You Committed Adultery. Now Tell Your Divorce Lawyer.

Liz EstephanLiz Estephan, Attorney

You and your spouse are on the cusp of getting a divorce or are already in the midst of the divorce process. You’ve been unfaithful, but are unsure if your spouse is aware. Do you admit you committed adultery? When do you admit you committed adultery? Should you tell your lawyer? When do you tell your lawyer?

These are all valid questions and concerns. You should be upfront and honest with your lawyer about past transgressions.

Your lawyer cannot properly defend or protect you if you are not honest with him or her. Be straightforward, do not try and sugarcoat what you did or did not do. You didn’t hire a lawyer to judge you and he or she should not — it’s not his or her job. Your lawyer’s job is to zealously advocate on your behalf.

However, your lawyer cannot do so if he or she is unaware of all the facts of your case. If your lawyer is aware of your transgressions, he or she is able to better control the narrative and will decide if or when there is a proper time to divulge the information to your spouse.

If you are not upfront with your lawyer, you could make strategic mistakes that have repercussions in litigation. For example, your answer to your spouse’s Complaint and Answers to Interrogatories must be signed under penalty of perjury. If you deny outright that you committed adultery under oath, you committed perjury.

Also, your spouse may have evidence that demonstrates you did indeed commit adultery and could use it against you at trial or another evidentiary hearing. If so, your credibility will be severely undermined in front of a judge and in turn, could have a detrimental effect on your case.

Don’t hide the truth about adultery from your lawyer. Being honest with your lawyer is to your benefit.

For more information, contact Liz at 301-907-2811 or erestephan@lerchearly.com.

Should I Borrow or Accept Money from Family While Getting Divorced?

Erin KopelmanErin Kopelman, Principal

Cash flow is a common concern for most people going through separation or divorce. Many clients ask me if they can accept or borrow money from family.

While accepting or borrowing money from family may seem like an economical option because it often does not require a loan agreement, interest, penalties or preapproval, it can actually have unintended and potentially harmful consequences on the remaining aspects of your divorce.

Gifts from Family

Two issues that arise when you receive gifts from your family to pay expenses if you are divorcing are: (1) those gifts can be considered income to you; and (2) that gift, had you not spent it, would be yours to keep in divorce and not divided with your spouse.

First, gifts from your family received during the marriage, especially if given routinely, can be included and counted as your income in divorce.  The gifts can increase your income for purposes of determining alimony and child support, with the potential effect of requiring you to pay more or receive less alimony and/or child support. Also, the gifts can be considered in the equitable division of marital property. Therefore, receiving gifts from family may have a negative impact on you in the outcome of your divorce as it relates to alimony, child support and the equitable division of marital property.

Second, gifts from your family to you individually during the marriage are your sole, separate and non-marital property. Generally, if you can prove the source of the gift is from your family and that it is not comingled with marital property, then you keep gift, and it does not get divided between you and your spouse in divorce. If you receive gifts from your family, you should not spend them. You should instead keep them and not comingle them with marital property. For steps on how to protect gifts from family, check out this article on Steps to Protect Your Inheritance and Gifts Received from Third Parties.

Assume that you’re getting divorced, there is $50,000 in marital funds, you need to pay bills of $20,000, and your parents give you $20,000. You have two options. In Option A, you spend the $20,000 gift from your parents. In divorce, you and your spouse will equitably divide the remaining marital funds of $50,000, so you and your spouse will each get approximately $25,000 in marital funds. In Option B, you preserve the $20,000 gift from your parents and do not comingle it with marital funds, and you pay the $20,000 in bills from marital funds. In divorce, you and your spouse will equitably divide the remaining marital funds of $30,000, so you and your spouse will each get approximately $15,000 in marital funds, and you will keep $20,000 from your parents. So, while your spouse ends up with $15,000, you end up with $35,000. You are better off with Option B.  Therefore, if you need money, spend marital money first, rather than gifts from family.  Preserve and do not spend the gifts from your family.

