Children are Still Struggling While Adults Return to Normalcy

As more of our population becomes fully vaccinated against Covid-19, many of us are now able to enjoy a greater semblance of normalcy. Mask-less trips to the grocery store, a return to the office, summer get-togethers with friends, weekend trips, and vacations are increasingly the norm.

For parents, however, it is important to understand that our children are not experiencing the same level of recovery. Children whose parents are in the process of separation or divorce have an even greater burden.

Children under age 12 cannot yet receive a Covid vaccine. Even children over age 12 who are able to be vaccinated have rules still in place in their schools and extracurricular activities. Most children have not experienced a full return to school or all of their regular extracurricular activities, and nearly all schools and other activities still require children to wear masks, among other restrictions. On top of that, many children have missed significant life events, including school graduations, the special senior years, missed college trips, and the special freshman years.

The disruption to children’s normal lives and schedules negatively impacted children in a variety of ways. Many kids experienced isolation during the pandemic. Children’s reliance on the internet brought with it an overreliance on electronics, and in many cases an over-indulgence or dependency on screens. While there is a dearth of robust medical studies to help us understand the full impact of Covid, incidents of mental health issues among children of all ages are reported to have increased during the pandemic.

To continue reading, check out the full article on Lerch Early’s website: https://www.lerchearly.com/news/children-are-still-struggling-post-vaccine-while-adults-return-to-normalcy.

The Modern Day File Cabinet: When Can You Access Your Spouse’s Electronically Stored Information?

Chris RobertsChris Roberts, Principal

Your spouse is in the shower and his or her phone lights up on the nightstand… a text message from an unknown number. You unlock the phone using the same tried and true six-digit password that has served as security for countless phones, computers, and email accounts. A string of text messages between your spouse and a lover appears. So begins a deep dive into every electronic device and email account you can get your hands on.

What’s a little snooping between spouses, you ask? Depending on what data you accessed and how, you may have violated a Federal statute punishable by incarceration for up to five years and fines of up to $10,000, per violation. That means that if you read three of your spouse’s unopened emails without his or her consent, you’re looking at a potential 15 years in the slammer and $30,000 in fines.

Don’t Access Your Spouse’s E-mails and Text Messages Without Their Consent

Electronically Stored Information, often referred to as ESI, can take many forms. One bright line distinction is whether or not the ESI is “in transit” when it is obtained. Federal law and many state statutes prohibit the interception of electronic communications without the knowledge and consent of at least one party to the communication. This means that you cannot open an unread email sitting in your spouse’s inbox unless they are aware and consent to your doing so.

This same prohibition applies to the interception of text messages, messages on social media, phone calls, or any other type of electronic communication. As a simple rule of thumb, if you have to access the information on any type of electronic device, it is probably illegal to do so.

Not only is it a crime to intercept electronic communications, generally speaking, illegally obtained evidence is not permitted to be used as evidence in court. So that smoking gun you found by rifling through your spouse’s DMs likely will do you no good in a contested hearing.

The Family Computer Is a Different Story

The same prohibitions do not apply to static data no longer in transit, which is stored on the hard drive of a desktop, laptop, or other electronic device.

Whether or not you can make use of static ESI hinges on whether you have legitimate access to the device. If data is protected by a password that only your spouse knows, in most cases you are not permitted to guess your way into the machine or otherwise hack your way into the data.

Think of a computer as a filing cabinet in the marital home. If the filling cabinet is unlocked, you have a key, or everyone in the house knows the key is somewhere in the junk drawer in your kitchen, you clearly have a right to access the files in the cabinet. If only your spouse has the key to the cabinet and it is known to be off-limits, you may not have a right access it.

Similarly, if your spouse has given you the password to a computer or other electronic device, in most cases you can access the data on the device. The same may go for a device protected by a commonly used family password. Not only can you access these devices, you may also rely on the assistance of an expert to obtain or analyze the data. This can include clandestine imaging of the device, which allows you to obtain all of the data on the device, preserving it for later use and analysis. Hard drives or other electronic storage may include financial information, family budgets, account information, estate planning, and a wealth of other information.

