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.

You May Need These Other Professionals During Your Divorce

AvatarCasey Florance, Principal

Going through a divorce is an extremely stressful time.  There are so many decisions you will need to make, and having the advice and wisdom of a trusted divorce attorney may just be the starting point.  Here is a primer on some of the other professionals you may need during your divorce process, depending on the issues you are facing.

Therapist/Counselor.  Most people in the middle of a divorce would be well-served to have their own therapist or counselor for extra support during the process. Divorce lawyers are not therapists and we don’t take insurance. Get a mental health professional on your side to help make sure you are focused on and able to pursue your own best interests throughout the divorce.  It will be important for you to be able to make confident decisions as you move forward, and having an individual therapist/counselor may be key.    

Real Estate Agent/Appraiser/Mortgage Broker.  If there is a family home (or any other real estate) at issue in your case, you will likely need to know the home’s value, or what kind of work would need to be done in order to maximize the sales price, or even whether you might qualify to re-finance an existing mortgage.  You may also need assistance in locating a new home and figuring out exactly what you can afford to buy or rent after the divorce.  

CPA/Tax Attorney/Financial Adviser.  Many married couples share an accountant and/or a financial planner. For joint assets, joint tax filings, and joint financial goals this may make sense.  During a divorce, however, I encourage my clients to identify and hire their own accountant and/or financial planner, so that their individualized goals are addressed and met, both during the divorce process and thereafter.  There may be decisions about tax filing status, deductions, and other tax matters; as well as how and whether investments can or should be divided during the divorce.  And if the IRS is or may become involved, a solid tax controversy attorney may become necessary.  Having trusted professionals who are solely focused on your needs will help you gather the information you need to make the best decisions now and for your future.    

Other Attorneys: Bankruptcy, Estate Planning, Immigration, Criminal Defense, etc.  Your case may involve any number of legal issues that a divorce attorney is not an expert in, but you will still need advice on those topics in order to make the best decisions possible during your divorce process.  Having more than one lawyer may become important, depending on your case.  And you will be best served to get your estate plan updated once your divorce is complete.   

Private Investigator.  Whether you suspect your spouse is cheating or you want proof of what your co-parent is really up to when he or she has parenting time with your kids, you may find yourself in need of a private investigator during your divorce. 

At Lerch Early, we are well-versed in, and well-connected to, the additional resources that our clients will need to achieve their goals during a divorce.  We want our clients to be able to make informed, intelligent decisions at every step.  And our goal is always for our clients to be able to move forward with their lives in a positive and productive way.  

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

Do I have to be physically separated from my spouse in order to start the divorce process in Maryland?

AvatarCasey Florance, Principal

I hear some version of this question from new clients all the time, and the common assumption is the separation clock has to be ticking before you hire an attorney and before you start negotiating a settlement agreement.

But that’s not the case.

To be eligible to file with the Court for an absolute divorce in Maryland, you must have a ground for divorce at the moment you file. There are several options, as explained in detail by Heather Collier in her post about grounds for divorce  in Maryland. And because one of the “no fault” grounds is a one year separation, many people incorrectly assume that they have to be physically separated for a full year before the divorce process can even begin.

Think of your Divorce Process as a Train Ride

The decision to separate and divorce is when the train leaves the station, but the first stop is usually not filing a lawsuit for divorce with the Court. More typically, actually filing with the Court is one of the last stops on the route, if not the very last stop. The earlier stops involve working to resolve the case, and will include information gathering, negotiation, or mediation.

Those early “train stops” can all be happening while you and your spouse continue to live under the same roof. Many people even resolve their entire case while still living together, and the terms of their settlement agreement will then set out a timeframe for the physical separation, as well as how custody will work and/or personal property will be divided once the physical separation begins.

The train stop for the physical separation may come up at any point during your divorce train ride; most typically it happens somewhere in the middle of the ride, but it could be in the beginning or even after the divorce is final.

