The Truth Will Set You Free: Why Credibility is Currency in Divorce and Custody Cases

AvatarErik Arena, Principal

Most of us have done things we are embarrassed about or ashamed of — things we would rather not share in polite company, for fear of being judged.  We omit, shade, deflect or deny for the sake of maintaining appearances. 

This tendency surfaces frequently in family law courtrooms across Maryland and the District of Columbia, where judges and magistrates are, in fact, tasked with assessing the fitness and credibility of spouses and parents every day. Spouses and parents must decide, sometimes rather quickly, whether or not to tell the unvarnished truth about themselves, or a glossier, filtered version. All too often, they choose poorly. 

Why? For two reasons:

  1. Each lie of avoidance, omission, or denial erodes your credibility with the Court, which can be very hard to overcome in totality

Of course, the goal is to put yourself in the best light. However, that is done by being honest – not be being beyond reproach. Simply put, it is better to present to the Court as an honest, flawed person, than one who is untruthful. This applies to just about everything not otherwise protected by the 5th Amendment privilege against self-incrimination. 

Believe it or not, the Court has heard it all at one time or another. And none of us is perfect. A few lies, denials, or omissions, particularly those that are verifiably false, can be enough to taint the Court’s impression of your overall character for truthfulness and place a cloud over all of your testimony [and future testimony in future actions]. That can be far more costly than the embarrassment, humiliation, or damage done by admitting your mistakes. 

  • In family law cases, many important facts cannot be corroborated by independent testimony or documents, meaning key issues can be decided solely based on the credibility of the parties. 

Trying to wallpaper over character flaws with deceit can have grave consequences for other important factual determinations that, oftentimes, must be based solely on a party versus party credibility assessment [due to the absence of corroborating testimony or documents]. 

So, what kinds of critical fact determinations can end up being made solely based on credibility? I have listed a few examples below to illustrate their magnitude:

  • Who did the majority of the parenting during the children’s formative years;
  • Whether or not you told your spouse it was ok not to go back to work;
  • Whether or not the money you received from your spouse’s parents to buy your first home was a gift to your spouse or to you and your spouse;
  • Whether or not your or your spouse’s spending was a cause for friction during the marriage;
  • Whether or not you had an affair years ago, or even recently (for more on this, check out the blog post from my colleague Liz Estephan: “You Committed Adultery. Now Tell Your Divorce Lawyer.“;
  • Whether or not the cash you withdrew from your joint checking account was spent on family expenses or other, less beneficial purposes;
  • Whether or not the money you wired to family was discussed with your spouse prior to so doing;
  • Whether or not you drank to excess or used illicit substances;
  • Whether or not you humiliated or belittled your spouse or children in private. 

As you can see, being dishonest in some areas, or several, can call into question the credibility of the testimony you will give on other, more weighty facts critical to the Court’s determinations of property, alimony, or child custody. 

So, when faced with telling the (perhaps) ugly truth or saying what you think the Court wants to hear, there really isn’t a choice. Only by being truthful can you mitigate the damage done to the Court’s assessment of your character and, consequently, the merits of your case. The slope is far steeper and slipperier for those lacking in candor.

For more information, contact Erik at eparena@lerchearly.com or 301-657-0725.

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.

Should I Get a Loan While Getting Divorced?

Erin KopelmanErin Kopelman, Principal

If you’re going through a separation or divorce and cash flow is tight, you’re not alone. Many families going through separation or divorce find it difficult to get their hands on cash and pay expenses, especially with the increased cost of going from having one household to two, and paying lawyers. Many people wonder if they should get a loan.

In general, at the time of divorce, the then-existing marital assets are valued and equitably divided between you and your spouse. In valuing an asset, the fair market value is reduced by any loan on which it is collateral.

For example, the value of a house is reduced by its’ mortgage. The Court determines what is equitable after considering a list of factors, which include, but are not limited to: each spouse’s contributions to the family, the economic circumstances of each party, the circumstances that contributed to the estrangement of the marriage, the duration of the marriage, each party’s age and health, etc. These factors include consideration of each party’s debts. While equitable does not mean equal, absent extraordinary circumstances, the division of marital property often ends up being equal or close to it. Also, in divorce, Maryland Courts cannot allocate debts, so you are stuck with the debts in your name; whereas the D.C. Court can distribute debts accumulated during the marriage. Therefore, when possible, it is better to spend marital property, rather than taking a loan.

