What Does Divorce Mean for Your Vacation Home?

If you own a vacation home, odds are that you consider it a place of serenity and fond memories. When couples separate and divorce is on the horizon, the question is inevitably asked: “What happens to our vacation house?”

First, you and your spouse can always agree on what to do with your vacation home. Examples of the types of agreements you and your spouse could reach are: agreement to sell it and divide the proceeds, one spouse could buy-out the other spouse’s interest and keep the home, or perhaps the home becomes part of a bigger picture estate plan or trust so that children and grandchildren may continue to enjoy it, despite any divorce. You can agree with your spouse about the fate of your vacation home at any time during the divorce process. You don’t have to wait until the divorce is final.

If you and your spouse cannot agree and you have a contested divorce case, your trial will likely be a year or more away. The court will decide what will happen to your vacation home only at the end of the entire process – and the court is limited to two options:

  1. Order the sale of a jointly titled vacation home and the equal division of any sales proceeds; or
  2. If the vacation home is titled only in one spouse’s name, the court cannot transfer title to the other spouse. However, if the home was acquired during the marriage with marital funds, the non-titled spouse has a martial property interest in the home. The court may order the spouse who owns the home to make a monetary award payment to the other spouse in consideration of their interest in the home and as part of the overall equitable distribution of marital property. “Equitable” does not always mean equal – who gets what depends on the courts consideration of a variety factors – some of which include the duration of the marriage, each party’s age, health, financial circumstances, and contributions to the marriage and property, and the circumstances that contributed to the divorce.

If you and your spouse do not agree on what to do with your vacation home, consider that prior to the actual divorce, the court cannot:

  • Force you or your spouse to sell your home;
  • Force you or your spouse to refinance any debt associated with the home;
  • Force your or your spouse to move out of a jointly titled vacation home. The one exception to this is if a party is ordered stay-away from a vacation home being used as one or both parties’ residence incident to a domestic violence protective order;
  • Force you or your spouse to pay the mortgage or carrying costs.

Also, if you and your spouse do not agree on what to do with vacation home, and it is titled in joint name or solely in your spouse’s name, the court cannot transfer it to you.

You and your spouse can enter into an agreement to do something other than what the court can do, which is legally binding and enforceable.

Before filing in court or entering into any divorce related agreement, you should consult with a family law attorney to determine what effect this has on the other issues in your case.

The Court has more options when it comes to what can happen to your primary home in a divorce. For more information about that, see our article, “What does divorce mean for your home?

For more information, contact Heather at hscollier@lerchearly.com and Erin at elkopelman@lerchearly.com.


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.

Decisions, Decisions: Can your spouse make them for you if you lack capacity?

AvatarHeather Collier, Principal

Too often couples find themselves in a situation where due to age, illness, or accident, one spouse no longer has the ability to make decisions or handle life’s responsibilities – in legal terms, that spouse lacks “capacity” – and there is no plan in place.

What happens then? Can your spouse make decisions for you simply because they are your spouse? If not, are they able to obtain authority to make decisions on your behalf even if you are already incapacitated?

My colleague and fellow guardianship practitioner, Jenica E. Cassidy, associate attorney at Lerch, Early & Brewer, joins us as a guest author on this post to answer these questions:  

Can my spouse make decisions for me if I lose capacity just because they are my spouse?

If you become incapacitated, your spouse does not automatically have authority to make all of your decisions and handle your affairs. This can have far-reaching implications, ranging from accessing your bank account and paying your bills to speaking with doctors and consenting to medical procedures. If you don’t already have a power of attorney and an advance healthcare directive in place, your spouse may have no other option but to seek guardianship over you.

What is guardianship?

Guardianship is a legal procedure where a court appoints guardian for a person who has been determined to lack capacity to make and communicate responsible decisions for themselves and handle their personal affairs.

