case-on-trans-youth-could-affect-health-care-for-all-americans.
November 25, 2024
Family Law
Should You Race to Get Divorced Before the End of the Year for Tax Filing Status and Financial Planning?
Deciding when to finalize a divorce can be influenced by many factors—financial, emotional, and legal. One key consideration is the impact your filing date will have on your tax filing status. Since the IRS determines marital status as of December 31, the date of your divorce could affect how much you owe or the refund you receive. Here’s what to consider as you weigh the timing of your divorce. For tax purposes, the IRS considers your marital status on the last day of the year. If your divorce is finalized on or before December 31, you will file as either "Single" or "Head of Household" (if you meet specific criteria). If you’re still legally married on that date, you’ll have to file as "Married Filing Jointly" or "Married Filing Separately." Married Filing Jointly: Typically provides the lowest tax rates and highest standard deductions. However, it can expose you to "joint and several liability," meaning you’re both responsible for any tax debt or penalties. Married Filing Separately: This might be a good option if you want to avoid joint liability or if your spouse has significant tax issues, but it generally leads to higher tax rates and limited deductions. Head of Household: Is available if you are unmarried by the end of the year, have paid more than half of the household expenses, and have a qualifying dependent. This status provides a lower tax rate and a higher standard deduction than "Single." The main financial difference between finalizing your divorce before or after December 31 hinges on tax brackets, deductions, and credits. Married Filing Jointly vs. Single/Head of Household: For many, filing jointly can lead to a lower tax burden, especially if there is a significant income difference between spouses. However, if your incomes are relatively similar, filing jointly may push you into a higher bracket. Additionally, if you file jointly, you may be eligible for tax credits like the Earned Income Tax Credit (EITC) and Child Tax Credit at higher income thresholds than if you file separately. Head of Household: If you qualify for Head of Household status, it may offer significant tax savings compared to filing as Single. This status is especially advantageous for those with dependent children and can be a compelling reason to finalize your divorce by year-end. If alimony payments are involved, their tax implications depend on when your divorce is finalized. Alimony payments are only deductible to the payer and taxable to the recipient if the divorce agreement was finalized before December 31, 2018. If your divorce is finalized after this date, alimony is neither deductible for the payer nor taxable for the recipient under the Tax Cuts and Jobs Act. Therefore, your divorce timing may have no immediate tax impact if alimony is a factor. Sometimes, finalizing a divorce quickly can result in the loss of other financial benefits, like health insurance coverage. Many spouses rely on their partner’s employer-sponsored health insurance, which generally ends upon divorce. Before rushing to finalize, assess whether you’re financially prepared to cover your own health insurance. Racing to finalize a divorce can lead to rushed decisions that could have lasting financial impacts. Consider whether you have time to prepare for separate tax filings, adjust your financial plans, and navigate any immediate needs, like adjusting retirement contributions, updating beneficiary designations, or refinancing jointly owned assets. The decision to finalize a divorce by year-end is highly personal and should be made with careful consideration. Here are a few key takeaways: Consult a Financial Advisor or Tax Professional: A professional can help you assess the potential tax implications based on your specific financial situation. Evaluate Your Household and Dependents: If you qualify for Head of Household, it might be financially beneficial to finalize by year-end. Think Beyond Taxes: Consider factors like health insurance, alimony, and asset division to understand the full scope of how the timing of your divorce could impact you. In short, racing to finalize a divorce by December 31 might be beneficial in some cases, but it depends on your unique financial situation. Ultimately, prioritizing a well-thought-out financial plan that aligns with your long-term goals may be more beneficial than a last-minute rush to lock in a different tax filing status.
November 18, 2024
Family Law
Domestic Violence During the Holidays: Family Law Protections and Legal Options for Victims
The holiday season, typically marked by celebrations, gatherings, and time spent with loved ones, can be a source of joy and relaxation. However, for some families, this period can also exacerbate underlying tensions, often leading to incidents of domestic violence. In family law, cases of domestic violence can have a significant impact on ongoing or pending legal matters, particularly concerning custody, visitation, and protective orders. Understanding the link between holidays and domestic violence and knowing the legal options available can help protect victims and ensure the safety of children and other family members involved in these cases. Several factors contribute to the rise in domestic violence incidents over the holidays: Financial Stress: The holidays often bring increased financial burdens due to gift-buying, travel expenses, and event costs. For families already facing financial challenges, these added expenses can heighten stress levels, sometimes leading to arguments and, in some cases, violence. Alcohol and Substance Use: Social gatherings during the holidays frequently involve alcohol consumption. Increased substance use can lead to impaired judgment and self-control, potentially escalating conflicts into violent incidents. Family Expectations and Pressures: The holidays may bring unrealistic expectations of family unity and joy. When family gatherings do not meet these expectations, individuals prone to violence may lash out. Isolation: For some, the holidays bring a sense of loneliness and isolation, especially for those estranged from family or friends. This emotional distress can create an environment where tensions rise, sometimes culminating in domestic abuse. Exposure to Past Trauma: The holiday season can bring back memories of past traumas or abusive family relationships, which may trigger conflicts in relationships that have an existing history of violence. In family law, instances of domestic violence, particularly those that arise during the holiday season, can play a significant role in shaping court decisions on issues such as: Custody and Visitation: Courts consider the safety and well-being of children as paramount. Allegations of domestic violence can lead to changes in custody arrangements or visitation schedules. For instance, a parent accused of violence may face supervised visitation or temporary custody restrictions to ensure the children’s safety. Protective Orders: Victims of domestic violence may seek protective or restraining orders to prevent the abuser from coming into contact with them. During the holiday season, judges are typically on heightened alert for domestic violence cases and may act swiftly to issue orders, particularly if children are involved. Divorce and Separation Proceedings: Evidence of domestic violence can also influence decisions regarding property division, spousal support, and other financial matters in divorce cases. In some states, a history of abuse may impact a court’s decision on asset distribution or alimony. Victims of domestic violence during the holiday season have several legal options to protect themselves and their families: Emergency Protective Orders: These court orders can be issued on short notice, offering immediate protection. They can include restrictions on contact, temporary custody arrangements, and no-contact provisions. Modifications to Custody and Visitation: For families with existing custody or visitation arrangements, courts may allow temporary modifications to protect the safety of children and any victims of violence. Safety Planning: Victims may work with attorneys or advocates to develop a comprehensive safety plan. This plan may include secure transportation, financial resources, and emergency contacts to help victims leave an abusive situation safely. Shelters and Resources: Many communities have shelters and advocacy organizations that provide temporary housing, counseling, and legal support to victims of domestic violence, often ramping up services during the holidays. For those facing domestic violence, reaching out for support is crucial. Attorneys, counselors, and advocates specializing in domestic violence can help victims navigate the legal system and protect themselves and their children. In family law cases, judges and attorneys understand that domestic violence poses unique challenges during the holiday season and may expedite protective measures to secure the well-being of all involved. Domestic violence cases during the holidays can have profound effects on family dynamics, especially in the context of family law. While the holiday season can be particularly challenging, it is essential for victims to know that legal protections and resources are available. By seeking support, taking appropriate legal actions, and working with trusted professionals, individuals can navigate this difficult period more safely, ultimately laying the groundwork for a more secure future.
November 18, 2024
Estates and Trusts
Inheritance Rights of Domestic Partners: A Comparison Between New York and New Jersey Laws
Domestic partnerships are legal arrangements between two individuals that grant some of the same rights and benefits as marriage. While domestic partnerships are recognized in many states, inheritance rights can differ greatly depending on the jurisdiction. This article explores the critical differences in inheritance rights for domestic partners under the laws of New York and New Jersey. Qualifying for Domestic Partnerships The qualifications for entering into a domestic partnership in New York and New Jersey are largely similar. Generally, both partners must: Be residents of the county or city where they are applying. Be at least 18 years old. Be unmarried and unrelated by blood. Be in a close, committed personal relationship for at least six months. Not have been in another domestic partnership within the six months prior to applying. Inheritance Rights in New Jersey In New Jersey, domestic partners are granted specific inheritance rights if their partner dies intestate (without a valid will). The surviving partner’s share of the estate depends on several factors: If the deceased partner has no children or parents, the surviving partner inherits 100% of the estate. If the deceased partner is survived by children who are also the children of the surviving partner, the surviving partner inherits 100% of the estate. If the deceased partner has a surviving parent, the surviving partner is entitled to the first 25% of the estate (with a minimum of $50,000 and a maximum of $200,000) plus 75% of the remaining estate. If either the deceased partner or the surviving partner has a child from another relationship, the surviving partner is entitled to the first 25% of the estate (with the same minimum and maximum) plus 50% of the remaining estate. Additionally, New Jersey law grants the surviving domestic partner priority to serve as the legal representative (administrator) of the deceased partner’s estate. Inheritance Rights in New York In contrast, New York does not grant inheritance rights to surviving domestic partners if their partner dies intestate. Without a will, the deceased partner’s assets will be distributed as follows: The deceased partner’s assets will go to their children, not their partner. If there are no children, the assets go to the deceased’s partner’s surviving parents. If they are not survived by children or parents, the assets pass to the deceased partner’s siblings. In the absence of children, parents, or siblings, the deceased partner’s assets may pass to distant relatives, such as nephews or cousins, leaving the surviving partner no share of the estate. Moreover, a surviving partner in New York does not have the right to serve as the legal representative (administrator) of the deceased partner’s estate. For couples in domestic partnerships in New York, comprehensive estate planning is essential. Without a will or other legal instruments, the surviving partner has no legal claim to the deceased partner’s assets and no right to act on behalf of the estate. The Federal Landscape: Domestic Partnerships and Estate Taxes It is also important to note that the federal government does not recognize domestic partnerships. Unlike married couples, domestic partners do not benefit from the federal estate tax exemption for spouses. As a result, a surviving partner may face estate taxes on any assets they inherit from their deceased partner. Additionally, if a partner inherits a qualified retirement account (such as a 401(k) or IRA), they cannot roll over the account into their own retirement account. This limitation can result in significant additional income tax liabilities on inherited retirement funds. Conclusion The inheritance rights and legal benefits for domestic partners vary significantly from state to state. In New Jersey, domestic partners are granted certain inheritance rights and legal privileges, including the ability to serve as the estate representative. In contrast, New York provides no automatic inheritance rights or authority over a deceased partner’s estate for surviving domestic partners. Due to these significant differences, domestic partners—especially those in states like New York—should prioritize estate planning. Careful planning ensures that a domestic partner’s wishes are clearly outlined, and their surviving partner is appropriately protected. Consulting with an attorney experienced in estate planning and domestic partnerships is essential for navigating these complex legal issues.
November 13, 2024
Family Law
Essential Legal Protections for LGBTQ+ Families in a Shifting Political Climate
In recent years, LGBTQ+ rights have made significant progress, providing many LGBTQ+ families with stronger legal protections, including marriage equality and anti-discrimination laws. However, shifts in the political landscape can bring uncertainty, making it critical for LGBTQ+ families to proactively protect their rights and ensure the stability of their family structure within the legal system. As legal challenges to established rights increase and state-level protections fluctuate, LGBTQ+ families face a pressing need to safeguard their rights with extra care, vigilance, and planning. Below are some legal strategies to help LGBTQ+ families secure protection and stability, regardless of changes in the political climate. Wills and Estate Planning Documents Wills and estate plans are essential for all families, but they hold particular importance for LGBTQ+ families, who may face unique legal challenges influenced by the political climate. A well-drafted will ensures that your wishes are clear and your assets are distributed according to your intentions. Without a will, intestacy laws in your state could determine the division of your assets, which may not align with your wishes or reflect your family structure. Advanced Directives Advanced directives, including documents such as a living will and durable power of attorney for healthcare, are vital for LGBTQ+ families. These documents empower you to designate a partner or spouse as your decision-maker in medical situations where you’re unable to make decisions yourself. Without these documents, other family members—who may not support your relationship—could potentially gain legal standing to make decisions on your behalf. Second-Parent Adoptions For LGBTQ+ couples raising children, second-parent adoption offers an added layer of legal security, especially when one parent is the biological or adoptive parent. This process allows the non-biological parent to legally adopt their partner’s child without the biological parent losing any parental rights. It ensures that both parents have full legal rights to the child, regardless of marital status or potential changes in the law, providing stability and protection for the family structure. Family Planning For LGBTQ families, family planning needs may include adoption, surrogacy, fertility treatments, and other reproductive services. Access to these services can be impacted by laws that regulate reproductive healthcare or place restrictions based on sexual orientation or gender identity. Legal professionals can help safeguard parental rights by drafting clear agreements, ensuring all legal parental statuses are properly documented, and staying informed on shifting policies. Estate Planning for Non-Biological Parents Estate planning is especially crucial for non-biological parents in LGBTQ+ families. Without proper legal protections, these parents may encounter challenges in securing custody or inheritance rights for the children they have raised. Comprehensive estate planning can help protect these relationships and ensure the family’s intentions are honored. Given the potential for changes in state and federal policies, LGBTQ+ families can benefit immensely from working with a knowledgeable attorney to address their unique legal needs. A skilled attorney will not only ensure that all documents are legally sound but will also help anticipate potential changes in laws that could impact your family. By working with an attorney experienced in these areas, you can proactively address any legal gaps and feel confident that your rights will be protected, regardless of the political landscape.
November 8, 2024
Family Law
Understanding The Role of Parent Coordinators in Custody Cases: Navigating High-Conflict Disputes for Effective Co-Parenting Solutions
In high-conflict custody cases, finding a productive way for parents to work together can be challenging. To address this, courts are increasingly turning to parent coordinators—specially trained professionals who assist families in resolving conflicts, improving communication, and ensuring that children’s needs remain at the forefront. A parent coordinator serves as a neutral third party, typically appointed by the court or agreed upon by both parents, to work with families involved in high-conflict custody or visitation disputes. Parent coordinators are often mental health professionals, social workers, or attorneys with specialized training in conflict resolution, family dynamics, and child development. They guide parents in managing disputes, fostering cooperation, and promoting a child-centered approach. Key Responsibilities of a Parent Coordinator Conflict Resolution: Parent coordinators help parents resolve conflicts by helping each party understand the other’s perspectives in hopes of finding common ground. Through structured discussions, they encourage constructive communication and discourage destructive behaviors. Facilitating Communication: Effective co-parenting relies on clear communication, often hindered by residual anger or mistrust in high-conflict cases. Parent coordinators set guidelines for respectful interactions and fostering collaboration in making decisions that affect their child’s life. Implementing Court Orders: Parent coordinators assist in ensuring that court-ordered custody agreements are implemented in ways that minimize conflict. They help parents navigate issues related to visitation schedules, holiday arrangements, education, extracurricular activities, and healthcare while aligning with court expectations. Decision-Making Authority: Parent coordinators do not have decision-making authority in most states. However, parents may agree to follow their recommendations until the court can make a ruling. This approach can reduce conflict and stress for the child in the interim. Focusing on the Child’s Best Interests: Above all, parent coordinators educate parents and make recommendations that are in the child’s best interests. They help parents understand the impact of ongoing conflict on their children and encourage solutions that support the child’s well-being. Benefits of Using a Parent Coordinator Reduced Court Involvement: Custody battles can be exhausting, costly, and emotionally draining for everyone involved. Parent coordinators facilitate resolutions outside of court, reducing the need for repeated legal intervention and saving time and legal fees. Decreased Emotional Impact on Children: When parents frequently clash over custody arrangements, children often bear the emotional toll. Parent coordinators work to reduce children’s exposure to parental conflict, which can otherwise lead to stress, anxiety, and emotional issues. Better Co-Parenting Relationships: Through constructive communication and conflict resolution training, parent coordinators help parents develop healthier dynamics. Even if parents continue to disagree, they may develop tools to manage their interactions more constructively, creating a more stable environment for the child. Efficient Resolution of Disputes: With guidance from trained professionals, many conflicts between parents can be quickly resolved, allowing parents to move forward without protracted arguments. Qualifications and Training of a Parent Coordinator Parent coordinators typically come from backgrounds in psychology, social work, family law, or a related field. They typically undergo extensive training in family conflict resolution, child development, and family dynamics, often meeting certification requirements specific to their region. Parent coordinators are trained to remain impartial and to focus solely on the family’s needs rather than individual grievances. Limitations and Challenges While parent coordinators play an essential role, their effectiveness often depends on both parents’ willingness to engage constructively and make concessions. In cases of uncooperative behavior, their ability to help resolve disputes may be limited. Additionally, while parent coordinators can help facilitate decisions, they are not a substitute for legal advice, therapy, or other professional services. Parent coordinators are valuable assets in high-conflict custody cases, helping families resolve disputes in a way that prioritizes the child’s well-being. By fostering better communication, reducing reliance on the courts, and focusing on practical solutions, they create a supportive structure for co-parents and children alike. For families facing ongoing conflicts, working with a parent coordinator can be a step toward establishing healthier co-parenting relationships and a more stable environment for children.
October 29, 2024
Family Law
Jewish Private School Education During Divorce: Financial, Custody, and Parenting Challenges
Navigating a Jewish private school education during and after a divorce presents unique challenges for both parents and their children. High tuition costs, combined with differing priorities post-separation, can add stress to an already difficult situation. In addition, factors such as shifting lifestyle choices and varying educational values can further intensify existing tensions within the family dynamic. Shared or joint custody arrangements often require both parents to make decisions about their children’s education collaboratively. This can become particularly complicated if religious beliefs or values have evolved since the divorce. For example, one parent may wish to enroll the child in a Jewish school to maintain cultural ties, while the other might prioritize a more secular education due to differing beliefs. Moreover, for families that prioritize a Jewish education as a key part of their child's upbringing, the decision to enroll in a Jewish school may be of critical importance. However, if one parent is not Jewish or has relocated to a different community with varying levels of commitment to Jewish education, disagreements over school choice may arise. Like many private institutions, Jewish schools often come with high tuition costs, placing an additional financial strain on families. During the divorce process, parents must determine how these costs will be allocated. They can include education expenses in their divorce agreement, specifying whether tuition and related costs will be arranged, whether split equally or based on each parent's income. Some may agree to divide responsibilities, with one parent covering tuition while the other handles extracurricular expenses or supplies. In certain cases, child support payments may be adjusted to account for private school tuition, especially if the chosen school is deemed necessary for the child’s well-being or educational needs. To ensure fairness, parents will likely need to share their financial situations to come to a fair agreement about dividing educational costs, considering income, assets, and other obligations. Parents are encouraged to seek the assistance of financial planners or legal advisors to navigate these discussions effectively. If they cannot agree, mediation with a neutral third party can help facilitate a mutually acceptable arrangement. Furthermore, parents may also need to revisit these agreements as financial circumstances change, fluctuations in income, or changes in school tuition. Despite these complexities, it is essential to recognize that a child's school can provide a vital sense of community and support, which is particularly valuable for children from Jewish families. Maintaining connections to their religious community and participating in Jewish traditions and events can play a critical role in a child's well-being during and after a divorce. To support this, parents can also support their children emotionally by encouraging open discussions about their feelings regarding the changes in their educational environment. Counseling services may be beneficial for children who struggle with the transition. While the process introduces complexities into educational decisions—such as choosing a Jewish school—effective communication and cooperation between parents are crucial. To facilitate this, parents can adopt strategies like implementing regular family meetings or joint decision-making sessions, focusing on the child’s best interests. Seeking guidance from legal professionals, family counselors, or even a Rabbi who understands the intersection of divorce and education can help families navigate these decisions. Additionally, local community organizations and Jewish educational foundations may offer resources to assist families in transition. In conclusion, prioritizing the child’s best interests is key to successfully managing these educational challenges. By fostering open communication, seeking professional support, and considering the unique needs of their children, parents can navigate the complexities of Jewish education in the context of divorce more effectively.
October 29, 2024
Family Law
Creative Co-Parenting Ideas for a Memorable Halloween Celebration
Halloween is a magical time for kids, filled with costumes, candy, and spooky fun. However, for co-parents, it can also pose challenges when it comes to sharing the holiday. With a little planning, it's possible to ensure that Halloween remains special for your children while also making co-parenting during this festive season easier for both parents. Here are some creative custody arrangements to consider: Split the Day: One parent can take the morning and early afternoon with the kids, filled with activities like Halloween crafts, pumpkin carving, or a spooky movie marathon. The other parent can then take over for trick-or-treating in the evening, letting each parent create special memories. Alternate Years: One year, the kids spend Halloween with one parent, and the next year, they switch. This arrangement allows each parent to create their own unique traditions every other year, ensuring everyone gets their turn to enjoy the holiday. Double the Fun: If you and your co-parent live nearby, consider splitting the trick-or-treating route. Start in one neighborhood and finish in the other, allowing both parents to share in the excitement while creating a seamless and fun experience for the children. Host a Joint Halloween Party: If you have a friendly co-parenting relationship, why not throw a joint Halloween party? This allows both parents to celebrate with the kids together, fostering a fun and inclusive environment while building positive memories as a family. Halloween Week: Extend the festivities! One parent could focus on pre-Halloween activities like haunted house visits or costume shopping while the other takes charge on Halloween night. This gives the kids a full week of fun and ensures both parents get quality time to enjoy the season. The key is to create an arrangement that works best for your family. Open communication and flexibility are crucial in ensuring your children have a fun and memorable Halloween, regardless of where they celebrate. Even if co-parenting presents its challenges, thoughtful planning can make Halloween a joyful and fun occasion for everyone. Wishing you all a Happy Halloween filled with wonderful memories!
October 15, 2024
Family Law
Navigating Family Law Matters During Rosh Hashanah: Insights from a Family Law Attorney
As Rosh Hashanah approaches, Jewish families prepare to usher in a new year filled with hope, reflection, and renewal. This sacred holiday is an opportunity to consider how we can strengthen our relationships and align our actions with our values. For those facing family law matters—whether divorce, custody disputes, or estate planning—Rosh Hashanah is a meaningful moment to reassess, reset, and renew our commitment to family harmony. A Time for Reflection and Reconciliation Rosh Hashanah's themes of introspection and reconciliation resonate deeply in family law. This period encourages us to reflect on the health of our family relationships. Are there unresolved conflicts that need attention? For example, if you're navigating a divorce or custody dispute, consider initiating open dialogues or seeking mediation to address these issues constructively. Reflecting on how to approach these matters with empathy and understanding can provide clarity and pave the way for more amicable resolutions. Embracing Teshuvah in Family Law The concept of teshuvah (repentance or return) is central to Rosh Hashanah and can guide the resolution of family law matters. In a legal context, teshuvah may involve mediation or collaborative divorce, where both parties work together to reach a fair agreement. For separated or divorced parents, teshuvah can mean recommitting to co-parenting with kindness and respect. Common challenges, such as difficulty communicating or differing parenting styles, can be addressed through parenting coordination or counseling. These approaches not only reduce conflict but also model positive behavior for the next generation. Renewal Through Estate Planning Rosh Hashanah is also an ideal time to consider the future. For many, this season of renewal is an opportunity to review or update estate plans. Stephanie F. Lehman, Executive Advisor to the Family Law Practice Group at Offit Kurman, highlights the importance of regularly revisiting these plans: "Life changes—such as marriage, divorce, birth, or death—often require adjustments to wills, trusts, or guardianship designations." Schedule a review with your attorney to ensure your estate plan reflects your current wishes. Common updates might include changing beneficiaries, adjusting asset distributions, or revising guardianship designations. Prioritizing Clear Communication and Harmony As families gather during Rosh Hashanah, it's a good time for open, honest conversations about important issues like prenuptial agreements or future care plans for aging parents. These discussions, grounded in mutual respect, can prevent misunderstandings and foster a sense of security and peace of mind. Addressing potential concerns early, such as planning for long-term care or discussing financial responsibilities, can help avoid conflicts and ensure that everyone's needs are met. Focusing on the Best Interests of Children For families navigating divorce or custody disputes, Rosh Hashanah serves as a reminder to prioritize the best interests of the children. This holiday offers a chance to reassess parenting plans and schedules to ensure they meet the children's needs. It's also a time to model forgiveness, flexibility, and cooperation, demonstrating to children that even amid conflict, their well-being remains paramount. Strategies such as regular parenting plan reviews or involving a child specialist can help align parenting arrangements with children's evolving needs. Moving Forward with Hope Rosh Hashanah teaches us that every ending is also a new beginning. For those facing challenging family law issues, this holiday encourages us to create positive change, find common ground, and move forward with hope. Whether resolving disputes amicably, planning thoughtfully for the future, or nurturing our most important relationships, Rosh Hashanah inspires us to embrace renewal. Shanah Tovah Umetukah—Wishing you a Good and Sweet New Year filled with renewal and harmony.
October 2, 2024
Family Law
Understanding Alimony in Maryland: Types, Factors, and How It's Awarded
When a marriage ends, financial considerations often play a significant role in the divorce process. One key financial aspect is alimony, also known as spousal support. Alimony provides financial assistance to a spouse who may be at an economic disadvantage post-divorce, helping them to transition to their new circumstances. In Maryland, courts award alimony based on specific guidelines and factors to ensure a fair outcome for both parties. This blog explores how alimony is awarded in Maryland and what factors influence the court's decision. Types of Alimony in Maryland Maryland law recognizes three primary types of alimony: Temporary Alimony (Pendente Lite): Awarded during divorce proceedings, temporary alimony helps the financially dependent spouse maintain stability until a final decision is reached. This type of alimony ensures that immediate financial needs are met while the divorce is ongoing. Rehabilitative Alimony: This is the most common type awarded in Maryland. It is intended to provide financial support for a specific period, allowing the recipient to become self-sufficient through education, training, or employment. The goal is to equip the recipient with the skills or resources necessary to achieve financial independence. Indefinite Alimony: In some cases, the court may award indefinite alimony when the recipient spouse cannot reasonably be expected to become self-supporting. This type is less common and is typically granted when there is a significant disparity in earning capacities or if the recipient is of advanced age or has health conditions that prevent self-sufficiency. Understanding these types of alimony is crucial as they set the stage for how courts assess individual cases. Factors Influencing Alimony Awards When determining whether to award alimony, as well as the amount and duration of the payments, Maryland courts consider several key factors: Ability to be Wholly or Partly Self-Supporting: The court examines the recipient's potential to gain employment or improve their financial situation through education or training. Time Necessary to Gain Sufficient Education or Training: The court considers how long it will take for the recipient to acquire the skills needed to become self-supporting. Standard of Living During the Marriage: The court aims to maintain a standard of living for the recipient that is reasonably comparable to that enjoyed during the marriage. Duration of the Marriage: Longer marriages are more likely to result in alimony awards, particularly indefinite alimony, especially when there is a significant disparity in earning capacities. Contributions to the Family: The court evaluates the monetary and non-monetary contributions made by each spouse, including homemaking and child-rearing responsibilities. Circumstances Leading to Estrangement: Fault-based factors, such as adultery or abuse, may be considered when determining alimony awards. Age and Physical and Mental Condition: The court assesses the physical and mental condition of both spouses health and age of both spouses, as these factors can impact the recipient's ability to become self-supporting. Paying Spouse's Ability to Meet Their Own Needs: The court ensures that the paying spouse can afford the alimony payments without undue hardship. Agreements Between the Parties: Any prenuptial or postnuptial agreements may influence the court's decision regarding alimony. Conclusion: Alimony is a crucial aspect of divorce proceedings in Maryland, designed to provide financial support to a spouse in need. Understanding the various types of alimony, the factors that influence the court's decision, and the potential for modifying alimony awards can help individuals navigate this complex aspect of divorce more effectively. If you are facing a divorce and have questions about alimony, consulting with an experienced family law attorney can provide valuable guidance, ensuring your rights are protected.
September 26, 2024
Family Law
Divorce and the Professional Athlete: Managing Assets, Custody, and Public Scrutiny
Representing an athlete through a divorce requires a unique blend of legal expertise, emotional intelligence, and public relations savvy to guide a high-profile client through this complex and challenging period. Professional athletes live under constant public scrutiny and media attention, with their personal lives often under a microscope. This heightened visibility can add significant pressure during a divorce. To effectively advocate for their client's interests, legal representatives must understand and navigate this unique environment. Navigating Asset Division The legal landscape for divorcing athletes is intricate, with elements that differ from a typical divorce case. Professional athletes often possess substantial and complex asset portfolios, including endorsement deals, contracts, and investments. Accurately, valuing these assets and negotiating their division can be challenging. Recommendation: Work with professionals who specialize in high-net-worth divorces and understand the nuances of athletes' contracts, including potential future earnings. Determining spousal support or income for child support can be particularly complex, as factors such as the athlete's contract, endorsement deals, current income, future earning potential, age and health must all be considered. Custody Considerations When children are involved, their well-being is paramount. Navigating custody arrangements requires sensitivity and an understanding of how the athlete's career demands may impact their parenting. Recommendation: A creative attorney will collaborate with child psychologists or family counselors to develop a custody schedule that prioritizes the children's emotional needs while accommodating the athlete's career obligations. Managing Public Scrutiny The athlete's personal life will likely attract significant media attention, making the management of public perception and privacy a critical aspect of representation. Developing a proactive media strategy is essential for controlling the narrative, and the sooner this is implemented, the better. Recommendation: This strategy may include preparing public statements, managing press inquiries, and addressing rumors before they escalate. It's vital for the divorce legal team to work with a PR team experienced in handling high-profile cases to mitigate potential damage to the athlete's public image and their family. Ensuring the client's privacy during the divorce process is also paramount, which includes managing court documents and legal filings to minimize leaks and public scrutiny. Virtual platforms like Zoom and Teams can also provide a secure way for athletes to meet with their attorneys without the risk of paparazzi intrusion. Emotional Support Divorce can take a significant emotional toll, particularly for those in the public eye. Athletes may experience heightened stress due to media scrutiny, public pressure, and potential career impacts. Providing emotional support is as important as legal representation. Recommendation: Encouraging athletes to seek counseling or therapy can provide a valuable outlet for dealing with the emotional strain; a support network of trusted friends, family, and mental health professionals can be instrumental in this process. It is essential to help the athlete stay focused on their career and personal well-being during the divorce process, which may involve collaborating with their coaching and management teams to ensure their professional commitments are managed effectively. Strategic Future Planning Divorce can have significant and long-lasting implications for an athlete's career and personal life, making strategic planning for the future essential. Assessing how the divorce may impact the athlete's career trajectory, endorsements, and public image is important. Recommendation: Developing strategies to mitigate potential negative effects is crucial for preserving their professional reputation. Additionally, post-divorce financial planning should address changes in income, expenses, and asset distribution. Collaborating with financial advisors to develop a robust plan for managing their finances is vital for long-term stability. Conclusion In summary, representing a professional athlete through a divorce requires a comprehensive approach that integrates legal, emotional, and public relations considerations. By understanding the unique aspects athletes face — such as complex asset portfolios, custody arrangements, and the need for media management — legal representatives can effectively navigate this difficult period. Ultimately, the goal is to protect the athlete's interests while preserving their personal and professional integrity in this high-stakes process. Implementing these recommendations can enhance the effectiveness of representation and support the athlete through this challenging transition.