Loans from Family

Two issues that arise if you receive loans from your family to pay expenses in divorce are: (1) you may be left solely responsible for those loans; and (2) loans from family may not be given as much weight as other debts.

First, you are likely to be left solely responsible for the debts you incur in your sole name.

Maryland Courts cannot allocate debts, so after divorce you will be solely responsible for the debts in your name. D.C. Courts can distribute debts accumulated during the marriage, but there are no guarantees in court. If you are getting divorce and individually borrow money from your family to pay bills, the remaining and unspent marital property will be equitably divided. While debt is considered in the equitable division of marital property, in Maryland you will be left responsible for the debts in your individual name, and in D.C. you could be. So, when possible, it is better to spend marital property rather than taking a loan.

Assume that you’re getting divorced in Maryland, there is $50,000 in marital funds, and you need $20,000 to pay bills. You have two options. In Option A, you take a loan for $20,000. In this situation, at the time of divorce you and your spouse will each equitably divide the remaining marital funds of $50,000, so in divorce you and your spouse will each likely get $25,000 each, but you have a $20,000 loan that you are solely responsible for. In actuality, this leaves you with only $5,000 net and your spouse with $25,000 net. In Option B, you pay the $20,000 from the $50,000 marital funds. This leaves $30,000 remaining in marital funds, so in the divorce you and your spouse will each likely get $15,000 each. You are better off with Option B. Therefore, if you need money, spend marital money first before you take a loan.

Second, if you are taking a loan, it is up to the Court how much to weigh the evidence in their ultimate decision when equitably dividing the marital property (and in D.C. when also equitably dividing the debts accumulated during the marriage). Courts may be less likely to heavily weigh debts from family, as opposed to debts from banks or on credit cards. Therefore, if incurring a debt is necessary, then consider getting a debt from a bank or putting it on a credit card. If you choose to get a loan from family, then you should at a minimum sign a note or other loan document confirming the money is a loan and the repayment terms.

In summary, you are likely better off spending marital assets, as opposed to spending money from family, whether gifts or loans because whatever marital assets are left will be divided between you and your spouse. If you do need money and cannot access marital funds, then I suggest you take a loan, rather than spending gift money, and check out my article Should I Get a Loan While Getting Divorced? 

Each case is different, so if you find yourself needing money, you should consult a family law attorney. At Lerch, Early & Brewer, we guide our clients through the day-to-day decisions they have to make in the divorce process so that they make decisions that are in their best interests. 

For more information, contact Erin at 301-347-1261 or elkopelman@lerchearly.com.

Donna Van Scoy Honored as One of Maryland’s Top 100 Women by The Daily Record

Family Law GroupFamily Law Group

Divorce attorney Donna Van Scoy has been selected as one of Maryland’s Top 100 Women by The Daily Record.

According to The Daily Record, “Maryland’s Top 100 Women recognizes high-achieving Maryland women who are making an impact through their leadership, community service and mentoring. Winners are selected by past Top 100 Women and business leaders.”

A highly regarded member of the family law bar, Donna also made this list in 2013.  Additionally, The Daily Record previously recognized Donna as a Leader in Law. 

Click here to read the full release: https://www.lerchearly.com/news/donna-van-scoy-honored-as-one-of-marylands-top-100-women-by-the-daily-record

Let’s Collaborate!

Over the first two weeks in March, we completed training to qualify us to practice Collaborative Divorce. In sharing feedback at the conclusion of the training, we both are excited about having a new option to offer our clients in terms of process.

Perhaps the most enticing part of Collaborative is the team-based approach and the transparency – it is a holistic approach that empowers clients to make informed decisions for their family’s future. Collaborative also offers a paradigm shift from the standard approach to separation and divorce; it discards the traditional, adversarial, position based approach in favor of a cooperative, interest-based approach that is often less combative and more constructive.