The guardian can be appointed to handle financial matters or healthcare and personal matters, or both. The guardian essentially steps into the shoes of the incapacitated person and has control over all aspects of the person’s life. Because of this, the court takes guardianship very seriously. A person seeking guardianship over another must file a detailed petition along with medical certifications verifying the incapacity. They must also provide notice to people close to the incapacitated person. The court will appoint an attorney to represent the incapacitated person and will hold a hearing before appointing a guardian. If anyone objects to the guardianship, the contested matter could proceed to a jury trial.

Suffice it to say, the guardianship process can be emotionally taxing, financially burdensome, and may carry on for many months. On top of that, it requires disclosing deeply personal information to a public record where a judge or jury will make the ultimate decision regarding who has control over your affairs.

What can I do now to make sure I have control over who makes decisions for me if I am not able to make them for myself?

It’s best to avoid guardianship if you can. It’s meant to be a matter of last resort after all other options have been exhausted. The best way to do this is to plan ahead. Prepare the appropriate estate planning documents. Name your spouse or a trusted individual to make decisions for you and handle your affairs should you lose the ability to do so on your own.

What type of lawyer do I look for to help me with these issues?

If you are planning ahead, see an estate planning lawyer to help you prepare the appropriate estate planning documents, including powers of attorney and advance medical directives, designating who has authority to make decisions for you in the event of certain circumstances.

If you are trying to pursue a guardianship over a loved one, see a family law lawyer or elder law lawyer who handles guardianship matters.

For more information, contact family law attorney Heather Collier at hscollier@lerchearly.com or elder law attorney Jenica Cassidy at jecassidy@lerchearly.com.

Am I Covered? Divorce and Health Insurance

AvatarHeather Collier, Principal

‘Tis the season for many employers open enrollment period for health insurance coverage and other employment-related benefits. Choices abound. But what if you and your spouse are divorcing and you are on their health insurance? The plot thickens.

  • How long after divorce will you be covered? Do you have any options to continue coverage through your spouse’s plan? Who will provide health insurance for your children? And who pays? Is your ability to continue coverage linked to any other decision you make or rights you derive from the divorce?  Here are the basics: * If you are covered on your spouse’s health insurance at the time of separation, your spouse can continue to cover you until the entry of a judgment of absolute divorce.
  • Divorce is a terminating event for health insurance coverage. If you were on your spouses’ coverage, in most cases, you can elect to continue coverage for a specific period through the same health insurance plan. There is typically a 60-day grace period for you to decide to elect continuation coverage (if available), seek coverage on the health insurance Marketplace, or seek coverage through your employer’s plan if you are employed and they offer benefits.
  • There are differences in the continuation coverage benefits offered based on the employer and whether the employer falls under federal or state laws. With exceptions, private sector companies with 20 or more employees fall under federal COBRA, while companies with less than 20 employees fall under state based continuation coverage laws. The Federal government provides continuation coverage through the Federal Employee Health Benefits program (FEHB).
  • COBRA allows continuation coverage for 36 months post-divorce. State law based continuation coverage periods vary.
  • FEHB also allows temporary continuation coverage (TCC) for 36 months post-divorce. However, former spouses of federal employees insured under FEHB during the marriage may also be eligible for extended continuation coverage beyond 36 months, called Spouse Equity Coverage. This is available if the former spouse receives a share of the federal employees FERS or CSRS pension benefit and/or is designated as a survivor beneficiary of the federal employees FERS or CSRS plan based on the division of property in the divorce.
  • If you elect continuation coverage under the applicable laws, you will pay 100% of the premium cost (without subsidy) and a percentage of the premium as an administrative fee. Therefore, it may not be the most cost effective option, particularly if you are eligible for insurance through your own employer.  If you are seeking spousal support and need continuation coverage, you will need to factor the cost into your expenses and ultimately your support request.  If you are eligible for insurance through you own employer, the divorce will qualify you to enroll in your employer’s plan even if it is outside the normal open enrollment period.
  • Even though your former spouse cannot continue carrying you on their health insurance policy post-divorce, they can continue to cover your children. The cost of the premium for the children’s health insurance coverage is factored into the calculation of child support. If your former spouse has other health related benefits like dental or vision insurance, they can also cover your children on those policies. If you or your former spouse have access to other health related benefits, e.g. a Flex Spending Account (FSA) or a Health Savings Account (HSA), confirm before the divorce what policies and rules apply to using those funds so you can determine whether that impacts who provides insurance coverage for the children, who claims them as dependents on tax returns, etc. and negotiate accordingly.