Other Considerations Related to ESI

If you have any reason to anticipate a dispute or court litigation with your spouse, you should never destroy data. Litigants have a duty to preserve evidence, and the destruction of evidence, also knowns as spoliation, can result in severe sanctions in a court litigation. This could include a judge dismissing your court filing and requests for relief altogether. It also may paint you as a ‘bad actor’ in the Court’s eyes, which can negatively impact your case in a number of ways.

There are many software programs with allow you to capture data from a device as it is generated, including keystroke logging software and similar programs. Keep in mind that, even though you are not actively monitoring the device, you will be held responsible for whatever the program is doing. These programs may be violating Federal or state law, which means you may be breaking those same laws.

In addition to Federal law related to the collection and use of ESI, each state has its own laws, which may differ from the Federal rules and those in other states. Consideration of efforts to collect or use ESI is heavily reliant on the specific rules and language of the applicable statutes, as well as the specific facts in each case or circumstance involving ESI.

If you have any question about the legality of your efforts to pursue ESI, you should consult with an attorney familiar with the applicable laws in your jurisdiction. In many cases, they may also suggest consultation with a forensic computer expert. Getting this advice and guidance early on may not only keep you out of trouble, but could also enable you to safely and legally capture ESI that could be invaluable later.

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.

Visualizing Your Life: Achieving Your Post-Divorce Goals

Chris RobertsChris Roberts, Principal

I have found that an effective way to face divorce is to visualize your future post-divorce life, then work backwards (so to speak) from that end goal to take the steps necessary to achieve it. This strategy can help you shape the positions you take during the divorce and create a light at the end of the tunnel.

I discuss this concept in detail above. Please don’t hesitate to follow up with me at cwroberts@lerchearly.com and check out my bio for more on my practice and background: https://www.lerchearly.com/people/christopher-w-roberts.

Just When You Thought It Was Over…

Some Outcomes in a Divorce Are Permanent, While Others Are Designed to Change

Chris RobertsChris Roberts, Principal

Everyone has something to protect in a divorce, and I have yet to meet a client who doesn’t feel relief when the process is over. Many of those clients, however, are surprised when an issue they thought they resolved for good resurfaces later.

In Maryland, the reality is that some issues can never be permanently resolved in an initial divorce proceeding, while others are always resolved in the first case. Stilll others are capable of being resolved in the first go-around by agreement, depending on the terms of the deal.

Property Issues are Resolved, Once and for all, at the Time of Divorce

The Court is expressly authorized to resolve disputes regarding marital property at the time of divorce, but has no authority to do so once the divorce case has concluded and the time for appeals has passed. That means that, if marital property issues are not resolved at the time of divorce, they cannot be resolved later.

It bears noting that there is a distinction between the general notion of property and the term “marital property” which is specifically defined by statute.

Orders Related to Children Are Never Permanent

Child custody and/or visitation issues are never permanently resolved.

In Maryland, the Court is guided by one overarching standard related to children, to which all other legal standards speak – the best interest of the child. At the end of the day, judges are tasked with making decisions that serve children’s best interests. That is not only true when a judge signs an order following a contested custody proceeding, but also when a judge memorializes a private agreement between the parties related to children, which is also generally incorporated into a consent order.

Though a child custody order will conclude the current dispute, the Court retains authority to modify such orders should circumstances require it to serve a child’s best interest. Things change in life, and if those changes impact a child negatively, public policy demands that courts be able to intervene for the sake of the child. The same is true for child support. If there is a material change in a parent’s income, or expenses for a child change significantly, the Court always has jurisdiction to modify an existing child support order.

For Alimony, it Depends

Alimony is typically modifiable, both in amount and duration, if circumstances and justice require a change.

If the Court determines alimony initially, the alimony will always be modifiable, as the law does not authorize the Court to make its alimony determination non-modifiable. In a private agreement, however, parties can agree that alimony be non-modifiable, both as to amount and duration. Parties can also be more creative than the Court in negotiating the terms alimony.