September 25, 2024
Family Law
Navigating the Division of Private Investments in a New Jersey Divorce: A Simplified Guide
Divorce can be a complex process, especially when dividing financial assets. The process can seem even more daunting for those who own private investments, such as shares in a closely held business or investment partnerships. If you're facing a divorce in New Jersey and have private investments, understanding how these assets are divided can help you navigate this challenging time with more confidently. Here's a straightforward guide to help you through the process. What Are Private Investments? Private investments are assets that are not traded on public exchanges. They can include: Shares in Private Companies: Owning stock in a company that is not publicly traded, is considered a private investment. Partnership Interests: Investments in business partnerships or joint ventures. Real Estate Ventures: Investments in real estate projects that are not part of a publicly traded real estate investment trust (REIT). How Are Private Investments Divided in a New Jersey Divorce? In New Jersey, divorce laws require that marital assets be divided fairly, which is known as "equitable distribution." This doesn’t always mean a 50/50 split but rather a fair division based on various factors. Here's a step-by-step look at how private investments are typically handled: Identify the Investments: The first step is to identify all private investments owned by either spouse. This involves compiling detailed information about each investment, including its value, ownership percentages, and any relevant agreements or documentation. Determine the Value: Valuing private investments can be more complicated than valuing publicly traded stocks. Since private investments are not publicly traded, they lack a clear market value. You might need to hire financial experts or appraisers specializing in valuing such assets. They will consider factors like the company's financial statements, revenue, profits, and market conditions to estimate a fair value. Assess the Marital Portion: Only the portion of the private investment acquired during the marriage is subject to division. If the investment was made before the marriage, its pre-marital value is generally considered separate property. However, any increase in value during the marriage is typically divided if the asset requires the active efforts of either spouse. This can be particularly complex if the investment has appreciated significantly over time. Consider the Type of Investment: Different types of private investments might require different approaches:Business Interests: If one spouse owns a business, determining its value and dividing ownership can be particularly intricate. The court may consider whether the business was started before or during the marriage and how much of the business’s value is attributable to the marital period. Partnerships: If you are a partner in a business, your share might be divided based on the partnership agreement or subscription agreement, which might outline how to handle such situations. Negotiate and Reach an Agreement: Once the value of private investments is determined, you and your spouse can negotiate how to divide these assets. This might involve selling the investment and splitting the proceeds, or one spouse might buy out the other’s share. Another option to consider may be a transfer of shares directly to your spouse (if permitted) or an offset against another marital asset. Negotiations should be guided by fairness and consider each party’s financial and non-financial contributions to the marital enterprise. Legal and Tax Considerations: Dividing private investments can have tax implications. It’s important to consult with tax professionals to understand the potential tax consequences of transferring ownership or selling investments. Legal advice can also ensure that all agreements comply with New Jersey divorce laws and are properly documented. Asset Protection and Estate Planning Considerations: It is also extremely important to consider how any division may impact your asset protection plan and/or your estate planning objectives. Seek Professional Guidance Given the complexity of valuing and dividing private investments, it’s advisable to work with professionals who have a deep understanding of these areas. Financial advisors, business valuators, and seasoned matrimonial attorneys can offer valuable guidance and help ensure that your interests are protected. Conclusion Dividing private investments during a divorce in New Jersey involves a careful assessment of their value, understanding which portions are subject to division, and navigating the complexities of asset division. While the process can be intricate, you can work towards a fair and equitable resolution with the right support and a clear understanding of your assets. If you’re facing a divorce and are unsure how to handle private investments, we strongly recommend consulting with a knowledgeable family law attorney licensed in your jurisdiction, as every case is unique and fact-sensitive. With the right expertise, you can manage this challenging aspect of divorce and move forward with greater clarity and confidence. If you would like to discuss your matter or have any questions, please contact Rawan Hmoud, Esq. by email at rhmoud@offitkurman.com or by phone at D: 347-589-8528. In addition to her more than 17 years of experience in family law, Ms. Hmoud is the Practice Group Leader of the Family Law North group at Offit Kurman, PA. She works with a team of matrimonial attorneys covering New Jersey, New York, Pennsylvania, and our Asset Protection and Estates and Trusts teams.
September 5, 2024
Family Law
New Jersey vs. California: A Divorce Law Comparison Through JLo and Ben's Separation
Recent media coverage has been swirling with rumors surrounding Jennifer Lopez (JLo) and Ben Affleck’s separation. On August 20, 2024, it was reported that JLo filed for divorce in California, where they both primarily reside, after just two years of marriage. While the separation was not unexpected, it came as a surprise that JLo and Ben did not have a prenuptial agreement prior to walking down the aisle in July 2022. Without a prenuptial agreement, the earnings, profits, and assets acquired during the marriage are subject to division. In determining how marital property should be divided, courts will consider a variety of factors, which can differ depending on the state where the divorce is filed. While their divorce is being filed in California, exploring how New Jersey would handle a similar situation offers an interesting perspective on the differences in divorce law across states. Unlike California, which is a community property state where marital assets are generally divided 50/50, New Jersey follows an "equitable distribution" model, meaning that marital property is divided in a manner deemed fair based on the circumstances — not necessarily equally. Equitable Distribution in New Jersey If this matter were pending in New Jersey, the allocation of marital assets between spouses would be governed by N.J.S.A. 2A:34-23.1, regardless of ownership. Unlike California, New Jersey is an equitable distribution state, meaning that marital property is not necessarily divided equally but, in a manner, deemed fair based on the circumstances. In conducting an equitable distribution analysis, New Jersey courts follow a three-step process: Identification: The court first identifies the specific property and liabilities of each spouse that are subject to distribution. Valuation: The court then determines the value of this property. Distribution: Finally, the court analyzes and decides how to distribute the property fairly. At Step 3, the court has broad discretion to determine the most equitable way to distribute marital assets, guided by the factors outlined in N.J.S.A. 2A:34-23.1. Among the 16 factors considered, the most important include: The length of the marriage. The economic circumstances of both parties. Each party’s financial and non-financial contributions to the marriage. Additional factors such as the age and health of both parties, the standard of living established during the marriage, and the tax consequences of proposed distributions. Considerations for High-Profile Divorces For high-profile clients like JLo and Ben, a New Jersey court might consider a variety of assets when determining the distribution of their assets and liabilities. This list includes, but is not limited to: The earnings from films in which either party starred or was involved as a director/producer during the marriage. For Ben, this includes films such as Air and Hypnotic, This Is Me… Now: A Love Story, Small Things Like These, Kiss The Future, The Greatest Love Story Never Told, The Instigators, and The Accountant 2, while JLo’s films include Shotgun Wedding, The Mother, This Is Me… Now: A Love Story, and Atlas[1]. The court would also take into account their Beverly Hills home, Promotional contracts, streaming dividends, and royalties earned during the marriage. In certain circumstances, the appreciation of separate property may be considered a marital asset subject to equitable distribution. However, given the short duration of JLo and Ben’s marriage, it is uncertain whether a New Jersey court would divide any increase in the value of their separate property or premarital assets. Typically, prenuptial agreements address this issue directly and provide protection against such outcomes. How New Jersey Differs from Other States It is important to note that each state’s approach to divorce can differ significantly. For instance, New York, like New Jersey, is an equitable distribution state but has its own unique guidelines and considerations that could lead to different outcomes. These variations emphasize the importance of understanding the nuances of divorce law in your jurisdiction. Protect Your Interests: Consult with a Family Law Attorney High-profile cases like this often involve complex financial portfolios and unique challenges that require careful planning and attention. If you’re concerned about protecting your assets or understanding how your property might be divided in a divorce, we strongly recommend consulting with a knowledgeable family law attorney licensed in your jurisdiction, as every case is unique and fact-specific. If you would like to discuss your matter or have any questions, please contact us by email at emily.ingall@offitkurman.com and rhmoud@offitkurman.com or by phone at 929-476-0046 or 347-589-8528. [1] This list may not be all-encompassing and may not include unreleased projects.
August 28, 2024
Family Law
Back to School! Now What?
As summer comes to a close and children prepare to return to school, many divorced or separated parents find themselves facing the need to adjust their custody schedules. The shift from the more relaxed, flexible summer arrangements to the structured routine of the school year can be challenging. Understanding how custody schedules can change during this transition and planning accordingly can help ensure a smooth adjustment for parents and children. What is the best way to address these changes? Below are a few tips to facilitate a smooth transition back into the school year. Communicate Early and Often: Open communication between parents is not just important; it’s essential. Discuss potential custody changes well before the school year begins. Regular check-ins can help address any concerns and ensure both parents are on the same page, providing a sense of reassurance and keeping everyone well-informed. Create a Detailed Plan: A detailed custody plan can prevent misunderstandings and conflicts. The plan should outline the daily schedule, transportation arrangements, responsibilities for extracurricular activities, and any other relevant details. Be Flexible and Cooperative: Flexibility and cooperation are not just helpful but key to successful co-parenting. Be willing to adjust as needed and consider each other's work schedules, commitments, and the child's needs. This approach empowers you to control the situation and work together for the best outcome for your child. Prioritize the Child's Best Interests: Always keep the child's best interests at the forefront of any decisions. Stability, consistency, and a supportive environment are crucial for the child's well-being and academic success. This responsibility and care for your child's needs should guide all your decisions. Seek Mediation or Legal Assistance if Necessary: If parents cannot agree on custody schedule changes, seeking mediation or legal assistance may be necessary. A mediator or family law attorney can help facilitate discussions and find a resolution for everyone involved. Adjusting custody schedules when children return to school can be a complex process. Still, parents can navigate this transition smoothly with careful planning, open communication, and a focus on the child's best interests. By working together and being flexible, parents can ensure their children have the stability and support they need to thrive academically and emotionally. If you need assistance modifying a custody schedule, consulting with an experienced family law attorney can provide valuable guidance and help protect your rights as a parent.
August 15, 2024
Family Law
How to Value a Startup Business in a Divorce
Startups differ from mature businesses in that they are typically in the early stages of development, often with unpredictable revenue streams, high growth potential, and significant risk. This makes traditional valuation methods, which rely heavily on historical financial data, less effective. There are key aspects to consider when valuing a startup, which includes: Stage of Development: Is the startup in its seed stage, early stage, or growth stage? Revenue and Earnings: Startups may have little to no revenue or earnings, which affects the valuation approach. Business Model: Understanding the business model is critical as it determines the potential for future profitability. There are several methods to value a startup in a divorce, each with its own set of assumptions and applicability: Income Approach (Discounted Cash Flow—DCF): This approach involves projecting the startup's future cash flows and discounting them to their present value. However, due to startups' speculative nature, this method can be challenging and may require adjustments to account for higher risks. Market Approach: This method involves comparing the startup to similar businesses that have been recently sold. In the context of a startup, this could mean looking at other startups in the same industry and stage of development. However, finding comparable companies can be difficult, and the market approach often requires significant adjustments. Asset-Based Approach: This approach focuses on the value of the startup's assets, including intellectual property, equipment, and other tangible or intangible assets. For startups, this might undervalue the business, especially if the company's value is tied more to future potential than current assets. Venture Capital Method: Investors often use this method to value startups. It involves estimating the startup's exit value (the amount for which the startup could be sold in the future) and working backward to determine the present value. This method can be helpful but relies heavily on assumptions about future performance. Cost to Duplicate: This method calculates the cost of reviving the startup from scratch. While this may not reflect the market value, it can provide a baseline for valuation. When valuing a startup in a divorce, several personal and business factors must be considered: Ownership Structure: If the startup has multiple co-founders, the ownership percentage of the spouse involved in the divorce needs to be clearly defined. Role of the Spouse: The spouse's involvement in the startup (whether as a co-founder, employee, or passive investor) can affect the valuation and how the business is treated in the divorce. Legal Agreements: Any pre-existing agreements, such as prenuptial or postnuptial, can influence how the startup is valued and divided. Impact on Business Operations: The divorce may affect the startup's operations, especially if both spouses are involved. The potential implications for business continuity should be considered in the valuation. Given the complexities involved in valuing a startup, hiring a professional business valuator with experience in startups and divorce cases is often advisable. A qualified expert can provide a more accurate and unbiased valuation, which ensures a fair settlement. Once the startup's value has been determined, the next step is negotiating how that value will be divided. This can involve various options, such as: One spouse buys out the other's interest in the business. Selling the business and dividing the proceeds. Offsetting the value of the startup with other marital assets. Valuing a startup in a divorce is a complex process that requires a thorough understanding of the business and the personal dynamics involved. Each valuation method has pros and cons, and the most appropriate approach depends on the specific circumstances of the startup and the divorce. Engaging a professional valuator and carefully considering all factors can help ensure the process is fair and equitable for both parties. Ultimately, the goal is to achieve a valuation that reflects the startup's true worth, considering the unique challenges it presents in the context of a divorce.
August 13, 2024
Family Law
Traveling Abroad with Children During a Divorce: What You Need to Know
Understanding the legal requirements is one of the first and most critical steps in planning an international trip with your children during a divorce. Custody and Visitation Agreements: Review your custody and visitation agreements carefully. These documents will outline the rights of both parents regarding the children's travel. If your agreement restricts travel or requires the other parent's consent, you must follow these terms to avoid legal complications. Obtaining Consent: In most cases, you'll need the other parent's consent to travel abroad with your children. This consent should be in writing and include trip details, such as dates, destinations, and contact information. Some countries require this written consent when entering or leaving the country. Court Orders: If you cannot obtain the other parent's consent, you may need to seek a court order allowing you to travel. The court will consider whether the trip is in the children's best interest and whether it disrupts the other parent's visitation rights. Passports: Ensure that your children's passports are up to date. Both parents must usually sign a child's passport application unless one parent has sole legal custody. If your ex-spouse refuses to cooperate, you may need to go to court to obtain a passport. The Hague Convention: If you're traveling to a country that is a signatory to the Hague Convention on International Child Abduction, be aware of the legal protections this treaty provides. It helps prevent one parent from wrongfully retaining a child in a foreign country. Be very cautious if a parent wants to travel to a country that is not a signatory to the Hague Convention on International Child Abduction. Once the legal matters are settled, focus on planning the logistics of your trip. Itinerary and Contact Information: Share your complete travel itinerary, including flight information, accommodation details, and contact numbers, with the other parent. This transparency helps build trust and ensures both parents know the children's whereabouts. Emergency Contacts: Provide the other parent with emergency contact information, including local contacts in the destination country, the nearest U.S. embassy or consulate, and the children's healthcare providers. Healthcare Considerations: Ensure you have all necessary medical documents, including prescriptions, insurance information, and vaccination records. It's wise to have travel insurance that covers your children for the trip. Traveling during a divorce can sometimes lead to conflicts, especially if communication between you and your ex-spouse is strained. Conflict Resolution: Approach any disputes calmly and rationally. If a disagreement arises over travel plans, consider mediation to resolve the issue without escalating tensions. Respect Boundaries: Respect the other parent's boundaries and rights. Make sure to discuss them with your ex-spouse before making any last-minute changes to the travel itinerary. Legal Recourse: If conflicts cannot be resolved amicably, it may be necessary to seek legal advice or intervention. Always prioritize the best interests of your children in any legal action. Traveling abroad with your children during a divorce requires careful planning and consideration. Adhering to legal requirements, addressing your children's emotional needs, and maintaining open communication with the other parent can ensure the trip is a positive experience for everyone involved.
August 13, 2024
Family Law
Protecting Your New Home During Divorce: What You Need to Know
When you are separated and going through a divorce, whether in New Jersey or almost anywhere in the United States, you need to be mindful of any assets you acquire prior to a divorce decree being signed by a judge and the entry of an accompanying Order disposing of all marital property. In New Jersey, property acquired after separation is generally considered non-marital. However, it could be considered marital if the source of funds used to acquire the real estate were marital property (i.e., saved/acquired during the marriage). For example, if you are separated and use funds from a credit union account that accrued during the marriage for a down payment, that condominium would be considered marital property and subject to equitable distribution. This means your spouse could have a claim to the condominium, and any earnings and losses from the investment may also be considered marital and subject to equitable distribution. Using the tracing method, you can determine the origination of the down payment. To safeguard a post-separation acquisition is not considered marital property, it is best to use only funds earned after separation. Alternatively, if you need to use funds that are part of the marital estate, consult with your counsel and obtain consent from the other party or the Court to use such funds as a credit against your share of equitable distribution before making the purchase. It is important to keep all documentation to trace and demonstrate the source of funds used for the purchase, thereby protecting your post-separation property from any claims by your spouse. Every case is unique. The information above is generally applicable, but it is important to consult with a seasoned family law attorney in the state in which you live. By taking these precautions, you can better safeguard your post-separation acquisitions and ensure a fair distribution of marital assets during the divorce process.
August 7, 2024
Family Law
My Spouse Had an Affair. What Rights Do I Have?
A question divorce attorneys are frequently asked is, “how will my spouse’s affair impact my divorce?” There are a few things to consider when dealing with adultery in divorce proceedings. Grounds for Divorce. As of October 2023, adultery is no longer grounds for divorce in Maryland. In fact, Maryland has abolished its fault-based grounds for divorce and now only recognizes three no-fault grounds: 6-month separation, irreconcilable differences, and mutual consent. Alimony. A judge will evaluate several factors when considering whether or not to award a party alimony, including the duration and amount. One of the factors is the circumstances leading to the divorce. This is where adultery comes into play. If your spouse had an affair, and financial support is necessary to maintain a reasonable standard of living or to become self-supporting, proving adultery could be an important factor in your alimony case. Property Division. Similar to alimony, property division is a factor-based inquiry where fault, including adultery, is considered. The court will analyze a multitude of factors when determining how to divide marital property, so it is important to address each factor that is relevant to your claim, including your spouse’s affair. Custody. Contrary to what most believe, adultery does not weigh heavily on a court’s decision about custody of minor children. It is often the case that someone can be a poor spouse but a good parent. However, suppose the adulterer is making poor judgment decisions about the children due to their extramarital affair (for example, taking the children to bars or leaving them unattended to spend time with a paramour). In that case, a court may weigh this behavior when determining parental fitness. It is hard enough to face the reality of dissolving a marriage, but finding out your spouse is having an affair will make an already difficult situation almost impossible. The emotional aspect of adultery is one of the biggest hurdles to a successful, amicable divorce. That is why it is important to have an experienced, skilled attorney who can objectively evaluate each fact related to your case to help you achieve a favorable outcome.
July 29, 2024
Family Law
What Happens to the Marital Home During Divorce?
The marital home is often one of the most significant and emotionally charged assets in a divorce. Deciding what happens to the home can be a complex and contentious process involving both financial considerations and personal attachments. There are options with regard to the Marital Home, including: Selling the HomePros: Selling the marital home is a common option, as it allows both parties to liquidate the asset and divide the proceeds. This option can give both parties a clean break and financial resources to start anew. Cons: Selling a home can be time-consuming and emotionally challenging. Additionally, market conditions may affect the sale price, potentially leading to financial losses. One Spouse Buys Out the OtherPros: If one spouse wishes to keep the home, they can buy out the other spouse’s share. This option allows one party to maintain stability, particularly if children who benefit from staying in the same home and school district are involved. Cons: The buying spouse must have the financial resources to afford the buyout, which can be substantial. Additionally, refinancing the mortgage in one spouse’s name may be necessary, which could be challenging depending on their financial situation. Co-Ownership Post-DivorcePros: In some cases, divorcing couples may agree to continue co-owning the home temporarily. This arrangement can be beneficial if the housing market is unfavorable, or the children’s needs are prioritized. Cons: Co-ownership requires ongoing cooperation and communication, which can be difficult post-divorce. There is also the risk of future disputes over maintenance costs, mortgage payments, and eventual sale. Deferred Sale (Nesting)Pros: Deferred sale or “nesting” involves spouses taking turns living in the home while the children remain there full-time. This arrangement provides stability for the children and allows both parents to share in the responsibilities of the home. Cons: This arrangement requires significant coordination and ongoing communication. It is typically a short-term solution until a more permanent arrangement can be made. Some factors may be considered in determining what to do with the Marital Home, including: Financial ConsiderationsEquity and Mortgage: The home’s equity and the remaining mortgage balance will significantly impact the decision. Both parties must consider whether they can afford the mortgage, maintenance, and associated costs. Credit and Financing: Refinancing the mortgage in one spouse’s name requires good credit and sufficient income. This step is crucial if one spouse plans to buy out the other or keep the home. Children’s NeedsStability and Continuity: If children are involved, their need for stability and continuity will be a significant consideration. Keeping the marital home may be beneficial to minimize disruption to their lives. Emotional AttachmentsPersonal Value: The emotional attachment to the home can influence decisions. It’s essential to balance emotional factors with practical financial considerations. Legal AgreementsPrenuptial and Postnuptial Agreements: Any existing agreements will play a role in determining the outcome. These documents may specify what happens to the marital home in the event of a divorce. State LawsCommunity Property vs. Equitable Distribution: State laws vary in dividing marital property. There are legal process options in determining what happens with the Marital Home, including: Negotiation and MediationCollaborative Approach: Many couples resolve the fate of the marital home through negotiation or mediation. This collaborative approach allows for more flexibility and control over the outcome. Court DecisionJudicial Ruling: The court will decide if the couple cannot agree. The judge will consider various factors, including financial circumstances, children’s needs, and each party’s ability to maintain the home. Deciding what happens to the marital home during a divorce is a complex process that requires careful consideration of financial, emotional, and legal factors. Each option—selling the home, one spouse buying out the other, co-ownership, or deferred sale—has pros and cons. The decision should be guided by the best interests of both parties and any children involved, aiming for a resolution that provides stability and fairness.
July 11, 2024
Family Law
Child Privilege Attorney in Divorce: Protecting Confidentiality and Best Interests
A Child Privilege Attorney (CPA) is a legal professional appointed to protect a child's privilege, or right to confidentiality, concerning therapeutic and counseling communications. This role is vital in divorce cases where parents may seek access to the child’s therapy records to support their custody claims or other aspects of the divorce. The Role and Responsibilities of a Child Privilege Attorney Confidentiality Advocacy: A CPA's primary responsibility is to determine whether a child's confidential communications with their therapist or counselor should be disclosed in a court proceeding. A goal of the CPA is to preserve the child’s ability to speak openly without fear that their disclosures will be used against them or their parents in court. Legal Representation: CPAs represent the child in legal proceedings, arguing the issue of privileged information. They may file motions to quash subpoenas or resist the disclosure of therapy records. Balancing Interests: While prioritizing the child's confidentiality, CPAs also consider the child's overall best interests. This might involve selectively disclosing certain information if it is deemed crucial for the child’s welfare and with appropriate safeguards. Collaborating with Therapists: CPAs work closely with the child's therapist to understand the nature of the communications and determine which parts should remain confidential. Factors in determining whether or not to waive a Child’s Privilege in Divorce Encouraging Open Communication: Children are likelier to engage honestly in therapy if they know their disclosures are private. This openness is crucial for effective mental health treatment. Protecting Mental Health: Exposure of therapy records can retraumatize children, damaging their mental health and trust in the therapeutic process. Preventing Manipulation: In contentious divorces, parents might attempt to use therapy records to manipulate custody outcomes. CPAs help prevent such misuse by safeguarding privileged information. History of Abuse or Neglect: In cases involving abuse or neglect, maintaining the child’s confidentiality can be crucial for their safety and emotional well-being. However, it may be necessary to waive to inform the court of allegations made by a child in therapy. Challenges Faced by Child Privilege Attorneys Complex Legal Landscape: Navigating the legal complexities surrounding privilege and confidentiality in family law requires a deep understanding of mental health and legal principles. Parental Opposition: CPAs often face resistance from parents who believe that accessing therapy records is, or is not, in their child’s best interests. Judicial Discretion: Judges have considerable discretion in determining whether to uphold or override privilege, making the CPA’s advocacy crucial but not always determinative. Balancing Transparency and Confidentiality: Striking the right balance between necessary disclosures and maintaining confidentiality can be challenging, especially in high-stakes custody battles. An experienced Child Privilege Attorney may be appropriate in divorce proceedings, ensuring their right to confidential therapeutic communications is protected. By safeguarding this privilege, CPAs play a critical role in promoting the child’s mental health, preventing the misuse of sensitive information, and ultimately ensuring that the child's best interests remain the central focus of divorce proceedings. As awareness of this role grows, CPAs are likely to become an increasingly integral part of family law, offering children the protection and advocacy they deserve during one of life's most challenging times.
July 11, 2024
Family Law
Navigating LGBTQ+ Divorce: Unique Legal Considerations
With the 2015 decision in Obergefell v. Hodges, same-sex marriage has been recognized nationwide for nearly ten years. But what about same-sex couples who partnered through civil unions or other means 10, 20, or even 30 years prior to Obergefell? This is an important consideration when navigating LGBTQ+ divorce. Some couples married “on paper” for only nine years may be entitled to benefits from the relationship spanning beyond those years. In some jurisdictions, an argument can be made to divide what would otherwise be considered non-marital property in favor of the non-owning spouse if they were a contributor to the asset prior to marriage. For example, say a same-sex couple had been living together since 1995 and promptly got married in the District of Columbia once same-sex marriage was legalized in 2010. From 1995 until 2010, the house they lived in was the separate property of one spouse, but for 15 years, the other spouse put his own money into renovations, decorated, furnished, and helped make the house into a home. In this scenario, it would be equitable for the court to treat the house as a marital asset, given the circumstances of the parties’ relationship and the contributions made by the non-owner spouse. In other words, it would be unfair to erase 15 years of dedication to a home and family solely because the couple was not legally allowed to marry until 2010. When divorcing as a same-sex couple, it is important to have an attorney who recognizes the unique issues LGBTQ+ couples face in the legal realm. Though we are making great strides for our community, the laws protecting us are still behind. Having an experienced LGBTQ attorney to identify and address these unique concerns is paramount to achieving a fair and equitable outcome.
June 21, 2024
Family Law
Home State Jurisdiction and the UCCJEA: Ensuring Stability in Child Custody Matters
In the arena of family law, child custody disputes often present some of the most challenging issues. To provide clarity and uniformity across state lines, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was enacted. Central to the UCCJEA is the concept of "home state jurisdiction," which serves as the cornerstone for determining the appropriate jurisdiction for custody matters. Understanding the UCCJEA The UCCJEA, adopted by 49 states, the District of Columbia, Guam, and the U.S. Virgin Islands, aims to avoid jurisdictional competition and conflict in child custody matters. It establishes clear guidelines for courts to follow, ensuring that only one state exercises jurisdiction over a child custody case at any given time. This uniformity helps prevent parents from "forum shopping" for a more favorable court and minimizes legal conflicts across state borders. Home State Jurisdiction: The Primary Principle Home state jurisdiction is the principal basis for initial child custody determinations under the UCCJEA. The "home state" is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the custody proceeding. For children under six months old, the home state is where the child has lived since birth. This principle ensures that custody decisions are made in the state with which the child and family have the most significant connection, promoting stability and continuity for the child. Application of Home State Jurisdiction Initial Custody Determinations: The UCCJEA mandates that the home state has exclusive jurisdiction to make an initial custody determination. If no state qualifies as the home state, jurisdiction may be established in a state where the child and at least one parent have significant connections and where substantial evidence concerning the child's care, protection, training, and personal relationships is available. Significant Connection Jurisdiction: When no home state exists, a court may exercise jurisdiction if the child and a parent have a significant connection with the state and substantial evidence about the child's care is available there. This secondary basis for jurisdiction ensures that a court with meaningful ties to the child can make informed custody decisions. Emergency Jurisdiction: The UCCJEA allows for temporary emergency jurisdiction if the child is present in a state and has been abandoned or needs protection due to mistreatment or abuse. This provision ensures that urgent matters can be addressed promptly, even if another state is the child's home state. Modification of Custody Orders: The UCCJEA also governs the modification of custody orders. Generally, the state that made the original custody determination retains exclusive jurisdiction to modify its order unless it relinquishes jurisdiction or neither the child nor the parents have a significant connection with the state anymore. Enforcement Across State Lines One of the critical features of the UCCJEA is its provisions for enforcing custody determinations across state lines. Courts are required to enforce and not modify valid custody orders from other states, ensuring consistency and respect for judicial decisions across the country. Challenges and Considerations While the UCCJEA provides a comprehensive framework, applying its principles can still be challenging. Issues such as determining the child's home state in cases of frequent moves, addressing allegations of abuse, and coordinating between states require careful legal navigation. Additionally, the only state that has not adopted the UCCJEA is Massachusetts, which sometimes necessitates additional considerations when dealing with interstate custody matters involving this state. Should you have a matter involving interstate custody, consider contacting an experienced family lawyer to assist you with navigating your case.
June 4, 2024
Family Law
Dividing Luxury Personal Property
Divorce proceedings can be complex and emotionally charged, particularly when substantial assets are involved. Among the most challenging items to divide are luxury personal properties such as art, automobiles, yachts, and airplanes. These high-value assets not only represent significant financial investments but also often carry sentimental value and symbolize a particular lifestyle. Properly navigating the division of such assets requires a combination of legal acumen, financial expertise, and, sometimes, emotional resilience. The first step in dividing luxury personal property is to establish a fair and accurate valuation. Unlike more common marital assets, luxury items may require specialized appraisals. Several factors contribute to the value of these assets, including: Age and Condition: Similar to real estate, the age and current condition of the asset can significantly affect its market value. Regular maintenance and upgrades can preserve or even enhance their worth. Market Demand: The market for luxury assets is niche and fluctuates based on economic conditions and buyer interest. An expert appraiser will consider current market trends and comparable sales. Customization and Upgrades: Custom features, high-end materials, and state-of-the-art technology can increase the value of these assets. However, highly personalized modifications might appeal to a narrower pool of buyers, potentially impacting resale value. Engaging a certified appraiser who specializes in luxury assets is essential to ensure that both parties receive a fair assessment. Divorce laws vary by jurisdiction, but in many places, assets acquired during the marriage are subject to equitable distribution. Equitable does not necessarily mean equal; rather, it means fair. Courts consider various factors to determine an equitable distribution, including: Length of the Marriage: Longer marriages might result in a more even split of assets. Contributions to the Marriage: Contributions can be financial or non-financial, such as homemaking or supporting a spouse's career. Economic Circumstances: The current and future economic circumstances of each spouse are considered. If one spouse has significantly higher earning potential, this may influence the division. Negotiation and mediation can also play crucial roles in this process. Couples may agree on a division that reflects their unique circumstances, potentially avoiding the need for a court to decide. Once valuation and legal considerations are addressed, couples have several options for dividing luxury personal property: Sell and Split the Proceeds: Selling the asset and dividing the proceeds can be the simplest solution. However, this process can be time-consuming and may result in a sale below market value, particularly in a slow market. One Spouse Buys Out the Other: If one spouse has a strong attachment to the asset or a greater ability to maintain it, they may opt to buy out the other’s interest. This requires an accurate valuation and may involve refinancing or taking on debt. Joint Ownership Post-Divorce: Though less common, some couples agree to maintain joint ownership, especially if children are involved or if the asset is used for business purposes. Clear agreements and boundaries are essential to make this arrangement work. Trade-Offs with Other Assets: Another approach is to offset the value of the asset with other marital assets. For example, one spouse may retain the yacht while the other receives a comparable value in real estate, investments, or other property. Beyond financial and legal aspects, emotional and practical considerations can influence the division of luxury assets. Items such as yachts and airplanes are not just assets but lifestyle choices, often tied to cherished memories and social status. Couples must navigate these waters with sensitivity and pragmatism. Usage and Maintenance: Consider who used the asset more frequently and who is better equipped to handle ongoing maintenance costs and responsibilities. Sentimental Value: Acknowledge any sentimental attachment and weigh it against practical realities. Sometimes, letting go can be the healthiest choice. Future Needs: Consider each spouse’s future needs and lifestyle. For instance, if one spouse plans to relocate far from the coastline, retaining a yacht may be impractical. Dividing luxury personal property in a divorce is a multifaceted process that requires careful consideration of legal, financial, and emotional factors. By engaging experts, understanding legal frameworks, and negotiating with transparency and fairness, couples can reach an agreement that respects both parties' interests and paves the way for a smoother transition to the next chapter of their lives.
