My Top 5 New Year’s Resolutions for Those Going Through Divorce

AvatarErik Arena, Principal

In keeping with the time-honored New Year’s tradition of reflecting on the year past and making resolutions for the coming year, I’ve put together a list of my top-five resolutions for divorcing clients for 2021.

2020 was a year unlike few others. The challenges were several. The landscape was ever-changing. But you persisted.

How can you make 2021 a little bit “jollier” for yourself.

1. Adjust Expectations and Prioritize

2020 didn’t go as planned for many. New challenges surfaced, for which easy solutions were unavailable. The crisis then persisted and persists to this day. Personal goals went unmet, but not for lack of will or desire. You expended the same effort and energy with fewer results. It was a humbling year.

Those realities should guide your-self assessment of 2020. Be forgiving in your assessment of 2020 successes and failures, and don’t view them in isolation (i.e. some of your failures might have been necessary to produce some of your greatest successes). Be realistic about what you want and intend to accomplish in 2021, and leave some latitude to account for the ongoing challenges of everyday living

2. Self-Care is Not Optional

The human body and mind need three things to function at their respective peaks: (1) adequate nutrition/diet; (2) regular exercise; and (3) adequate sleep/rest. Pre-COVID, maintaining 2 of these 3 regularly was considered an accomplishment. That thinking needs to change in 2021.

The COVID pandemic and your ongoing divorce are great sources of stress and uncertainty. They can impact your sleep and eating patterns greatly. If those disturbances persist for long enough, you will find yourself in poor physical and mental health. You cannot be at your best if you’re not up and operating at full capacity. This why self-care should be your number one priority in 2021.

You cannot always regulate your sleep. However, you can regulate your diet and exercise. These investments will yield dividends (i.e. focus, concentration, stamina) with consistency. It is sometimes counter-intuitive to take time away for these things; but they are fuel for the mind and body.

3. Be Intentional with Your Time and Energy

To subsist and thrive in the new reality of 2020, prioritizing and allocating time effectively became premium talents. Mundane tasks like commuting and having business lunches were replaced with parenting tasks and early morning grocery runs. Routines were obliterated.

The pace of information sharing and gathering quickened. We were inundated with stimuli, be they personal, professional, social, or political. It was difficult to decide where to invest your time with seemingly endless choices at your disposal. This explains the phenomenon that was “Tiger King”.

Consciousness is said to be the pause between the stimuli and the response. To be intentional with your investment(s) of time and energy means pausing to assess options before reacting to the many stimuli you will encounter. Ask yourself – what, among these options, can I do next that will advance my goals for myself? If the response does not meet those goals, move on to an endeavor that does.

4. This Too Shall Pass

World War II persisted for seven years. The Civil War dragged on for four years. Even the Ebola virus/pandemic spanned three years. In either 2021 or 2022, the COVID pandemic will be in our rear-views. As will your divorce. Whatever you may be experiencing as far as stress and angst is temporary, even though it may not feel that way at the moment. It is important to remember that and take comfort in knowing that brighter times are ahead.

In order to make those brighter times more vivid in your mind, start planning now for what you want your post-divorce and post-pandemic life to look like. You can use those images to set incremental goals for yourself in 2021, and as reference points when deciding where and how to invest your time and energy (see point 3 above).

5. Build Incrementally Toward Your Goals

Don’t rush to fill the holes you find in yourself during the divorce. Approaching them incrementally, with small, tangible, realistic steps, is the best way to build toward the future you envision for yourself.  

For example, you may envision a future in which you’re re-married to another, more suitable romantic partner. If that’s you, I would recommend against hitting the town with your friends in search of a suitable mate while you’re still enduring the trauma of the divorce. Start by processing the trauma of your separation/divorce and what that means for you as an individual. Figure out what you want to do the same and what you want to do differently in your life moving forward. Then you can start looking for mister or misses right.

The same can be said for many post-divorce goals (i.e. financial security, job security; home ownership). They often seem vast and insurmountable from where you’re standing at the moment. But, if you break them down into several, smaller, attainable steps toward your goal, the path will not seem so daunting.

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.

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.  

Are You a Stay-at-Home Parent?

In a Divorce, You Should Consider These Five Tips

AvatarDonna E. Van Scoy, Principal

In the event of a divorce, the stay-at-home parent often feels the negative impact of the decision of who stays with the kids.

Marriage is hard and requires continued work to be successful. Even with hard work and commitment, not every marriage succeeds. According to Earth & World, 46% of marriages in the United States fail. If you are going to be the stay-at-home parent who becomes the financially dependent spouse, consider the following tips to protect your future (and your children’s future).

  1. Manage the family money/assets or at the very least be fully aware of the family money/assets. Communicate regularly about the finances and assets (monthly or quarterly is best).
  2. Where possible be sure all assets are joint assets with both names appearing on accounts, titles, and deeds.
    1. Find a vehicle to establish a retirement account for yourself.
    2. If your family works with a financial planner, establish at the beginning that all communication are to be sent to both you and your spouse and that you both will be involved in any meetings (including phone calls/texts).
  3. Read and fully understand your state and federal tax returns before they are submitted. If you have questions, make sure they are answered.
  4. If you have a profession, take the steps to remain relevant in your field.
  5. Maintain or create contacts outside of your spouse. Be aware of your spouse’s work world and participate where appropriate.

Being an active spouse in the financial part of your marriage helps to ensure you have the necessary knowledge to assist your attorney, allows you to contribute to settlement discussions, and ensures your ability to move forward in the event of a divorce.