Children are Still Struggling While Adults Return to Normalcy

As more of our population becomes fully vaccinated against Covid-19, many of us are now able to enjoy a greater semblance of normalcy. Mask-less trips to the grocery store, a return to the office, summer get-togethers with friends, weekend trips, and vacations are increasingly the norm.

For parents, however, it is important to understand that our children are not experiencing the same level of recovery. Children whose parents are in the process of separation or divorce have an even greater burden.

Children under age 12 cannot yet receive a Covid vaccine. Even children over age 12 who are able to be vaccinated have rules still in place in their schools and extracurricular activities. Most children have not experienced a full return to school or all of their regular extracurricular activities, and nearly all schools and other activities still require children to wear masks, among other restrictions. On top of that, many children have missed significant life events, including school graduations, the special senior years, missed college trips, and the special freshman years.

The disruption to children’s normal lives and schedules negatively impacted children in a variety of ways. Many kids experienced isolation during the pandemic. Children’s reliance on the internet brought with it an overreliance on electronics, and in many cases an over-indulgence or dependency on screens. While there is a dearth of robust medical studies to help us understand the full impact of Covid, incidents of mental health issues among children of all ages are reported to have increased during the pandemic.

To continue reading, check out the full article on Lerch Early’s website: https://www.lerchearly.com/news/children-are-still-struggling-post-vaccine-while-adults-return-to-normalcy.

A Groundbreaking New Child Support Ruling in Maryland

Liz EstephanLiz Estephan, Attorney

Awarding child support to a non-custodial parent doesn’t seem to make sense. Why would a parent who has access with his or her children for less time receive child support from the custodial parent?

Well, Kaplan v. Kaplan says exactly that. Kaplan, a case of first impression in Maryland may bring good news to some that child support could flow to the parent who doesn’t have as much access with his or her children.  In the Kaplan case, the Court of Special Appeals upheld a ruling by the Circuit Court for Montgomery County that awarded child support from the primary custodial parent to the other parent.

This case was unique in its fact pattern. First, this case was an ‘above-the-guidelines’ case. Meaning that, the current Maryland child support guidelines are capped for parties with a total gross income of $15,000 per month or $180,000 per year. In an above-the-guidelines case, the court has discretion to promote the objectives of the guidelines and take into consideration the particular facts of the case in order to determine child support.

The father in this case was a high earner — his base salary was over $1 million. The mother earned about $50,000. Even though the father in this case had a rigorous work schedule, the court awarded him primary custody of the children and the mother had visitation. The court also awarded the mother child support, which is atypical. Usually, child support flows to the parent who has more overnights with the child or children.

The court rationalized awarding the mother child support because she incurred expenses for the children when they were with her overnight. And as Maryland law supports, the children are entitled to the same standard of living at both of their parents’ homes and because of the income disparity, the mother in this case was unable to provide the same standard of living commensurate to the father’s if she did not receive child support because of the income difference.  

Some may find this ruling just while others may think it’s unfair. Keep in mind: child support is a benefit for the children. And if you think you may be entitled to a child support adjustment based on the Kaplan case, you should consult your attorney..

For more information, contact Liz at erestephan@lerchearly.com.

The Court of Special Appeals Weighs in on the Frozen Embryo Issue

AvatarCasey Florance, Principal

In my last post (Who gets the Frozen Embryos in the Divorce?), I explored how the Court might handle the disputed disposition of frozen embryos upon the divorce of the parents-to-be.

I hypothesized that the Court might view embryos as marital property, and I recommended consulting a lawyer as part of the assisted reproductive process to ensure that a clear and enforceable contract is in place regarding the disposition of any frozen embryos upon divorce or either party’s death. 

The Court of Special Appeals of Maryland has since answered the question I posed, in a reported opinion issued on April 29, 2021.  In Jocelyn P. v. Joshua P. (WL 1684645), the Court held, as a matter of first impression, that frozen embryos should be given special consideration in light of their potential for human life, and in light of the fundamental and coextensive rights of the embryos’ creators to decide “whether to bear or beget a child,” and accordingly the embryos should not be treated simply as property.  The Court also clarified and set forth the process that the trial courts should follow when addressing the disputed disposition of frozen embryos, using a blended contractual/balancing-of-interests approach.

First, trial courts need to consider the parties’ preferences as set forth in any existing agreements. This may include oral agreements between the parties, and would certainly include an express agreement drafted by the parties’ attorneys.

The Court was careful to caution that trial courts should not consider, however, “boilerplate language in third-party form contracts [such as the form contracts that many fertility centers utilize] that lack expression or direction from the progenitors” because such form contracts “will not qualify as an express agreement for this purpose.” This lends further support for my prior recommendation to engage an attorney to draw up a separate agreement with your partner as part of the assisted reproduction process, so that your and your partner’s intentions and desires are clear and will therefore likely be upheld by a court in the event of a later dispute. 