June 4, 2024
Family Law
Should Your Wedding Checklist Include a Prenup?
Fans of The Golden Girls may remember the episode in which Dorothy decides to remarry her ex-husband, Stan. He’s the selfish, cheating, novelty salesman Dorothy had married as a teenager in a shotgun wedding. Although they are now divorced, Stan remains the bane of Dorothy’s existence. She calls him, without irony, a “yellow-bellied sleaze ball,” among other epithets. Dorothy’s decision to remarry Stan has Rose, Blanche, and Sophia all rolling their eyes. It is only on the day of the wedding, when Stan unexpectedly asks Dorothy to sign a prenuptial agreement, that she comes to her senses and calls it off. “I don’t want to make the same mistake twice,” she tells her disbelieving guests. A prenuptial agreement may be the least romantic thing an engaged couple can talk about. Simply bringing up the topic may arouse suspicion, suggesting a lack of good faith or an expectation of divorce. But rather than any want of sincerity, preparing a prenup can reflect a couple’s maturity and respect for each other. The process of sorting through the terms of the agreement may even bring them closer together. Under Maryland law, the separate assets each partner brings to a marriage belong to that person, even if the marriage ends in divorce. The assets they acquire during the marriage, however, would be divided equitably between them in the event of a breakup. A prenup is a contingency plan that enables the couple to say what that division should look like. For example, each partner could simply take what they separately contributed to the union and be on their way. Or the partner with greater assets could agree to support the other long enough for them to get back on their feet. The agreement can also say what happens to the family home. Should one partner be allowed to buy out the other’s interest in the house? Or should the property be sold and the proceeds divided according to the percentages each of them contributed to the down payment and mortgage installments? Children are another consideration. If one partner has children from a prior relationship, the agreement could allow him to bequeath his entire estate to them, rather than his new spouse. This provision would trump the surviving spouse’s legal right to take a third or more of the estate as her “spousal share.” If the couple already has children together, one or both spouses could agree to maintain life insurance for the children’s benefit while they are still minors. The one thing a prenup cannot dictate is custody of the parties’ own children in the event of divorce. Regardless of what provisions it includes, a prenuptial agreement can be a reassuring document to have in the fire safe. It’s a lot like the airbag in your car—you hope you’ll never have to use it, but you’ll be grateful to have it if the need arises. As a practical matter, that need may be more likely to arise for some couples than for others. With the arrival of same-sex marriage, many couples are tying the knot after having been together for years or even decades. These relationships have already withstood the test of time and are unlikely to end in divorce. But two people in a newer relationship may like the idea of a prenup so they can enter into marriage prepared for the unexpected. In the same way, couples who are significantly different in age, wealth, or level of education should give a prenuptial agreement serious consideration. Having children from a prior marriage is another circumstance in which a prenup may be advisable. If Dorothy Zbornak, already in her wedding dress, had gone ahead and signed Stan’s prenup, it probably wouldn’t have held up in court. Stan, ever the yutz, had neglected to follow some important formalities. First, the document should include full financial disclosures from both partners. Any omission could invalidate the agreement. Second, two attorneys should be involved, one to represent the separate interests of each partner. And third, sufficient time should be allowed between executing the agreement and exchanging vows to avoid the suggestion that either partner was pressured into signing. A valid prenuptial agreement can save a couple time, money, and heartache if things don’t go as expected. If there are wedding bells in your future, contact an attorney who practices in this area to determine whether a prenuptial agreement is right for you.
May 15, 2024
Family Law
What are Capital Gains, and How can Capital Gains impact my divorce?
Capital gains are the profits realized from the sale of assets such as stocks, bonds, real estate, or other investments. When an asset is sold for more than its original purchase price, the difference represents a capital gain. These gains are subject to taxation, but the amount of tax owed can vary depending on several factors, including the length of time the asset was held and the individual's tax bracket. In divorce cases, capital gains may become a significant consideration when dividing marital assets. Generally, the division of assets in a divorce is based on the principle of equitable distribution, which does not necessarily mean equal distribution but rather what is deemed fair by the court. When it comes to capital gains, there are several key factors to consider: Date of Valuation: The valuation date of assets can significantly impact the division of capital gains. In some jurisdictions, the valuation may be set at the date of separation, while in others, it may be set at the date of divorce. The choice of valuation date can have implications for the calculation of capital gains and the subsequent division of assets. Tax Implications: It's essential to consider the tax implications of dividing assets with capital gains. Transfers of assets between spouses incident to divorce are generally not subject to capital gains tax at the time of the transfer. However, the receiving spouse will inherit the original cost basis of the asset, potentially leading to higher capital gains taxes when the asset is eventually sold. Qualified Domestic Relations Order (QDRO): In the case of retirement accounts such as 401(k)s or pensions, a Qualified Domestic Relations Order may be necessary to divide the assets without incurring tax penalties. A QDRO outlines how retirement benefits will be divided between spouses, including any potential capital gains tax implications. Professional Assistance: Given the complexity of capital gains taxation and its implications for divorce settlements, seeking the advice of financial and legal professionals is highly recommended. A financial advisor or tax accountant can provide valuable guidance on the most tax-efficient ways to divide assets and minimize capital gains tax liabilities. Understanding how capital gains are treated and the potential tax implications is essential for both spouses to ensure a fair and equitable settlement. By considering factors such as the valuation date of assets, tax implications, and the use of tools like Qualified Domestic Relations Orders, couples can navigate the complexities of capital gains in divorce and work towards a mutually beneficial resolution. Seeking the advice of financial and legal professionals can provide invaluable support in this process, helping to ensure that both parties achieve a fair outcome.
May 9, 2024
Family Law
What happens to Debt in Divorce: Understanding Financial Responsibilities
Divorce is a challenging time, often fraught with emotional and logistical complexities. Amidst the emotional upheaval, one aspect that requires careful consideration is the division of debts. Financial entanglements can add a layer of complexity to an already difficult situation. Understanding how debts are handled during a divorce is crucial for both parties to ensure a fair and equitable resolution. When a couple decides to end their marriage, their assets and debts must be divided, ideally through an amicable agreement or by court order if necessary. Debts accumulated during the marriage, whether they are mortgages, car loans, credit card debts, or other financial obligations, are subject to division, much like marital assets. The legal principle governing debt division varies depending on the jurisdiction. In community property states, such as California, debts incurred during the marriage are generally considered community property and are divided equally between spouses, regardless of who incurred the debt. In equitable distribution states, which include the majority of states in the US, debts are divided fairly but not necessarily equally, taking into account factors such as each spouse's income, earning potential, and financial contributions to the marriage. Types of Debt: Marital Debt: Debts incurred during the marriage are typically considered marital debt, regardless of which spouse's name is on the account. This includes mortgages, car loans, credit card debt, personal loans, and any other liabilities accrued during the marriage. Separate Debt: Debts acquired before the marriage or after the separation are generally considered separate debt and may remain the responsibility of the spouse who incurred them. However, if separate debt was used for marital purposes, such as household expenses or joint purchases, it may be subject to division. Joint Debt: Loans or credit accounts held jointly by both spouses are equally the responsibility of both parties. Even if only one spouse benefited from the debt, both are still liable for repayment. Joint debts can include joint credit cards, joint bank accounts, or co-signed loans. During divorce proceedings, the division of debt can be negotiated between the spouses or decided by a judge. Ideally, divorcing couples should aim to reach a mutually agreeable arrangement through mediation or collaborative divorce to maintain some level of control over the outcome. However, if an agreement cannot be reached, the court will intervene and make decisions based on state laws and the specific circumstances of the case. Factors Considered in Debt Division: Income Disparity: If one spouse earns significantly more than the other, the court may allocate a larger share of the debt to the higher-earning spouse to ensure both parties can maintain a similar standard of living post-divorce. Financial Contributions: The court may consider each spouse's financial contributions to the marriage when dividing debt. This includes income earned, assets brought into the marriage, and non-monetary contributions such as homemaking or childcare. Marital Misconduct: In some cases, marital misconduct such as financial infidelity or excessive spending may influence the division of debt. For example, if one spouse recklessly incurred debt without the other's knowledge, the court may assign a greater share of the debt to that spouse. Future Financial Needs: The court may take into account each spouse's future financial needs, especially if one spouse requires financial support due to health issues or caregiving responsibilities. Once the division of debt is finalized, each spouse is responsible for their allocated share of the debt. It's essential to take proactive steps to manage and address the debt to avoid negative consequences such as damaged credit scores or legal actions by creditors. Some strategies for managing debt post-divorce include: Refinancing or Transferring Debt: If feasible, spouses may consider refinancing joint loans or transferring debt to individual accounts to remove the other spouse's liability. Negotiating with Creditors: It may be possible to negotiate with creditors to modify payment terms or settle debts for a reduced amount, especially if financial circumstances have changed due to divorce. Creating a Repayment Plan: Developing a structured repayment plan can help manage debt effectively. Prioritize high-interest debts and consider consolidating multiple debts into a single, more manageable payment. Seeking Legal Advice: Consulting with a financial advisor or attorney specializing in divorce can provide valuable guidance on navigating debt division and developing a strategy for managing debt post-divorce. In conclusion, debt division is a critical aspect of the divorce process that requires careful consideration and negotiation. Understanding the types of debt, factors influencing division, and options for managing debt post-divorce can help spouses navigate this aspect of their separation more effectively. By working together or with the assistance of legal and financial professionals, divorcing couples can achieve a fair and equitable resolution to their financial obligations, allowing them to move forward with their lives independently.
May 9, 2024
Family Law
Navigating Passover Travel Challenges in Divorced Families
Passover, a joyous celebration of freedom and renewal, often inspires many Jews to embark on journeys to extravagant Passover programs spanning from Miami to Israel. However, for divorced individuals, these once familiar programs of familiarity and comfort during marriage may now remain unvisited. Travel, particularly concerning custody arrangements, can present complex challenges. Concerns such as international travel or transportation methods may arise, highlighting the importance of a clear understanding of legal rights and obligations. For divorced parents, understanding their legal rights and obligations regarding custody and travel is essential. This often involves establishing a clear custody agreement that outlines each parent's rights and responsibilities concerning the children. In cases of travel disputes or concerns, seeking legal guidance or mediation is often necessary for a resolution. International travel with children adds further complexity due to issues such as passport and visa requirements as well as the potential risk of parental abduction. Many countries have specific laws and procedures to prevent such incidents, often mandating consent from both parents of international travel. Given the current global climate, with rising antisemitism adding further uncertainty, divorced parents may hold drastically different views on international Passover travel. Effective communication and cooperation between parents are vital, especially when decisions about travel and the well-being of their children are at stake. Open dialogue and a willingness to compromise can help avoid conflicts and prioritize the children's needs. Navigating divorce-related issues, custody arrangements, and travel requires careful consideration of the legal framework and the best interests of the children. Consulting with legal professionals focusing on family law can provide invaluable guidance and support. If you have any questions or need assistance, please feel free to reach out for a consultation. Wishing you and your loved ones a Happy Passover.
April 22, 2024
Family Law
International Assets and Divorce
The division of international assets during a divorce can be complex due to differing laws and regulations in each country. The process of dividing international assets in a divorce typically involves the following steps: Identification of Assets: Both parties must disclose all international assets, including property, bank accounts, investments, and other assets held abroad. Valuation: The assets must be valued to determine their worth. This can be challenging when dealing with assets in different currencies and markets. Jurisdictional Issues: Different countries have different laws governing divorce and property division. The legal jurisdiction of the assets (i.e., which country's laws apply) needs to be determined. Property Division: Depending on the laws of the jurisdiction, international assets may be divided according to community property or equitable distribution principles. This may include splitting the assets equally or fairly between the parties. Currency Conversion: When assets are in different currencies, they may need to be converted to a common currency for division. Legal Proceedings: Divorcing couples may need to work with legal professionals in multiple countries to resolve issues related to international assets. Enforcement: Once a division agreement is reached, ensuring the enforcement of the agreement across different countries can be complicated. Legal processes may vary by country. Tax Implications: Dividing international assets may have tax consequences in different jurisdictions. Consulting tax professionals familiar with international tax laws is important. Settlements: In some cases, couples may reach a settlement agreement that includes international assets. This can simplify the process and avoid potential conflicts. If you are going through a divorce involving international assets, it's important to seek legal advice from professionals with experience in international divorce and property division.
April 16, 2024
Family Law
Essential Components of a Parenting Plan During Divorce
Divorce can be a challenging experience for families, especially when children are involved. One of the most important aspects of a divorce involving children is the creation of a parenting plan. A parenting plan, also known as a child custody agreement, outlines how parents will share responsibilities and time with their children after a divorce. Crafting a comprehensive and effective parenting plan can help reduce conflict and provide stability for the children. Here are the essential components to include in a parenting plan during a divorce: Custody Arrangements Physical Custody: Specifies where the child will primarily reside and the schedule for the child's time with each parent. Legal Custody: Determines which parent (or both) will have the authority to make major decisions regarding the child’s upbringing, such as education, healthcare, and religious upbringing. Visitation Schedule Establish a clear schedule for when the child will spend time with each parent, including regular visitation days, holidays, and special occasions such as birthdays. Include details on pick-up and drop-off times and locations to avoid misunderstandings. Communication Outline expectations for communication between the child and each parent, including phone calls, video chats, or other forms of contact. Specify how parents will communicate with each other about the child, including preferred methods (e.g., email, text) and frequency. Dispute Resolution Include a process for resolving disputes between parents, such as mediation, counseling, or another neutral third party. Avoid vague language and provide clear steps for conflict resolution to minimize misunderstandings. Child Support and Financial Provisions Specify the amount and frequency of child support payments, as well as how expenses such as medical care, education, extracurricular activities, and other significant costs will be divided. Address the child's insurance needs, including health, dental, and vision coverage. Education and Healthcare Address each parent's involvement in the child's education, including school-related decisions and participation in school activities. Specify how healthcare decisions will be made, including the choice of doctors and medical treatments. Travel and Relocation Define any restrictions on travel with the child, including requirements for notifying the other parent and obtaining consent for trips. Include provisions for what happens if one parent wants to relocate with the child, such as notice periods and mediation. Review and Modification Establish a process for reviewing and modifying the parenting plan as the child grows and circumstances change. Specify how often the plan will be reviewed (e.g., annually) and under what circumstances modifications can be made. Safety and Well-Being Address any concerns about the child's safety, including provisions for supervised visitation if necessary. Include guidelines for both parents regarding any substance abuse issues, criminal activity, or mental health concerns. Miscellaneous Provisions Consider including clauses for other aspects such as religious upbringing, participation in extracurricular activities, and access to the child's records (e.g., school, medical). Ensure the plan is as detailed as possible to avoid ambiguity and potential disputes. A well-thought-out parenting plan can provide a roadmap for co-parenting after divorce and help ensure the child's best interests are prioritized. Consulting with legal and family professionals can help parents create a comprehensive plan that suits their family's unique needs.
April 16, 2024
Family Law
Credit Card Chaos: Safeguarding Your Credit in Separation
Often spouses share joint credit cards during their marriage, or one spouse may be added as an authorized user on the other’s credit card. However, upon separation, one party may continue using the card, leading to significant debt accumulation. When considering divorce or separation, paying prompt special attention to the status of your credit accounts is crucial. Determine if the accounts are joint or individual. If there are any individual accounts, check if your spouse is an authorized user. Please consult an attorney about closing joint accounts or converting them to individual ones before canceling any authorized user cards. Additionally, it is essential to run a credit report to identify all accounts in your name or jointly. Often, one spouse may be unaware that their credit is linked to the other spouse’s accounts. In many divorce cases, parties and their attorneys will reach an agreement as to who is responsible for which credit card debt or arrange to pay off specific debts from marital assets before or after the finalization of the divorce. However, what if one party fails to abide by the agreement? In the case of a joint account, failure to pay by one party would adversely impact both parties’ credit scores. While the innocent spouse can bring the offending spouse back to court for violating the order, there is no court remedy to repair a credit score. Avoid leaving any loose ends in your divorce proceedings. Ensure all joint accounts are closed and paid off before the divorce is finalized or transferred into the responsible party’s name. Don’t solely rely on your spouse’s agreement to pay off the debt. Secure funds from another asset, if possible, to settle the account promptly and ensure your name is removed from the account as soon as possible. When considering divorce or separation, consult with an experienced family law attorney such as Megan Smith and Emily Ingall about closing joint accounts or converting them to individual accounts before canceling any authorized user cards. Should you have any questions, don't hesitate to contact Megan and Emily for guidance.
April 9, 2024
Family Law
Unleashing Your Inner Barbie: Embracing Independence after Divorce
While some may view the Barbie Movie as nothing more than a whimsical, kitschy movie based on the famous Mattel doll. However, when viewed through the lens of Ms. Greta Gerwig, the film’s director, the film illuminates Barbie’s journey of self-discovery as Barbie learns how to stand on her own two legs, both literally and figuratively, realizing that she does not need a “Ken” to define herself. Thus, she asserts her independence and defines herself on her own terms, free from the constraints of societal norms and expectations. In marriages, women often grapple with identity issues, feeling like their sense of self has been replaced by their role as a wife or mother. A common cause for divorce is a spouse’s desire and need to rediscover their identity. In post-divorce life, many women face the challenge of discovering who they are, what skills and resources they will need to navigate an independent life, where they fit into society, and, most importantly, how to successfully and meaningfully live life without their “Ken.” Progressing forward post-divorce is more challenging for more women than men since many must remain financially connected to their “Ken” through spousal and child support payments. Closure becomes more elusive, hindering pursuing new opportunities and nurturing personal growth. Whether you want to be a Teacher Barbie, an Attorney Barbie, a Nurse Barbie, or a Real Estate Agent Barbie, it is important, post-divorce, to surrender to your imagination and rely on your matrimonial attorney. They should not only have the experience to navigate you through the financial intricacies of divorce but also demonstrate empathy for your post-divorce journey. Recognize that finding your best Barbie may require additional support, such as a competent financial planner to help you manage assets, a therapist to boost self-esteem and confidence, or a vocational coach to aid in re-entering the workforce. Trust in this collaborative approach to empower yourself and pave the way for a fulfilling post-divorce life. In a poignant moment near the movie’s end, Barbie reflects, “I don’t think I have an ending.” Ruth Handler, the creator of Barbie (or rather her ghost, as portrayed by Rhea Perlman), affirms that this lack of conclusion was intentional. “That was always the point,” she explains to Barbie, “I created you so you wouldn’t have an ending.” Like Barbie’s story, divorce is not an end but a new beginning. It’s your narrative to shape, filled with choices and the occasional misstep. Embrace your journey, forgive yourself for any missteps, and remember to draw strength from your inner Barbie whenever doubt creeps in. In the journey of life, divorce marks not an ending but a beginning – an opportunity to redefine yourself and craft your own narrative. As you navigate this new chapter, our legal team is here to provide the support and guidance you need to empower yourself and embrace your future with confidence. Reach out to us today to take the first step towards reclaiming your independence and authoring your own story. Remember, you’re not alone – let us help you channel your inner Barbie and write the next chapter of your life. NOTE: BARBIE is a registered trademark of MATTEL, INC.
April 3, 2024
Family Law
Shareholder Agreements in Divorce: A Legal Perspective
Divorce proceedings can often involve complex financial negotiations, particularly when business interests are involved. When spouses who are shareholders in a company decide to part ways, it can raise a host of challenging issues regarding the disposition of shares, control of the business, and the future direction of the company. In such cases, understanding shareholder agreements becomes crucial, as they often dictate how shares can be transferred, sold, or retained in the event of a divorce. Shareholder agreements are legal documents that outline the rights and obligations of shareholders in a company. These agreements typically address a wide range of matters, including the transfer of shares, the appointment of directors, voting rights, and dispute resolution mechanisms. While shareholder agreements vary widely depending on the specific needs and circumstances of the shareholders and the company, they often contain provisions that address what happens in the event of a shareholder’s divorce. One common provision found in shareholder agreements is a buy-sell agreement, also known as a buyout agreement. A buy-sell agreement is a contractual arrangement between shareholders that governs the sale and purchase of shares under certain circumstances, such as death, disability, retirement, or divorce. In the context of divorce, a buy-sell agreement may specify that the shares owned by a divorcing shareholder must be sold to the remaining shareholders or to the company itself at a predetermined price or according to a specified valuation method. Another important consideration in the context of divorce is the issue of control and management of the business. In closely-held companies, where a small number of shareholders typically control the company, the transfer of shares as a result of divorce can have significant implications for corporate governance. Shareholder agreements often include provisions that address voting rights and the composition of the board of directors, which can become relevant in the event of a divorce. In some cases, spouses may be parties to a shareholder agreement together or may have entered into a separate agreement that governs their ownership interests in the company. In either scenario, the terms of the shareholder agreement will play a central role in determining how shares are treated in the divorce process. For example, if the shareholder agreement contains provisions restricting the transfer of shares or giving other shareholders a right of first refusal, those provisions will generally need to be respected in the divorce proceedings. However, it’s important to note that while shareholder agreements can provide valuable guidance and structure in the event of a divorce, they are not necessarily binding on the court. In some jurisdictions, the court does not have the authority to transfer title of shares from one spouse to another. However, if the parties enter into an agreement to transfer shares from one spouse to the other, the shareholder agreement becomes the governing instrument on effectuating the transfer. Ultimately, navigating shareholder agreements in the context of divorce requires careful attention to both the terms of the agreement itself and the applicable family law. Consulting with experienced legal counsel who can provide guidance on both corporate and family law issues can be essential in ensuring that the interests of all parties are protected and that the divorce process proceeds as smoothly as possible. By understanding the implications of shareholder agreements and how they intersect with divorce law, shareholders can better position themselves to protect their interests and preserve the value of their investments in the company.
March 14, 2024
Family Law
Navigating High-Asset Divorce Cases
High-asset divorces typically involve couples with substantial wealth, including real estate, investments, business interests, and other valuable assets. These cases require a meticulous approach to ensure a fair and equitable distribution of assets, spousal support, and child custody arrangements. Determining the value of complex assets such as businesses, stock options, and intellectual property can be challenging. Valuation experts may be required to assess the worth of these assets accurately. In some cases, spouses may attempt to conceal assets to reduce the amount subject to division. Uncovering hidden assets demands thorough financial investigations, and forensic accounting may be possible. The tax consequences of asset distribution need careful consideration. Dividing assets without a comprehensive understanding of tax implications can lead to unexpected financial burdens. When one or both spouses own a business, the division or buy-out of business assets becomes a critical issue. This involves assessing the business's value and determining the most equitable way to distribute ownership interests. High-asset divorces often involve substantial spousal support considerations. Calculating the appropriate amount requires a detailed analysis of each spouse's financial situation and needs. Your divorce attorney will help you engage the necessary financial experts, such as forensic accountants and valuation professionals. Comprehensive documentation of all assets, liabilities, and financial transactions is essential in determining the marital estate. Given the complexity of high-asset divorces, negotiation and mediation can be effective methods for reaching agreements outside the courtroom. This allows the parties more control over the outcome. Having a well-drafted prenuptial or postnuptial agreement can simplify the divorce process by establishing clear guidelines for asset division and financial arrangements. If you have such an agreement, you should provide a copy to your attorney. Each spouse should seek experienced legal representation with experience in high-asset divorces. Attorneys with expertise in this area can navigate the legal complexities and advocate for their client's best interests.
February 15, 2024
Family Law
Navigating the Path of Divorce Post-Holiday Season
A Guide to Moving Forward Divorce is a highly emotional process, and the holidays may offer a temporary reprieve from the intensity of these emotions. However, once the festive season concludes, individuals may find themselves emotionally prepared to confront the challenges of divorce. Once the New Year begins, it may become clearer that the issues within the marriage are insurmountable. Taking this time to reflect can provide individuals with the clarity and determination needed to initiate the divorce process. Many couples choose to delay divorce proceedings until after the holidays to maintain a sense of normalcy for their children. Proceeding with divorce after the holidays allows parents time to begin working on creating a stable schedule and supportive environment for their children as they navigate the changes ahead. The holiday season often comes with increased spending, and couples may delay divorce proceedings to avoid the additional financial strain during this time. Waiting until after the holidays can provide individuals with an opportunity to assess their financial situation, plan for the future, and make informed decisions about the division of assets and financial responsibilities. Post-holiday divorce proceedings allow individuals to set realistic expectations for the process ahead. It provides an opportunity to gather necessary documentation, consult with legal professionals, and develop a realistic timeline for the divorce proceedings. By approaching the situation with a clear plan, individuals can reduce stress and uncertainty. Consulting with legal professionals is a crucial step when proceeding with divorce. After the holidays, individuals can begin to gather necessary documentation, such as financial records, to facilitate the legal process. Seeking legal advice early on ensures that individuals are well-informed about their rights, responsibilities, and the potential outcomes of the divorce. While the decision to proceed with divorce is undoubtedly challenging, waiting until after the holidays can provide individuals with the time and space needed to make informed choices. By reflecting on the state of the relationship, considering the well-being of children, and planning for the financial and emotional aspects of divorce, individuals can navigate this difficult journey with greater clarity and resilience.
January 8, 2024
Family Law
What Happens to My Business During Divorce?
Divorce is a challenging and emotionally charged process, and when business ownership is thrown into the mix, it can become even more complex. For business owners, the stakes may be high, as the outcome of a divorce can significantly impact the future of their business. One of the initial steps regarding a business is to value the business or the owner’s interest in the business. Business valuation often involves assessing the company’s financial statements, assets, liabilities, and future earning potential. This process can be intricate and usually requires the expertise of financial professionals, such as forensic accountants or business valuation experts. In many jurisdictions, marital assets, including businesses, are subject to equitable distribution. Equitable distribution does not necessarily mean equal distribution but rather what is deemed fair and just by the court. Factors such as the contribution of each spouse to the business, the length of the marriage, and each party’s financial and non-financial contributions are considered during this process. There are several potential outcomes for the business in a divorce: One spouse may choose to buy out the other’s share of the business, allowing them to retain sole ownership. This buyout is typically based on the valuation of the business and the agreed-upon terms negotiated during the divorce proceedings. In some cases, divorcing spouses may opt for continued co-ownership of the business. This arrangement requires a well-defined and often legally binding agreement outlining each party’s responsibilities, decision-making authority, and financial contributions. Another option is to sell the business, with the proceeds being divided between the spouses according to the terms of the divorce settlement. The sale may be facilitated either on the open market or through a negotiated private sale. To protect their interests, business owners can take proactive measures before and during marriage. Implementing prenuptial or postnuptial agreements that specifically address business ownership can provide clarity in the event of a divorce. These legal documents can outline how the business will be valued, divided, or managed in the event of marital dissolution. Navigating the complexities of divorce and business ownership requires the expertise of professionals. Engaging attorneys with experience in family law and business matters is important. Additionally, financial experts, such as forensic accountants or business appraisers, can provide valuable insights into the financial aspects of the business and assist in the valuation process. When businesses are an issue in divorce, interest owners should be prepared for an examination of their business and its financial intricacies. By seeking professional guidance, understanding their legal rights and responsibilities, and exploring the available options, business owners can increase the likelihood of reaching a fair and equitable resolution during this challenging time.
January 5, 2024
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
In Landmark Ruling Pope Francis Approves Priestly Blessings for Same-sex Couples (Under Certain Circumstances)
On December 18, Pope Francis approved a landmark ruling allowing Roman Catholic priests to administer blessings to same-sex couples as long as they are not part of regular Church rituals or liturgies nor given in contexts related to civil unions or weddings. The declaration from the Vatican’s doctrinal office, approved by Pope Francis, said such blessings would not legitimize irregular situations but be a sign that God welcomes all and does not discriminate. Francis’ comments are the first uttered by a pope about such laws. But they are also consistent with his overall approach to LGBTQ people and belief that the Catholic Church should welcome everyone. Earlier this year, in January 2023, Pope Francis criticized laws that criminalized homosexuality as “unjust,” saying “being homosexual isn’t a crime,” and “God loves all his children just as they are” and called on Catholic bishops to welcome LGBTQ people into the Church.1 The formal declaration entitled “Fiducia Supplicans” (“Supplicating Trust”) was subtitled, “On the pastoral meaning of blessings” (“Fiducia Supplicans”), is a resistance to a rigid church, one that excludes people from blessings because they fail doctrinal or moral litmus tests, but also one that turns blessings — including to same-sex couples — into the supports of a new Canon legal structure. The Fiducia Supplicans evolved from a letter Francis sent to two conservative cardinals in October. It reaffirms that marriage is an “exclusive, stable and indissoluble union between a man and a woman, naturally open to conceiving children.” The declaration insists that Mass is not the proper setting for the less formal forms of blessing that could include the blessing of a gay couple, and it repeats that “it is not appropriate for a diocese, a bishops’ conference” or other church structure to issue a formal blessing prayer or ritual for unwed couples. Further, the blessing should not be given “in concurrence” with a civil marriage ceremony to avoid appearing as a sort of church blessing of the union. And it stresses that blessings in question must be non-liturgical in nature, must avoid using set rituals, and avoid the clothing and gestures that are traditional in a wedding. But it says requests for such blessings for same-sex couples should not be denied outright. Priests are to decide on a case-by-case basis and “should not prevent or prohibit the Church’s closeness to people in every situation in which they might seek God’s help through a simple blessing.” “Ultimately, a blessing offers people a means to increase their trust in God,” the document said. “The request for a blessing, thus, expresses and nurtures openness to the transcendence, mercy, and closeness to God in a thousand concrete circumstances of life, which is no small thing in the world in which we live.” Conclusion There has been a small burst of liberal activity in the Catholic Church on several fronts in 2023 from the Vatican’s Office of the Doctrine of the Faith, not just on the LGBTQ issue. On Oct. 31, Francis approved another document, making clear that transgender people can be baptized, serve as godparents, and be witnesses at church weddings, furthering his vision of a more inclusive church. And, for the first time, women and laypeople can vote on specific proposals alongside bishops, a radical change that is evidence of Francis’ belief that the Church is more about its flock than its shepherds. Pope Francis has worked steadily to open the Church to the LGBTQ+ community. For some, his efforts are too much. For others, they are not enough. 1 “Being homosexual isn’t a crime,” Francis said during an exclusive interview on January 24, 2023, with Tuesday with The Associated Press.
December 19, 2023
Family Law
It’s Tax Time
Although most folks think that tax time is April 15th or thereabouts, there are a number of things that you should consider doing before the end of the year that may affect your tax obligation for 2023. Certainly, check with your accountant or tax advisor, but generally, the end of December and the beginning of January are prime times to get organized. If you don’t already have a CPA or tax professional, this is a good time to find one and establish a relationship. CPAs often stop taking on new clients after the beginning of the year, and some tax planning in December may be very beneficial. As those forms come in, file them away in a safe place so that you can produce them easily when you begin the process of sharing them with your tax advisor. If you have had big changes in the past year, like a new baby or a second job, you may want to adjust your withholding early in the year. Of course, December is a great time to make donations to charity and maximize your IRA. If you are going to owe taxes when you file your return, you may want to pay as much as possible towards that obligation before the actual filing deadline.
