Can You Really Get Divorced From Your Couch?

Erin KopelmanErin Kopelman, Principal

Who would have imagined years ago that in 2020 you would be able get divorced from your living room sofa? It is as if it were predicted in the movie “Back to the Future,” like video phones or hoverboards (sort of).

However, this change allowing people to get divorced from their own homes is not the result of some creative Hollywood writer, but because the COVID-19 pandemic occurred during a time when the technology was ripe to go virtual.

The pandemic has caused hardships to many individuals and business. It has forced people to work and do business differently, including our court systems. While the pandemic has been strenuous on our court systems, causing a re-shuffling and backlog of cases, it has also forced our legal system into the digital age.

Our Court system had to quickly adapt to working remotely. Hearings and trials that were almost exclusively in person were converted in a short period of time to occurring virtually over Zoom and WebEx. While no system is perfect and glitches need to be worked out, it is now possible for a person to decide to divorce, find and retain a lawyer and go through their entire divorce process, even if it consists of a full trial, in their own home.

Many hearings are happening quicker and more efficiently. Pre-pandemic it was customary for Courts to schedule multiple hearings at the same time, so when scheduled to be in Court, a client is paying their lawyer to travel, and while in Court there is often significant time spent waiting for your case to be heard. All of this has significantly been reduced when cases are heard virtually, which can be a big financial savings for clients.

While the ability to take care of everything without going anywhere is logistically easier and may have a financial savings, it is important to keep in mind that it does not necessarily make divorce easier emotionally.

For many, divorcing during the pandemic is more difficult. The lack of a personal connection and human touch with their lawyers may be stressful. Moreover, the inability to be surrounded by an in-person emotional support network of family and friends except through virtual and social distancing interactions may be harder not just on those going through divorce, but also on their children.

At Lerch Early, we are highly cognizant of the emotional and financial stresses of divorce on our clients and keep that in mind as we guide them through their divorces.

Why Maryland’s New Augmented Estate Law Means You May Need a Prenup

You May Also Need to Revise the One You Already Have

Erin KopelmanErin Kopelman, Principal

Maryland’s new Augmented Estate Law was created to enable a surviving spouse, who was not adequately provided for by his/her deceased spouse, to elect to receive a share of substantially more of the deceased spouse’s assets than ever before.

But, it has the major, and perhaps unintended, consequence of affecting some estate plans and prenuptial and postnuptial agreements already in place.

In Maryland, if a spouse dies without adequately providing for his/her surviving spouse, then unless the surviving spouse has waived an interest in his/her deceased spouse’s estate, the surviving spouse is entitled to receive part of the deceased spouse’s estate.

This entitlement, commonly referred to as the “elective share” is one-third to one-half (depending on whether the deceased spouse has a surviving decedent) of part the deceased spouse’s estate. The purpose of this law is to protect surviving spouses from not being provided for by their spouse upon their spouse’s death.

Previously, the elective share only applied to the part of the deceased spouse’s estate that passed through probate. But, effective October 1, 2020, Maryland’s new “Augmented Estate” Law enables a surviving spouse, upon the death of his/her deceased spouse, to receive a greater share of the deceased spouse’s assets than ever before by applying the elective share to both assets that pass through probate and assets that do not pass through probate. 

Many assets do not pass through probate. Examples of assets that do not pass through probate are: Transfer on Death (TOD) accounts, accounts jointly titled with others; some trusts; and assets with beneficiary designations, such as 401K accounts and life insurance policies.

Previously, unless the deceased spouse set up his/her estate for their surviving spouse to receive assets that do not pass through probate, such as these, then the surviving spouse could not receive an elective share of them upon his/her spouse’s death. 

The new law enables a surviving spouse to receive an elective share of assets that pass through probate and assets that do not pass through probate.  The effect of this new law is that more types of assets are included in those that a surviving spouse may take an elective share of.  Therefore, surviving spouses who are not adequately provided for by their deceased spouse’s estate plans will be entitled to receive an elective share of more types of assets, which, depending on the deceased party’s holdings, likely enables to surviving party to more assets.