If there is no express agreement regarding the disposition of the frozen embryos, then the trial courts are directed to seek to balance the competing interests of the parties using six different factors, including the intended use of the frozen pre-embryo if preserved, the parties’ original reasons for undergoing IVF, and the potential burden on the party seeking to avoid becoming a genetic parent. 

Further, the Court of Special Appeals has directed that the trial courts should specifically not consider financial or economic distinctions between the parties, the number of existing children, or whether “reasonable alternatives” such as adoption may be available to the party seeking to become a genetic parent.  

Jocelyn P. v. Joshua P. is a lengthy and interesting read for divorce lawyers, and makes clear that this area of dispute is ripe for invasive and costly litigation when parties do not agree.

So how do you avoid this quagmire if you are thinking of using assisted reproductive technology? 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. 

Preparing for Separation and Divorce

AvatarDonna E. Van Scoy, Principal

It is wise to meet with a divorce attorney, if possible, before your separation. If not, do so close to your separation.

Obtaining information about the process and having your questions answered helps with the stress and uncertainty. It also enables you to participate in how your divorce will proceed.

To locate an attorney communicate with your family, friends, co-workers, professional contacts, and community contacts. You can also search the internet for divorce lawyers and lawyer organizations that provide information about divorce lawyers. You will be spending a lot of time and sharing personal information with your attorney. Be sure you feel that you are being listened to and your questions are being answered. Be sure you are comfortable with your attorney.

If you have a child(ren) you will need to be prepared to discuss the legal and physical custody of the child(ren). Legal custody is the parental decision making regarding the child(ren) and their health, education and welfare. Physical custody is where and when the child(ren) will have custodial access with each parent. Child support is also a topic. As is which parent will remain in the family home or if both will relocate.

Depending on the length of the marriage and the financial picture of each party, alimony can be an issue. Review your monthly household expenses. Be prepared to discuss your family lifestyle. If you are a stay at home parent, you will need to share you educational background and work history. If you are the parent who provides the financial support for the family (or the majority of the financial support), be prepared to share each parent’s contributions and your position on the future financial contribution of the other parent. If you and your spouse are a two career family, be prepared to discuss the finances moving forward and the needs of each household.

Consider bringing three to five years of tax returns to your initial consult. Preparing a document that sets out all of you and your spouse’s assets is helpful in providing you with a complete and working picture. When preparing the document include all houses, land, vehicles, bank accounts (separate and joint), credit cards, debts, retirement accounts, investment accounts, stocks, art, jewelry, inheritance, and any others accounts or items of value. Provide all information. The attorney can help you determine what is important.

If you are not in a place to do the pre-work above, an attorney can still obtain your factual information, ask questions to fill in the blanks and share the law with you. They can assist you in putting your information together and prepare you to begin the divorce process. An attorney can also discuss the options available to secure your divorce. They will provide you information on negotiation, mediation, collaborative law, arbitration, and litigation.

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

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.

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

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.

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.

Is the COVID Pandemic Hindering Your Child’s Chances of Future Success?

AvatarErik Arena, Principal

“…[I]t ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward; how much you can take and keep moving forward. That’s how winning is done!” – Rocky Balboa

Since roughly April 2020, the concern I’ve heard most from clients, friends, and colleagues alike – what is the pandemic doing to my child’s academic and social development? This question is causing unquantifiable angst for many, particularly with no end to the pandemic in sight.

Until our local jurisdictions return to full-time, in-person learning, and even after that happens, what are the traits and skills parents can teach their child or children to ensure he or she is still positioned for success? 

Author Paul Tough provides a refreshing take on this topic in his 2012 book, How Children Succeed. In its introduction, Tough describes the book’s mission:  “… to solve some of the most pervasive mysteries of life:  Who succeeds and who fails? Why do some children thrive while others lose their way? And what can any of us do to steer an individual child – or a whole generation of children – away from failure and toward success.” 

Tough’s approach – study those that have, and have not achieved success by academic, scholastic, or professional avenues, in similar and differing environments, to define the traits common among those who succeed. 

Tough and others, cited in his book, posit that common denominators for success are not necessarily intelligence quotient, mathematical abilities, reading or writing competence, or mastery of social or applied sciences. Rather, they are, more consistently, character or personality traits such as perseverance, grit, curiosity, social intelligence, conscientiousness, optimism, and self-control. 

Viewed in the context of the COVID-pandemic, what might this mean for you and your child? Well, if Tough and his colleagues are correct, parents need not necessarily worry if their child is falling behind a bit in math or science or any particular course or courses. That might actually be the expectation, given the challenges of remote learning for many adolescents. 

Instead, parents can use the challenges of the pandemic to further their children’s perseverance, grit, curiosity, optimism, and self-control. How might one do that? 

  • Encourage them to test daily the limits of their intellectual and physical abilities and curiosities;
  • Incentivize them to exhibit a bit more perseverance and self-control each day;
  • Providing constructive encouragement and feedback to reward effort and perseverance, and foster optimism and grit, regardless of success or failure. 

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