December 13, 2023
Family Law
Dirty Tricks Employed by Lawyers and Disregarded by Judges
People are getting smarter nowadays; they are letting lawyers, instead of their conscience, be their guide. (Will Rogers) Divorce proceedings can often be emotionally charged and contentious, requiring individuals to seek legal representation to navigate through the complexities of the process. While most divorce lawyers uphold the highest standards of professionalism and ethics, there are, unfortunately, a few who resort to unscrupulous tactics to gain an advantage for their clients. This article aims to shed light on some commonly known trickery employed in divorce cases, i.e., bad behavior a litigant can expect to see coming from the other side, and with which they will need to cope, inasmuch as judges rarely punish any of this behavior. In other words, as one climbs onto the divorce carousel, make sure to fasten the belt around your waist because it is going to be a bumpy ride [1]. Concealing Assets One of the most prevalent unethical practices involves lawyers helping their clients hide or undervalue assets during the discovery portion of the case, which will ultimately lead directly into the property division segment of the case. This may include transferring assets to third parties, creating fake debts, or underreporting income. Typically, this will involve a lawyer’s failure to produce the financial documents sought by the other side in full or in part. Such actions hinder a fair distribution of marital property and can have severe consequences for the other party involved. Stirring Up Conflict Some lawyers intentionally fuel animosity between divorcing spouses instead of promoting amicable resolutions. By exacerbating conflicts or encouraging their clients to adopt hostile approaches, these lawyers create a more challenging environment for negotiation, causing emotional distress and escalating legal costs. Misrepresentation and False Accusations In pursuit of securing advantageous outcomes, some lawyers resort to presenting false information or distorting facts about the opposing party. This may involve fabricating evidence, making baseless accusations of wrongdoing, or tarnishing the reputation of the other spouse. Such behavior not only undermines the integrity of the legal process but also damages the overall trust between parties. Exploiting Power Imbalances Lawyers are expected to function as advocates for their clients, but when they exploit power imbalances between divorcing spouses, it can lead to unfair negotiations. Manipulating vulnerable clients or bullying the opposing party can distort the outcome and perpetuate injustices within the divorce process. Unnecessary Delays and Legal Maneuvering Some attorneys deliberately prolong divorce proceedings through excessive paperwork, unnecessary motions, or aggressive litigation strategies. This tactic aims to exhaust the opposing party’s financial resources and stamina, forcing them into a disadvantageous settlement or conceding to unfavorable terms out of desperation. Some refer to this as adopting a “scorched earth” policy, i.e., victory or supremacy at all costs [2]. Conclusion While the majority of divorce lawyers adhere to ethical standards, it is crucial to acknowledge the existence of unethical practices that can harm both parties involved in a divorce case. Recognizing these “dirty tricks” allows individuals to be vigilant and seek legal representation from reputable attorneys who prioritize fairness, transparency, and ethical conduct throughout the divorce process. [1] Paraphrase from “All About Eve” (1950). [2] https://www.merriam-webster.com/dictionary/scorched-earth
December 12, 2023
Family Law
Imputation of Income: Rebalancing the Support Scales
Money is like love; it kills slowly and painfully the one who withholds it, and enlivens the other who turns it on his fellow man. (Kahlil Gibran) When one or both spouses in a divorce fail to properly account for their income and expenses or pursue unemployment or underemployment in an attempt to inflate or deflate their or the other’s support obligations, the concept of imputed income can serve to be a great equalizer, rebalancing the marital financial scales. Imputed income can have significant financial consequences for both parties involved. The party against whom imputation is sought may be required to pay higher child support or spousal maintenance, while the party seeking imputation may potentially receive increased financial support. Through the imputation of income, courts can ensure that the proper amount of support is awarded, even in instances where the financial disclosure provided is deemed unreliable or suspect. Imputed income refers to the potential income that a court assigns to a party in a divorce case, even if they are not currently earning that amount or are unemployed. In New York, imputed income can have significant implications for determining child support and spousal maintenance. Under New York law, imputed income is based on a number of factors, including a party’s health, age, and the availability of job opportunities. The Court will strive to be fair and equitable in its determination, taking into account the individual circumstances of each case. This means that the Court will consider such as the party’s education, job experience, skills, and prevailing wage levels in their field when determining an appropriate income to impute. The goal is to ensure that individuals do not intentionally reduce their income to avoid their financial obligations in a divorce. It is important to note that imputed income is not automatic and must be proven by the party seeking it. The Court will carefully consider the evidence presented, including testimony from expert witnesses, to determine whether imputation is appropriate in each case. Examples Of Situations Where Imputed Income May Be Applied Where there is voluntary unemployment or underemployment: If one party voluntarily quits their job or takes a lower-paying job without a valid reason, the court may impute income based on their previous earnings or their earning capacity. When education or training opportunities are rejected: If one party refuses education or training opportunities that could improve their earning potential, the Court may impute income based on what they could have earned with that additional education or training. Where there is an intentional reduction of income: If one party intentionally reduces their income by working fewer hours, taking a lower-paying job, or refusing promotions, the Court may impute income based on their previous earning levels or what they could earn with reasonable effort. When there is unreported or hidden income: If one party attempts to hide or underreport their income to avoid financial obligations, the Court may impute income based on evidence of their true earning capacity. Where questionable Financial Records are produced. If a spouse’s financial records lack credibility or are incomplete. When a party or the parties are living above one’s/their means. If expenses exceed presented income. Where there is a reliance on the generosity of strangers. If a spouse receives gifts from or has ordinary expenses paid by third parties or When there are complicated business structures present. If a spouse appears to have used their business(es) to disguise income. Real-Life Examples Where Income Was Imputed to a Party K. v. K.: The expenses listed on each party’s Statement of Net Worth ($96,624 annually for the wife and $102,636 annually for the husband) far exceeded their respective earnings, and there was no indication that their expenses were not timely being paid. Indeed, both parties acknowledged receiving substantial financial support from their family members. Thus, the Court concluded that that the parties’ financial resources were greater than their self-reported incomes. H. v. B.: $45,000 of income was imputed to the husband based on a brokerage agreement he signed identifying his income as $50,000 per year, documentation showing he held an ownership interest in a trucking business, and the testimony of his ex-wife who worked in the trucking business and had personal knowledge of the company’s payroll. N. v. K.: $46,609 of income was imputed to the husband “based upon his prior income, his training, his choice to pursue only part-time employment, and his current living arrangement, in which he did not pay rent.” S. v. S.: Income of $78,000 per year was imputed to the wife based on evidence at trial that showed she could earn that sum due to her degree and her nurse practitioner license, which was further supported by facts adduced at trial and expert testimony. DV. v. D.: $100,000 of income was imputed to the husband where the expenses he listed in his Statement of Net Worth far exceeded his income as reported on his tax returns, and he lived 3 in a two-bedroom apartment in a luxury apartment building. In addition, after his job for 12 years at a “major bank” was eliminated, he did not demonstrate that he “diligently sought new employment commensurate with his qualifications and experience.” G. v. G.: $151,000 of income was imputed to a wife based on rental income she received from separate property investments and her access to over $500,000 in trust assets that were her separate property. Conclusion In conclusion, imputed income in New York divorce cases is a legal concept that aims to ensure fairness and prevent individuals from intentionally reducing their income to avoid financial obligations. It is important to consult with a qualified family law attorney who can provide personalized advice based on your individual circumstances if you have questions or concerns about imputed income in your divorce case.
December 7, 2023
Family Law
How to Divide Time with Children Over the Holidays Recap
The holiday season is a time of tremendous joy, but it can also be a time of tremendous stress—especially for divorced parents who share custody of their children. Between splitting time, coordinating gifts, arranging travel, and communicating with relatives, you may face numerous demands that necessitate collaboration with your ex-spouse. This is particularly difficult for parents who have irreconcilable differences. Fortunately, your attorney can help. Over on his blog, our AAML colleague Michael A. Robbins offers five simple tips for parents looking for ways to divide time with their children over the holidays. Whatever you decide to do, he writes, make sure to use this time to plan ahead: “One way to create more stress and potential disagreements is to wait until the last minute to determine how time with children will be divided between you and your ex. When you wait until the last minute to make plans, each parent may have made the mistake of assuming that they would have the child, resulting in a conflict. This can also be confusing to a child, who may then feel as though they have to choose which parent to spend the time with.” You can read the full article here. Mr. Robbins’ guidance is helpful, but it only touches on the surface of a complex issue for children and parents. Your legal advisor can help you develop a comprehensive, sustainable custody arrangement for the holidays—and beyond. Get in touch with us today to start planning now.
December 6, 2023
Family Law
Traveling with Babies Recap
Originally posted 12/18/18, no content changes. Does anyone enjoy flying with a baby? Infants themselves certainly don’t like the experience, but neither do their parents and aisle-mates. Young children’s cries and frequent needs (for food, attention, and diaper changes) can cause significant irritation on the part of other passengers. As a result, parents may experience anything from angry glares to scolding and threats. It’s enough to convince some families to stay at home or restrict travel to locations within driving distance. A news story from the Washington Post may dissuade more parents from taking their children aboard. According to The Washington Post, a crew member allegedly told a United passenger her baby’s behavior was “absolutely unacceptable” and claimed the company’s rules prohibit infants from crying for more than five minutes. Although United apologized and issued a refund, this egregious story belies the fact that unprepared parents often do make mistakes during air travel, writes the Post’s Christopher Elliott: Crew members have mixed feelings about babies on board. They want to welcome all passengers and make them as comfortable as possible. And privately, they often tell me young children aren’t their biggest problem; it’s their adult travel companions, especially new parents who tend to make a lot of mistakes. The errors include being ridiculously unprepared, acting as if any advice they receive is “baby-hating” or “mom-shaming” — and not knowing what to do with diapers. You can read the full article, “The do’s and don’ts of flying with babies,” here. We may not be able to guarantee comfortable air travel, but Offit Kurman’s Family Law attorneys can assist with virtually any legal matter you or your children might face. While it can be a bumpy ride, so to speak, you don’t need to fly solo. See how we can help.
November 16, 2023
Family Law
Divorce-Planning: What You Need To Know Now
Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.i Originally posted on 09/15/2020, content updated on 11/15/2023. Tumultuous marriages often turn into tumultuous divorces. Yet many who find themselves in such marriages and resultant divorces are actually taken aback by their spouse’s decision to end their marriage. Even those who assumed their spouse was contemplating a divorce are often dumbfounded to learn their other-half had been planning the financial part of their split for months - even years before filing for divorce. The pre-planning of the financial facets of divorce is so common an occurrence today that it has a name -- divorce-planning. Divorce-planning is neither illegal nor immoral. It is unquestionably smart, and one who does not engage in such preparation will in all likelihood turn the painful process of divorce into a devastating one. The Five Signs Anyone claiming disbelief of their spouse’s divorce-planning either missed or ignored one or more of the indicators of financial pre-planning going on right before their eyes. Though every marriage has its own distinct approach to financial management, there are five indisputable indicators that transcend nuptial uniqueness, and signal that your spouse is engaged in divorce- planning. First: intensified irritability and/or noticeable evasion of questions concerning finances. Once divorce-planning is in motion there may be a noticeable reluctance to discuss the family budget, spending habits or the manner in which (and where) marital income or assets are invested or maintained. If your spouse has nothing to hide, then he/she should have nothing to fear in discussing your marital finances. Second: paper account statements no longer arrive at the marital residence, and other financial documents, especially income tax returns and back-up documentation, are no longer accessible or locatable in the home. Thanks to on-line access to banks, credit cards, brokerage accounts, and the like, a divorce-planning spouse has the ability to receive financial information by email, or by logging into the particular account, or through an “app.” A trusting spouse may not ask why, or even notice that paper statements are no longer being received in the mail, or that financial documents are no longer maintained in the marital residence. Online account access allows a divorce-planning spouse to hide a new bank account, credit line, or credit card from their spouse completely. Removing financial documents from the marital residence will delay the availability of such documents to the other spouse.ii Third: passwords /“PIN” numbers change. It is recommended that everyone change passwords and “PIN” numbers often so as to avoid “hacking.” There should be no reluctance to share new passwords and/or “PIN” numbers between spouses. Discovering changes in passwords and/or “PIN” numbers of which you were not informed may indicate a desire to hide activity. Fourth: requests to alter names on assets. New York and most states recognize a spouse’s marital interest in businesses, real estate, and other assets regardless of the title in which the asset is held. However, if one spouse’s name is removed from ownership of the asset, it will be significantly more difficult for the removed spouse to be apprised of transfers in ownership or the creation of liens against an asset, potentially decreasing the value of the asset in the divorce. If your spouse asks you to voluntarily remove your name from an asset -- or you discover that your name has fraudulently been removed from an asset -- divorce-planning is in progress. Fifth: threats of retaliation. Spouses may joke on occasion about what would happen, or what they would do if their spouse divorced them. However, if a spouse makes veiled references about leaving their spouse destitute or taking their child(ren) away from them, such remarks must be taken seriously. A spouse threatening or trying to control the other is probably stalling in order to complete their divorce planning. Further, remarks such as these are often intended to intimidate the other spouse from preparing themselves for divorce. The Game Plan Proactive planning -- divorce planning – should begin at the earliest sign that divorce is on the horizon. Do what needs to be done for your financial protection. Consider, and effectuate as many the following recommendations as possible: Finances, Privacy, and Asset Protection Stop using the family computer. Back up all computers/devices with all data and pictures on a portable hard drive (or use a cloud-based backup). Purchase your own computer, password protect it and keep your new computer away from your home, in a secure location. Change ALL of your passwords and “PIN” numbers. Open a new email account and use it exclusively for communication with your divorce attorney. Obtain a mailbox at a UPS Store or a P.O Box at a Post Office. Use that address for any and all personal mail/packages. Make copies of all account statements, bank, brokerage, credit card, IRA, 401(k), pension and profit-sharing plans, and tax returns for the last three years. Learn everything you can about your family's finances, your spouse's income, and the cost of running your household and collect the paperwork to support that knowledge. This will give you a head start on gathering those documents; you will need them during the divorce action. Put aside enough money for living expenses – approximately six months’ worth – and deposit the money into a separate account, in a bank where neither you nor your spouse has other accounts, and title the account in your name alone. Access and review the statements online only. Update your Will and exclude your spouseiii; amend your Power of Attorney, Medical Power of Attorney, and any other estate planning documents. Change beneficiaries on your life insurance, IRA, and retirement accounts.iv Open at least one credit card in your name only. As above, access and review the statements online only. Obtain a new/additional cell phone, with a new phone number, on a carrier different from the one you currently use. View/access the statements/bills for your new phone on-line only. Add your attorney to your contacts under a pseudonym. Consider what items in the marital residence have a particular meaning to you, perhaps a family heirloom, family photographs, or antiques. Determine which items you would be saddened to lose if your spouse removed them. Be prepared to remove these items when your attorney tells you. Take photographs and videos of the inside (and outside) of your home(s) clearly showing furniture, art, antiques, and your other belongings then in existence so that you can note in the event something “disappears.” If you have a safe deposit box, make an inventory of, and photograph its contents. Put your passport (and those of your child or children) in a secure place, away from your home. Managing Personal Expectations Divorce-planning is not solely a mechanical/financial process. It is also time to take stock in yourself emotionally (and physically) and find the best professionals to guide you through what will be a difficult period in your life. If you have not done so already, start seeing a psychologist to counsel you through your own transition issues. Join and attend appropriate support group meetings. If you do not have a therapist/psychologist or some other form of a counselor, start researching, and obtaining references for one for yourself and one for your children. Divorce often has a deep and lasting psychological effect on the children of the marriage, subtle though it may seem on the surface. As part of divorce- planning parents can and should take steps to reduce the psychological effects of divorce on their children. Start by seeing a counselor or therapist for yourself, and then lead into hiring a counselor/therapist for your children. Perhaps the most important part of divorce-planning is the selection of an attorney. Do your research again. Hire a highly experienced divorce attorney, fund the retainer, and follow your attorney’s advice. If your attorney advises it, meet with other leading divorce attorneys to conflict them out of the case.v Last, but not least, be mindful and wary of social media and other pictures, texts, and emails. Anything you post or publish can be used as evidence in Court. Do not post anything that you would be embarrassed to see on the front page of a newspaper. And, do not start searching for your next love interest during the divorce-planning period. Stay off of any dating website. Conclusion Divorce -planning is not about hiding, dissipating, or wasting marital assets. It is about protecting yourself and your assets and making shrewd choices when your mind is clear, long before you are caught up in the whirlwind of divorce. It requires logical preparation in the months leading up to a divorce. There is no blueprint for marriage, neither is there a blueprint for divorce. But diligent, pragmatic, and early preparation --- divorce-planning -- can start you off on a better footing, and ease the path ahead. i Sun Tzu: The Art of War Divorce laws of all states provide that both spouses have the right to “discover” (obtain) virtually any financial document or piece of information about the other spouse and the marriage going back to the day the parties married, However, a bird in the hand is worth two in the bush -- it is better to hold onto these documents, have them in your possession than to risk the time and effort in trying to get them back. iii See a Trust and Estate Attorney in your State. In some states excluding a spouse does not guarantee that he or she will not receive any monies from your estate. iv Sometimes you cannot do this until you are officially divorced, but try to do whatever you can now. In addition, upon commencement of a divorce, it is likely that you will be restrained from modifying assets including changing beneficiaries on a life insurance policy. So make the change now. v This is a highly controversial, and “hardball” move. It is an aggressive tactic. It is certainly part of the divorce-planning strategy but is often looked upon as sharp practice.
November 15, 2023
Family Law
Protecting Your Business During Divorce: Strategies for Business Owners
Divorce is a challenging and emotional process, and it becomes even more complex when you own a business. Your business is not just a source of income but a significant asset that may be subject to division during divorce proceedings. There are some strategies and tips to help business owners navigate the divorce process while safeguarding their business interests. Prenuptial or Postnuptial Agreements If you're a business owner, one of the most effective ways to protect your business during a divorce is to have a prenuptial or postnuptial agreement in place. These legal documents outline how assets, including your business, will be divided in the event of divorce. By establishing clear terms and agreements in advance, you can minimize disputes and protect your business interests. Keep Business and Personal Finances Separate Maintaining a clear separation between your business and personal finances is vital for protecting your business during a divorce. Make sure your business has its own bank accounts, financial records, and tax documentation. Commingling personal and business finances can make it challenging to prove the business's true value. Accurate Business Valuation Accurate valuation of your business is critical during divorce proceedings. It's advisable to hire a professional business appraiser or a certified public accountant (CPA) with experience in business valuation to determine the fair market value of your business. A well-documented and substantiated valuation can help ensure a fair division of assets. Explore Buy-Sell Agreements A buy-sell agreement is a legal contract that outlines what happens to a business if one of the owners goes through a life-changing event, such as divorce. Having a well-drafted buy-sell agreement in place can allow your business partner or co-owners to buy out your spouse's share, helping to keep the business within the hands of those actively involved. Offer Compensation in Exchange for Business Ownership To protect your business, you might consider offering your spouse other assets or compensation in exchange for relinquishing their claim to the business. This can be a complex negotiation, but it can help keep your business intact and mitigate the need for a forced sale or liquidation. Mediation or Collaborative Divorce Consider alternative dispute resolution methods such as mediation or collaborative divorce, where both parties work together with a neutral mediator or collaboratively trained attorneys to find solutions. These processes often lead to more amicable settlements and can be less disruptive to your business. Protect Intellectual Property If your business involves intellectual property, such as patents, trademarks, or copyrights, make sure it's protected. Clearly delineate ownership of these assets in your business agreements and maintain strong records. This can prevent disputes over intellectual property during divorce. Consult with Legal and Financial Experts Seek the guidance of experienced divorce attorneys and financial advisors who specialize in handling divorce cases involving business owners. They can provide tailored advice and ensure you are aware of all legal options and potential financial implications. Protecting your business during a divorce requires careful planning and a proactive approach. By implementing these strategies and seeking professional guidance, you can navigate the divorce process while safeguarding your business interests. Remember that every divorce case is unique, and it's essential to work with legal and financial experts to create a customized plan that suits your specific situation.
November 14, 2023
Family Law
Understanding Relocation Custody Cases: Navigating Complex Family Legal Matters
Relocation custody cases, also known as move-away cases, arise when one parent desires to move with their child to a new location, typically a significant distance away from the other parent. These cases present complex legal and emotional challenges that affect the lives of all parties involved. Defining Relocation Custody Cases A relocation custody case is a legal matter that arises when a custodial parent, the one with primary physical custody of the child, wishes to relocate to a different geographic area. This can be within the same state or across state lines. The relocation might be due to various reasons, such as a new job opportunity, family circumstances, or personal reasons. These cases can be contentious because the move often results in a significant disruption of the child's life and the relationship with the non-relocating parent. The non-relocating parent, or the one without primary physical custody, may object to the relocation, fearing that it will limit their ability to spend time with the child. Relocation cases can stem from a variety of factors, including: Employment opportunities: The relocating parent may be offered a job or career advancement in a different location, compelling them to consider the move. Family support: A relocating parent may want to move closer to family members or a support network to help raise the child. Safety concerns: Relocation might be driven by concerns about safety, such as escaping an abusive relationship or moving to a safer neighborhood. Educational opportunities: A relocating parent may want to provide their child with better educational opportunities by moving to a region with superior schools or educational programs. Personal reasons: Sometimes, parents wish to relocate for personal reasons, such as wanting to live in a different environment or to start a new chapter in their lives. Legal Considerations Relocation custody cases are highly sensitive, and the courts take various factors into account to make decisions in the best interests of the child. Some legal considerations include: Best interests of the child: The court's primary concern is the well-being of the child. They consider the child's relationship with each parent, the impact of the move on the child's life, and their emotional and physical needs. Parenting plan modification: If the court approves the relocation, it may need to modify the existing parenting plan to accommodate the new circumstances. This could involve changes to visitation schedules and custody arrangements. Notice and consent: The relocating parent typically needs to provide adequate notice to the non-relocating parent and may require their consent to relocate. If the non-relocating parent objects, a court hearing is usually necessary. Burden of proof: In many cases, the burden of proof falls on the relocating parent to demonstrate that the move is in the child's best interests. They must provide evidence to support their reasons for the relocation. Mediation and negotiation: In some instances, parents can resolve relocation disputes through mediation or negotiation outside of court. This can be a less adversarial way to reach a solution. Relocation custody cases are challenging legal matters that require careful consideration of the child's best interests and the rights of both parents. The courts aim to make decisions that provide stability and well-being for the child, while respecting the rights of both relocating and non-relocating parents. It's essential for all parties involved to seek legal counsel and work towards a solution that prioritizes the child's welfare and emotional needs during these often difficult and emotionally charged situations.
November 14, 2023
Family Law
The Role of Forensics in Child Custody Cases in 2023: Ensuring the Best Interests of the Child
Child custody cases are among the most emotionally charged and complex legal matters. In recent years, the integration of forensic evidence has become increasingly important in determining the best interests of the child involved. This article explores the significance of forensics in child custody cases and how it aids in ensuring the well-being and safety of the child. The Evolving Role of Forensic Evidence: Forensic evidence in child custody cases encompasses a wide range of disciplines, including psychology, social work, and mental health evaluations. These evaluations help assess the child's emotional, mental, and physical well-being, as well as the capabilities and suitability of each parent to provide a nurturing environment. Objectivity and Expertise: Forensic professionals are trained to approach child custody evaluations objectively, utilizing scientifically validated methodologies and standardized assessment tools. Their expertise helps the court make informed decisions, considering factors such as parental abilities, parenting styles, home environments, and relationships with extended family members. Assessing Allegations of Abuse or Neglect: In cases where allegations of abuse or neglect arise, forensic evaluations play a crucial role. Professionals may perform interviews, review medical records, and conduct investigations to determine the veracity of such claims. This evidence-based approach ensures that the child's physical and emotional safety remains Coordinating with Other Professionals: Forensic experts often collaborate with other professionals involved in the case, such as therapists, child protective service workers, and attorneys. This collaboration enables a comprehensive understanding of the child's unique circumstances and facilitates the development of appropriate recommendations for custody arrangements. Issues of Parental Alienation: Forensic evaluations also address concerns related to parental alienation, where one parent attempts to manipulate or undermine the child's relationship with the other parent. These evaluations delve into the dynamics between parents and children to identify signs of alienation and make recommendations for intervention if necessary. Ensuring Ethical Standards: Forensic professionals adhere to ethical guidelines, ensuring impartiality, confidentiality, and respect for the child's rights. They are committed to understanding cultural, ethnic, and religious diversity, which may influence the child's upbringing and well-being. Conclusion In 2023, the integration of forensic evidence in child custody cases continues to play a crucial role in safeguarding the best interests of the child involved. The use of objective, evidence-based assessments allows courts to make informed decisions that prioritize the child's well-being, safety, and long-term development. By relying on forensic evaluations, the legal system strives to ensure fairness, accuracy, and justice for all parties involved in child custody disputes.
October 26, 2023
Family Law
The Child-Parent Security Act and Compensated Surrogacy
Originally posted on 10/23/2020, content updated on 10/25/2023 On February 21, 2021 New York’s long-time ban on compensated gestational surrogacy ended as the New York Child-Parent Security Act (“CPSA” or the “Act”) became effective, providing those New Yorkers who relied upon assisted reproductive technology (“ART”) in order to have children, a far easier path to establishing their legal parental rights.i The Act is detailed and comprehensive, providing clear procedural requirements (which must be followed) to ensure the legality of the gestational surrogacy, and therein secure, in the simplest manner possible, the legal relationship between infant and intended parent. In gestational surrogacy, the gestational carrier cannot be biologically related to the child she is carrying, and, in New York surrogacy arrangements where the surrogate provides/provided the egg, continue to be prohibited. Prior to the passage of the CPSA, future parents needing the assistance of a compensated surrogate to have a child had no choice but to engage a surrogate who resided and gave birth to the child outside of New York. Costly adoption proceedings were thereafter necessary to secure the legal relationship between the new parents and their child. The CPSA replaces all that with a simple procedure to obtain a pre-birth judgment of parentage, thereby establishing and fixing the legal relationship between parent and child from birth. The Act is gender and marriage neutral (closing old gaps in the law), and determines parentage by reference to the intention to parent rather than a genetic connection that may or may not exist. The Act also addresses disputes arising as a result of cryopreserved embryos that remain after the dissolution of a marriage or non-marital relationship and provides a clear means for the couple to address the issue. The Act additionally creates a novel process, wherein a single intended parent conceiving with donor genetic material may obtain a judgment of parentage declaring him or her to be the only legal parent of the child. Last but far from least, the Act protects not only the child and intended parent(s), but importantly creates a “surrogate’s bill of rights,” setting a new standard for the protection of gestational surrogates, giving them: access to their own independent legal counsel; the right to make health and welfare decisions concerning themselves and the pregnancy; the right to health insurance coverage, life insurance, and psychological counseling; and, the right to decide not to proceed with the pregnancy without any penalties. New Yorkers considering the use of a gestational surrogate should be aware of the expansive changes in law provided by the CPSA, and retain Counsel well versed in the new law, its requirements and complications in order to ensure as trouble-free a process as possible. i Until the passage of the CPSA (signed into law on April 2, 2020), gestational surrogacy was illegal in the state, and punishable by criminal penalties.
October 25, 2023
Family Law
New York Law Extends Support for Handicapped Children Beyond Age 21
In a groundbreaking move, the State of New York became the 41st state to enact a progressive law requiring parents to continue supporting their handicapped children beyond the age of 21. This decision showcases New York’s commitment to ensuring the well-being and inclusion of individuals with disabilities, guaranteeing them a stable future filled with opportunities for growth and independence. Background and Rationale The law amends the Domestic Relations Law and the Family Court Act to allow custodial parents or caregivers of children with “developmental disabilities” to petition a Court to receive support payments until the child is age 26. SeeDomestic Relations Law §240-d; Family Court Act § 413-b. The new law builds upon the existing legal framework surrounding disability rights and represents a significant step forward in promoting inclusivity and equity for all members of society. By extending parental support beyond the traditional age of adulthood, New York aims to bridge the gap between education and independent living for handicapped individuals. Recognizing that disabilities may impede self-sufficiency, this legislation seeks to offer a safety net that promotes their long-term welfare. Key Provisions Who May Seek the Relief: A medical professional must have previously diagnosed the child with a “developmental disability.” The custodial parent or caregiver of the “developmentally disabled” child may petition the Court for relief provided that the child is “principally dependent” on the petitioner and resides with the petitioner. What is the Definition of Developmentally Disabled: A developmental disability is as defined by the Mental Health Law, which includes, but is not limited to, cognitive, developmental, and physical disabilities. The disability must (1) have originated before the child became 22 years old, (2) have continued or can be expected to continue indefinitely, and (3) constitute a substantial handicap to the child’s ability to function normally in society. See Mental Health Law §1.03 (22). Extended Financial Support: Under this law, parents are required to continue providing financial support to their handicapped children beyond the age of 21. This provision ensures that individuals with disabilities have access to basic necessities, healthcare, and other essential support services. Education and Vocational Training: The legislation emphasizes the importance of ongoing education and vocational training for handicapped individuals. Parents are encouraged to facilitate their children’s continuing education or skill development to enhance their employment opportunities and improve their overall quality of life. Guardianship and Decision-making: The law provides provisions for parents to retain guardianship over their handicapped children even after they reach adulthood. This empowers parents to make decisions concerning medical care, housing, and other crucial aspects of their child’s life, ensuring their ongoing well-being and security. Housing and Accommodation: The law recognizes the critical role of suitable housing in fostering independence and mandates parental responsibility in securing appropriate living arrangements for their handicapped children. This provision aims to prevent homelessness and promote inclusive communities that cater to the unique needs of individuals with disabilities. Impact and Implications This progressive legislation has far-reaching implications for disabled individuals and their families. It promotes their physical and emotional well-being and strengthens the foundation for a more inclusive society where every person is valued and included. By removing barriers to independence, New York aims to empower handicapped individuals to lead fulfilling lives, contribute to their communities, and achieve their full potential. Conclusion The passage of the New York law requiring parents to support handicapped children beyond the age of 21 is a significant milestone in disability rights and sets an inspiring example for other states to follow. By recognizing the ongoing needs and challenges faced by handicapped individuals, the law acknowledges the importance of parental support in fostering their independence and overall well-being. It is a step towards creating a more inclusive and compassionate society that values and empowers every member, regardless of their abilities.