Physical Separation and Settlement Agreements

During this conversation, clients also sometimes assume that a physical separation is needed in order for a settlement agreement to be effective. Not so: an agreement between spouses is effective the moment it is signed by both parties, regardless of where each is living.

Furthermore, with the mutual consent ground for divorce in Maryland now available, there is no longer a requirement for a physical separation in order to be divorced by the Court, so long as all issues arising out of the marriage are resolved. The parties start operating pursuant to the terms of their settlement agreement the moment it is signed, regardless of whether they continue to live together, and regardless of whether they will be divorced by the Court next week or next year.   

The safety of my clients and their children is always my top priority, so moving out may have to be the first stop. But absent safety concerns, I typically like to discuss with my clients the advantages and disadvantages of physically separating during the divorce process, as well as the timing of such a move. For example, if there are minor children involved, moving out prior to an agreement regarding custody and the children’s schedule with each parent can have a major impact on custody negotiations and the ultimate outcome. Taking on a second set of housing expenses and the timing of that can likewise have a major impact on the case, particularly regarding cash flow and support issues.

If you are thinking about separation or divorce, I always recommend having a consultation with an experienced divorce attorney right away. It will serve your best interests to be educated about the process, your rights, and your obligations; how to protect yourself; and how the law will apply to the facts of your case.

Your attorney can help you come up with a clear strategy and work through all the decisions you will need to make in your case, including the major ones like when and how to physically separate from your spouse. 


My soon-to-be Ex and I are Friendly: Do I Really Need a Divorce Lawyer?

AvatarCasey Florance, Principal

With the proliferation of online resources, and the ongoing pandemic, it is both more tempting and more possible than ever to craft your own Settlement Agreement from the comfort of your living room.

Online “forms” abound, and services like Legal Zoom can help you feel like the “do-it-yourself” (DIY) agreement is tailored to your particular situation. As a result, divorce lawyers frequently get asked: Do I really need a lawyer?

Although it is hard to advise people how to avoid needing my services, I typically tell potential clients that the answer really depends on the circumstances of their case and level of complexity of their custody and/or financial situation, as well as the dynamic between them and their soon-to-be Ex. There are a lot of resources and dispute resolution processes available to the self-represented person (read: divorcing person who does not have an attorney), but there are also many pitfalls.

Regardless of the chosen path and circumstances of the case, however, one thing I always tell anyone who will listen is this: you absolutely must meet with an attorney to review any Settlement Agreement BEFORE you sign it. Here’s why.

  1. It is important to be certain that the language of your Agreement actually sets forth the terms you have agreed upon.

    Just because you and your spouse/co-parent are comfortable negotiating directly and coming to agreed-upon resolutions for the issues arising out of your relationship, does not mean you are comfortable translating those agreed-upon concepts into written agreement terms.

    If your goal is to avoid Court and costly litigation while making your own decisions about your family, then your DIY Settlement Agreement will not serve its intended purpose if you have to spend money later litigating over what your agreement was supposed to say, or worse, seeking the Court’s interpretation of your agreement because you two have a dispute about what your agreement means. It is also important for you to understand your agreement so you know what you need to do once it is signed in order to comply with it moving forward.

  2. You don’t know what you don’t know.

    Many online tools for drafting DIY Settlement Agreements contain a series of options you self-select based on the categories listed. But more often than not, there are details about your custodial situation — or your finances, assets or debts — that are not represented in these pre-drafted menus. Or the options do not adequately capture your specific situation.

    The danger here is that once you sign an Agreement, you may have waived rights you didn’t even realize you had. Furthermore, by neglecting to include entire topic areas in your Agreement, you may have accidentally waived your ability to later address those topics.

  3. There is very likely “boiler plate” language embedded in the form agreement that makes certain provisions unable to be modified for any reason.

    In Maryland, there are often sections of a Settlement Agreement that are unable to be modified by a Court once the agreement is signed by both parties. For example, it is typical for agreements to state that the division of assets cannot be modified by the Court at any point in the future.