Similarly, spouses who did careful estate planning to exclude certain assets from passing through probate so their surviving spouse would not be able to receive an elective share of these assets will need to re-think their strategy. 

Many people want to limit what they leave their spouse upon their death, especially in the event they have children from a prior marriage who they want their assets to go to. By agreement, a spouse can waive his/her rights to make claim to an elective share or to his/her spouse’s estate.

Prenuptial and postnuptial agreements allow you to make binding and enforceable estate provisions, such as a waiver of his/her spouse’s estate or to claim an elective share, or mandate what one spouse receives in the event of their spouse’s death. If you have or want an estate plan that does not leave the majority of your assets to your spouse, you should consider getting a prenuptial or postnuptial agreement.

In addition, if you have a prenuptial or postnuptial agreement that limits what you are giving your spouse in the event of your death, you should revisit that through the lenses of how, if at all, this new law may change the effect of your intentions, and consult a lawyer as to whether you need to amend your agreement accordingly, assuming your significant other is willing.

What You Need to Know About Maryland’s Revised Child Support Guidelines

Maryland’s Child Support Guidelines, which are used by the Courts to establish and set child support in most cases in Maryland, had not been substantively adjusted in 10 years. The new law, which updates the prior Maryland Child Support Guidelines statute, is effective for all cases filed after October 1, 2020.

There are two noteworthy updates to the Maryland Child Support Guidelines statute – one, intended to address the “cliff effect” (i.e. a substantial decrease in child support) that occurs once the non-custodial parent reaches “shared physical custody”, which was formerly 128 overnights per year or more (or 35% of the overnights or more). The other – extending the presumptive application of the Guidelines to families earning up to $30,000 per month, thus doubling the former threshold.

1. Increasing the Threshold for Application of Guidelines

Prior to October 1, 2020, the Courts, unless they found sufficient reason(s) to deviate therefrom, were required to apply the result of the Maryland Child Support Guidelines calculator in all cases in which the combined adjusted actual income of the family was $15,000 per month (or $180,000 per year) or less. Now, the Maryland Child Support Guidelines calculator result is the presumptively correct amount for all families earning a combined adjusted actual income of $30,000 per month (or $360,000 per year).

This should provide more prompt and predictable results for families earning between $180,000-$360,000 per year. Above $30,000 per month or $360,000 per year, the Court has discretion in determining the level of child support.

2. Addressing the “Cliff Effect” in Shared Custody Situations

Under the former Maryland Child Support Guidelines, a family transitioned from using the “sole custody” calculation method to the “shared custody” calculation method once the non-custodial parent had the child or children in his or her care 35% or more overnights per year. That transition produced a “cliff effect” – a large drop in child support for the custodial parent once the 35% threshold was met. Not only was the “cliff effect” hard to understand for parents and courts alike – it also led to custody and access disputes motivated, in part, to manipulate child support.

The new Maryland Child Support Guidelines define shared custody as the non-custodial parent having the children for at least 25% of the overnights or more, with incremental adjustments in child support when a parent has between 25% and 50% overnights, to lessen the impact of the former “cliff effect” at 35% overnights. This means non-custodial parents who have their child or children 25% of the overnights or more should see their child support obligations decrease under the new guidelines from what they would have been under the former guidelines.

As to how a non-custodial parent who has their child 25% or more of the overnights will see their child support obligations decrease, take as an example a family where both parents of one child earn adjusted actual incomes of $12,000 per month ($24,000 combined). If Parent A has the child 75% of the overnights and Parent B has the child 25% of the overnights, under the former guidelines, Parent B would pay child support of $1,554 per month, but under the new guidelines, Parent B pays child support of $1,330 per month. If in that situation Parent A has the child 66% of the overnights and Parent B has the child 34% of the overnights, under the former guidelines, Parent B would pay child support of $1,554 per month, but under the new guidelines, Parent B pays child support of $746 per month.