October 23, 2023
Family Law
New Standard for Child Relocation Applications in New Jersey
Originally posted on 4/20/2018, content updated on 10/20/2023 So you want to move to warm, sunny Florida with the kids, but your ex spouse is saying “no way”…… The Best Interests of the child In Bisbing v. Bisbing, the New Jersey Supreme Court held that the outcome of a contested relocation determination must be made pursuant to the best interests of the child. This replaced the previous case law, which was heavily relied upon in Bauers v. Lewis. In all contested relocation disputes, courts should conduct a best interests analysis to determine “cause.” The best interests of the child standard is the new standard, regardless of the custody arrangement in place. In Bisbing v. Bisbing, pursuant to the terms of a Marital Settlement Agreement, the divorcing parents agreed that the Mother was the primary residential parent with custody of their twin daughters. The MSA also included a relocation provision stating that “[n]either party shall permanently relocate with the children from the State of New Jersey without the prior written consent of the other.” Shortly after the divorce, the mother informed the father that she was planning to remarry and relocate to Utah with her new husband (with whom she had a relationship prior to the Court granting the Final Judgment of Divorce). The father refused to consent to the permanent relocation of the children to Utah. The mother then filed a motion seeking an order permitting her to permanently relocate with the children to the State of Utah. The Father stated that the Mother had negotiated the MSA in bad faith, securing his consent to her designation as the Parent of Primary Residence without informing him that she relocated. Applying the standard established in Baures v. Lewis, the Trial Court granted the Mother’s application for relocation, finding she presented a good-faith reason and that the move would be in the children’s best interest. Thereafter, the Mother relocated to Utah with the children. The Father appealed the Trial Court’s decision. The New Jersey Appellate Division reversed and remanded, finding that there was a genuine issue of material fact as to whether the Mother negotiated the custody provisions of the MSA in good faith. The Mother was then Ordered to return with the children to the State of New Jersey. The Trial Court ordered the parties to then abide by the residency provisions previously entered into in the MSA. Supreme Court finds “Special Justification” to Abandon the Baures Standard. The Supreme Court of New Jersey recognized a “special justification” to abandon the standard it had established in Bauers v. Lewis for determining the outcome of contested relocation matters. In place of the Baures standard, Courts should conduct a best interests analysis to determine “cause” under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody. The Court remanded to the Trial Court for a Plenary Hearing to determine whether the Custody arrangement previously agreed to and as set forth in the parties’ MSA should be modified to permit the relocation of their children to Utah. No Waiver of Interstate Child Relocation The Court declined to agree with the Father’s assertion that by consenting to the Interstate relocation provision of the MSA, the Mother waived her right to a judicial determination of her relocation application under N.J.S.A. 9: 2-2. However, the Mother must demonstrate that there is “cause” for an Order authorizing relocation, which shall be determined by the best interest analysis considering the factors in N.J.S.A. 9:2-4 ( c). Notably, because the best interests standard applies to the determination of “cause” nothwithstanding the designation as the Parent of Primary Residence, the Trial Court need not decide whether the Mother negotiated the parties’ MSA in bad faith. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
October 20, 2023
Family Law
Immunizing Against Anti-Vaxxers
How Courts are Protecting Children from Parents Who Go Against Science and What it Could Mean in the Age of COVID-19 Originally posted 9/10/20, content updated on 10/19/23. Over the past nearly forty years,[1] and with increased fervor over the past twenty years,[2] the United States has seen the birth and exponential growth of the anti-vaccination (“anti-vaxxer”) movement. Spurred by conspiracy theories and junk science, this “movement” has gained traction across the nation and has even garnered protections under the First Amendment. Only five (5) states have laws requiring children in public schools to be vaccinated unless they have a valid medical reason not to be vaccinated.[3] The remaining 44 states allow children to be exempt from vaccinations due to religious concerns. While 15 states also allow exemptions for any type of nonreligious personal belief. The Centers for Disease Control has conclusively stated that “there is no link between vaccines and autism.” Since 2003, there have been nine CDC-funded studies concluding that neither vaccines nor vaccine ingredients cause autism. More recently, a 2011 study by the Institute of Medicine and a 2013 study by the CDC added to the growing body of research debunking this myth. The vaccine debate has also played out in another, less public, arena: family court. When two parents disagree on whether to vaccinate their child, that issue is front and center in any custody case. Until recently, the jurisprudence on this issue did not favor one position over the other. In 2019, the Maryland Court of Special Appeals issued a quiet but ground-breaking ruling in In re: K. Y-B, 242 Md. App. 473. In In re K. Y-B, the mother of an infant objected to the child receiving vaccinations on religious grounds. After the filing of a CINA petition, the Department of Social Services was granted limited guardianship and permission to allow the minor child to receive routine vaccinations. The mother filed an immediate appeal, and the Court of Special Appeals held that a parent is free to believe as they wish but cannot act on their beliefs in such a way as to pose a serious danger to the child’s life or health or impair or endanger the child’s welfare. The Court further held that the significant risks to the child and to the public if he does not receive childhood immunizations outweigh a parent’s right to religious freedom. This ruling creates a precedent in Maryland that failure to vaccinate a child poses a serious danger to the child’s life and health and impairs or endangers the child’s welfare. It reasonably follows that a parent who would make such a decision is not acting in the minor child’s best interest, which is the prevailing standard for determining custody. A look at recent cases across the country on this issue evidences an emerging trend towards a public policy that requires vaccinations. It is also an indication that a parent’s anti-vaccination stance may be a determinative factor in awarding sole legal custody or tie-breaking authority to the other parent. In 2004, the Texas appellate court upheld the trial court’s decision to give the father sole decision-making over vaccines when the mother was anti-vaccination. See Garcia-Udall v. Udall, 141 S.W.3d 323 (Tex.App. 2004). In 2006, Colorado awarded sole legal custody to the parent who wanted to vaccinate the minor child in accordance with the recommendation of medical professionals. “Citing the special advocate’s finding that providing medical care consistently and under the advice of a qualified physician was in the child’s best interests and that the father was more likely to follow such advice, the court allocated decision-making responsibility for the child’s medical care to father.” In re Marriage of McSoud, 131 P.3d 1208, 1214 (Colo.App. 2006). In 2014, North Carolina joined the trend in a case where the parents had joint decision-making authority, and the father wanted the children vaccinated, and the mother did not. Unbeknownst to the mother, the father had the children vaccinated, and the appellate court upheld the lower court’s finding that the father was not in contempt on the grounds that the vaccines were not harmful to the children. See Meduri v Meduri, 763 S.E.2d 338 (N.C.App. 2014). Pennsylvania followed suit in 2015. In B.C.S. v. T.S.S., 121 A.3d 1137 (Penn. 2015), the mother’s anti-vaccination stance was deemed “unorthodox” and a display of “poor judgment” by the trial court, which awarded the father sole decision-making authority. The Pennsylvania Supreme Court affirmed. The District of Columbia took an unorthodox approach in a 2015 case where the parties had joint legal custody, but the father had tie-breaking authority in the event of an impasse. The father exercised his tie-breaking authority and refused to allow the parties’ daughter to receive the HPV vaccine. The trial court removed the father’s tie-breaking authority and appointed a third party to resolve disputes over vaccines, and the appellate court upheld the lower court’s ruling. See Downing v. Perry, 123 A.3d 474 (D.C.App. 2015). In 2017, three (3) states issued opinions awarding sole legal custody to the parent who supported vaccinations for minor children. Missouri upheld the award of sole medical decision-making to the father, against the mother’s anti-vaccination wishes. See Gammon v. Gammon, 529 S.W.3d 350 (Mo.App. 2017). In Indiana, an award of sole decision-making authority over vaccines for minor children was upheld in a case where the mother was anti-vaccination. See Young v. Young, 95 N.E.3d 218 (Ind.App. 2017). The Tennessee appellate court upheld the award of sole decision-making authority to the mother, where the father was anti-vaccination. See Pankratz v. Pankratz, M2017-00098-COA-R3-CV (Tenn.App. 2017). Also, in 2017, Oregon courts went one step further and upheld the trial court’s order that the parties “ensure that a proper vaccination schedule is in place.” In re: Marriage of Botofan-Miller & Miller, 406 P.3d 175 (Or.App. 2017). Iowa has even linked a parent’s stance on vaccinations to fitness for physical custody/access. “Iowa courts have historically favored a parent who provides immunizations when determining which parent should have physical care of the child.” In re Marriage of Asefi, 838 N.W.2d 869 (Iowa App. 2013). [1] The current anti-vaxxer movement is often traced back to 1982 when NBC aired a documentary called “DPT: Vaccine Roulette” which addressed a purported tie between the vaccine for pertussis and seizures in young children. [2] In 1998, a British gastroenterologist named Andrew Wakefield published a study associating the MMR vaccine with autism. The study has since been discredited and the paper was retracted in 2010. [3] New York, California, Maine, Mississippi, and West Virginia.
October 19, 2023
Family Law
LGBT Common Law Marriage
Originally posted on 2/28/2018, no content changes Pennsylvania was one of the few states that continued to recognize common-law marriage. Although common law marriage in Pennsylvania was abolished in 2005, it continues to be recognized retroactively, meaning that a common law marriage entered into prior to 2005 is still recognized in Pennsylvania. Thus, in the event of a termination of the relationship, parties to a common law marriage may go through the divorce process and are entitled to the same rights and benefits as parties who were formally wed. In 2017, a Pennsylvania Superior Court case confirmed that same-sex couples who entered into a common law marriage prior to 2005 are also entitled to the same rights and benefits accruing as a result of the marriage. This allows same-sex couples to gain rights they would otherwise not have due to the fact that same-sex marriage was not recognized in Pennsylvania until May 20, 2014, when marriage equality was achieved. These rights and benefits include but are not limited to equitable distribution of assets, interim support during the divorce process, alimony, and social security survivor benefits. All of these rights and benefits are fact-sensitive and vary in each case, which is why it is important to seek a family law attorney to discuss whether the facts of a specific case would qualify as common law marriage and/or what rights and benefits are applicable. For more information on this topic, please contact Megan Smith atmsmith@offitkurman.com.
October 18, 2023
Family Law
Market Volatility, Retirement Savings and Divorce: Avoiding the Pitfalls in Present and Post-COVID-19 Times
Originally posted on 04/09/2020, content updated on 10/17/2023 Virtually every state in the union has, upon divorce, some form of retirement asset division based upon coverture.[i] The traditional method divides the retirement asset at its value upon the date of the commencement of the divorce action. Distribution of a portion of the asset to the non-employee spouse,[ii] while maintaining the inherent tax benefits of the resource (i.e., such as a 401(k) Plan, defined contribution plans and profit-sharing plans)[iii], requires the implementation of a Court Order known as a Qualified Domestic Relations Order or QDRO.[1] Drafting the QDRO to comport with the determined division to the non-employee spouse was rather uncomplicated when the financial markets were stable. But today is a new day, and one must ask what should be done in today’s market to both protect the asset’s value, while simultaneously not giving away too much? Let’s start with an example: In November 2019 Spouse A agreed to give Spouse B $500,000 when the profit-sharing plan in issue was valued at $1 million. The QDRO is drafted just so. By the time the QDRO is signed this month by the Court, there has been a downturn in the market and the value of the account has dropped to $750,000. Under the explicit terms of the QDRO Spouse A will still have to pay Spouse B $500,000 even if the account is now worth only $750,000. Spouse B is now very happy. Spouse A is fit to be tied! What to do? Avoid Flat Dollar Amounts; Specifically Address Earnings and Losses Flat dollar amounts payable to non-employee spouses create agonizing results when account values shift into retrograde. This is because no provision has been made to adjust the spouse’s amount to account for earnings or losses. That is not to say that the employee owner should not always agree to a flat dollar amount. If he or she is a gambling type – then such audacity may be a successful strategy. If you negotiate a flat dollar amount, you need to understand this risk. The employee-spouse should only agree to this if he/she is willing to take the risk. And only then, if there are sufficient funds to handle an award even if the account value drops significantly. The better way -- is to fix a percentage of the fund in issue to be distributed, and then add a provision along the lines of “including investment earnings and/or losses on that amount [the percentage amount] from [that date] until the date the funds are completely distributed to the [wife/husband].” Or, consider using the date of issuance of the judgment of divorce as the date to update all retirement account values attributable to post-commencement market forces. Even if the account is not actually divided for several years, each spouse will still get exactly what he or she would have received if the account had been divided on the agreed-upon date of division. It is also good practice (though rarely undertaken), with any retirement account to insist that the employee spouse transfer the funds into a stable value fund (if such is available), while the divorce and QDRO are pending. If this option is available, this is the best way to preserve the amount of the account, at least until the QDRO has been executed. Make Sure the QDRO is Prepared Promptly Each financial company, bank, brokerage house, retirement plan etc., has its own particular QDRO, or at least language that must be present in a QDRO. There is no reason to delay in investigating the form needed or the language necessary to undertake the transfer once the case is settled. In short, the QDRO should be researched long before the settlement agreement is inked. There is nothing stopping the attorney from doing so. In fact, this writer makes it a necessary part of the work undertaken as the case is being prepared for trial or settlement. Once the case resolves and the QDRO is prepared, it is then necessary to obtain the approval of the retirement plan’s administrator, so as to ensure that they will accept the form of QDRO and act upon it once it becomes a Court order. When the work is done in a timely manner, a QDRO can be filed at the same time as the settlement agreement. If that is not possible, it must be filed as soon as possible after the divorce is finalized because with further delay the non-employee spouse is putting themselves at risk to lose his/her benefits in a number of situations: The employee-spouse retires and starts drawing benefits without notifying their former spouse. The employee-spouse dies without a QDRO in place that locks in survivor benefits for the non-employee spouse. The employee-spouse takes a loan out that significantly reduces the account balance available for division pursuant to a QDRO. Conclusion Preparedness and diligent practice are the keys to success in ensuring a QDRO is properly written and ready to go. As we lived through a difficult time, and Courts were closed for all but emergency filings, it was more important than ever to get the QDRO process started for settled cases. Despite COVID-19, legal/QDRO teams for plan administrators moved quickly in their pre-approvals. Although we were not able to file the QDRO, best practices dictated having it ready for filing once the Courts opened, so that you did not end up at the bottom of the pile once normalcy returned. [1] Division of an IRA or a Roth IRA upon divorce does not require the use of a QDRO.[i] Historically defined as the condition or state of a married woman, considered to be under her husband’s protection. Used in modern parlance to mean the marital portion of an asset.[ii] Referred to in the law as the “alternate payee.” [iii] Division of an IRA or a Roth IRA upon divorce does not require the use of a QDRO.
October 14, 2023
Family Law
Deciding Whether to Have a Prenup?
Deciding whether to have a prenuptial agreement, often referred to as a "prenup," is a personal choice that should be made after careful consideration. While prenups are not necessary for every couple, there are several reasons why you might want to consider having one: Protection of Assets: Prenups can be a valuable tool for protecting your individual assets acquired before the marriage. This is particularly relevant if you have significant assets, such as property, investments, or a family business, that you want to safeguard in case of divorce. Clarification of Financial Rights and Responsibilities: A prenup allows you and your partner to outline each other's financial rights and responsibilities during the marriage, including how you will handle income, expenses, and debt. It can provide clarity and prevent misunderstandings about financial matters. Alimony and Spousal Support: Prenuptial agreements can specify the terms and conditions for alimony or spousal support in the event of a divorce. This can help avoid contentious disputes over financial support in the future. Protection for Heirs: If you have children from a previous relationship or plan to inherit significant assets, a prenup may ensure that your children's inheritance rights are protected, even if you divorce or pass away. Debt Protection: A prenup can define how pre-existing debts will be handled during the marriage and in the event of a divorce, preventing one spouse from being held responsible for the other's debts. Business Interests: If you own or plan to start a business, a prenup can outline how business assets and interests will be divided or protected in the event of divorce, ensuring the continuity of your business endeavors. Avoiding Lengthy and Costly Legal Battles: Divorce proceedings can be emotionally draining and expensive. A well-crafted prenuptial agreement can streamline the divorce process by clearly defining property division and financial matters, potentially reducing the time and money spent on legal battles. Preservation of Privacy: Divorce proceedings are often public, but prenuptial agreements can help keep sensitive financial details and personal matters private. This can be especially important for public figures or individuals who value their privacy. Open Communication: The process of creating a prenuptial agreement requires open and honest discussions about financial matters and expectations. This can promote healthy communication and a better understanding of each other's financial goals and values. It's important to note that prenuptial agreements are not solely about planning for divorce; they can also serve as a financial planning tool for the duration of your marriage. However, for a prenup to be legally enforceable, it must meet certain legal requirements, such as full financial disclosure, fairness, and voluntary agreement. Before deciding to have a prenup, it's advisable to consult with legal professionals who specialize in family law to ensure that your agreement is legally valid and tailored to your specific circumstances. Ultimately, the decision to have a prenuptial agreement should be made together with your partner, with open communication and mutual understanding as key principles in the process.
October 11, 2023
Family Law
Divorce: It’s Not About Winning or Losing - It’s About How You Play The Game
Originally posted 3/4/2020, no content changes. Legendary football coach Vince Lombardi once said, “Winning isn’t everything...it’s the only thing.”Well when it pertained to his beloved Green Bay Packers, this hall-of-famer might’ve been right. However, when it comes to divorce, what’s more important is “how you play the game.” Getting what you want out of a divorce comes down to not trying to pulverize your opponent (ex-spouse) on every play or argue with the referees (judge/mediator) on every call. It’s about playing smart and managing expectations. Here are some “coaching tips” that should prove helpful. Never expect a complete victory. Divorce law is set up to prevent a final score where there’s a winner and a loser. But yet that’s often easier said than done. That’s because you still feel entitled to everything, considering what your spouse has put you through. You’re 100% certain nobody could ever be so cruel, as much of a deadbeat, as unloving as a potted plant... Well, I can pretty much guarantee you, your judge has heard it all before in hundreds, if not thousands, of other cases. So don’t take it personally when the judge doesn’t admonish your spouse in front of you, or share in your heartache. That’s not their role. You need to realize that divorce cases are first and foremost, fact-intensive. They’re about conflict resolution not about your personal revenge. The court’s there to get you and your spouse separated, your assets allocated, debts squared away and your future support put in place. Most likely your court will go for a 50/50 split as often as possible with both you and your spouse left on equal footing at the end. And if you have children, the court will determine how custody is going to work...in your kids’ best interest and not yours. And while emotional support is crucial for you throughout the process, as Dionne Warwick sang so beautifully, “That’s what friends are for.” Then there’s the notion that you know what you should be awarded because you know of a case where a friend of a friend got everything he or she desired. Well, all cases are different, all lawyers and judges are different in how they present and interpret the law and each partner brings their own backstory to the proceedings. So while on the surface your case may look similar, appearances can be very deceiving. Also never expect a quick and easy resolution. Vince Lombardi knew a football game was won in the trenches, and usually in the fourth quarter. Very few divorces are cut and dry. There’s usually a lot of material for your attorney to get through and plenty of details you couldn’t have anticipated. Perhaps you and your spouse did “talk things out” but once a settlement proposal is drawn up, these issues look very different when they’re in black and white and in a legal document. And know that while you may have a “due date” when you want your divorce to be final, you’ll need to be flexible. Nearly every jurisdiction in the U.S. has a different waiting period, from thirty days to six months and beyond if children are involved. Divorce isn’t about control as much as it is about compromise. So while starting divorce proceedings can feel like you’re suddenly on an unfamiliar and scary playing field, speaking to a family attorney, like Sandy and Cheryl, will make it feel like your end zone is in sight and not twenty miles away in the distance.
October 10, 2023
Family Law
It Took Seven Days To Create The World, And Nearly Fifty Years To Afford Antidiscrimination Protection For All
…the arc of the moral universe is long, but it bends toward justice! [i] Originally posted on 02/25/2021, content updated on 10/06/2023 On May 14, 1974, Bella Abzug, Representative for New York's 20th Congressional District, introduced into Congress the “Equality Act of 1974,” the first piece of federal legislation to address discrimination based on sexual orientation. The act would amend Title VII of the Civil Rights Act of 1964 to prohibit discrimination against gays and lesbians in employment, housing, and public accommodations. Ms. Abzug’s Equality Act, as then presented, failed to pass and was thus relegated to the black hole of unsuccessful legislation and consigned to the annals of LGBTQIA history. Nearly fifty years later, on February 18, 2021, Representative David Cicilline and Senator Jeff Merkley reintroduced the Equality Act,[i] which afforded sweeping, clear, concise, and explicit anti-discrimination protections for all LGBTQIA people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.[ii] The Equality Act[iii] will update existing federal nondiscrimination laws, including the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and several laws regarding employment with the federal government—to unambiguously incorporate sexual orientation and gender identity as protected characteristics. The legislation also explicitly amends the Civil Rights Act of 1964 to extend sex discrimination protections to public spaces and services, including retail stores, banks, legal services, and transportation services. These changes strengthen existing protections for everyone.[iv] Questioning the need for passage of the Act, some have pointed to the June 2020, groundbreaking Supreme Court ruling in Bostock v. Clayton County[v], which made clear that employment discrimination on the basis of sexual orientation or gender identity violates Title VII, and have argued that the Supreme Court’s decision can be stretched in its interpretation to protect LGBTQIA people from discrimination wherever federal law prohibits sex discrimination. The ruling in Bostock is too narrow though, for such a broad interpretation. The Bostock decision is based solely on the very particular facts and legal issues then present before the Court, and does little but scratch the surface in addressing discrimination against LGBTQIA people. The Equality Act however, in its present state, covers it all. The Legislative Process Care must be given however, before the celebration begins. The excitement of the re-introduction of the Equality Act has distracted many from the fact that its passage is not guaranteed. Our legislative process, embodied in our Congress, provides ample opportunity for consideration and debate on every bill presented for passage into law. The open and full discussion provided under the Constitution can result in the notable improvement of a bill by amendment or the demise of a bill by assault and abatement.[vi] Conclusion The patchwork nature of current sex discrimination laws leaves millions of people subject to uncertainty and potential discrimination that impacts their safety, their families, and their day-to-day lives.[viii] Absent the passage of the Equality Act as it is currently constructed, lesbian, gay, bisexual, transgender, queer, intersex and asexual, Americans will still lack basic legal protections in states across the country. [i] H.R.5 - Equality Act 116th Congress (2019-2020). [ii] House Expected To Vote On Sweeping LGBTQ Rights Bill Next Week, NBC News, 2/18/21. [iii] Originally introduced in 2019, the Equality Act passed the Democrat-controlled House in May 2019, but it stalled in the Republican-controlled Senate. [iv] HRC, Take Action, Pass the Equality Act Now, 2/17/21. [v] 590 U.S. ___ ; 140 S. Ct. 1731; 2020 WL 3146686; 2020 U.S. LEXIS 3252. [vi] Much like what happened to the Equality Act of 1974. See also, Congress.gov, How Our Laws Are Made. [vii] Time Magazine Why Federal Laws Don’t Explicitly Ban Discrimination Against LGBT Americans, 3/19. [viii] Lambda Legal, Lambda Legal Hails Introduction of the Equality Act, 2/18/21.
October 6, 2023
Family Law
How Much Will My Divorce Cost?
One of the first questions a client asks is, “how much will this cost me?” While there is no way to really know how much the process will cost, there are some significant factors that can impact your fees. Opposing Party/Opposing Counsel. Unfortunately, there are some attorneys who are unable or unwilling to provide their clients with reasonable options and steer the case in a direction that will result in a fair and equitable resolution. If the opposing party and/or their counsel is not reasonable or minded in resolutions and problem-solving, the cost will be higher than if reasonable expectations can be set early on. It is helpful if the roadmap to get to a win/win resolution can be the focus of the case. There are several processes that can be utilized to reach an amicable resolution without the need for litigation, which can be emotionally and financially expensive. As a result of anger or vindictiveness, some parties are unwilling to focus on the best interest of the family, especially when children are involved. And unfortunately, there are attorneys who encourage detrimental behavior. The combination of the two can be very expensive. We recommend that clients review their invoices each month. If there are questions regarding any charges, they should be brought to the attorney’s attention before the next billing period. If the attorney does not provide a satisfactory response for the charge, the client should interpret that as a red flag. Certainly, choosing the right attorney to represent you impacts your fees. It is worth spending money on the front end to consult with several attorneys until you find the right fit. Your instinct should never be ignored if you feel that the attorney with whom you are consulting is not responsive to your concerns and needs. Litigation is expensive for clients and profitable for attorneys, so you might question an attorney who pushes litigation from the onset without discussing other options that you might try to utilize to resolve your issues before filing for divorce. Complexity of the issues. If your case involves every issue before the court (e.g., custody, access, child support, division of marital assets, alimony, attorney’s fees), your matter will be more expensive. There are times when one cannot resolve all issues without the court’s intervention. However, the more issues you resolve on your own, the less expensive the process will be. Along with complex issues may come the cost of experts (forensic business valuations, forensic tracing of assets, forensic analysis of income, child custody evaluator, vocational rehabilitation, appraisers, and the list goes on). You can alleviate some expenses by being organized and gathering as much information/documentation as you can for your attorney/experts. Some clients simply do not know or have access to their/their spouse’s asset information, and the process of uncovering any undisclosed, hidden, or unknown assets can be time-consuming and costly. Before you engage an attorney, be sure to have resources available from which to pay your legal fees. This may include credit cards, a home equity line of credit, borrowing from friends/family, or liquidating assets. Your attorney should assist you with a plan as to what option may work best for you.
October 5, 2023
Family Law
Custody and Relocation in Pennsylvania
Originally posted on 3/14/2018, no content changes Relocation with a child in Pennsylvania is a complicated issue involving whether or not the parent who is relocating has primary physical custody and whether the location of his/her new residence will impact the visitation time of the parent who has partial physical custody, or any other party having visitation with the child. The process does not revolve around which parent has legal custody but how the relocation will affect the visitation rights of the other parent (or sometimes other parties, i.e., if a grandparent had partial physical custody/visitation rights). If the parent with primary physical custody wishes to relocate with the child, he or she must provide the other parent a formal notice of relocation, which must outline detailed information regarding the relocation. Following receipt of the Notice of Relocation, the non-relocating parent has thirty (30) days to file an objection to the Notice of Relocation with the Court. If such an objection is filed, the Court will schedule a hearing to determine the merits of relocation and whether same is in the best interest of the child(ren). If no objection is filed, the relocating parent must file a request to have the Court confirm his/her relocation with the child(ren). At that hearing, the Court will likewise make a determination as to whether the relocation is in the best interest of the child(ren), however, if no objection is filed, there is a presumption that the parties’ agree to the relocation and that same is in the child(ren)’s best interest, and thus the relocation is normally granted. If you are thinking of relocating and that relocation may negatively impact the other parent’s visitation schedule, it is imperative that you seek legal advice and ensure the proper notice is given and confirmation is granted by the Court before the move. As this can be a complicated issue and every case is fact-sensitive and unique, be sure to consult with a family law attorney, and sufficient time to obtain the necessary confirmation is allotted to ensure your move goes smoothly and visitation is not disrupted. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
September 21, 2023
Family Law
When an Ordinary Family Lawyer Isn’t Enough
There’s no such thing as an “ordinary” divorce. That being said, it’s fair to call some divorces extraordinary—for the extraordinary legal guidance they require. Imagine that you and your spouse have been together for 25 years. Together during that time, you’ve built a business, amassed a multimillion-dollar fortune, and invested in over a dozen ventures. That’s not all—you and your spouse have three homes, seven cars, a boat, pets, an extensive art collection, several pieces of one-of-a-kind furniture…The list goes on. Now, after one too many disagreements, you’ve both decided it’s best to move on and go your separate ways. Where will all those assets go? Who owns the business? Who controls the investments? Who gets the homes, the cars, the boat, the art, the pets? To determine the answers, you’ll need an uncommonly skilled and experienced legal partner. Many family lawyers lack the knowledge necessary to handle property negotiations and settlements of the size we’re discussing. Keep in mind that asset division is just one piece of the puzzle. In a situation this complex, there may be myriad tax, insurance, and estate matters to consider. Add children into the mix, and you could be dealing with custody arrangements, family business succession plans, wills, trusts, and a whole lot more. At Offit Kurman, we’re able to effectively assist clients with issues like these due to our firm’s unique operational structure and our highly distinguished team. Offit Kurman’s Family Law Practice Group includes multiple American Academy of Matrimonial Lawyers (AAML), International Academy of Matrimonial Lawyers (IAML) Fellows, Super Lawyers honorees, and attorneys named to lists of The Best Lawyers in America. Additionally, we regularly collaborate with our colleagues active in other Offit Kurman Practice Groups, such as Business Law, Education Law, and Estates and Trusts. Learn why Offit Kurman’s Family Law services are anything but ordinary.
September 18, 2023
Family Law
Have You Created Your Post-Divorce Budget?
Money is one of the most common reasons for divorce. It’s also frequently one of the greatest concerns after the divorce has been finalized. Depending on your situation, you may end your marriage with more or less in the bank than you had during the marriage. Perhaps you’ll be the one receiving alimony and/or child support, or the person on the other end writing checks. Maybe you secured more marital property than your ex-spouse—or were forced to give up significant assets such as a house or vehicle. Regardless of the details of your agreement, you’re almost certainly not better off financially now than you were before. Hardly anyone walks away from divorce a “winner.” To ensure your financial stability, you’ll need to carefully create a post-divorce budget and stick to it. This can be challenging for anyone, but especially people whose exes managed household expenses. Here are a few tips for getting started: Calculate your monthly income and expenses. Determine how much money comes in each month. Then, figure out how much you spend on recurring expenses such as housing (e.g. rent or mortgage payments), bills (electricity, phone, water, etc.), groceries, car payments, gas, and so on. Look for ways to save. If your expenses are higher than your income, you need to a) start saving and b) eliminate or reduce as many costs as possible. Transfer a percentage of your income into your savings account each month. Cut down on unnecessary shopping. Cancel subscriptions. Take fewer trips to the supermarket. Wait before making big purchases. There are hundreds of options when it comes to saving money, so pick the strategies that make the most sense to you and your family. Prioritize paying off debt. If you have credit card debt, outstanding student loans, or another form of debt, try to pay back what you owe sooner rather than later. Financial liabilities only compound with time. Track your progress. Once you’ve created a budget, you’ll need to follow it—every day, week, and month. Keep an eye on your income and expenses, and regularly review your plan. If you’re having trouble sticking with it, you may need to revise your budget or change your spending habits accordingly. Finally, don’t hesitate to ask for help. An experienced professional can assist you in developing your budget and keeping your expenses on track. An attorney like the ones at Offit Kurman can provide help or connect you with a financial advisor.
