No divorce case is the same. During a separation and divorce, you may find many friends and family members, all good intentioned, attempt to advise you about your case.
However, no one knows your case like your attorney. Only you and the attorney know all of the facts, how they may appear to the court and opposing counsel, as well as the strategy you intend to use as you work your way through your case.
While all cases require a court order to make the divorce official, there is a big difference between litigating a divorce case and settling a divorce case. The attorney that you choose should be an experienced trial attorney, but should also be able to settle the case, if that is possible.
Cases may start out in litigation and end up in either negotiation between the parties or mediation involving a trained mediator. Since settlement requires both parties to agree, if one party does not want to settle, litigation is the only option left to you. Sometimes, despite all attempts to settle, the case must go to court and be heard by a judge. When attempting to negotiate or settle your case, you may be able to be more creative about the terms that go into your settlement agreement. Courts are generally constrained in what they can and cannot do in regard to in regard to a particular issue.
In addition to the grounds for a divorce, most divorces involve:
Those individuals without children or whose children are over eighteen years old, may still have to resolve spousal support and marital property issues.
Domestic violence is a serious problem in our society. It does not matter whether the parties are married, living together, have children in common, are straight or gay, intimate partner violence usually takes many forms from emotional and financial abuse to physical abuse.
Many times protective orders are the only way that an individual can be protected from the violence of a spouse or partner. If you have experience violence in your relationship or believe that your safety is at risk, please contact our office to schedule a meeting with one of our attorneys.
If you are considering getting married, especially if you have an interest in a business or you are a high-income earner, you should consider a having a prenuptial agreement drafted. Contrary to their reputation, properly prepared prenuptial agreements can set forth each party’s wishes in regard to spousal support and the division of property, regardless of how it is titled, in the event of divorce or death.
It is important to remember that, without such an agreement, in the event of divorce, that all marital property – all property acquired by either party since the date of marriage, regardless of how it is titled, is subject to equitable division.
Since prenuptial agreements must be executed well in advance of any marriage ceremony, it is important for you to seek advice from an attorney with experience in drafting these agreements. After parties are married, they are free to create additional agreements regarding the division of their marital property. These postnuptial agreements should be prepared by an experienced attorney to ensure that they are enforceable in the event of divorce.
Regardless of how property is titled, it may still be subject to division in a divorce. All property accumulated by either party from the date of marriage to the date of divorce is considered marital property. This does not only include homes, bank accounts, furniture, and vehicles, but also may include retirement accounts, some life insurance properties, stock, and other financial accounts, as well as business interests. Potentially, it could include property in other states.
Only property owned by a spouse prior to marriage or property that is received by gift to that spouse or by inheritance to that spouse alone, and property excluded by a prenuptial agreement is considered non-marital property. All marital property is subject to equitable division in a divorce, which is usually not an “equal” division. Parties who title property to one spouse or another and expect to leave the marriage with “their” respective property are usually disappointed to learn that title does not control the division at the end of a marriage.
Sometimes proving what is non-marital is difficult if the parties have been married for a long time. If a spouse contributes his/her marital monies to the spouse’s non-marital asset, that may create a marital interest in that asset. Once the assets have been identified as either marital property or non-marital property, they must be valued before the court can divide them. Sometimes this is as straightforward as using a bank statement and sometimes it may involve using an expert to conduct a business valuation of a spouse’s ownership in a business. Our experienced attorneys can assist you with the complexities surrounding the division of many different types of assets.
A high net worth divorce usually involves not just assets that are worth more than a million dollars, but also pertain to a number of complex assets such as multiple business interests, significant deferred compensation plans, stocks, stock options, high value employee compensation plans, multiple homes, and even art and antique collections. While the usual property division statutes apply, many of these property interests and assets may be governed by written agreements, either prenuptial or postnuptial agreements, and in the case of business interests, usually by operating agreements or bylaws. Our firm’s attorneys have experience with these agreements as well as how these assets may be divided during a divorce.
In a high net worth divorce, it is not just about understanding the treatment of the assets, but also the parties’ income that is essential to understand. In determining child support and/or alimony, determining what constitutes a spouse’s income is essential. Some employee compensation plans and even some deferred compensation plans can be complex, appearing to give the employee spouse access to monies that are in fact deferred or only eligible to be received if certain conditions are met. Being able to simply and clearly explain these compensation plans to courts is essential to correctly represent the employee spouse’s income to allow the court to make accurate child support and alimony determinations.
Child support is generally paid from one parent to the other until a child emancipates, turns 18 in Maryland and 21 in DC. The court determines child support using a calculation which involves each parent’s income, the number of children covered by the child support order, as well as the amount of each parent’s custody with the children. While the child support calculation is a formula, it is not a matter of simply putting numbers into that formula.
By far, the most important factor is what constitutes a parent’s income. In Maryland and DC, it is the gross income (before tax withholding) of each party that is used in the child support calculation. This does not include just salary and wages, but could include:
When a court finds that a parent is voluntarily impoverishing himself or herself, it can then impute an income to that parent, based on prior work experience or even the income he or she could earn based on their education and experience.
Some expenses can be considered in a child support calculation. These include:
Since the calculation is based on a monthly basis, it is generally inadvisable to include larger, one-time expenses like camps or private school expenses into the child support calculation.
While the child support guidelines allow for a calculation of child support up to a maximum combined income for both parties, the guidelines allow for an extrapolation in above the guidelines cases. For those parents whose incomes exceed the guidelines, the court determination is not based solely on the incomes of the parties, but on what support would be necessary to meet the needs of the children.