If health insurance coverage is a concern for you post-divorce, it is imperative you obtain information, informally or formally, from your spouse and/or their employer about the availability of continuation coverage, the cost, and the period of time continuation coverage will be available to you because of the divorce.  Do not wait – this information may influence the resolution of other parts of your divorce case such as spousal support and, if you have minor children, child support, and income tax related benefits.

Survival 101: Co-parenting and Remote Learning

AvatarHeather Collier, Principal

Out with new backpacks and lunch boxes, and in with Chromebooks and iPads: Fall is here but this year, back to school does not mean back to normal.

As the COVID-19 pandemic continues, many public and private schools have chosen a remote learning environment for students. For children with divorced parents, the struggle of living between two houses is more real than ever.

Whether you are new to sharing custody or have a have long-standing difficult co-parenting relationship, the challenges of remote learning present an excellent opportunity to find common ground and set your kids up for success this school year. Consider these topics and questions with your co-parent to avoid problems and miscommunications, and to develop agreed upon rules and practices in both households.

Sharing Information

  • Confirm that you and your co-parent are identified on enrollment forms, with correct and current email and cellular telephone numbers, to ensure you both receive all school provided information via any school listservs, email, text messages, or direct correspondence from your child’s teachers.
  • Create shared digital storage (Google share drive, Dropbox, etc.) for critical log-in details, class and assignment schedules, and other notes or documents related to your child’s schooling to provide you and your co-parent with immediate and easy access to all the same information. Doing so will better enable each of you to problem solve quickly if an issue arises during the remote school day or after hours. When in doubt, if you receive information from the school that impacts your child’s remote education, forward it to your co-parent and save it to the shared storage space.
  • Freely share information with your co-parent about what is working in your house and what is not – e.g., does a break at the end of the school session before homework begins work best?

Schedule

Pre-pandemic, going to school provided structure, stability, and consistency during the day for many children, particularly kids who live in two places during the week. To recreate that structure and develop a consistent routine, despite remote learning, work with your co-parent to establish a “school-day” schedule that applies in both houses.

Details might include the start and end to the day, defined periods for studying and homework, and breaks. Consider how the school-day schedule compliments the other schedules in your house, including your work-from-home schedule if one applies.

The same school day schedule in both houses will provide your kids with the routine they crave and take any guess work out of their day.

Devices

Is your child taking one device back and forth or do they have a device in both houses? The easiest solution for your child is likely having a device in each house and the same device/set-up in each house. Less to transport between houses, the same remote learning set-up in both houses, and no set-up time, means getting down to learning quickly with less stress.

If this is not an option for you and your co-parent, discuss what the set-up is in your respective houses and understand if anything has to travel back and forth. If equipment has to travel, confirm that your child has it with them before they go to the other parent’s house.

Tutors

Some parents are hiring tutors for a combination of in-person and/or remote tutoring to provide one-on-one help for their kids in the remote learning environment. If you and your co-parent believe your child will benefit from tutoring, talk with each other about whether the tutoring will be in-person, remote, or both, and how often it will take place and where.

Screen Time

Unplugging is more important than ever. If the whole school day is online, what are the rules going to be for non-school screen time? Will you and your co-parent have an agreed upon rule about your child’s access to their cell phone during the school day? Discuss whether you can agree upon certain parental control settings on your child’s devices to dictate what they have access to and when, regardless of location. Share parental control log-in details for each device.

There is a lot to consider now that your home is doubling as a school. With a few brief conversations with your co-parent, you can make a huge difference in your child’s experience this school year — regardless of whether their classroom is in their room or your living room. Bonus — it will make your new dual role as parent and teacher less stressful too!