September 16, 2023
Family Law
Whose Case Is It Anyway? – The Risk Of Hiring An Overly Aggressive Divorce Attorney
“Go for the jugular.” “Show no mercy!” “Revenge is a dish best served cold.” Face it, divorce often doesn’t bring out the best in people…and this need for vengeance can cloud a client’s point of view when it comes time to hire an attorney. No client wants a wallflower representing them and there is nothing wrong with an aggressive attorney to work on your behalf. But if you hire a rabid out of control pit bill as your lawyer, someone who tells you they’re out for blood at any cost from the get-go, well that could come back to bite you on the you-know-where. So is there a middle ground where your attorney is “in it to win it” but not to the point where events could spiral out of control to your detriment? Yes, and the first big step is to not make an emotional decision on representation. Often clients come into an initial meeting so riled up, they let their anger get the best of them and some attorneys will seize on this to snag a client, feeding into what a client wants to hear. Instead, try to be rational. Understand that the merits of your case are based on facts and not emotions when you go in front of a judge or mediator. Make sure your attorney wants to take a deep dive into the facts of your case and that’s their sole focus in representing you. Have them come up with an aggressive way to get you a fair but also realistic settlement based on the facts of your case, not what you “feel” you’re entitled to. Also don’t be afraid to discuss your budget and the firm’s costs upfront, so that their strategy works within the confines of what you can afford to pay. And never buy these four words: “don’t worry about it.” Also be wary of an overly aggressive attorney who boasts about wasting the court’s time and the other side’s money in order to get you the biggest and best settlement possible. If they say they’ll “bully” your spouse’s lawyer into submission, think carefully about that as well. Your spouse most likely will have a lawyer who won’t back down to intimidation and this face-off of egos could lead to lengthy delays in the process, costing you valuable time and a considerable amount of money. Once the process begins, stay in communication with your attorney and make sure that you never feel marginalized. You do need to let your attorney do their job, however, that doesn’t mean it’s okay to feel like you’re being left in the dark or that they’re involved in tactics you don’t approve of. The last thing you want is to be a party to an attorney who gets held in contempt of court because you had no idea of what they were doing “on your behalf.” And if you ever feel your attorney is only paying you lip service on any issue, it may be time to kiss them goodbye at any point in the process, because from beginning to end this should always be about working together. The stakes are just too high for you not to be involved and to make sure your hard-working attorney is a good reflection on who you are. Experienced Offit-Kurman family attorneys Sandra Brooks (a member of The American Academy of Matrimonial Lawyers) and Cheryl Hepfer (listed in Best Lawyers in America) will be upfront with you at the beginning and beside you at the middle and at the end of your case. With constant communication, you can feel certain Sandra and Cheryl will never put your case in jeopardy or put their needs in front of yours.
September 15, 2023
Family Law
In A Newly Released Documentary Pope Francis Endorses Same-Sex Unions
Originally posted on 11/03/2020, content updated on 09/15/2023 In the 2018 full-length documentary about the life of Pope Francis entitled Francesco, Pope Francis, for the first time, openly shares his belief that the LGBT community should not only be freely welcomed into the Church, but that the Church needs to embrace, accept and recognize civil unions for same-sex couples. The Pope is clear and unambiguous in his discourse: Homosexuals have a right to be a part of the family… They’re children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it. This was not the first time Pope Francis has addressed the issue of the gay community and its relationship with the Catholic Church. Francis is believed to be the first pope to use the word “gay” publicly. Soon after becoming Pontiff in 2013, he made headlines when questioned about reports of gay clergy in the Church. Francis answered: “If someone is gay and he searches for the Lord and has good will, who am I to judge?” Whether the Church’s hierarchical authorities will change the teachings of the Church to reflect the Pope’s views is yet to be seen. However, Pope Francis’s forthright support for the religious recognition of formal unions for same-sex couples may be the beginning of a cultural shift in the Church’s views regarding the gay community.
September 15, 2023
Family Law
Skin-to-Skin Contact Recap
If there’s one worry every new parent shares, that worry might be sleep—or, rather, the lack of it. When the disturbances are unpredictable, the needs incommunicable, and the stress overwhelming, a baby’s crying drowns out everything else. Forget work, chores, quality time, or your own sleep schedule. Getting your baby to doze off can become a full-time job unto itself. Fortunately for anyone toiling away right now, one of the simplest sleep-inducing solutions is also one of the most effective. Plus, it’s an excellent bonding ritual with benefits for both the baby and parent. David G. Allan, editorial director of CNN Health, Wellness and Parenting, calls it the “100 strokes” method: count to 100 through “slow back-and-forth sways” while holding your baby close, or through “100 calm and steady rubs” of the baby’s back. According to Allan, the method not only frequently puts babies to sleep (well before 100), but also has a calming effect on the parent. He writes: “The number 100 became like breaths in meditation; I couldn’t hold complex thoughts on top of counting, so deeper emotions surfaced, specifically love and appreciation for the small person I was holding and touching. I was less likely to get pulled away by superfluous streams of thought and soon began to deeply enjoy these moments of seemingly forced mindful parenting.” When Allan dug deeper, he found out that science supports this method as well. Physical touch between baby and parent encourages the release of chemicals associated with happiness and relief: oxytocin, serotonin, and dopamine. This can confer all sorts of positive health outcomes: “In one study, daily massage therapy was associated with a 47% weight gain in preterm infants. In another, researchers measured the stress response in the brain when subjects anticipated an electric shock and how that response was tempered if their arm was being stroked by a loved one. There’s even some evidence that touch may reduce anxiety and depression among Alzheimer’s patients. By holding and rubbing our children, we are conveying safety and trust, relieving stress and activating our bodies’ vagus nerves, triggering a compassion response. This is what actual bonding with your child looks like.” Read “Give me some skin: A nighttime ritual to bond parent and child.” A lawyer probably can’t help you calm your baby, but if you’re losing sleep over a legal issue, the attorneys of Offit Kurman’s Family Law Practice Group can help. To learn more about our team the services we provide, click here.
September 14, 2023
Family Law
Understanding the Necessity of a Pre-Nup
Originally posted on 5/21/2018, no content changes In Pennsylvania, pre-nuptial agreements meeting the statutory requirements are generally enforceable and the best way to provide peace of mind prior to a marriage. The main reasons a pre-nuptial agreement may be necessary include: Protecting existing (pre-marital) assets; Protecting against potential future support obligations (spousal support, alimony pendente lite, and alimony); Protecting business interests, most often family or closely held businesses; Protecting assets for children of a prior relationship and Estate planning. Pre-Marital Assets: Under the Pennsylvania Divorce Code, assets that are owned prior to the marriage and are maintained in separate names, continue to belong to the individual owner in the event of divorce. However, if the value of such an asset were to increase during the course of the marriage, the increase in value would be included in the marital estate and subject to equitable distribution. Protecting against the passive increase in value of pre-marital assets becoming part of the marital estate is one of the main reasons pre-nuptial agreements are recommended. Pre-nuptial agreements can also protect against active increases in value, such as ongoing contributions to a pre-marital 401(k) or payment of a mortgage on a pre-marital home. Protecting against future support obligations: Consideration must be given to whether either party may have any support obligations in the future if the parties were to divorce. With the exception of support for children, parties can agree to contract specific provisions as to spousal support, alimony pendente lite, and alimony, or may choose to specifically negate any such obligation from arising by including certain provisions regarding same in a pre-nuptial agreement. Protecting Business Interests: The division of a business or interest in a business can be an extremely litigious and costly exercise that is often required in any divorce involving a closely held or family business. Business appraisals are almost always necessary, and the obligation of one party to buy out the other party’s interest can be onerous. In cases such as these, pre-nuptial agreements can be used to protect against this kind of litigation almost as an insurance policy as the business interest and many other aspects can be exempted from the marital estate. Protecting assets for children and Estate Planning: These two aspects often go hand-in-hand. Certain assets can be exempted from a marital estate and protected for children from a prior relationship under both a will and a pre-nuptial agreement, which provides additional protection for such assets. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
September 12, 2023
Family Law
GPS Surveillance Data in Civil Cases
They show us where we are, get us where we need to go, and prevent us from losing our way. It is hard to imagine modern life without Global Positioning System (GPS) devices. Indeed, many people not only have navigational systems installed in their cars but carry GPS around all day within their phones. As helpful and ubiquitous as the technology is, however, GPS raises complex uncertainties around privacy. Should GPS providers such as Apple and Google be allowed to retain user location data? If so, what kinds of data, and for how long? Can companies share that information? What about law enforcement—can agencies use GPS to track their suspects? Then there are concerns about individuals involved in separations, divorces, and other family law disputes. For instance: What rights does someone have to defend themselves against an ex-spouse using GPS to spy on their movements? Is information that device collects admissible in court? These were precisely the questions facing the United States Supreme Court in United States v. Jones, 565 U.S. 400 (2012), and Carpenter v. United States, 138 S. Ct. 2206 (2018). In the first case, the Supreme Court ruled that a GPS tracing device counts as a “search” under the Fourth Amendment, meaning that data must be collected under a search warrant to be admissible. In the second case, the Supreme Court clarified that the same rules apply to not just GPS data, but all phone data. To learn more, read “Admissibility of GPS Surveillance Data in Civil Cases” at the National Legal Research Group’s Family Law Research Blog. With the emergence of any new technology come new developments in all corners of the law. Family law is no exception. To stay ahead of any legal updates that may affect you and your family, be sure to subscribe to the Offit Kurman blog.
September 7, 2023
Family Law
Maryland Joins the ‘Irreconcilable Differences’ States
Maryland will become a no-fault grounds state for filing for divorce on October 1, 2023. Maryland will be adding irreconcilable differences and six (6) month separation to its rule books while also retaining the ground of mutual consent. This eliminates all fault grounds for divorce in Maryland. What does this mean? Well, back in the day, pre-October 1, 2023, one could file for divorce based on a fault ground like adultery, desertion, conviction of a felony, insanity, cruelty, or excessively vicious conduct. In the past, to obtain an absolute divorce, parties had to live separate and apart before they could even file for divorce. The change permits the court to grant an absolute divorce based on the grounds of a six-month separation for those living separately or together. This is in line with the law in many other states. Grounds for divorce that had to be proven in the past can still be considered when determining issues of custody and/or the division of marital assets. In the past, many residents of Maryland could not live separately from their spouses for the requested 12-month separation period due to limited finances. That is no longer a necessary requirement. This will certainly assist low-income families that could not afford to maintain two separate households while waiting to divide their marital assets. And folks no longer have to allege that the other spouse has been cruel or has committed adultery to get divorced. Beginning October 1, 2023, a Marylander may file for divorce on one of the following grounds: 1) irreconcilable difference, which has not been defined under the new statute, but one can presume it will include any reason the parties want to obtain a divorce; 2) mutual consent, which means the parties have reached and submitted to the court an agreement resolving all issues related to the marriage; or 3) six- month separation, which can be during the period with the parties residing in the same home. Maryland is also completely eliminating the ability to file for a limited divorce, where the parties may live apart but remain legally married on October 1, 2023. This change in the law will make it easier for Marylanders to obtain a divorce.
September 6, 2023
Family Law
Hotel Travel Tips
Have you ever wondered how you might be able to make the hotel experience more pleasant? Here are some things you may not have thought about. Some hotels send out pre-registration emails, asking for your preference as to pillows and the like. If given that opportunity, respond to the options they make available and others. They may or may not honor them, but it’s worth the effort. You may want to call your hotel to ask about some options that most do not take advantage of. If you want to be close to the elevator, have extra towels in your room, and perhaps even have an early check-in, this is the time to do it. The hotel may have more flexibility to honor your requests before you arrive. The one person who rarely gets a tip is the one checking you in. Interestingly, if you slide a $20 bill to them when you first arrive, you may receive a better room. If you’re staying a week, $20 is a small expense but may be a great incentive for some special treatment. Ask about a concierge floor. It may not be much of an additional expense, and the concierge floor often offers breakfast, afternoon snacks and evening desserts. Tip your maid every morning. If you have to turn down service in the late afternoon, leave a few dollars. The maids can take special care of you, leaving you extra water or shampoo, for example. If you wait to leave the tip until the day you leave, you have missed an opportunity. To avoid confusion, leave the tip on the pillow on a turned-down bed. That way, the maid knows it is there to take. Ask for your bill the night before you check out, so that you have an opportunity to review all of the charges before you are in a rush on the way out the door. Ask for a delayed checkout if that will help you. Generally, if you ask early enough in your stay, you can get a few more hours before you have to leave your room. If you have a late departure for the airport, schedule a spa day at your hotel or the best hotel in the city in advance and spend the afternoon at the spa. If you book just one session, you can spend the entire day in the sauna or steam room. Check carefully before you leave your room. It’s not a bad idea to have a written checklist that you keep in your suitcase so that you remember to check the outlets and the refrigerator before you leave. Ask for bottled water when you check in, when you leave the hotel, when you’re in the gym, and when you check out. Most hotels provide bottled water upon request.
September 5, 2023
Family Law
What Does "No Fault" Divorce Mean?
Originally posted on 6/01/2019, no content changes. The Pennsylvania Divorce Code provides two no-fault grounds for divorce: Divorce by Mutual Consent and a Divorce based upon a One Year Separation. In the case of a divorce by mutual consent, the parties often are able to reach an agreement and memorialize the terms in a writing known as Marital Settlement Agreement, in advance or at the same time as the Divorce Complaint is filed. Other times, parties may reach an agreement and memorialize the terms after the Divorce Complaint is filed but before the expiration of the required one-year separation. In such cases, the parties can obtain a divorce decree by mutually consenting to the divorce by filing affidavits no less than ninety (90) days from the service of the Divorce Complaint. For all other cases, to avoid the necessity of requiring parties to meet the proof requirements of the fault-related grounds for divorce, a party can move a divorce matter to conclusion through court intervention following a one-year separation. Parties can be separated and still living in the same household. Proof of separation includes termination of an intimate relationship, separation of finances and representation to the community that the parties are separated. While the service of a Complaint for Divorce is a clear threshold for establishing a date of separation, a party can attempt to establish an earlier date of separation utilizing the applicable factors. The Pennsylvania Divorce Code provides for six (6) fault-related grounds for divorce: Desertion, Adultery, Cruel and Barbarous Treatment, Bigamy, Incarceration, and Indignities. Even if a divorce complaint is filed alleging one or more of the fault-related grounds for divorce, the no-fault grounds are almost always also included in the complaint. For more information on this topic please contact Megan Smith at msmith@offitkurman.com.
September 5, 2023
Family Law
I Don't Have Many Assets...Do I Need A Pre-Nup In Pennsylvania?
Originally posted on 10/11/2019, no content changes. Regardless of a person’s current assets, a pre-nup is always prudent prior to entering into a marriage because a it can offer so many things other than just protecting the assets you have before your marriage: Pre-Marital Assets:Assets accrued prior to a marriage are largely protected from an equitable distribution (division of assets) incident to a divorce in Pennsylvania. However, the growth of those assets (i.e., increase in value) that occurs during the marriage will be considered part of the marital estate and subject to equitable distribution. Not only can a pre-nup protect the growth on the pre-marital assets during the marriage and ensure this increased value remains separate property (does not get divided incident to a divorce), but it can also take the case law and statutory protections that currently exist and extend those protections. For example, a pre-nup can extend protection in the event that a pre-marital asset is co-mingled or otherwise used for a joint purpose during the marriage. Without a pre-nup, co-mingling of a pre-marital asset often may be considered a gift to the marriage, and the pre-marital status may be lost. Assets Accrued During the Marriage: In Pennsylvania, assets and income accrued/earned during the marriage are largely considered “marital” property and thus subject to equitable distribution (division of assets incident to the divorce). A pre-nuptial agreement is able to exempt assets that may be accrued during the marriage as a party’s separate property, thereby avoiding distribution in the event of a divorce. Real Estate: Whether real estate is acquired before or during the marriage, if there is a mortgage or other maintenance/capital contributions to a home during the course of a marriage, same may give rise to a claim for equitable distribution of this asset. A pre-nup can clearly define what, if any, of a pre-marital residence or a residence purchased using pre-marital funds is or is not subject to division between parties incident to a divorce (example: pre-marital savings used for the down payment on the marital home). A pre-nup can go even further and provide one party the option to purchase the other party’s interest in real estate in the event of a divorce as well as a clause for vacatur of a home following a specified event (i.e., notice of wish for divorce or receipt of the filed Divorce Complaint). A pre-nup can even go so far as to address how bills will be paid and each party’s obligation to contribute, including addressing issues of unemployment, staying home with children, among other possibilities. Retirement Assets: Due to the fact that retirement assets are subject to equitable distribution, this is yet another reason for a pre-nup. If you are a saver and your significant other is not, do you want to give him/her half of your retirement savings in ten (10) years if your marriage ends? Whether retirement savings are accrued before or during a marriage, a pre-nup can address how such assets should be divided, as well as the growth on those accounts during the marriage. Gifts and Inheritances: Similar to pre-marital assets, gifts and inheritances by one party/spouse are largely protected from equitable distribution, however, a pre-nup can provide additional protections, including protection in the event of passive growth and co-mingling. Protections in the Event of Death: A pre-nup can provide protection of assets and elective share rights in the event of death. This allows you to leave your assets to whomever you wish (children, other family members, etc.) and prevents your spouse from taking against your estate under intestacy or elective share unless you specifically leave asset(s) to him/her under a will. For more information on this topic, please contact Megan Smith atmsmith@offitkurman.com.
August 31, 2023
Family Law
Domestic Violence: Now an Enumerated Factor in Determining Equitable Distribution
Originally posted on 12/11/2020, content updated on 08/30/2023 While New York was justifiably preoccupied with the COVID pandemic, its Governor at the time quietly signed into law a groundbreaking amendment to that portion of the state’s divorce law governing the distribution of marital property, directing that the Court, in determining the equitable distribution of property, to consider “whether either party has committed an act or acts of domestic violence … against the other party and the nature, extent, duration, and impact of such act or acts.” (2020 NY Senate-Assembly Bill S-7505-B, A-9505-B; New York Domestic Relations Law §236B(5)(d)(14), (as amended)).In New York, marital property is not automatically divided equally. Rather, the division of property is undertaken so as to ensure that there is an “equitable distribution,” based on an enumerated set of factors.[i] In New York, marital property is not automatically divided equally. Rather, the division of property is undertaken so as to ensure that there is an “equitable distribution,” based on an enumerated set of factors.[i] Equal at times may be equitable, and equitable at times may be equal. But they do not mean the same thing. “Equitable” is a model fixed in fair-mindedness. What is fair in the apportionment of assets fluctuates depending on the circumstances. A Court has great flexibility in fashioning an equitable distribution of marital assets subject to the fourteen (now fifteen) enumerated factors set forth in DRL § 236 (B)(5)(d)[ii], which include the: income and property of each party; length of the marriage; age and health of the parties; (any) support award; contributions, whether good or bad, to the acquisition of marital property; future financial circumstances of each party; and the wasteful dissipation of assets. Prior to the law’s amendment, the 14th and final factor was the universal legal catchall of “any other factor which the Court shall expressly find to be just and proper.” This 14th factor was rarely used by the Courts to include domestic violence in the consideration of the division of marital property. Courts have long been wary, indeed at times dismissive of the existence of domestic violence as a factor to be considered in influencing equitable distribution. This has been especially true since 2010, the year New York became a “No Fault” state – no longer requiring that one of six grounds of fault be proven before a divorce would be granted. As a result of no-fault divorce, the use of the one enumerated ground for divorce which permitted a party to interpose allegations of domestic violence, coercive control, physical and emotional cruelty in all forms, collectively referred to as “cruel and inhuman treatment” [iii] — has virtually vanished.[iv] Cases speaking to and utilizing noneconomic marital fault as a consideration in the division of marital property i.e., cruel and inhuman treatment — have been generally held to a standard wherein the Court determined that the abusive behavior was shocking to the conscience of the Court, i.e., “egregious or outrageous” — though those terms were never defined with any specificity.[v] Essentially, if the act or acts of domestic violence proffered to a Court did not rise to that particular Judge’s individual interpretation of egregious or outrageous conduct, then the act or acts were not considered in the context of DRL §236B. Now, however, with the amendment of Domestic Relations Law §236B(5)(d)(14), judges must include in their determinations of the equitable distribution of marital property all acts of domestic violence, in all of their iterations. Domestic violence as a consideration is no longer “left to the fates.” Rather, its existence is a specific factor that the Courts are required to confront, address and measure in their apportionment of marital assets. [i] K. v B., 13 AD3d 12, 17 (1st Dept 2004). [ii] G.R. v K.R., 2020 NY Slip Op 50976(U). August 21, 2020. Sup.Ct., New York County, Cooper, J. [iii] DRL 170(1): Cruel and inhuman treatment such that the conduct of the defendant so endangers the physical or mental wellbeing of the plaintiff as renders it unsafe or improper to cohabit with the defendant. [iv] Though it remains a viable ground for divorce, as do the other previously existing grounds for divorce. [v] Blickstein v. Blickstein, 99 A.D.2d 287 (2nd Dept. 1984),
August 30, 2023
Family Law
Divorce in New Jersey - Gathering Data
Originally posted on 2/21/2019, no content changes. Information is power. In order to be in a position to deal with issues in your divorce case, you must have information concerning assets, debts, income and expenses. No agreement or settlement can be considered fair unless you have full knowledge of the marital finances. Toward that end, you should begin gathering information on income, expenses, an itemization of all accounts, pension information, employment benefits, insurance information and all other financially relevant information at the outset of your case. Do not assume that you know the answers. Do not trust your spouse's verbal representations. Do not be overly suspicious or distrustful. In virtually every case, the basic information which you should begin gathering are copies of: The past three years' personal tax returns. The current year's bank statements. The current year's brokerage account statements. The current year's credit card statements. Any quicken or a similar computer software program itemizing your expenses. The last three years' year-end employment benefit statements for you and your spouse including 401(k) plans, pension, deferred stock, stock options or deferred compensation. Copies of any life insurance policies. Policy numbers, insurance company names and coverage limits for health, auto and homeowners insurance policies. In any case in which one of the spouses is self-employed, owns a small business or is a shareholder in a closely held corporation, you should also try to obtain copies of: The past three years' tax returns for the business. The past three years' financial statements for the business. Any loan applications with supporting financial statements submitted to a lender by the business. Any Buy-Sell Agreements. As you and your attorney begin to see the financial records, you should discuss with your attorney whether you need to employ a forensic accountant. If there are assets which cannot be located or easily defined, if there appears to be unreported or cash income or if there is a professional practice or business to be evaluated you will almost certainly need to engage an accountant. In some cases, we do encounter a spouse who will deliberately attempt to conceal the records, and if that happens in your case, you and your attorney must take a much more aggressive and proactive approach. For example: If you know there is cash in your home, you should take it into your possession and immediately inform your attorney. If you know there is a second set of books or business records, you should copy them, seal the copies in an envelope and mail them to your attorney. The postmark will identify the date in which you obtained and mailed the records, the integrity of them can then be protected by your attorney's office. If you begin to see mail or financial statements that are not familiar to you, make copies. If you have access to your spouse's cell phone records, make copies. Make copies of any credit card statements whether they are your accounts, your spouse's accounts or joint accounts. The more information you can gather, the better informed you and your attorney will be as you begin the formal discovery process discussed later. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 29, 2023
Family Law
Divorce in New Jersey - Discovery
Originally posted on 3/12/2019, no content changes. Discovery is a variety of processes which are designed to accomplish exactly what the word implies: to discover additional information or factual data. The scope of discovery is very broad. Simply stated, the rule is that you can ask for everything which is relevant “or may lead to relevant information.” There are various types of discovery. Some of the most common are: Interrogatories - Interrogatories are written questions which you submit to your spouse, which must be answered in writing and under oath. There is a tendency to ask broad, all-encompassing questions in order to avoid the risk that something may be overlooked. However, many times, such an approach to discovery is ineffective and unproductive. On the contrary, carefully phrased, very specific questions are more likely to produce specific responses which will be helpful to you and your attorney. Notice to Produce Documents - Notice to Produce Documents requires your spouse to produce any documents which are relevant to the case and which are either in their possession or subject to their control, such as employment records, bank or brokerage accounts which are in their name, or pension and IRA account statements. Oral Depositions - In some states, this proceeding is called an Examination Before Trial. That is exactly what it is. It is your attorney’s opportunity to examine or to take testimony from your spouse or any other witness before trial. They are placed under oath so that all of their answers are “sworn testimony.” The proceeding is in the presence of a Court Reporter who records the questions and answers verbatim. The questions and answers of your spouse are evidential and can be submitted directly into evidence at the time of trial. For other witnesses, they can be very valuable tools to confront and contradict statements made at the time of trial. Appraisals - Appraisals are regularly conducted to determine or verify the value of a specific asset for the purpose of dividing the same incident to equitable distribution. Experts are retained and utilized for this purpose. Assets that are often subject to appraisal incident to a divorce include real estate, businesses, pensions, jewelry, artwork, and vehicles. Very often, clients are concerned that their spouse will not respond to interrogatories or notices to produce and/or will stall, delay or refuse to appear for an oral deposition. Those are understandable but not reasonable concerns. The Court will enforce reasonable discovery requests and will be very impatient with a party who has frustrated or unreasonably delayed discovery. The Court may: Limit or bar a person’s trial testimony if they have not cooperated with discovery; Assess counsel fees against the offending party; or In some instances, impose monetary sanctions and penalties against the offending party. Remember, on the other hand, that Discovery is a “two-way street.” While you have every right to require your spouse to participate in Discovery, you, correspondingly, have the obligation to respond to reasonable requests from your spouse. If properly conducted, Discovery will provide both parties with an information base to allow them to negotiate fairly and enter into a Settlement Agreement. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 25, 2023
Family Law
Avoid Future Arguments with Your Ex By Using A Parenting Plan
Divorce can mark the end of a conflict or the beginning of many more. The difference frequently comes down to the parenting plan—whether one exists and, if so, what it does and doesn’t cover. A parenting plan is an agreement between individuals over child custody. Parents undergoing a divorce or separation may decide to use one for numerous reasons: to spell out the terms of a complex custody arrangement, to avoid future litigation, or simply because state law requires them to submit a plan. As with any legal document, the way a parenting plan is written matters. A well-drafted plan eliminates uncertainty over custody matters and safeguards the best interests of the parents—as well as their children—in the event of a dispute. An ambiguous plan, on the other hand, can create friction and stress. And when no plan is in place at all, the parents are setting themselves up for countless future arguments, big and small. Let’s start with the big ones. Without a parenting plan, parties involved in a divorce may clash over child custody and visitation rights, as well as various related personal and financial issues: Will one person be the primary caregiver, or will each parent spend time with the child or children? When, where, and for how long? How will the parents split monetary responsibilities, such as tuition and medical costs? Who gets to decide the cultural, linguistic, and religious environment(s) in which the child or children are raised? What if a new spouse enters the picture? Will that person gain parenting rights? What if a parent moves out of state, or out of the country? As important as those questions are, they shouldn’t entirely eclipse other, smaller matters. Seemingly trivial details can spark major disagreements: Who will be transporting the child or children from one parent’s residence to the other? What happens if a parent can’t visit or take custody of their child or children for a given period? Should they be allowed to schedule additional time or is it forfeited? Should one parent be allowed to significantly alter a child’s appearance, e.g. with a new haircut or piercing, without the other parent’s knowledge? How much control does a parent have over which activities the child or children can engage in while under the other parent’s care? What if a parent becomes seriously ill, or can’t take care of the child or children for another reason? If an unexpected conflict arises, how will the parents resolve the dispute? What’s the best way to avoid a court battle? When determining child custody and visitation, these are only a few of the many questions you need to consider. The sooner you discuss your plans with an attorney, the better your chances. If you have any questions on this topic, please contact Sandra Brooks at sbrooks@offitkurman.com or 240.507.1716.
August 23, 2023
Family Law
Divorce in New Jersey - Filing a Complaint
Originally posted on 2/21/2019, no content changes. Oftentimes, it is difficult to get a client to file the Complaint for Divorce. They may be reluctant to do so for religious or moral reasons or sometimes because they simply do not want to be the person who initiated the divorce. On the other hand, some clients want to prematurely file the Complaint out of anger of resentment. Try to avoid making the decision for such reasons. Discuss with your attorney whether there are any legal issues which may affect the timing of the divorce filing. Sometimes, there are medical insurance issues, sometimes there are pending changes regarding your assets, or sometimes there are significant pending changes in your income of employment status. Any of those could significantly affect the decision as to whether or not a Complaint for Divorce should or should not be filed. Absent such legal considerations, is usually does not make any difference who files first or on what grounds. As to the grounds for divorce, New Jersey has “no fault grounds." Irreconcilable differences is now the most often used no-fault ground. However, notwithstanding the ease of using such ground, you should review with your attorney whether or not a fault ground should be used. In some cases, the fault may be so egregious or may have such a significant impact on the family finances that it should be used. For examples, a history of violence, substance abuse or alcoholism may be very important with regard to parenting issues. Or, a long history of infidelity, particularly when family income or resources have been squandered on extramarital affairs, may be relevant as to how the remaining assets should be distributed. Or, fault which involves or affects the children may be relevant to custody issues. When considering a fault ground, however, a word of caution is appropriate. You should not be over zealous. For examples, you may not want to call instances of marital infidelity with a subordinate to the attention of your spouse’s employer if to do so may result in them losing their job. Similarly, unnecessarily or inappropriately disclosing unreported income may result in IRS liens or penalties, which could be minimized of avoided with a more reasoned approach. If the disclosure of such matters is important to your case, your attorney can discuss with you the use of arbitration or another alternative dispute resolution. The date of the filing of your complaint for divorce is an important date. It will serve as the baseline or starting point for the determination of your financial status relative to your divorce. Therefore, discuss it carefully with your attorney. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 22, 2023
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
Top 10 Divorce Mistakes to Avoid
Divorce can be an unpleasant and stressful process. Parties who have not educated themselves or who proceed without the guidance of an experienced divorce attorney often make mistakes that can last a lifetime and are typically more expensive in the long run. Don’t be one of them. Here are 10 of the most common mistakes to avoid during a divorce: 1) Involving the kids in the process If your case involves a custody or parenting time dispute, nothing will anger a judge more than involving the children in the dispute. One rule is straightforward: leave the kids out of it. Do not talk to the kids about your case. Do not use them as pawns in your “battle” against your spouse. Do not put your spouse down in front of the children. Do not “coach” your children as to what they should say if they have to meet with a custody evaluator, a doctor, a therapist, or a judge. By doing so, you are not only harming your case; you are harming your children. Even after the divorce is over (and it will be over), the children will still have (and need) both of their parents — always place the children first. 2) Taking advice from friends, family, or the internet Everyone always hears about a friend’s cousin who took the other spouse “for everything they had” and advises that you should demand nothing less. This free advice is worth exactly what you paid for it – nothing. Each case will be resolved based on the unique facts and circumstances of that case. What one person is awarded is often very different from what another person has been awarded. While friends and family are a great source of emotional support, they are not legal professionals. 3) Letting your emotions get the best of you Frustration, despair, and sadness are just a few of the many intense emotions that can be at play during the divorce process. Seeing things clearly can often be hard when such heavy emotions cloud your judgment. Take a moment to do what is necessary to regain a logical, calm, and clear perspective. Take the time to acknowledge your feelings and practice self-care to regulate your emotions. Don’t make hasty decisions based on heightened emotions. Having the assistance of an experienced divorce attorney is critical to ensure you are acting with your head, not just your heart. A skilled therapist can be hugely helpful as well. 4) Hiding or failing to produce documents You have an absolute right to see your spouse’s financial documentation. Your spouse has a fundamental right to see your financial documentation. The court will order you both to produce your financial documentation to each other. If you fail to do so promptly, it will only cost you more money and time down the road. More importantly, if you fail to disclose certain accounts or statements, any agreement you reach could become void, and it is highly likely that a court will impose extreme sanctions on the offending party. A full and complete disclosure will ensure that you are aware of the assets and liabilities subject to distribution and that you are receiving a fair division of same in your divorce. 5) Lying to your attorney Your attorney is there to help you. They are there to fight for you and ensure you get the best possible resolution of your case. Your communications with them are privileged – meaning they cannot (with a few exceptions) disclose what you tell them without your permission. The more your attorney knows, the more (and the better) your attorney can help you. No matter how embarrassing, outrageous, or ugly, an experienced divorce attorney has likely heard it all before. You need to keep your attorney fully informed and prepared to confront and manage any issues that arise in your matter. 6) Failing to identify separate property While most of the assets you and your spouse acquired during your marriage are subject to distribution in your divorce, most of the assets you acquired before your marriage are not. Under New Jersey State law, generally speaking, “separate property” is defined as property acquired by an individual prior to marriage, and “marital property,” in the absence of a prenuptial agreement, is defined as property acquired by one or both spouses during the marriage, irrespective of whose name the asset is in. It is important that you identify to your attorney any assets you acquired before the marriage and any potential commingling of that asset into a marital asset so that your attorney can protect your separate assets for equitable distribution. 7) Making oral agreements Even if you and your spouse continue to have an amicable relationship after separation and throughout the divorce process, do not make the mistake of entering into side oral agreements with your spouse concerning issues in your divorce. Memorializing all agreements in your written settlement agreement is essential to protect your interests. It is often very difficult, if not impossible, to enforce oral side agreements, especially if your written agreement purports to incorporate the entire agreement. 8) Failing to consider post-divorce finances Once you separate, the economic realities of having two separate households can be stressful. Not only are there two sets of expenses for two different households, but you are also transitioning from a two-income household to a one-income household. After separating, you should prepare a financial plan or budget for your new financial circumstances. It would be best to refrain from creating new or additional debts. Finally, do not assume that debts from your marriage are paid. If you and your spouse jointly accumulated debts during the marriage, ensure that you advise your attorney of those debts and have an agreement in writing as to which party is responsible for the payments of these debts during the pendency of the divorce. Upon finalization of your divorce, ensure that your settlement agreement explicitly sets out who is responsible for paying back that debt and remove your name from any liabilities that you are not responsible for, such as mortgages or credit cards. This will ensure that you are not held liable for debts you do not incur or are unaware of. 9) Being your own attorney Many couples believe it is unnecessary to hire attorneys to aid them in the divorce process, or they believe one attorney can represent the interest of both parties. However, an attorney (unless you go through the mediation process) only represents one individual and is there to protect only that individual’s interest. Both parties should retain their own independent counsel to represent their respective interests. Failing to hire an attorney may lead you to enter into a disadvantageous agreement. Note that a mediator cannot represent either party and can be hired as a neutral to assist you and your spouse negotiate an agreement. 10) Having unrealistic expectations In order to reach an equitable agreement and resolution of your matter, both parties must often modify their expectations. Most divorces require some give and take, and your attorney will work with you to create a strategy to obtain the things most important to you. Going through each of the issues in your divorce and deciding which ones are worth the time, energy, and expense of litigation and/or negotiations is the best way to utilize your resources and save money on your divorce.