As examples, in a private agreement, alimony can be based on a formula that automatically accounts for a fluctuation in income, and can terminate when an alimony recipient cohabitates with another person and/or upon the arrival of a certain date. A Court is not able to craft such solutions. The language of a private agreement is important in securing the non-modifiability of alimony.

Indefinite Alimony Does NOT Mean Permanent Alimony

Case law tells us that alimony is not intended to be a lifetime pension, so there is no such thing as “permanent” alimony.

The statute provide for “indefinite” alimony, which essentially is an open-ended period of alimony. As mentioned previously, court-ordered alimony is modifiable; however, it may also be terminated if either party dies or marries, or “if the court finds that termination is necessary to avoid a harsh and inequitable result.”

What constitutes harsh and inequitable result? That is the proverbial (and in some cases literal) million dollar question, and it is a judge’s job to determine based on the facts of the case. If you are the would-be payor of alimony, this uncertainty places a premium on having an exit strategy for your alimony obligation. This can be achieved via a negotiated resolution and careful language detailing the specific circumstances when alimony will terminate.

Why You and Your Divorce Attorney Should Develop a Personal Relationship

Chris RobertsChris Roberts, Principal

I’ve always enjoyed the movie Jerry Maguire. Jerry is a sports agent representing Rod Tidwell, a bombastic, energetic, life-loving NFL wide receiver. Part of the appeal of the movie is the relationship between Rod and Jerry. Rod leaves no doubt about his professional goals (SHOW ME THE MONEY JERRY!!!!), but he has to navigate personal and professional challenges to make them happen. Rod is Jerry’s client, but his relationship with Jerry seems more than that. Throughout the film, Rod must rely on his relationship with Jerry to lead him to the promised land.

I’m not here to tell you that all of our clients are going to cry, yell at, and hug their divorce attorney, nor am I suggesting your attorney should model him or herself after Jerry Maguire. In many ways, however, a successful attorney-client relationship may look more like Rod and Jerry’s than many of your other professional relationships. Here’s how.

You need a personal relationship with your attorney

Speaking for myself and I am sure many others in my profession, we do this work because we actually want to help people. Yes, we are professionals, and we focus intensely on protecting the things our clients value most. But our jobs also often requires us to know the most intimate details of our client’s lives, facts that they may not share with anyone one else, ever.

Our clients come to trust and rely on us, not only to keep their confidence, but also to help manage the most difficult and valuable parts of their lives. A relationship like this doesn’t come into existence overnight, and it requires a personal investment, from the attorney and the client. The relationship takes time to build, through meetings, phone calls, emails, Zoom chats, court hearings, and more. Regardless of how you build it, a successful relationship requires effort, time, mutual understanding, and respect.

Trust and honesty are critical to a successful attorney-client relationship

Divorces are usually among the most difficult experiences of a person’s life, and they can sometimes take months or longer to complete. There is often a high degree of conflict, there are frequently multiple and simultaneous dispute resolution processes at work, and there are always unwanted or unexpected developments.

The twists and turns that occur don’t have to be disastrous for the outcome of a person’s divorce, but they will undoubtedly require trust and teamwork to overcome. The client should expect his or her attorney to be up front and honest about unwanted or unexpected developments, mistakes, delays, or bad results. These things happen in life in the best circumstances, and they happen in divorces too. It is critical to identify issues as they arise, communicate them openly and directly, and come up with a plan.

Good attorneys excel in these moments and clients should trust and rely on them to help move things forward in a constructive and positive manner.

Allow your attorney to help you define and pursue your goals

A divorce shouldn’t define you, but it is a milestone, and hopefully one that allows you to redefine your life direction and goals so that you can become the best possible version of you.

In order to move constructively through the divorce process and confidently on to a better life, it is essential to develop your life goals and objectives for the mid- and long-term. Without this direction, it is all too easy to become stuck in the morass of the divorce process, and to forget that divorce should be an event that you put in your rearview mirror as soon as possible. Maintaining focus on your goals will allow you to make the compromises in your divorce that are necessary to end that chapter of your life and move forward to the life that awaits.