For cases filed after October 1, 2020, the new child support guidelines will be used to establish initial child support orders, both pendente lite (pending trial) and permanently, as well as to establish the level of child support in cases involving modifications of existing child support orders.

Existing child support orders can be modified based only on a material change of circumstances. Courts have found a material change of circumstances in numerous instances, including but not limited to loss of a job, medical issues, retirement, education issues, changes in the needs of the child, etc. However, the adoption of the new child support guidelines is not, in and of itself, a material change of circumstances for purposes of modification of child support.

If you have minor children, adult destitute or adult disabled children, you should consult a family law attorney about how the new guidelines may affect your child support obligation or award.

Getting Divorced? Get off Social Media!

Erin KopelmanErin Kopelman, Principal

“Privacy is dead, and social media holds the smoking gun.” – Pete Cashmore, CEO of Mashable

Eighty-one percent of lawyers find social media networking evidence worth presenting in court, and 66% of divorce cases use Facebook as a principal source of evidence, according to a recent law review article. These are striking numbers worth paying attention to if you’re considering divorce.

A Real World Issue

Your social media posts can and will be used against you.

Just imagine you are on a dating website before you separated from your spouse. Or, in a moment of anger or frustration you post about your divorce and/or your spouse. How might this affect what a judge decides about the custody of your children or your finances?

Now imagine that you claim because of a back injury you cannot work and need alimony, but there are pictures up on the internet of you dancing on a bar, horseback riding, or doing a cartwheel. What might that do to your alimony claim?

Obtaining Social Media Evidence is Easier Than You Think

A person can usually download the profile and postings of others with whom they are “friends” on the site. If your spouse has “un-friended” you, you can ask someone else to secure your spouse’s social media.

Some people going through divorce “un-friend” their spouse and their spouse’s friends and family on their social media, feeling a false sense of security that their spouse is not going to see their profile and posts. Not only does this hurt their relationship with these people, but if someone sees something on your profile that they find interesting, you’d be surprised how quickly it makes its way back to your spouse.

Be aware you can also ask for enforceable discovery requests for the other side to download and produce their social media account profiles and postings. And, your spouse can also subpoena your social media profiles, accounts and postings directly from the provider. 

If you’re posting on social media, you must assume that whatever you post will be seen by your spouse, and if you don’t settle, a judge. If you are considering a divorce, immediately consult a lawyer and stop posting social media. There are rules about the destruction of evidence, which may include social media. When meeting with a lawyer provide them full disclosure about what there is online about you. 

And, going forward, the best way to protect yourself is to not post.  

Steps To Protect Your Inheritance And Gifts Received From Third Parties

Erin KopelmanErin Kopelman, Principal

Did you know that, if handled correctly, your inheritance and individual gifts from third parties are non-marital property?

Many people received inheritances and gifts from their families during their marriage. In Maryland, property received prior to marriage, by a gift from a third party or inheritance, or directly traceable to such sources is your non-marital property – meaning you keep it and it will not be divided with your spouse in divorce. 

Similarly, in DC, property received prior to marriage, by a gift or inheritance, or property in exchange therefor is your separate property – meaning you keep it and it will not be divided with your spouse in divorce.

The problem that many face is that they co-mingle, or mix, their non-marital or separate funds with marital funds. For example:

  • They deposit non-marital/separate funds into an account with marital money, or
  • In reverse they deposit marital funds into the account holding the gift or inheritance, their spouse deposits money into the account holding the gift or inheritance, they “loan” money to the marriage and pay themselves back with marital funds into the account holding the gift or inheritance, or even title the gift or inheritance in joint name.

If you have property prior to marriage, or receive property by gift or inheritance during the marriage, keep it separate!

If it’s investible assets, I suggest depositing and investing them at a new banking institution where you do not keep any other monies, and whatever you do, do not add to it.  Also, maintain all paperwork showing where the money came from along with monthly or annual statements from the date of your marriage onward in a safe place.

When in doubt, consult a divorce attorney.