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
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
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
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
Family Law
“Is There Another Me? How Online DNA Websites are Helping Adoptees Learn About Their History and Connect with Relatives”
DNA testing, including through websites such as 23andme.com, has become increasingly popular in recent years for individuals to obtain comprehensive ancestry breakdown, personalized health insights and more. 23 and Me is one of the programs that offers DNA testing through collection of saliva, to test both health and ancestry. Results include insights into health predispositions, carrier status, wellness, and ancestry composition, including tools to enable an individual to connect with relatives who share similar DNA. These testing programs were not always available, and in prior years, adopted individuals had no means by which they could obtain essential information such as medical background and genetic history. The documentary, Three Identical Strangers depicts the story of three identical triplets reuniting in 1980, simply by happenstance. Robert Shafran was beginning his sophomore year of college when students on campus began referring to him as “Eddy.” After lots of confusion and discussion with those referring to him as “Eddy,” Robert discovered he had an identical twin brother, Edward Galland. When local news outlets began publishing this story, photographs of Eddy and Bobby caught people’s attention, including a woman who recognized her friend David Kellman, identical brother number three. However, what starts as a fairytale story quickly turns dark, depicting the struggle of adoptees and the lack of information they have as to their physical and psychological background. In 1995, after a long struggle with mental illness (specifically, manic depression), Eddy committed suicide. As their story continues to unfold throughout this documentary, viewers learn that the triplets' biological mother suffered immensely from mental health challenges, something that they would have been aware of had they received any information on their birth mother and their biological background. Bobby and David have since pursued the unsealing of their adoption records, but, due to confidentiality laws, access to these records is extremely limited, with a high threshold showing required to obtain even the most minimal, basic information. This film, which was released nationwide on July 13, 2018, left a lot of lingering questions surrounding psychology, science, legislation, and adoptees' rights. Stay tuned in the coming weeks for more on state-specific laws and legislation for change. For more information on Three Identical Strangers, please visit Three Identical Strangers Trailer - YouTube
April 4, 2023
Family Law
Why should I get a Second Parent Adoption?
While many states have followed suit in adding protections for same-sex marriages and families after the Supreme Court decision in Obergefell v. Hodges, there are still many uncertainties when it comes to family formation in the LGBTQ+ community. For example, in a recent case out of Oklahoma, a judge ruled that a married, non-biological mother has no parental rights to the child she and her wife created and were raising together, but the couple’s sperm donor does. In this case, the judge relied on Oklahoma’s parentage laws under the Uniform Parentage Act, which predate same-sex marriage laws, meaning there was no presumption of parentage for the non-biological mom by virtue of the couple’s married status. A Second Parent Adoption provides an added layer of protection for all families where there is an intended parent without a biological tie. In many states, we are backed by the marital presumption, but, as demonstrated in Oklahoma just this year, a presumption can be easily rebutted if given any weight at all. This is why many same-sex families pursue a Second Parent Adoption, which is a court judgment that is recognized and protected in all jurisdictions. Having a skilled attorney who is versed in the Second Parent Adoption process will ensure that your family is protected regardless of the political climate of yesterday, today, or tomorrow.
March 13, 2023
Family Law
DIY Divorces Recap
There’s a lot to be said for embracing a do-it-yourself (DIY) ethos. DIYers develop useful skills, sometimes discover new hobbies, and often save a great deal of money. But while plenty of DIY projects can reduce upfront costs and bring personal fulfillment, there are some things you should never, ever do yourself. Giving your house a fresh coat of paint? Go for it! Brewing beer in your garage? Sure—why not? Handling your own divorce proceedings? Not a great idea. Looking to handle a divorce or another family legal matter in the best way possible? Don’t rely on a simple document retrieval service. Offit Kurman’s Family Law attorneys are dedicated to resolving conflicts and protecting your and your family’s interests in a fast, straightforward, and cost-effective manner. See for yourself what we can do for you.
February 13, 2023
Family Law
What is Dissipation and How Does the Court Handle It?
Under Maryland Law, and in most jurisdictions, dissipation is the expenditure of marital assets for the principal purpose of reducing the funds available for equitable distribution. It usually occurs when one spouse uses marital property for their own benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an "irreconcilable breakdown."' The Courts generally do not find dissipation when marital funds are used to pay attorneys' fees. Usually, dissipation is found when one party uses marital funds for things like: a prostitute, gifts for a paramour, or extravagance far more than what would be normal family expenses. The burden of proof in most jurisdictions, both expenditures themselves, as well as the persuasion that the funds were used in a manner that deprived the other spouse in such a way that the court may make that determination, lies with the party making the allegation of dissipation. Generally, the court has great discretion in making that determination.
January 13, 2023
Family Law
My Spouse is an Alcoholic. How Will This Impact My Custody Case?
The goal is to keep the children safe while still maintaining a relationship with their alcoholic parent. Ideally, both parents and their attorneys are on the same page with implementing safety precautions for the sake of the children. These may include the alcoholic parent enrolling into a sobriety program and maintaining a treatment plan for sobriety through therapy, support groups, etc. Subscribing to a live-time breathalyzer like Soberlink to ensure they are sober while the children are in their care is another helpful tool. Some parents have interlock devices on their vehicles to avoid driving while intoxicated. The age of the child(ren) is also a factor. As children get older, they can call 911 should they need help, but younger children are at more risk with an alcoholic parent because they can’t simply call for help. If the alcoholic is in denial, things get more complex, and you will need to strategize with your lawyer how to best protect the child(ren). The goal is not to punish the alcoholic but to keep the children physically and emotionally safe.
January 11, 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
Kim Kardashian and Kanye West settlement: is $200,000 a Month in Child Support Reasonable?
Child support is an obligation established by the Court to ensure that both parents, regardless of their relationship with each other, financially support their children to the best of their ability. Alternatively, as did Kim and Ye, the parties are permitted to agree to a number so long as it comports with the State specific guidelines. Depending on the State in which the children reside, the Court will use State specific guidelines and formulas to calculate a parent’s basic child support obligation. While the guidelines provide a presumptive amount of child support for parties with a combined net income that falls within the guidelines, most States provide exceptions for parents with extreme income (high or low). High net worth child support cases are more complicated and involve consideration of all expenses of the child(ren) in light of the parents’ extreme income (i.e., high incomes exceeding the guidelines). In New Jersey, the parties’ respective incomes are subject to a formulaic calculation and consideration of the factors set forth in N.J.S.A. 2A:34-23(a). The New Jersey Rules of Court Appendix IX-A, Considerations in the Use of Child Support Guidelines defines extreme parental income as a combined after-tax income in excess of $187,200 annually. In such circumstances, the Court is obligated to supplement the basic child support amount after consideration of the aforementioned factors. In New York, the parties’ respective incomes are subject to a formulaic calculation pursuant to the Child Support Standards Act [DRL §240, FCA §413] to determine the presumptively correct child support obligation. The C.S.S.A. applies up to the applicable combined income cap. Effective March 1, 2022, the income cap for child support calculations was set at a combined income of $163,000 (not adjusted for Federal or State income taxes). This income cap is subject to an adjustment every two years. In New York, the Court may choose to apply the formulaic percentage to the income in excess of the cap, or it may choose to specifically supplement support based upon the above-capped income pursuant to the enumerated factors. While there is no way to know whether or not the agreed-upon monthly child support in the Kardashian matter is reasonable, in New Jersey, the Court would engage in a fact-intensive analysis of the children’s needs and lifestyle to supplement the basic child support. That is, “where the parties have the financial wherewithal to provide for their children, the children are entitled to the benefit of financial advantages available to them.” Isaacson v. Isaacson, 348 N.J.Super. 560, 579 (App.Div. 2008). In fact, “children are entitled to not only bare necessities, but a supporting parent has the obligation to share with his children the benefit of his financial achievement.” Id. at 580. However, as the Court held in Isaacson, “no child, no matter how wealthy the parents, needs to be provided [with] more than three ponies.” Id. at 584. Calculating and determining a child support obligation can be a complicated process with long-term consequences, affecting your finances for years to come. Our firm is well-equipped to handle all divorce and family law matters, no matter your circumstances. You can contact Emily to discuss your child support matter in New York or New Jersey by email at Emily.Ingall@offitkurman.com or by phone at 929-476-0046.
December 8, 2022
Family Law
Dividing Stocks in Divorce
If your spouse has stocks, they will need to be identified as marital or non-marital, valued and divided or offset with another marital asset. Public stock is simple to value. Once a valuation date is determined, the answer lies in the market’s figures. Assuming the stock is all marital, and the parties agree to divide it equally, I recommend the parties work with an accountant or representative from the financial institution to ensure the division is as equal as possible considering the cost basis, so one party is not left with a major tax liability. Restricted stock units (RSU) can be a bit trickier because there is no market price to look up. RSUs are a common incentive for employees in private companies. They are granted to employees to incentivize them to grow with the business. RSUs do not have a value when they are granted; instead, they have a vesting schedule. Once they vest, they have value. The vesting schedule is important in your divorce and your jurisdiction. For instance, if the RSUs were granted before the marriage and vested after the marriage, there is some marital component, and you may need an expert to trace the amount. What comes up more often is when the RSUs are granted during the marriage but do not vest until after the marriage. Some states consider the unvested RSUs marital, and some do not. RSUs are also taxed, so that will need to be considered when dividing or negotiating RSUs. There are several ways to divide stocks in a divorce. The spouse who has the stock may keep them in exchange for another marital asset or offsetting the marital estate somehow. The parties may decide to divide the public stock. The parties may agree to equally divide the net value of the stock if, as and when it vests. Some parties agree to sell and divide the stock prior to divorcing for tax purposes. There are many other ways to slice the stock pie, but the best option will vary in different divorce cases. Bottom line is that stocks can become complex, and you need an attorney who knows to ask the right questions, gather the right documents, and reach out to a competent accountant when necessary.
October 31, 2022
Family Law
Can My Spouse Take My Business?
The law may differ slightly from jurisdiction to jurisdiction. Generally, businesses started during the marriage will be determined to be marital property to be divided upon divorce. If the business is a partnership or a corporation, ownership by title will be determined. Suppose a spouse owns 100% of the business because of the stock ownership or the partnership interest or because of other evidence of ownership. In that case, the Court will generally require that the business be valued, and then a determination will be made as to whether the spouse who does not have an interest in the business will receive a buyout or an offset from other assets. Business valuations are performed by experts. Often the parties will agree to use one business valuation expert as a neutral. However, in the spouses cannot agree on one valuation expert, there may be substantial variance in the opinions of the experts representing the interest of the parties. Those situations require the assistance of an attorney who has specific knowledge regarding business valuations and who has the ability to work with experts in the field. Often there is a determination of personal goodwill. In those cases, an expert may opine that the value of the business is, in whole or in part, attributable to the owner of the business. In that case, the personal goodwill will not be divided upon divorce. This determination can be hotly contested in a divorce situation. If the spouses each own an interest in a business, it is often partitioned in some way by a transfer of ownership between the spouses, with an offset for other assets or a buyout. When dealing with businesses that began prior to the marriage, the entire business is not necessarily marital. Once again, a business valuation may be hired to determine the value of the business at the time of the marriage and the current value of the business. The spouse who does not own an interest in the business may argue that the increase in value is marital and should be divided equitably or equally between the parties, depending upon the applicable statutes and case law.
October 28, 2022
Family Law
Separation? Where Do I Start?
If you are contemplating a separation, or if you believe that your spouse is, where do you begin? Collect and preserve financial information. This will include tax returns and information regarding income and expenses, such as check registers, checking account statements and credit card statements. You will also want information regarding assets and liabilities. If you have done a loan application for a mortgage or refinance, that will be a very helpful summary. You also want to secure information regarding 401K’s, retirement and investment accounts and the like. If there is a business involved, any documentation regarding the business would be an integral part of the information you will need. Information regarding real estate. HUD-1 forms from the purchase and sale of real estate are essential for tracing. If any assets were acquired using non-marital funds by either party, that information should be provided to your attorney. Non-marital asset tracing would include funds or assets owned by either party prior to the marriage, gifts from a third party, inheritances or anything traced to those funds. Consider available funds. You will need funds to retain counsel and experts and enough funds to pay ongoing bills for at least a short period of time. Familiarize yourself with bank accounts and investment accounts that would be accessible to acquire a new place to live and other expenses for at least a few months’ time. Consider options for living arrangements. Although you do not want to move before consulting with an attorney and considering all of your options, it will be beneficial for you to know whether you can afford to remain in your current home if that’s an option. And, if you must move, what kind of residence would be appropriate for you (and for your children)? Consult with a divorce attorney. Seek referrals from trusted friends who have had divorce experiences, estate and trust lawyers, accountants, therapists, and others who can give you names of competent attorneys. You may want to consult with more than one before making the decision as to who should represent you. Always consider peer evaluations, such as Super Lawyers, Best Lawyers, and, of course, the American Academy of Matrimonial Lawyers (AAML). Membership in the AAML is an organization of the top divorce lawyers in the country. Both Cheryl Hepfer and Sandy Brooks are Fellows of the AAML. Make your children your primary concern. For any parent contemplating separation and divorce, the best interest of their children is of great concern. An experienced divorce attorney can give you advice regarding the process options for you to consider and can provide information that will make this less frightening.
August 24, 2022
Family Law
Should I File a Joint Tax Return with My Separated Spouse?
When it comes time to file tax returns, those of our clients who are separated but not yet divorced often ask our opinion. As with many issues, there are some benefits to filing a joint return. However, there may also be unexpected consequences. When spouses file jointly, they are each responsible for all of the reported information. Each spouse can be held responsible for tax liability, which can include interest and penalties. One concern, therefore, is whether the other spouse has had adequate withholding or has paid their quarterly tax obligation in full and on time. We do not recommend a client file jointly if they are concerned their spouse has not been honest about income or deductions. On the other hand, there are significant benefits of filing jointly, such as lower tax brackets. Filing jointly rather than filing married filing separately can save money. You may qualify for filing as head of household. You may need guidance from an independent accountant or a competent family law attorney. Concerns may include who can get certain deductions, how to divide resulting tax liability, and how a refund may be divided.
August 22, 2022
Family Law
Mediation Tips from A Mediator and Retired Judge Sandy Brooks’ interview with Retired Judge Michael Mason
Sandy: How long have you been a mediator, and approximately how many matters do you mediate a year? Judge Mason: I’ve been mediating since approximately January 2019. Last year, I did just short of 80 mediations. Sandy: Of the cases you mediate, how many are family law matters? And of the family law matters, how many do you estimate reach a settlement through mediation? Judge Mason: Around 40% of the cases I mediate are family cases. I would estimate approximately 85% are resolved through mediation. Sandy: Do you believe your background as a Circuit Court Judge benefits you as a mediator in family law cases? Judge Mason: Yes. I think frequently, the attorneys for both parties have a reasonable sense of where the case should settle. Often the problem is getting the clients to accept that outcome is reasonable. I think coming to the mediation with years of experience as a judge who’s seen a lot of these cases can help convince the clients the result is a reasonable one, even if not one they are particularly happy with. Sandy: What are some of the most complex family law issues to mediate? Judge Mason: The most difficult cases to mediate are relocation cases and cases that involve allegations of abuse that are not independently corroborated. It’s very difficult in those matters to find some middle ground the parties can accept. The other difficult ones are those where the economically dominant spouse is self-employed and his/her income varies significantly from year to year, frequently taking a downturn once the divorce is anticipated. Also, those where the parties’ assets include a business which requires valuation. The valuations are normally miles apart. Sandy: Do you have any advice for attorneys prior to mediation? Judge Mason: Yes, always talk to the mediator and let them know what you honestly think might get the case settled. If there is a problem with the client, let them know. Also, make sure you’ve shared any important documents you intend to rely on at the mediation with the other side in advance so they have a chance to review it. Usually, the other side will totally discount any information they are seeing for the first time at the mediation without an opportunity to check it. As well, they typically resent it being given to them at the last moment, and that can affect their view of the other attorney. Sandy: Do you have any pointers for the parties to maximize their success at mediation? Judge Mason: Be prepared. Don’t wait until the morning of the mediation to prepare your joint property statement unless there is none to speak of. Get your pre-mediation statement to the mediator in time, so they have a chance to review it and any exhibits in enough time to speak to you in advance of the mediation. Have the key documents that support your position readily available during the mediation and share them with the other side in advance. Understand the attorney on the other side is generally not your enemy or being a jerk. Their client has a very different view of the relationship, which they have communicated to the attorney. The attorney is typically acting based upon those facts, which are very different from the ones that guide you. Sandy: What are some strategies for moving the parties past an impasse? Judge Mason: Sometimes, when the parties feel they’ve reached an impasse, I’ve found it helpful to recess the mediation for a few days/weeks. Often after the parties have a chance to get away from the immediate negotiations for a while, they will reassess their positions. On occasion, I’ve also found it helpful to offer the parties a mediator’s suggestion to help bridge a gap. I propose a solution which they are free to accept or reject. Neither party is told if either accepts the proposal unless both do. Judge Michael Mason began practicing law in Maryland in 1974. He spent ten years in the Montgomery County State’s Attorney’s office. He was the head of the Career Criminal Unit when he left in 1984 to set up a small general practice with two other prosecutors, Judy Catterton & Paul Kemp. They were later joined by a third, Martha Kavanaugh. He was in private practice for about ten years, and they did a little bit of everything that involved going to court. In January of 1994, he was appointed by Governor William Donald Shaefer as an Associate Judge of the Circuit Court for Montgomery County. He was sworn in as judge in March of 1994. He served full-time as an Associate Judge until December 2018, when he retired. He continues to sit as a Senior judge on an as-needed basis. He served numerous rotations as a family judge during his almost 25 years full-time on the bench. He occasionally hears some matters as a family judge. Beginning in January of 2019, he began a private mediation practice and has since mediated well over 200 cases. The largest single segment of the cases he mediates are family cases, but he does a wide range of other civil cases.
July 18, 2022
Family Law
Alternatives To Court
Litigation can be scary and expensive, emotionally as well as financially. But you do not necessarily have to go to Court to resolve issues in a divorce. The first step in determining how best to proceed is to discuss your options with experienced counsel who specialize in family law. Family law is a unique area of the law, and only those lawyers with experience have the level of knowledge and sophistication to evaluate your options with you. Often, cases can be resolved by negotiation through counsel. But there are other options available, and since divorce can be complex and complicated, one should consider all of them. Mediation is often used in family law, even if the parties are already engaged in litigation. Trained mediators facilitate agreements. They do not impose their position on either of the parties. Rather, a good mediator will challenge both parties not to expect their “best day in Court.” Reality often sets in, and parties recognize the pros and cons of their positions. Mediation often leads to an agreement, which can be incorporated into a Judgment of Divorce. Many attorneys who specialize in family law are now trained to handle cases in a collaborative process. This process permits the parties to evaluate their goals and explore options in a joint meeting setting. Another option is arbitration, where an arbitrator more or less substitutes for a Judge. However, unlike in a Court situation, the parties are able to select their arbitrator, determine what issues will be presented, set time limits, and control the amount of evidence that must be formally presented. In addition, there is some degree of privacy that is not typical in divorce situations.
July 15, 2022
Estates and Trusts
Is Same-Sex Marriage in Jeopardy?
This article has been updated. The Supreme Court’s decision overturning Roe v. Wade has sent abortion-rights advocates reeling. In a 6–3 opinion, the Court ended a constitutional right that was the law of the land for nearly half a century. The ruling could put other constitutional rights in jeopardy as well. Many in the LGBTQ community are asking, “Is same-sex marriage next?” Like the right to abortion, the right to same-sex marriage hinges on the Due Process clause of the Constitution’s 14th Amendment. This amendment was adopted after the Civil War as part of Reconstruction. Over the years, the Supreme Court has interpreted the amendment to guarantee the right to use birth control (Griswold v. Connecticut, 1965), to be intimate with someone of the same sex (Lawrence v. Texas, 2003), and to marry a person of one’s choosing (Obergefell v. Hodges, 2015). Writing for the majority in Dobbs v. Jackson, Justice Samuel Alito doesn’t mince words. He argues that Roe v. Wade was wrongly decided because the Constitution doesn’t explicitly mention abortion, and because a woman’s right to end a pregnancy isn’t “deeply rooted in this nation’s history.” This argument is misguided, if only because it runs afoul of stare decisis, the legal doctrine that obliges a court of law to follow prior court decisions when making a ruling on a similar case. The reasoning behind Justice Alito’s opinion may nevertheless form a road map for overturning same-sex marriage and other 14th Amendment rights. For those of us in the LGBTQ community, the question is what we can do to protect ourselves and our hard-won right to marriage. Those of us in same-sex relationships should prepare for the unexpected by drawing up estate plans. It is important to remember that a Supreme Court decision overturning Obergefell would not make same-sex marriage illegal. It would simply leave it to states legislatures to determine whether to allow gay marriages in their state. The Maryland Legislature has already done this. In 2012, it passed a bill legalizing same-sex marriage in the Free State. The law took effect on January 1, 2013, after winning approval from a majority of Marylanders in a statewide ballot referendum. Maryland’s same-sex couples who are already married can therefore take comfort. In the wake of a Supreme Court decision overturning Obergefell, our unions should survive, at least at the state level. But continued federal recognition of gay marriage would be less certain, and a national patchwork of laws and policies might necessarily develop. A marriage recognized in Maryland could suddenly be considered invalid in other states, and by the federal government. That could mean the end of important federal benefits, such increased Social Security payments to a surviving spouse. With that in mind, many same-sex couples are rushing to tie the knot. This is especially true of couples whose marriage plans were delayed by the Covid-19 pandemic. Whether we are disposed toward marriage or not, those of us in same-sex relationships should prepare for the unexpected by drawing up estate plans. Most plans include a will, financial power of attorney, and advance medical directive for each partner. These essential documents will authorize your partner or someone else you trust to manage your finances and health care if you ever become incapacitated. They will also help to ensure the efficient transfer of your assets upon your death. Marriage confers significant legal benefits, but a marriage license alone isn’t enough. No matter what the future holds for same-sex unions, an estate plan will help protect your relationship from some of life’s most significant uncertainties.
June 21, 2022
Family Law
When to File for Divorce in Maryland
Many people looking to file for divorce don’t know where to start or how urgently they should proceed with the filing. Some couples, in the emotionally-charged act of separating from one another, make the mistake of jumping straight into filing without considering all of their options. Generally speaking, it’s best if the parties can work things out with counsel before filing for divorce; this approach is ideal and may save them a lot of financial and emotional stress in the long run. Once a party files, the attorney’s fees tend to increase due to court-imposed deadlines, so avoiding that time crunch altogether is beneficial for everyone involved. If the parties manage to work with counsel to exchange all of the information and documentation before filing, counsel may be able to help the parties come to a resolution outside of court; if they are reaching an impasse, the next step may be to try mediation. If mediation fails and they’ve exhausted all settlement efforts, counsel may then recommend that they go ahead and file. Obviously, some divorces are messier than others, and parties cannot always be collaborative like this, so sometimes it is necessary to file immediately—especially if the court needs to quickly intervene with regards to children and custody issues. The first step when deciding to file for divorce should always be to seek the help of an experienced divorce or family law attorney. In the state of Maryland, it’s possible that certain forms must be filed days or weeks before the trial (depending on the county)—an experienced divorce lawyer should be able to help you keep on top of these due dates. Some of the forms you may need to fill out may include documents detailing your property and how each party thinks it should be divided, financial documentation, request for financial support from one party to another, and more. The many forms, as well as the varying practices of each court, can make the process of filing for divorce a little muddy, which is why pursuing divorce without legal representation can be risky business.
May 19, 2022
Family Law
Traveling with Toddlers on Planes
Here are nine tips for traveling with Toddlers in today’s world: Be prepared for dirty objects that find their way to your toddler. Bring along plenty of sanitizing wipes and keep them within easy reach. Pack at least two extra outfits as, sometimes, one is just not enough. Ask every flight attendant and gate agent you see if the flight is full. If not, ask if they can move people around so that your family gets a coveted free middle seat. Always carry a small medical kit with you – should include travel-size essentials – Band-Aids, Neosporin, Tylenol, Benadryl, and keep it in your carry-on for easy access. There may be some in the plane’s medical kit, but who knows for sure! Take loads of snacks in small containers or ziplock bags. Choose a variety to keep the little one satisfied – fruit, vegetables, pouches, biscuits, crackers, cheese nibbles, etc. There may be delays, and the stuff you can buy at the airport is expensive! Take a large scarf that you can wrap around the little one. Sometimes feeling snug as a bug helps them unwind and relax. Changes in air pressure can be very difficult for little ones, so take pacifiers and empty bottles that you can refill with water or juice supplied by the airlines to help them a bit. Stretch your legs and walk up and down the aisle. It really helps change the scenery for the little ones, and you may actually get some smiles and fist-bumps from adult passengers on the aisle. If you are traveling with another adult, send them on first to get some overhead compartment space for your carry-on, and then wait until the last minute to board with your child. It may seem insignificant, but those extra 10 minutes before boarding are treasured moments.
May 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
Family Law
How to Manage the Expense of a Family Law Case
It is a concern that every client has, but few are willing to discuss with their counsel. So, what are some tips to keeping your fees as low as possible? You can control some of the expenses, but not all of them. What you cannot control is the reasonableness of your spouse or the other attorney. But what you can control may make a significant difference in the expenses associated with your case. Be aware of the fact that divorce cases require disclosure regarding income, expenses, assets and liabilities. The more documents you can locate and provide to your attorney in an organized manner, the better. Generally, we are seeking three years’ worth of records, including tax returns, credit card statements, etc. But it’s also helpful to provide information regarding how and when the assets were acquired. We normally recommend that our clients prepare a chronology of important events, so that we can refer to that document in the future if needed, and we will then be able to fill in some of the blanks that may arise in the future. Because tracing of non-marital funds may be a significant part of a case, documents that trace funds that are premarital, inherited, or gifts from a third party will make a huge difference in educating your attorney in a coherent and organized way. You may not know the value of all of your assets, but you can do some research that will help get the value in the ballpark. Be responsive to requests from your lawyer for documents and information. If your lawyer is looking for the information, it’s because there is a need for it. The sooner you can provide the information, the better. Be aware of the fact that most attorneys rely upon a team, that often includes a paralegal, an administrative assistant and associates. That is often to your benefit, as their hourly rates are generally lower than that of the lead attorney. Show them respect and respond to them just as you would your lead attorney. Listen to your attorney’s recommendations. It’s your case, but there may be opportunities for compromise and settlement that occur early on or later in the case. If you delay considering a resolution until the day before trial, you have incurred substantial fees and costs associated with litigation. Rely upon your lawyer’s advice. That’s why we are often called “counselors.”
November 18, 2021
Family Law
How Long Will I Have to Pay Alimony?
When a couple gets divorced, one party may need to financially support the other party in some shape or form; this divorce-specific monetary support is referred to as alimony. When a client learns that they may be required to pay alimony, they understandably want to know how long they’ll have to make those payments. In order to answer this question, it’s important to first understand that there are three types of alimony in Maryland: pendente lite, indefinite and rehabilitative. The type of alimony a party will be required to pay is discretionary to the judge. Pendente lite alimony is fairly straightforward. Pendente Lite is Latin for pending litigation, and these are payments that a higher-earning party pays to the lower-earning party during the divorce proceedings only. The payments are meant to maintain the family finances at, or as close to, status quo as possible during the legal process of divorce. The definition of indefinite alimony is exactly as it sounds: alimony that has no specific end date. Indefinite alimony is ordered when a dependent party is unlikely to ever become self-supporting. This type of alimony is typically established in cases of long marriages where one spouse did not work outside the home for many years, or when one party is unlikely to acquire a self-supporting income due to age, illness or disability. Indefinite alimony ends if one of the parties dies, or the dependent party remarries. Indefinite alimony may end upon modification of the court or a written agreement between the parties. Rehabilitative alimony is meant to provide support to the lower-earning party for a period of time long enough for him or her to become self-supporting. This is the most common type of alimony awarded, and it usually has an end date. In most cases, this means that the higher-earning party will support the lower-earning party while that person takes the time to acquire the necessary job training or education needed for employment. In some cases, the higher-earning party may need to pay for the lower-earning party’s education to help them become self-supporting. As mentioned, the type of alimony one pays is solely up to the judge; however, if the parties prefer to negotiate alimony amongst themselves, they may come to an agreement as to the terms, but the judge will still have to approve it to ensure that the agreement is fair to both parties. If you have any questions on this topic, please contact Sandra Brooks at sbrooks@offitkurman.com or 240.507.1716.
November 17, 2021
Family Law
What’s the Deal with Adultery in Maryland?