What is Collaborative Divorce and how does it compare in terms of process and cost to more traditional options like litigation?  Inspired after our training, we break it down for you here:

The Collaborative process represents an entirely different construct than the traditional litigation model. It forges an entirely distinctive path. Unlike mediation or even similar collaborative-style dispute resolution tools, a true collaborative process, governed by a Collaborative Participation Agreement, operates in a wholly different universe than litigation.

The Collaborative process is the definition of ‘pot committed.’ Both parties commit fully, to each other and the process, from the outset.  The process requires more than just a theoretical commitment. The parties must hire a Collaborative team, including attorneys for both parties, one or more “coaches,” a financial neutral, and perhaps other neutrals such as a child specialist, a forensic business valuator, or mental health professional. All of the professionals will have received training in the Collaborative process.

Some of the anchors of the Collaborative process are:

  • No Litigation
  • Client Self-Determination
  • Full Disclosure
  • Cross-team Communications
  • Creativity

How does the cost compare to a traditional case proceeding in a litigation model? 

Litigation: The cost of filing a complaint for divorce is relatively nominal, perhaps a couple hundred dollars, but then the case may take a life of its own as the issues grow and expand and more professionals must be involved. So, the expense starts out small and balloons in ways the parties may not have anticipated. Additionally, there are two sets of expense, for every issue and professional. 

Collaborative:  The upfront investment is larger, but the universe is well-defined. There is efficiency in hiring joint neutrals for some roles, and the parties are jointly incentivized not only to narrow the issues in their case but also the related expenses.   

As with so many aspects of separation and divorce, there is no one-size-fits-all approach to choosing the right process for you. The circumstances of each case, including the personal dynamics between the parties are critical considerations. 

Anyone considering the Collaborative process should seek advice from a qualified and collaboratively trained divorce attorney regarding all of the potential divorce options so you can carefully choose the process that meets your need. 

For more information, contact Heather at hscollier@lerchearly.com or Chris at cwroberts@lerchearly.com.

Who gets the Frozen Embryos in the Divorce?

AvatarCasey Florance, Principal

Scrolling through the newsfeed on my Facebook page recently brought me to an article about the actress Sofía Vergara’s long legal battle with her former fiancé, Nick Loeb, over the disposition of their frozen embryos.

They had apparently planned to have children – and gone through the beginning stages of the process to do so – but then broke up before any of the embryos were brought to term. At issue in the multiple lawsuits across multiple states was the fiancé’s desire to keep the frozen embryos and bring them to term without Vergara’s consent. Vergara opposed these requests and sought court intervention to stop his unilateral actions.  

Like so many of the issues we deal with in divorce, what is supposed to be an exciting and happy time for a couple can quickly turn into an expensive and protracted dispute if the relationship sours. Compounding the issue here is that technology develops at a much faster pace than our laws do, despite many of our legislators’ best efforts. As a result, if you are considering expanding your family using assisted reproductive technology, you may want to consult with a lawyer as part of the process.  

Most fertility clinics have expansive paperwork that each hopeful parent must complete as part of any assisted reproductive technology process. Included in the many decisions the hopeful parents must make are what should happen to any fertilized embryos following the process. Will the extras be stored? Disposed of? And what should happen to them if one party wants to dispose of them but the other party does not? What about if one party were to pass away? Can the other party keep them and use them as he or she sees fit?

If the hopeful parents have elected to keep the fertilized embryos stored, and then their relationship ends, what happens to the embryos then? And can a court intervene?

What can the Courts do?

In Maryland, the court would not have jurisdiction to make a custody decision regarding frozen embryos. The court can only make custody decisions with regard to a “child” which is defined in multiple places in our Family Law statutes as an “individual under the age of 18” (with some exceptions). Frozen embryos are not children because they have not been born yet so, political/religious stances notwithstanding, a custody action is of no utility.