For example, say that you are in Maryland and are getting divorced. You and your spouse have $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.

If you find yourself needing money in divorce, I usually suggest, in order of priority:

  1. If possible, always spend marital assets first on your reasonable living expenses and attorney’s fees. This will reduce the marital property being divided, but this is preferable to taking out a loan where you could be solely responsible for paying it back.
  2. If you cannot access marital assets to spend first, then take a withdrawal from a marital asset. Taking a withdraw from a marital asset reduces the value of that asset, so the reduced value is considered when valuing the asset for purposes of equitably dividing it. Again, this is preferable to taking out a loan where you could be solely responsible for paying it back.
  3. If you cannot take a withdrawal from a marital asset, then take a loan from a marital asset. Taking a loan against a marital asset can reduce the value of that asset, so the reduced value may be considered when valuing the asset for purposes of equitably dividing it. However, in Maryland, if the loan is in your sole name, you will be solely responsible for the loan payments in the divorce.
  4. Only if you cannot spend marital assets or take a withdrawal or loan against a marital asset should you turn to the option of incurring non-collateralized debt.

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.

The Do’s and Don’ts of Telling Your Children Their Parents are Getting Divorced

AvatarDonna E. Van Scoy, Principal

Few couples marry with the thought that someday they will be divorced. Fewer couples have children with the thought that they will be children of divorce.

Despite parties’ intentions, divorces happen. If you have children and decide to divorce, PLEASE make every effort to work together to tell your children you are getting divorce. Your children will remember how they found out their parents were getting divorced. Your children will remember how each parent told them or if a parent did not discuss the divorce with them. Your children will remember how each parent acted during the divorce. PLEASE put your children first when telling them their parents are divorcing.

Whether your children are five, 18, or somewhere in between, you are their parent, their mom or dad. They need you to be the adult during this emotional time in their lives. You and your spouse will also be dealing with your own real and raw emotions. Every effort needs to be made to work together regarding the information your children receive so it is consistent and they do not become involved in the details of the divorce.

DON’TS:

  1. Do not race to be the first parent to tell your children that their dad or mom is leaving the family. There is no need to tell your children that their mom or dad is having an affair. There is no need to tell your children that dad or mom is unhappy and wants to go live their own life.
  2. Do not refuse to allow your children to communicate or see their parent because your spouse hurt you or they are being unreasonable in the divorce. Nothing good can come out of you refusing to allow your children to attend an important family event with their other parent because it is you “time.” Remember your children are part of each of their parent’s families. Your children love both of their parents and both sides of their family.
  3. Do not share details of the family finances with your children. Do not specifically blame the other parent as a reason they cannot have something or do something.  While better not to address, if necessary, come up with joint and consistent statements to the children about financial issues.
  4. Do not use your child(ren), no matter how old they are or how much they offer, as a sounding board to discuss the divorce. It is important during your divorce to have a support person and/or group. That person or group cannot be your child(ren). Look to organized groups, a therapist, friends, and relatives (minus the children).
  5. Do not ever share any written documents or Court documents concerning your divorce with your children. It does not matter how old your children are they are still the children and the document is still sharing information about their Mom and Dad.

DO’S:

  1. Love your children more than you dislike your spouse. You children deserve to hear that each parent loves them and that the love will not change because of the divorce. They need to hear the divorce was not their fault.
  2. If possible, tell your children together with your spouse about the divorce. For suggestions on how to talk to your children consider speaking to their pediatrician, a therapist, reading articles, and/or reading a book. Investigate the best way to communicate with your children depending on their age. Determine if you should tell all your children together or separate. If as parents you cannot tell your children together, agree on a plan of how, when, and what to tell them separately. Don’t ignore their questions and answer them in an age appropriate manner. Share with your spouse details of the discussion.
  3. Allow your children to take their possessions (including clothing, outerwear, uniforms, and shoes) between households. Respect the other parent and children by timely returning and sharing the possessions. If important to the children and possible, allow the family pet to travel with the children. Be extra patient with your children as they learn to move between homes. Both parents need to work together when items are forgotten or misplaced.
  4. Observe your children. It is possible they may need and/or benefit from seeing a therapist. If you are unsure but concerned, contact their pediatrician, teacher, and/or school counselor. Also, speak with your spouse.
  5. Spend quality time with your children. This will be a hard time for you and your children. Spending time together will help you and will help your children. Making new memories allows everyone to move forward.

For more information, contact Donna at 301-610-0110 or devanscoy@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.