You Committed Adultery. Now Tell Your Divorce Lawyer.

Liz EstephanLiz Estephan, Attorney

You and your spouse are on the cusp of getting a divorce or are already in the midst of the divorce process. You’ve been unfaithful, but are unsure if your spouse is aware. Do you admit you committed adultery? When do you admit you committed adultery? Should you tell your lawyer? When do you tell your lawyer?

These are all valid questions and concerns. You should be upfront and honest with your lawyer about past transgressions.

Your lawyer cannot properly defend or protect you if you are not honest with him or her. Be straightforward, do not try and sugarcoat what you did or did not do. You didn’t hire a lawyer to judge you and he or she should not — it’s not his or her job. Your lawyer’s job is to zealously advocate on your behalf.

However, your lawyer cannot do so if he or she is unaware of all the facts of your case. If your lawyer is aware of your transgressions, he or she is able to better control the narrative and will decide if or when there is a proper time to divulge the information to your spouse.

If you are not upfront with your lawyer, you could make strategic mistakes that have repercussions in litigation. For example, your answer to your spouse’s Complaint and Answers to Interrogatories must be signed under penalty of perjury. If you deny outright that you committed adultery under oath, you committed perjury.

Also, your spouse may have evidence that demonstrates you did indeed commit adultery and could use it against you at trial or another evidentiary hearing. If so, your credibility will be severely undermined in front of a judge and in turn, could have a detrimental effect on your case.

Don’t hide the truth about adultery from your lawyer. Being honest with your lawyer is to your benefit.

For more information, contact Liz at 301-907-2811 or erestephan@lerchearly.com.

Should I Borrow or Accept Money from Family While Getting Divorced?

Erin KopelmanErin Kopelman, Principal

Cash flow is a common concern for most people going through separation or divorce. Many clients ask me if they can accept or borrow money from family.

While accepting or borrowing money from family may seem like an economical option because it often does not require a loan agreement, interest, penalties or preapproval, it can actually have unintended and potentially harmful consequences on the remaining aspects of your divorce.

Gifts from Family

Two issues that arise when you receive gifts from your family to pay expenses if you are divorcing are: (1) those gifts can be considered income to you; and (2) that gift, had you not spent it, would be yours to keep in divorce and not divided with your spouse.

First, gifts from your family received during the marriage, especially if given routinely, can be included and counted as your income in divorce.  The gifts can increase your income for purposes of determining alimony and child support, with the potential effect of requiring you to pay more or receive less alimony and/or child support. Also, the gifts can be considered in the equitable division of marital property. Therefore, receiving gifts from family may have a negative impact on you in the outcome of your divorce as it relates to alimony, child support and the equitable division of marital property.

Second, gifts from your family to you individually during the marriage are your sole, separate and non-marital property. Generally, if you can prove the source of the gift is from your family and that it is not comingled with marital property, then you keep gift, and it does not get divided between you and your spouse in divorce. If you receive gifts from your family, you should not spend them. You should instead keep them and not comingle them with marital property. For steps on how to protect gifts from family, check out this article on Steps to Protect Your Inheritance and Gifts Received from Third Parties.

Assume that you’re getting divorced, there is $50,000 in marital funds, you need to pay bills of $20,000, and your parents give you $20,000. You have two options. In Option A, you spend the $20,000 gift from your parents. In divorce, you and your spouse will equitably divide the remaining marital funds of $50,000, so you and your spouse will each get approximately $25,000 in marital funds. In Option B, you preserve the $20,000 gift from your parents and do not comingle it with marital funds, and you pay the $20,000 in bills from marital funds. In divorce, you and your spouse will equitably divide the remaining marital funds of $30,000, so you and your spouse will each get approximately $15,000 in marital funds, and you will keep $20,000 from your parents. So, while your spouse ends up with $15,000, you end up with $35,000. You are better off with Option B.  Therefore, if you need money, spend marital money first, rather than gifts from family.  Preserve and do not spend the gifts from your family.

Loans from Family

Two issues that arise if you receive loans from your family to pay expenses in divorce are: (1) you may be left solely responsible for those loans; and (2) loans from family may not be given as much weight as other debts.

First, you are likely to be left solely responsible for the debts you incur in your sole name.

Maryland Courts cannot allocate debts, so after divorce you will be solely responsible for the debts in your name. D.C. Courts can distribute debts accumulated during the marriage, but there are no guarantees in court. If you are getting divorce and individually borrow money from your family to pay bills, the remaining and unspent marital property will be equitably divided. While debt is considered in the equitable division of marital property, in Maryland you will be left responsible for the debts in your individual name, and in D.C. you could be. So, when possible, it is better to spend marital property rather than taking a loan.

Assume that you’re getting divorced in Maryland, there is $50,000 in marital funds, and you need $20,000 to pay bills. You have two options. In Option A, you take a loan for $20,000. In this situation, at the time of divorce you and your spouse will each equitably divide the remaining marital funds of $50,000, so in divorce you and your spouse will each likely get $25,000 each, but you have a $20,000 loan that you are solely responsible for. In actuality, this leaves you with only $5,000 net and your spouse with $25,000 net. In Option B, you pay the $20,000 from the $50,000 marital funds. This leaves $30,000 remaining in marital funds, so in the divorce you and your spouse will each likely get $15,000 each. You are better off with Option B. Therefore, if you need money, spend marital money first before you take a loan.

Second, if you are taking a loan, it is up to the Court how much to weigh the evidence in their ultimate decision when equitably dividing the marital property (and in D.C. when also equitably dividing the debts accumulated during the marriage). Courts may be less likely to heavily weigh debts from family, as opposed to debts from banks or on credit cards. Therefore, if incurring a debt is necessary, then consider getting a debt from a bank or putting it on a credit card. If you choose to get a loan from family, then you should at a minimum sign a note or other loan document confirming the money is a loan and the repayment terms.

In summary, you are likely better off spending marital assets, as opposed to spending money from family, whether gifts or loans because whatever marital assets are left will be divided between you and your spouse. If you do need money and cannot access marital funds, then I suggest you take a loan, rather than spending gift money, and check out my article Should I Get a Loan While Getting Divorced? 

Each case is different, so if you find yourself needing money, you should consult a family law attorney. At Lerch, Early & Brewer, we guide our clients through the day-to-day decisions they have to make in the divorce process so that they make decisions that are in their best interests. 

For more information, contact Erin at 301-347-1261 or elkopelman@lerchearly.com.

Donna Van Scoy Honored as One of Maryland’s Top 100 Women by The Daily Record

Family Law GroupFamily Law Group

Divorce attorney Donna Van Scoy has been selected as one of Maryland’s Top 100 Women by The Daily Record.

According to The Daily Record, “Maryland’s Top 100 Women recognizes high-achieving Maryland women who are making an impact through their leadership, community service and mentoring. Winners are selected by past Top 100 Women and business leaders.”

A highly regarded member of the family law bar, Donna also made this list in 2013.  Additionally, The Daily Record previously recognized Donna as a Leader in Law. 

Click here to read the full release: https://www.lerchearly.com/news/donna-van-scoy-honored-as-one-of-marylands-top-100-women-by-the-daily-record

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.

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.

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.

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.

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.

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.