If the hopeful parents were married when the embryos were created, then the embryos would arguably be considered “marital property” at the time of the divorce – which is defined as property, however titled, acquired by one or both parties during the marriage. If the parties’ contract with the fertility clinic is not clear on the disposition of the embryos upon a divorce, then the court could have the power to determine ownership of the embryos under the marital property statute. Whether the court would actually do it, however, given the ethical and legal ramifications attendant to granting one parent the ability to create a life that the other parent has not consented to, remains to be seen. 

How do you avoid this possible quagmire? See a lawyer and have a clear contract in place between you and your partner regarding the disposition of any fertilized embryos. It will cost time and money upfront, but could save you a boatload of both in the future.

For more information, contact Casey at 301-657-0162 or cwflorance@lerchearly.com.

Should I Get a Loan While Getting Divorced?

Erin KopelmanErin Kopelman, Principal

If you’re going through a separation or divorce and cash flow is tight, you’re not alone. Many families going through separation or divorce find it difficult to get their hands on cash and pay expenses, especially with the increased cost of going from having one household to two, and paying lawyers. Many people wonder if they should get a loan.

In general, at the time of divorce, the then-existing marital assets are valued and equitably divided between you and your spouse. In valuing an asset, the fair market value is reduced by any loan on which it is collateral.

For example, the value of a house is reduced by its’ mortgage. The Court determines what is equitable after considering a list of factors, which include, but are not limited to: each spouse’s contributions to the family, the economic circumstances of each party, the circumstances that contributed to the estrangement of the marriage, the duration of the marriage, each party’s age and health, etc. These factors include consideration of each party’s debts. While equitable does not mean equal, absent extraordinary circumstances, the division of marital property often ends up being equal or close to it. Also, in divorce, Maryland Courts cannot allocate debts, so you are stuck with the debts in your name; whereas the D.C. Court can distribute debts accumulated during the marriage. Therefore, when possible, it is better to spend marital property, rather than taking a loan.

For example, say that you are in Maryland and are getting divorced. You and your spouse have $50,000 in marital funds, and you need $20,000 to pay bills. You have two options. In Option A, you take a loan for $20,000. In this situation, at the time of divorce you and your spouse will each equitably divide the remaining marital funds of $50,000, so in divorce you and your spouse will each likely get $25,000 each, but you have a $20,000 loan that you are solely responsible for. In actuality, this leaves you with only $5,000 net and your spouse with $25,000 net. In Option B, you pay the $20,000 from the $50,000 marital funds. This leaves $30,000 remaining in marital funds, so in the divorce you and your spouse will each likely get $15,000 each. You are better off with Option B.

If you find yourself needing money in divorce, I usually suggest, in order of priority:

  1. If possible, always spend marital assets first on your reasonable living expenses and attorney’s fees. This will reduce the marital property being divided, but this is preferable to taking out a loan where you could be solely responsible for paying it back.
  2. If you cannot access marital assets to spend first, then take a withdrawal from a marital asset. Taking a withdraw from a marital asset reduces the value of that asset, so the reduced value is considered when valuing the asset for purposes of equitably dividing it. Again, this is preferable to taking out a loan where you could be solely responsible for paying it back.
  3. If you cannot take a withdrawal from a marital asset, then take a loan from a marital asset. Taking a loan against a marital asset can reduce the value of that asset, so the reduced value may be considered when valuing the asset for purposes of equitably dividing it. However, in Maryland, if the loan is in your sole name, you will be solely responsible for the loan payments in the divorce.
  4. Only if you cannot spend marital assets or take a withdrawal or loan against a marital asset should you turn to the option of incurring non-collateralized debt.

Each case is different, so if you find yourself needing money, you should consult a family law attorney. At Lerch, Early & Brewer, we guide our clients through the day-to-day decisions they have to make in the divorce process so that they make decisions that are in their best interests.

For more information, contact Erin at 301-347-1261 or elkopelman@lerchearly.com.