I’ve Had It! How Soon Can I File for Absolute Divorce in Maryland?

AvatarHeather Collier, Principal

This is one of the most common questions I get from clients. In order to decide how soon you can file for divorce, we have to determine if you are eligible to seek a divorce in Maryland and, if so, on what basis. The basis for the divorce is called the “ground” for divorce. The timing for filing a divorce in Maryland depends on the answers to both questions.

To be eligible to file for divorce in Maryland, one party must live there at the time of filing. If the basis for the divorce, or the “grounds” for divorce occurred outside Maryland, then one party has to have resided in Maryland for at least 6 months before filing for divorce. 

Before the court can enter a Judgment of Absolute Divorce dissolving a couple’s marriage, the residency requirement must be met, one of the parties has to have a viable ground for absolute divorce; and all issues arising out of the parties’ marriage have to be resolved either by agreement of the parties or court order.   

Absolute Divorce Grounds

Maryland recognizes “no-fault” and “fault” grounds for absolute divorce.  Because some grounds for divorce have a waiting period, the ground (or grounds) for divorce you allege may impact when you can file.

No-fault grounds for absolute divorce are:

  • 12-month separation – the parties must live separate and apart, without cohabitation for a period of 12 months prior to filing for divorce, and continuing without interruption through the date the divorce is granted. 

    Translation:  you cannot spend the night under the same roof or have sex with your spouse for 12 months before you file for divorce and it has to stay that way after you file through the divorce.  Spending the night together under the same roof or having sex before the divorce is granted re-starts the separation clock on your 12-month separation period and will delay your ability to file under this ground.
  • Mutual Consent – this ground does not require a period of separation.  If you and your spouse have not yet separated or separated only recently, this ground may be the fastest means of filing for and obtaining a divorce.  In order to file for divorce based on Mutual Consent, you must meet the following requirements:
    • Have a signed, written agreement resolving all issues, including, alimony, property division, and the care, custody and support of any minor child or children;
    • Court approval of any agreement as to custody and support of a minor child as being in that child or children’s best interests; and
    • Neither party has filed to set aside the settlement agreement prior to the divorce hearing.

Fault grounds for divorce, with applicable waiting periods, include:

  • Adultery
  • Desertion, if desertion has continued for 12 continuous months.
  • Conviction of a felony or misdemeanor where the party has been sentenced to serve at least 3 years and has served 12 months of the sentence
  • Insanity if the spouse has been institutionalized for at least 3 years and the insanity is incurable
  • Cruelty of treatment
  • Excessively vicious conduct

Filing starts the divorce process, but the length of time for obtaining the actual Judgment of Absolute Divorce will depend on whether you settle some or all of the issues during the divorce litigation, or if you have a contested trial at the end where a judge will decide the outcome. 

Welcome to Your Source for Divorce Law

The Divorce/Family Law Group at Lerch, Early & Brewer is proud to present our new Divorce Law Source blog.

In an age where Google searches and web browsing are the go-to for most people to find information about everything, we are thrilled to provide an easily accessible one-stop shop for all things family law and divorce.

Featuring content authored by each of our accomplished and skilled family law attorneys, we encourage you to use this forum to find the answers to commonly asked legal and practical questions our clients confront pre- and post-divorce, review explanations and analyses of pertinent legal concepts and principles, and receive updates on new practices, rules, laws, and the family court system in Maryland and D.C. We will be featuring new posts and content each week. We look forward to welcoming many regular followers and invite you to recommend desired topics for future posts. Please subscribe to the blog on the right-hand side of this page.

Lerch Early’s family law attorneys represent clients in every facet of family law including divorce, custody, child support, alimony, property division, modifications of custody, child support, and alimony, prenuptial and postnuptial agreements, litigation, divorce and custody settlement agreements and alternative dispute resolution, guardianship, and adoption. For more information, please check out our website.

We hope to see you soon on our blog!

In Health,

Heather Collier and Erik Arena
Co-chairs, Divorce/Family Law Group