Spend some time early in the divorce process discussing your goals with your attorney, and identify the key components you believe are necessary to accomplish your goals. Once you’ve done this, don’t allow yourself to lose track of your goals. Revisit them, and talk with your lawyer to assess your progress, and whether your goals remain viable and attainable. Don’t be afraid to adapt and adjust your goals as you go.

If you have developed the sort of attorney-client relationship I’ve suggested, you will find that your lawyer will be a valuable resource in helping you stay on the path to the life you want to live.

Litigation vs. Negotiation – Which Path Is the Right One for You?

Chris RobertsChris Roberts, Principal

Most of us have seen one of those dramatic courtroom movies that glamourize the court process – perhaps Tom Cruise’s fiery cross-examination of Jack Nicholson in A Few Good Men, or Gregory Peck’s moving closing argument in To Kill a Mockingbird

But litigation, the contested court process by which parties resolve their differences, is nothing like the process we see in our favorite legal thrillers. It is a long, slow, and expensive process. Many people consider it the most painful, difficult process of their lives.

What does the process entail?

Unless the parties can resolve the disputed issues in advance of trial, litigation usually culminates in a bench trial, where a single judge considers the evidence and arguments presented, and issues a ruling. 

The process typically begins with a scheduling hearing, where the case is scheduled in calendar-like fashion, including deadlines for the completion of the discovery process, perhaps a date by which the parties must participate in mediation or another alternative dispute resolution process, and a trial date.

Depending on the jurisdiction, the process can take a year or longer. And it is invasive. Discovery alone can include dozens of document requests, written questions that must be answered under oath, and potentially depositions of the parties, which in Maryland can last as long as seven hours straight.

At trial, each party presents his or her evidence, including witness testimony and the introduction of documents. At the conclusion of the trial, the judge renders a ruling and, ultimately, a divorce decree.

So why would anyone subject themselves to this?

You might be thinking, “This process sounds terrible, why would anyone subject themselves to this?”

For one, it guarantees an end to the process. If your spouse or co-parent is unwilling to engage in an alternative process to resolve your issues, litigation might be your only option. The court process may be slow, but it moves predictably and inexorably to a final result, after which you can go on with your life.

In some cases, there are issues on which the parties truly cannot reach agreement. In the child custody realm, this could include child support, a parent’s relocation, mental health or substance abuse issues, or physical or psychological abuse of a child. In a financial context, there may be a dispute about alimony, a party’s actual income, the value of a party’s business, or whether a party’s trust interest or inheritance should be considered in the resolution of financial issues.

What are the alternatives?

Parties are always free to resolve their issues without resorting to a contested court process.

There are a number of alternative dispute resolution tools. Some of the more common approaches include:

  • A traditional negotiation involving attorneys, where parties develop settlement offers with the assistance of their counsel, who then negotiate on behalf of their clients to resolve the issues
  • Mediation, a voluntary process where the parties meet with each other and a neutral, third-party mediator, often with counsel present or advising them
  • Arbitration, in which a third-party decision-maker considers a presentation of evidence and argument from each party and renders a binding decision

All of these approaches are generally less expensive and quicker than the litigation process. And this is not an exhaustive list of the out-of-court approaches available to people to resolve their divorce or child custody issues.

Which process is right for me?

In almost all divorces, parties are well served in the early stages to consider an out-of-court process.

Which process will work best for you depends on a multitude of factors, including the dynamic between you and your spouse or co-parent, the substantive issues in the case, the financial issues and wherewithal of one or both parties, any external time pressures that might be involved, and the professionals assisting the parties.

Do I have to pick just one process?

No. Typically, it makes sense to stick to one out-of-court process at a time, and hopefully your first attempt at alternative dispute resolution does the trick. But if not, you can always move to another process, including litigation.

It is important to understand that you can continue in a non-litigation process at the same time a litigation is pending. In fact, courts encourage these continued efforts to resolve the issues out-of-court, even as the court process unfolds. Think of negotiation and litigation as running on parallel tracks. They are separate and distinct processes, but they are connected, and one process often can impact another, ideally in a way that benefits your position and hastens resolution.