Adultery is a misdemeanor in Maryland, punishable by a $10 fine. It’s doubtful that a prosecutor would ever prosecute that crime, but it may have a consequence in a divorce case. So what’s the big deal? There are two areas where an allegation of adultery has a role in the family law arena. First of all, there are the emotional or psychological considerations. The one who has committed adultery may be embarrassed and may not want those allegations to appear in a pleading that is filed in Court. These pleadings are public record, and, even if no one in the press is interested, children, grandchildren, friends and neighbors may, at some time in the future, access those pleadings. The “innocent” spouse may believe that he/she has a “leg up,” and use the possibility of relying upon those formal allegations in negotiations. The allegation of adultery, however, does not have the same stigma that it did when I began practicing law, many years ago. The “legal” consequences of an allegation of adultery is that, should the case be litigated, the Court is to consider fault as one factor of many in determining both an award of alimony and a division of the marital property. Generally adultery that occurs subsequent to a separation, but while the parties are still legally married, is not nearly as concerning as an adulterous relationship that caused or contributed to the separation. Since even if proven to be true, the allegation of fault is only one of many factors to be considered. And, since that Court has great discretion in making those decisions, the impact of the fault grounds can be significant or minimal. There’s a risk, and that’s the concern/consequence that the parties and their counsel must consider.
September 22, 2021
Family Law
I Received an Inheritance – Will I have to Share the Money with My Ex-Spouse?
The answer to this question can go in two different directions, depending on what the recipient did with the money. When evaluating a divorce, most states view inherited funds as separate property, whether those funds were received before or after the marriage. In Maryland (and in the vast majority of states), inherited funds are considered separate, or non-marital property. Here is the catch, though: the designation of “separate” can change based on what the recipient did with the funds. Generally, marital property is subject to division in a divorce, while separate property is not. However, inherited funds that start out as separate property can become marital property if they are “commingled”—i.e., turned into marital property by using the money for things like remodeling the marital house, paying for a vacation, paying off bills, or other similar things that benefit both spouses. Here are some other specific examples of comingling: If one spouse inherits a house and then adds the other spouse’s name to the deed, the inherited house then becomes a comingled asset. If one spouse receives funds and then puts the money into a savings account for a significant period of time under both their name and their spouse’s names, those funds are now comingled and considered marital property. If one spouse uses inherited funds to renovate the marital home, which is titled in both spouse’s names, the inherited funds become commingled. Because comingling can happen so easily and unintentionally, some couples opt for a postnuptial agreement when they inherit funds. This is an agreement that happens after marriage, wherein the parties agree that the inherited funds used for the renovation, vacation, or other mutually beneficial activity shall be and remain the inherited party’s sole and separate non-marital property, free and clear of any interest of the other spouse. It’s wise to consult with an experienced family law or divorce attorney when one receives a large sum of money from an inheritance. Even if the recipient decides not to pursue a postnuptial agreement, being aware of what actions would be classified as comingling can be extremely helpful when deciding how to use the funds. If you have any questions on this topic, please contact Sandra Brooks at sbrooks@offitkurman.com or 240.507.1716.
September 20, 2021
Family Law
So, What About Your Personal Property - Is It Yours?
Anything that you owned prior to your marriage, that you received through inheritance, or that was a gift to you (not to both of you) during the marriage, is not marital property. It’s yours. You can keep it upon divorce, and you do not need to offset the value of those items with anything that is marital. Usually, the engagement ring, since it’s given prior to the marriage, is not marital property. However, jewelry that was purchased during the marriage, even if it was a “gift” to one party from the other, remains marital, and will be divided, or it’s value will be offset upon divorce. Although that’s the law, to be frank, very few folks fight over marital property. It is expensive to do that, both financially and emotionally. Usually there is some agreement regarding furniture, home furnishings, artwork, etc. When the parties cannot agree, there are some options for resolution. Some of the options that have worked for our clients are: flipping a coin, and the winner gets first choice, then alternating until all of the marital property on the list is divided. Another option is that one party prepares two separate lists that “equitably” divide the property, and the other party gets to choose which of the lists is his/her property. Often, the parties attempt mediation, with the understanding that if they are not able to arrive at an agreement after a certain amount of time, the mediator makes the decision, as an arbitrator, and that decision is binding on the parties. Even when the division of the property that has value has been determined, there usually remains the issue of photographs, videos, movies of the family, etc. Fortunately, almost everything can now be reproduced, so that each of the parties can retain those very important memories. The issue of the cost of reproduction must be addressed. Because it can become very expensive, the parties often agree to share most of the items, rather than reproducing everything. Again, the options, should the parties not be able to agree, may be to resort to the flipping of the coin. Because physical ownership often determines control, one should either consider removing items that have great sentimental value from the marital home that one would be devastated to lose, or take photos or a video of everything in the house, so that a list can later be made that will include all of the marital personal property. In some cases, a personal property appraiser is required to assess the value of the assets. This is especially true in the case of artwork and antiques. Best advice is to keep a record of all significant items, not only in case of separation and divorce, but also in case of loss due to fire or theft.
August 18, 2021
Family Law
The Rundown on Custody Evaluations: A Q&A
When a divorce involves children and a court-issued custody evaluation, the parents can understandably be uneasy about the process, what it will entail and how it will affect the outcome of the custody arrangement. The key to successfully navigating a custody evaluation is understanding how they work and having a strategy in place with your divorce attorney beforehand. Here are the most common questions my clients ask me about custody evaluations. Q: What is a custody evaluation, and when are they used? A: Custody evaluations are sometimes appointed in highly-contested divorces involving children; A custody evaluation is the legal process in which a court-appointed mental health expert (or chosen by the parties) evaluates a family and makes a custody recommendation to the court based on the child(ren)’s best interest. You should expect a series of interviews conducted both alone with the evaluator and with the evaluator and the other parent, and with you and your child(ren). In some cases, psychiatric testing for one or multiple family members will also be part of the process. Q: What is the goal of the custody evaluation? A: The goal of the custody evaluator is to gather data from the parties, witnesses, documents and the children themselves to ultimately render an opinion on physical custody (the visitation/access schedule of the children) as well as legal custody (decision-making authority for the children). Q: What qualifications does a custody evaluator have? A: For the most part, custody evaluators are trained mental health professionals. In some jurisdictions, the custody evaluators are psychologists, but it varies. In my local jurisdiction, the court evaluators are social workers. While psychologists can do psychological testing during an evaluation, non-psychologist evaluators cannot. Most court evaluators are not licensed to conduct the psychological testing that is sometimes needed to help the family understand and address a parent or child’s mental health issues. This is when it might be more beneficial to hire a private evaluator who can do the appropriate psychological testing, but private evaluators can be quite expensive. Q: How much will it cost to get a custody evaluation? A: Some courts have the resources available to appoint custody evaluators at no expense to the parties, which is the case in my jurisdiction. Otherwise, if the evaluation is being commissioned through a court-connected program, the fees will be determined by the court’s policy. Private evaluators typically charge by the hour, and the fees can be significant. Q: How much influence does the evaluator have over the judge’s final decision? A: It is my experience that the courts do not always follow the recommendations of the evaluators; however, the courts do like to hear what the evaluator learned from their observations, and the evaluator’s perspective can certainly sway the judge in one direction or the other. Q: Should I request a custody evaluation? A: This is a question that you should discuss with an experienced divorce or custody attorney. There is some strategy involved as to whether, or not, a custody evaluator makes sense for your specific situation, and your attorney can help you navigate that. For example, if you already have significant leverage and the judge is likely to rule in your favor already, adding another layer of complexity to the case with a custody evaluation may not be the best choice. Q: What if I disagree with my ex-spouse on whether or not to get a custody evaluation? A: If the parties do not agree on whether or not to get a custody evaluation, one side may file a motion requesting a court or private evaluator; the other side will likely oppose the motion, and the court will make the decision. If you have any questions on this topic, please contact Sandra Brooks at sbrooks@offitkurman.com or 240.507.1716.
August 16, 2021
Family Law
Why Would I Pay Alimony If My Soon To Be Ex-Spouse Has a Job?
Most people understand that when there is a divorce, one party sometimes has to pay alimony to support the other party. But the details of who pays alimony, and why, can be a bit fuzzy. I deal with divorce proceedings every day, and a common question I am asked is, “Why would I pay alimony if my soon to be ex-spouse has a job?” The short answer is: There is no formula for alimony in Maryland, so a party may have to pay alimony even if their spouse is working 40 hours a week. The long answer is that there are over 10 factors that the court has to consider when determining who pays alimony and how much. Things like the length of the marriage, each party’s income, the age of the parties, the physical and mental health of the parties, the living standards of the parties, and the cause of the breakup of the marriage are all taken into consideration—which means the court ultimately has great discretion in determining how much alimony is to be paid and for how long. Should the payee have a job, but not be able to meet their needs on that salary, the payor will likely be ordered to pay alimony to supplement those needs, or to pay alimony until he/she can become self-supporting—whether that be through additional education or more time in the work force. Of course, the payor will also need to be able to meet his/her own needs while supporting the ex-spouse. The court is not supposed to order the payor to pay more than he/she can afford, because the payor needs to be able to meet personal living expenses as well. To this point, I have experienced cases where a judge orders a payor to pay more than they can afford, which just leads to more legal fees in an appeal or motion to modify alimony. Even so, divorcing parties should be aware that the court will view alimony payments as more important than saving for retirement or going on vacation, and a judge will likely not order a payor to put away money for these types of expenses instead of financially supporting the payee. Navigating divorce and alimony payments can be a bit sticky; as always, it’s best to work with an experienced attorney to help you get the best outcome for your specific situation. If you have any questions on this topic, please contact Sandra Brooks at sbrooks@offitkurman.com or 240.507.1716.
July 13, 2021
Family Law
Should You Consider a Collaborative Divorce?
A collaborative divorce—or the legal process in which a couple enters a formal agreement to work together, out of court, to settle the terms of a divorce—can be an excellent choice for spouses who are on good enough terms with one another to be able to hash out a compromise. This process usually involves a combination of mediation and negotiation to reach an agreement. One must retain attorneys who are collaboratively trained. Courts in every state encourage couples to opt for collaborative divorce, or a similar process, whenever possible. Even when litigation is filed, most Courts require some type of mediation before a trial date can be set. If an agreement can be reached on some or all of the issues, the divorce process is generally less painful for everyone involved. In every collaborative divorce is a collaborative agreement; one of the fundamentals of this agreement is that, if the collaborative process is not successful and the parties elect to proceed with litigation, the parties are not able to continue on with the representation of their chosen collaborative counsel. This requirement is an incentive for the parties to work harder during the collaborative process, as starting over with new counsel can be both expensive and emotionally taxing. As a result, some are willing to proceed with a similar process, called an informal settlement. The informal settlement does not require a change of counsel if the collaborative process is not productive. While this is not a true collaborative process, it can proceed in a similar manner. In either event, experienced collaborative attorneys have the skills to assist the parties in creating a “win-win” situation that may allow areas of agreement that are not available in the litigation process. Generally, in a collaborative divorce, a financial neutral is incorporated into the team from the start. This mechanism provides both parties with knowledge that an independent expert is gathering the data, reviewing it and preparing it in a way that will be easily understood by all parties. The basis for trust is significantly increased when a financial neutral is involved, and that factor alone significantly impacts the probability of successful resolution. Often a coach is also a part of the team, as emotions can run high, and having someone involved who has the skills to help de-escalate the situation and assist the parties in articulating their goals and concerns in a non-threatening way can be invaluable. A collaborative divorce is just one of many options for a process that may lead to a resolution without the necessity of litigation. In almost every case, there is mediation, negotiation, and, in recent years, arbitration, which will assist those going through the divorce process in arriving at a resolution without the financial and emotional expense of a trial.
July 12, 2021
Family Law
Courts Treat Pets as Personal Property in Divorces, and that is Unlikely to Change Anytime Soon in Maryland
In divorces in Maryland, pets are treated as mere personal property. In other words, the Court is not going to put a visitation schedule in place for a pet if the parties are unable to agree on who gets the pet. At most, the Court will determine the value of the pet and perhaps award a certain sum to the party who is not keeping the pet. I have thankfully never had to have a Court determine ownership or the value of a pet for a client, as my clients are generally able to reach an agreement on the issue. As the owner of an eleven-year-old rescue dog named Bernice, who cannot manage to get out of the veterinarian’s office for less than $300 a visit, I generally tell clients that the value of a pet is not worth the attorney’s fees of fighting over the pet, if the parties are unable to reach an agreement. While I love Bernice, she is more of a liability than an asset. I also know firsthand the emotional connection that you can have with a pet. In the recent case of Anne Arundel County v. Reeves, 2021 Md. Lexis 259 (Md. Ct. of Appeals June 7, 2021), however, the Court declined a suggestion that the Court re-examine the classification of pets as personal property and treat a pet as something worthy of emotional damages in the case of injury or death. I first became aware that Maryland has a statute capping damages for the injury or death of a pet as a first-year associate, when the managing partner of my former firm asked me to handle a trial involving a claim of damages to a very old, pure-bred dog. It was the type of case that older attorneys love to give to first-year associates. The client was devastated, but the statute capped damages, and the defendant disputed liability. Half-way through a full-blown trial, my client testified so well regarding her upset that the defendant offered a settlement, which my client accepted. While the emotional significance of pets has become even more accepted in the twenty years since that shining moment in my legal career, the Reeves case makes clear that Maryland is no closer to changing the legal significance of pets. In Reeves, the Court held that damages for the shooting death of a pet by a police officer were limited by statute to $7,500 and were limited to compensating for the fair market value of the pet, in the case of the pet’s death, and veterinary bills to care for an injured pet or care of a pet prior to death. The Court ruled that the statute did not allow for noneconomic damages for the death or injury of a pet, such as pain and suffering. The Reeves case and the decision not to change the legal standing of pets avoids numerous complications that would arise if the Court had decided otherwise. An obvious negative consequence that the outcome avoids is increased liability for veterinarians and kennels. A not so obvious potentially negative outcome would have been the increased complications in divorce cases if a pet is considered something more significant than personal property. Thankfully at least for family lawyers, if not pet owners, the custody of pets will not be an issue that can be disputed in Maryland divorces. If you have questions about this or any other Family Law issue please contact Catherine H. “Kate” McQueen at (240) 507-1718 or kmcqueen@offitkurman.com.
June 24, 2021
Family Law
Recent Case Makes Clear that Guardians in Maryland Cannot Change Beneficiary of Life Insurance Policy of Ward Without Prior Court Order
There is a saying that is common among guardianship attorneys, namely: “When in doubt, let the Court sort it out.” In other words, if the guardianship statutes or rules do not specifically allow you to do something, get a court order blessing your action in advance. The recent case of United Bank v. Buckingham, 472 Md. 407, 247A.3d 336 (Md. 2021) reinforces that saying, as the Maryland Court of Appeals found that the guardian could not change the beneficiary of the ward’s life insurance policy without prior court approval. The Court noted that a section of the guardianship estate addressing a guardian’s authority as to life insurance policies, namely Maryland Ann. Code, Estates and Trusts § 15-102(t), did not specifically give the guardian the authority to change the beneficiary, although the statute gave the guardian authority to conduct several other life insurance transactions. The Court rejected the reliance upon 13-203(c)(1) of the Estates and Trusts Article for authority. Section 13-203(c)(1) gives a guardian, except with specific limitations, “all the powers over the property of the minor or disabled person that the person could exercise if not disabled or a minor.” The Court found that this general language was insufficient to authorize a guardian to change a beneficiary of a life insurance policy. In the Buckingham case, one could argue that the outcome could have been due, in part, to the bad facts of the case, as it was alleged that the beneficiary designation was changed in an effort to avoid a creditor of the ward from collecting the funds after the ward’s death. The court found that the change was contrary to the guardian’s duty to preserve a ward’s estate of the ward’s heirs. Most cases I have been involved in, however, whether I have represented clients seeking guardianship, or I have been appointed guardian for someone, have starkly different facts. In many of these cases, a ward has been financially exploited by a family member, friend, or caregiver. In those cases, it is quite common for the exploiter to not only try to steal the ward’s money while the ward is living, but also to try to manipulate the ward’s estate planning framework, including beneficiary designations, asset titling, and the ward’s will, to inherit from the ward when the ward dies. I already counsel clients to seek court approval, prior to attempting to change any type of beneficiary change or other term of an estate planning framework. The Buckingham case makes clear that the Court also believes that guardians should abide by the “when in doubt” rule. If an action is not expressly authorized by the guardianship statute, a guardian is better off seeking court approval in advance, especially where there is likely to be a dispute over an asset or estate. If you have questions about this or any other Family Law issue please contact Catherine H. “Kate” McQueen at (240) 507-1718 or kmcqueen@offitkurman.com.
June 22, 2021
Family Law
Who Gets the Dog?
“But who gets the dog?” This is a question I get often. In a situation like divorce, deciding where the dog will go can be tricky, as animals often feel like part of the family. And while just a few states (Alaska, Illinois, and California) have treated dog ownership disputes like custody cases, in most states, animals are considered a type of “chattel,” or personal property—just like jewelry, clothes, and artwork. Of course, in an ideal world, the parties are able to work out an agreement in regard to their animals, but if there is no written agreement as to who gets the dog and when the dog is likely to stay with the spouse who has possession. That is, if partner X moves out of the house, partner Y, who is still living in the house with the dog, will most likely get the dog. Most people are not aware of this, but it’s something both parties should keep in mind when considering moving out. Now, if there are minor children involved, that is a different story. I am seeing a trend in case law wherein the dog is ordered to follow the children. This makes sense, as children are often bonded to their pets and the judge will not want to separate the children and the dog; in other words, the children’s happiness takes precedence over parental preferences. Even when the decision is clear, such as when children are involved, logistics can still be a little sticky. For example, in a case of split custody in which the children travel back and forth between parents, arrangements must be made for the dog while the children are staying with the other parent. In some cases, the dog will travel to and from the parents’ houses with the children, but if the children attend school or daycare, the parents will have to separately agree to transition the dog from one house to the other. There are also situations in which, children or no children, the parties agree that if the party in possession of the dog must travel, they will give the other party the right of first refusal before seeking third-party care (such as a kennel). Each situation is different and will require legal expertise to get the right agreement in place. When considering who will “get” the dog, it’s important for parties to have an experienced attorney draft language to include who will have the dog, how the dog will be transferred between the parties, and how the dog’s expenses will be paid—this will help move things along more quickly and give the party in question a higher chance of a favorable outcome.
June 17, 2021
Family Law
Divorce and Dementia – Why You Need an Attorney Knowledgeable in Both Areas
You may watch the Real Housewives of Beverly Hills and think that your life bears very little resemblance to the lives of the housewives, but one recent story line (the divorce of housewife Erika Jayne and her husband, Tom Girardi) touches on issues that many divorcing spouses face and highlights the focus of my practice, namely the intersection of divorce and guardianship. Tom Girardi has reportedly been diagnosed with Alzheimer’s Disease and dementia, which his representatives have claimed has contributed to the financial issues that his law firm has experienced. I will leave it to the creditors and Girardi’s representatives to sort out the details of his financial issues and liability. What the story demonstrates, however, is the way that dementia can cause a financial implosion of a marriage. I have counseled numerous clients about how to approach their spouse’s cognitive decline and accompanying financial mess. The first thing I generally tell clients is not to avoid doing something just because the spouse gets upset. A marriage is like a boat, and if one spouse is drilling holes in the boat, you both will sink. Do not let yourself go down with the ship just because your spouse gets upset when you question his or her financial actions or capacity. You cannot control your spouse’s reaction. You can take action, however, to try to stop the financial damage. Once we get over the client’s reluctance to cause upset, we talk about four main issues: (1) what debts are there, and who is liable for them? (2) how can we stop the bleeding in terms of financial misuse, waste, or even exploitation? (3) what care needs and costs will the spouse have and how will those be paid? and (4) what are the client’s expenses and how will those be paid? The client may have to file for divorce to protect the client’s emotional and financial well-being. If that is the path that the client chooses, the first question is whether the other spouse needs a guardian to represent him or her in the divorce. The client and spouse often have mirror estate plans established many years earlier where they name the other party as their attorney-in-fact through a power of attorney. The client, however, cannot act on behalf of the spouse in a divorce using the power of attorney because it’s a conflict of interest. If the spouse no longer has the capacity to sign a new power of attorney, a guardian will have to be appointed for the spouse. If you serve a complaint for divorce upon someone who does not have the capacity to understand a legal proceeding or advocate for themselves, that service may be ineffective, so any relief that you may obtain from the court may be overturned. Further, the court may see the client’s efforts to proceed with a divorce without alerting the court as to a spouse’s cognitive deficits as an attempt to take advantage of the spouse in the divorce process. As the divorce proceeds, you can still try to reach a settlement on the financial terms of the divorce even if the spouse is under a guardianship. While the court does not generally look behind the terms of a separation agreement between spouses, if one of the spouses is subject to a guardianship, the court will need to be persuaded that the financial arrangement is in the spouse’s best interest. The client will need to consult with an expert about the spouse’s care needs and costs and determine the best way to fund that, particularly if there is a possibility that the spouse will need Medicaid to pay for the care. When applying for Medicaid, there is a five-year lookback period to examine any transfers of assets and determine whether they have been made for fair market value. This lookback period can cause negative consequences for a transfer that in a typical divorce would be advantageous. Complex issues arise when divorce and dementia intersect. It is important to consult with an attorney experienced in both divorce and capacity issues to make sure that these issues are addressed proactively and advantageously. Attorneys whose practice includes both focuses can also provide the client with valuable connections to financial, Medicaid, and elder care professionals who can help the client with all of the issues the client is facing. If you have questions about this or any other Family Law issue please contact Catherine H. “Kate” McQueen at (240) 507-1718 or kmcqueen@offitkurman.com.
May 13, 2021
Family Law
Flying This Summer?
Nonetheless, we want to be cautious and take precautions from the time you enter the airport until you depart the airport at the end of your journey. One easy step is to register for TSA Precheck, which allows passengers to bypass crowded security lines, saving time and reducing the number of contacts. Secure your boarding passes online before arriving at the airport, which also minimizes the number of contacts you will have with airport employees. You don’t have the same level of good air filtration and airflow in the airports as you do in the planes, so you want to minimize the amount of time you spend in the airport. A carry-on bag minimizes the time spent in crowded baggage areas at both the beginning and end of your flight. Make sure that your carry-on is small enough to fit in the overhead compartment. If it isn’t, you may be able to check it at the gate. Although you will still have to deal with the baggage claim area upon your arrival, you can avoid dealing with that issue at the departure airport. If your flight is long, or if you have a layover, you should consider packing your own lunch and a snack. Many airport restaurants are not operating at capacity and packing your own food will minimize your contact with other passengers and employees as you stand in line to order. Collapsible storage containers are perfect for keeping food fresh, if you are not inclined to use plastic sandwich bags. Masks are still required on all airlines. You should bring four or five masks and change them out every three to four hours. It’s best to double mask or use an N-95 or KN-95 mask to assure maximum protection. Find one that fits comfortably, because you will be using it for multiple hours at at time. It’s also important that you wash your hands a lot when you can’t, use sanitizer. And, if you can, find one that contains a moisturizer since skin dries out in airplanes. Look for one that has at least 60% alcohol. Stay in your seat as much as you can to avoid contact with others on the plane. Although airlines report that they clean the plane between flights, it’s a good idea to wipe down the armrest, tray table, seat belt and general seat area when you first board the plane. Alcohol wipes are good for this, so put a few in a zip lock bag, so that you can easily access them and then dispose of the ones that you have already used. Check the labels to find those that kill 99.9% of the viruses. Public charging states make you more vulnerable to hacking and malware, and also require that you stand or sit close to other passengers, so bring along a portable charging device when you travel to assure that you will not run out of power for your phone, iPad or computer. If you travel frequently, consider investing in a charger that has a capacity of at least 10,000mAh. If you are taking a short, direct flight, a charger with an under 5,000mAh rating should work. Because your phone rests all over when you travel, consider investing in a portable UV light sanitizer that help keep it clean. That UV light can kill everything from bacteria and fungi to viruses themselves, although no one is sure that it will kill the Covid-19 virus. UV light can get into the nooks and crannies and is much more effective than wipes. It works like a mini-tanning bed for your phone. While the airlines often provide earphones, it is not as hygienic as bringing a comfortable pair from home. If you want to watch movies, bring headphones that can plug into the screen. Finally, consider bringing along a neck pillow. Choose one that provides a removable, washable cover. Once you reach your destination, toss the cover in the wash, so it will be ready for your next trip. Then, try to relax and enjoy your flight.
May 11, 2021
Family Law
Will New Legislation Approved by the Maryland Legislature Improve the Lives of Adolescents in High Conflict Custody Cases?
In high-conflict custody cases, parents often disagree about whether a child needs mental health treatment. Divorced parents often have joint legal custody of a child, which means that the parents have to agree on a decision regarding mental health treatment for their child. If the parents are unable to reach an agreement that a child requires mental health treatment, and it is necessary to ask the court to order mental health treatment, it can take close to a year to reach a trial date. A year is a very long time for a child to go without needed mental health treatment. Under prior law, a child age 16 or older had the same capacity as an adult (anyone age 18 or over) to consent to mental health treatment. Under the new law, any child age 12 or older who is determined by a health care provider to be “mature and capable of giving informed consent” can consent to mental health treatment. The new law provides, however, that a child under the age of 16 “may not consent to the use of prescription medications to treat a mental or emotional disorder.” Under both the prior law and the new law, a minor does not have the capacity to object to mental health treatment if it is authorized by a guardian or parent. In addition, a mental health provider may decide whether to provide information about mental health treatment to a guardian or parent, even if the child objects. It is unclear how often mental health providers will determine that a child between 12 and 16 is mature and capable of giving informed consent to mental health treatment, but the new legislation could help adolescent children caught in the middle obtain the mental health treatment they need. If you have questions about this or any other Family Law issue please contact Catherine H. “Kate” McQueen at (240) 507-1718 or kmcqueen@offitkurman.com.
May 4, 2021
Family Law
Divorce in New Jersey- Equitable Distribution
Originally posted on 3/12/2019, no content changes. Equitable distribution is the division of the marital assets and liabilities between the parties. The equitable distribution of the marital assets and liabilities is fundamentally a three-step process. The assets and liabilities acquired during the marriage must be identified. The assets and liabilities must be evaluated either by review of the account statements or other documentation, the use of appraisers or the utilization of a forensic accountant, and The method and respective percentages of the distribution must be determined. Unlike several other states (most notably California), New Jersey is not a community property state. In community property states, the assets and liabilities are divided equally regardless of any other circumstances. New Jersey is an "equitable distribution" state, meaning that the assets and liabilities acquired during the marriage must be "fairly" distributed between the parties. What is "equitable" under the facts and circumstances of a particular case is not simply a subjective determination of fairness or equity. If it were, almost every person would argue that "equitable" means that they should receive a higher percentage of the assets. They would argue that because of their perceptions as to why the marriage ended, their perceptions as to their work efforts during the marriage and their general sense of "being victimized" justifies them receiving a higher percentage of the assets. Those perceptions are, however, largely irrelevant, and the specific statutory factors which must be considered are: the duration of the marriage; the age of the parties; the physical and emotional health of the parties; any income or property brought into the marriage by each of the parties; the standard of living established during the marriage; any written agreements made by the parties either before or during the marriage; the economic circumstances of each party at the time the division of the property becomes effective; the income and earning capacity of each party; each party's educational background, training and employment skills, work experience, absence from the job market; parties' respective custodial responsibilities for the children of the marriage; the contribution of each party to the education training and development of the earning power of the other party; each party's contribution to the acquisition or dissipation of the martial assets, including:the other parties' contribution as a home maker; the tax consequences of the proposed distribution; the value of the property or asset; the need of the parent who has physical custody of a child to own or occupy the marital residence; the debts and liabilities; the need to create a trust or other fund for foreseeable medical educational expenses; and the extent to which either party deferred achieving their career goals. You should familiarize yourself with each of these factors. If there are facts or circumstances in your case which you feel relate to any of the factors, you must call them to the attention of your Attorney. As your case progresses, your position with regard to the distribution of the assets must focus upon an analysis of these factors, not your own feelings as to what is "equitable." If your case is ultimately decided by a Judge, the Judge's decision will include a specific analysis of each factor and its relevancy to the facts of your case. Therefore, in order to have some projection as to what a Judge may decide, you must analyze your case in the context of these factors. It is also important to consider that not all assets must be divided in the same percentages. It is entirely possible that some of the assets in a case could be divided equally while others, because of the relevancy of any one or more of these factors, may be distributed other than equally. For example, it is not unusual that the value of a small business or professional practice may not be divided equally between the parties. The person operating the business or professionally engaging in the practice may receive a higher percentage of the value. In some instances, the person with specific needs for certain assets, such as the household furnishings to maintain a home for the children, may receive all or substantially all of the household furnishings. Thus, it is not only important that all of the marital assets and liabilities be considered but that each asset be individually analyzed. There are also assets which may not be subject to equitable distribution and will be retained by one of the parties. Assets which are received by one of the parties by way of a gift from a third party, inherited assets or assets which are owned prior to the marriage may remain the property of the person who received, inherited or owned the assets prior to the marriage. If there are such assets, the question then becomes whether any increase in their value during the marriage is distributable. If the increase in value is solely as a result of increased market conditions or inflation, it usually will not be subject to equitable distribution. If the increase in value is the result of the efforts of one or both of the parties, it generally will be subject to equitable distribution. For example, if one of the parties owned a home at the time of the marriage and that home was renovated or improved by the parties' work efforts and/or financial investment during the marriage, the increase in value resulting from those improvements may be subject to marital distribution. If, on the other hand, the pre-owned asset was a bank account which increased in value solely as a result of interest on the account, the increase in value may not be subject to equitable distribution. If an inherited, gifted or prior owned asset is placed into joint names, sold or transferred into another asset, which is then placed in joint names, it may lose its status as an exempt asset and be converted into an asset subject to marital distribution. It is impossible to discuss all of the alternatives which may exist regarding prior owned, gifted or inherited assets in a particular case, but the point to emphasize is that you must inform your Attorney that such assets exist so as to allow them to analyze the particular circumstances surrounding those assets, and advise you as to what if any part of the value of that asset may be exempt from or included in the marital distribution. In terms of valuing the assets, some assets are very simple to value, others much more complex and the majority somewhere in between. Bank accounts, stock brokerage accounts, 401(k) accounts, or other accounts are easily valued by simply obtaining the most recent account statement. Small businesses and professional practices are very complex and difficult to evaluate. Their value can only be determined through the opinion of a competent forensic accountant who will examine the financial statements, income tax returns and nature of the business or practice and can then provide an expert opinion as to its value. Many assets may not be as simple as account statements nor as complex as small businesses but may, nonetheless, require the use of an expert or competent appraiser to determine their value. For example, a competent appraiser may have to be engaged to render an opinion as to the value of a home. Actuaries or pension experts may be engaged to offer similar opinions as to the value of pension or retirement accounts, and sometimes there are collectibles, art objects or other personal property of sufficient value to warrant retaining an appraiser as to their value. Again, it is impossible to discuss all of the alternatives as to the valuation of assets which may be subject to equitable distribution. What is, however, important is to know that you have the right to see the account statements or to obtain other competent expert opinion as to the value of the assets, and you should never settle a case without at least a reasonable level of due diligence to document and determine the value of the assets being distributed For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 3, 2019