    It is also not unusual for time-bound alimony payments to be non-modifiable. As a result, it is extremely important to understand which provisions of your Settlement Agreement are able to be modified in the future, and which ones are not. Failure to understand your agreement – when you had the opportunity to review and understand it before signing it – is an unlikely basis for undoing your Agreement later if you are unhappy with it. And signing an Agreement which says that certain provisions are not able to be changed by the Court may leave you with little recourse.

  4. Ensure that the Agreement meets your goals.

    If you have attended mediation with a third-party neutral and the mediator drafted your Agreement, it remains important to have it reviewed by your own attorney before you sign it. You will want to ensure that the agreement meets your individual goals. Just as important, you want to make sure you actually understand each and every provision of your agreement. Many people don’t realize that a mediator does not represent either party’s interests and cannot provide legal advice; rather the mediator’s goal is to facilitate a resolution.

I recommend anyone going through a divorce to have an attorney guiding them through the process, explaining rights and obligations, strategizing to reach goals, and advocating for their interests. For many people, this option is not feasible for a variety of reasons. When that’s the case, it is nevertheless imperative to meet with an attorney to review your draft Settlement Agreement before you sign it.

Facebook and Divorce: Can You Delete Your Account?

AvatarCasey Florance, Principal

Social media accounts, including Facebook, have become an almost universal way for people to stay connected with friends and family, to share updates about their lives, and to catch up on news and events.

According to a 2019 Pew Research Center survey, around seven in 10 – or 69% – of adults in the United States use Facebook. Platforms like Facebook can help foster a sense of community and social engagement – especially during stay-at-home orders due to the COVID-19 pandemic. But people also have a tendency to overshare, or to share an inaccurate version of themselves or their lives – only putting their BEST foot forward online. 

If you are considering separation or divorce, it is important to understand what your obligations are regarding any online content you have generated on Facebook, and how those obligations might impact you during the divorce process. Your online footprint (as well as your spouse’s) can be a helpful tool in your divorce case, or it could be used against you. Either way, you will want to have developed a clear strategy with your attorney regarding your Facebook content.

Here are a few simple rules that I would want any potential client to keep in mind:  

Rule #1: Do not hit delete. Your Facebook page, and any content, posts, messages, or anything else you have posted or shared on Facebook, may all be relevant and discoverable information during your divorce process (meaning, the other side may request this information through discovery and if so, you have an obligation to provide it). In Maryland, a party to litigation has an obligation to preserve relevant evidence, not just once litigation has begun but as soon as it seems that litigation might occur. To steer clear of possible credibility issues later in your case – or worse, sanctions for destroying relevant evidence – the best practice is to keep all social media information in tact from the moment you begin considering divorce. This does not mean you have to continue posting or creating new content, but if you do so, then you should save that as well. 

Rule #2: Never put anything in writing you wouldn’t want a Judge to read one day. This includes any posting on social media (whether made “publicly” or “privately”), as well as “private” or “direct” communications with third parties through the messenger features of any social media platform. 

Rule #3: Preserve everything that may be relevant to your divorce.  Although this seems synonymous with the rule about not affirmatively deleting anything, the obligation to preserve relevant evidence actually extends beyond what you yourself control.  You also have an obligation to let employers, friends, family members, business partners, or anyone else who may have documents in their possession that are relevant to your divorce that they have an obligation to preserve and maintain those documents. Similar to your own obligation, this also includes online data, such as social media posts and messages.

Rule #4: Talk to your attorney before you take any action.  The obligation to preserve relevant information does not necessarily mean that such information must remain “public” on your Facebook page.  Under certain circumstances, you may even be able to delete information off of Facebook, or even your entire account, so long as you maintain copies of everything that was once available.

Earlier this year, Facebook announced a new feature that enables “bulk” deleting of posts from a user’s page, making it easier than ever for people to run afoul of preservation requirements. It is always advisable to discuss with your attorney before you take any action, particularly since the sanctions for destroying relevant evidence can be severe. Working closely with your attorney to understand what your obligations are while also developing a strategy to address your concerns, will put you in the best position to be successful in your divorce matter.