Child custody concerns both physical custody, where the child(ren) live, and also legal custody, who makes decisions regarding the children. Joint custody has become much more prevalent as most courts recognize the importance of both parents being involved in the lives of their children.
Most courts make a custody determination based upon where the parents live in relation to one another and to the children’s school, the nature of the relationship between the parties, issues of domestic violence, among many other factors. Certainly, the standard used by the court in such a determination is the best interest of the child.
In cases where the child custody provisions are negotiated or mediated, the parties have a lot of flexibility to draft terms which allow both parents to be fully involved in their children’s lives. Schedules for access (visitation) should take into account the distance between homes, the children’s activities and school obligations, as well as even account for different holiday and summer access schedules. It should also minimize the back and forth between homes. No one schedule is best for every case. The schedule should work best for your family.
Legal custody or decision-making usually matches the physical custody arrangement. It should allow for both parents to be involved in making decisions for the children and include ways to further discussion rather than cut off that discussion around decisions for the children.
Unlike child support, alimony (spousal support) requires the court to analyze a series of statutory factors rather than utilize formulaic guidelines to determine an award. Those factors include the age, education, and health of the parties, the standard of living of the parties during the marriage, and the length of the marriage, among many others. Alimony is no longer considered a life-long pension in exchange for raising children during the marriage, but it is generally awarded in order make the economically dependent spouse self-supporting. It is also not supposed to equalize the parties’ incomes.
Alimony can be awarded as a fixed dollar amount paid on a monthly basis for a period of time to allow a spouse find work, take classes or earn certifications to find more profitable work, or even to cover expenses while children remain in secondary school. The amount and duration of an alimony award can be set by a court order or by agreement of the parties. If set forth in an agreement, the parties should clearly state whether the terms of the alimony are modifiable by a court in the future. Until very recently, alimony payments to a spouse were not taxable but were taxable to the recipient spouse. Speak with one of our qualified attorneys about how these changes to the law may impact the payment of alimony in your case.
If you have children, the conclusion of a divorce, either by litigation or by agreement, may not be the end of the process. Obligations regarding child custody and child support, as well as alimony (even for those folks without minor children) continue until children reach eighteen (18) years of age. In DC, the child support obligation continues until the children reach twenty-one (21) years of age.
From the date of divorce until a child turns 18 years old, the custody arrangements and child support obligations may change and the court may be called upon to modify the existing custody and/or child support order provided that the party seeking the modification can demonstrate that there has been a “material change in circumstance” since the last court order. This does not require you to re-litigate your original custody case, but what has changed in the children’s life since the date of the last court order.
Sometimes, a parent moving or changing jobs, thus having a significant change in income can constitute a material change. There is no list of what can constitute a material change. As such, you should consult with an experienced attorney if you are considering or facing a modification of custody or child support. Just because there has been a material change since the date of the last court order, does not mean that there should be a change in custody or child support. Once the court has determined that there has been a material change, it will determine whether such a change is in the child’s best interest.
Sometimes, after a custody or child support order or agreement has been entered by a court, one of the parties may fail to comply with the terms of that order or agreement. This is most commonly seen with a failure to provide custody or visitation or interfering with the other parent’s visitation. It can also be a result of a failure of one party pay child support or alimony that has been ordered.
When an ex-spouse is not complying with the terms of a court order, such as failing to pay child support, a contempt action may be appropriate to ensure that all parties are in compliance with what the court has ordered. When someone is in contempt, it means that that person failed to comply with a court order. A court will need to hold a hearing and make a determination that the person is in contempt of the court order and determine what actions, such as the payment of child support ordered to be paid, would be necessary to satisfy or purge the contempt. In serious contempt matters, a court can order the person found in contempt to be incarcerated. Likewise, the terms of settlement agreements can be enforced by means of contempt, if those terms are incorporated into a court order. Other provisions of agreements can be enforced through enforcement actions. Our attorneys have both prosecuted and defended contempt actions for our clients.
Prior to the legalization of same sex marriage, third party custody, sometimes referred to as grandparent visitation, was limited to extraordinary cases. Grandparents, other family members or spouses in same sex marriage who were not the birth parent had to establish either parental unfitness or exceptional circumstances in order to obtain custody or visitation of children from a court. Since the legalization of same sex marriage, courts have begun to recognize a type of third party, known as a de facto parent, who could potentially obtain custody and/or visitation of a non-biological child.
In order to be recognized as a de facto parent, the biological parents must consent to and foster a parent-like relationship with the child, the individual and child must live in the same household, the individual must take significant responsibility for the child’s care, education and development, including financial support, and the parental role must for a length of time sufficient to have a bonded dependent relationship with the child. Once an individual has qualified as a de facto parent, the court will then conduct a best interest analysis in order to determine what custodial arrangement is in the child’s best interest.
Like most opposite sex marriages, many same sex marriages would benefit greatly from the preparation of well-crafted prenuptial agreements prior to their marriage. Same sex couples considering having children face additional concerns and would benefit from speaking with an attorney about parental considerations for both parties. Unlike opposite sex divorce, same sex divorce does not have a long history. Legalization of same sex marriage occurred in Maryland in 2013, in DC in 2009, and throughout the United States in 2015. As such, the laws pertaining to same sex divorce have continued to evolve and those changes have impact other areas of divorce law.
The greatest changes to divorce law as a result of same sex marriage has been in the area of child custody.
Given the relatively short period of time that LGBTQ individuals have had the right to marry, many couples considering marriage or facing divorce may have actually lived together for a longer period of time before they had the right to marry. Marriage may have created issues regarding their property and which property is subject to division in a divorce.
Our attorneys have significant experience in navigating these and other issues related to same sex couples. Contact our office to schedule a consultation with one of our experienced attorneys.