Separation and Divorce: Bad Times Can Be Better
Separation and divorce is very difficult – financially and emotionally for everyone involved – spouses, children, extended family members and friends. The sense of “loss” can be profound. Feelings of grief, helplessness, vulnerability, financial devastation and lack of control are very typical. The process is generally among the most difficult challenges a person encounters during their lifetime.
Separation and Divorce: There is Light at the End of the Tunnel
Fortunately, the odds are overwhelming that at some point in the future, you will resolve the legal issues with your spouse resulting from your failed marriage by agreement and upon terms that you and your family members can “live with”. BELIEVE AND IT WILL OCCUR.
Settlement is Best
Settlement at the earliest possible point is much better financially and emotionally than litigation. The court system is structured to “encourage” resolution of disputes over alimony; division of marital property; allocation of marital debt; child custody; child support; visitation; and divorce through settlement and not by trial.
Family law litigants are generally required by the court to participate in several “events” specifically intended to encourage discussion; and empower them to settle their differences; minimize their expenses; and move forward with their lives. These “events” include:
- family and/or parental counseling;
- non-binding mediation with a neutral third-party;
- status or scheduling conferences;
- settlement conferences with a judge or other trained legal professional; and
- pre-trial conferences
Settlement can and often does occur without involvement of a court. THIS SHOULD BE YOUR GOAL.
Marital disputes are resolved in court by judges and non-judge “magistrates” who conduct hearings; consider evidence; and make recommendations to judges. Virtually every judge and domestic magistrate prefers that you and your spouse resolve your marital issues so they will not have to. It is their job to make tough decisions concerning your marital issues and family when you are unable to do the job. YOU CAN DO IT!
You and your spouse can do a better job than the court. Judges and magistrates generally believe that domestic litigants are better able to resolve their disputes themselves and upon more workable terms than the judge or magistrate. THEY ARE CORRECT!
Assistance of Counsel
Competent Family Law attorneys encourage and facilitate settlement of marital disputes. Settlement can occur at any point in the process – from the earliest point prior to separation and through trial.
The “personalities” and approaches of the attorneys involved often help “shape” the tone, direction and cost of the process. Some attorneys are more congenial by nature and seek resolution early and often. Other attorneys are more confrontational; seem to thrive on “the battle”; and tend to make the process longer and more expensive.
Your attorney should:
- be someone who you trust and in whom you have confidence;
- be experienced with all the issues that you face;
- be sensitive to you and able to communicate effectively with you and on your behalf;
- fully inform you of your rights and responsibilities;
- be a skilled domestic litigator – if litigation is or becomes necessary;
- fight for you and your children when and if fighting is required;
- encourage settlement when fighting or litigation serves no constructive purpose;
- have a track record of successfully resolving marital disputes; and
- provide you with the balance of aggressive representation and settlement “savvy” required to meet your needs and goals; guide your through the process; and get you to the “finish line” as soon as possible.
Emotions Get in the Way
Separation and divorce engender emotions that may never have surfaced before – anger, disappointment, guilt, blame. It can bring out the “worst” in almost anyone.
People experiencing separation and divorce are often overwhelmed by negative emotion; act “out of character”; behave “badly”; hurt themselves and their loved ones; and impede the settlement process.
By far, the best thing that you can do for yourself and your family is control your negative emotions; “stay the course”; and act and respond calmly and logically at all times; regardless of how illogical or emotional your spouse or family members may be acting. You should bear in mind that the process you are going through is very difficult for them too; regardless of “who started it”.
Secrets to Settlement
Regardless of how and when your marital issues are resolved – whether by settlement or court order; certain key issues must be addressed incident to that resolution. While the facts of each situation vary, the following issues generally shape the settlement that you will achieve:
Child Custody and Visitation
- incident to separation and divorce, the court can award temporary and permanent legal and physical custody of children and impose a visitation schedule;
- when doing this, the judge or magistrate will decide what is “in your child’s best interests”; often without ever meeting your children;
- THAT MEANS A JUDGE OR MAGISTRATE WILL TELL YOU WHEN YOU WILL SEE YOUR CHILDREN; HOW LONG YOU WILL BE WITH YOUR CHILDREN AND POTENTIALLY, WHAT YOU CAN DO WHEN YOUR CHILDREN ARE WITH YOU. DO YOU WANT THAT?
- Issues for Consideration:
- What really is in your child’s “best interest”? – YOU AND YOUR SPOUSE KNOW BEST– NOT A JUDGE OR MAGISTRATE!;
- who will stay in the “Family Home” with the children? For how long?
- do you want your children to change schools or move away from friends?
- who can best provide “structure” and consistency for your children?
- will your children live with you, your spouse or both?
- will one or both of you continue to live in the school district?
- will one parent have “primary physical custody” or will you share physical custody?
- who will make the major life-shaping decisions affecting your children?
- will you jointly share those decisions – have “joint legal custody”?
- how many overnights will your children spend with each parent each week?
- will they “bounce” between residences?
- how far apart will those residences be?
- how will the summers and school holidays be shared by each parent?
- who will the children be with: On their birthday? On your birthday? On Father’s Day? On Mother’s Day? On those other important occasions when “your side of the family” or the “other side of the family” gets together?
- what do your children want?
- GEEZ, THAT’S ALOT – ARE YOU KIDDING ME? –DO I REALLY NEED TO THINK ABOUT ALL THIS?
- it is “alot” and you and your spouse are the best people on the planet to figure this out for yourselves, your children and the “family” – not the lawyers, the judge or the magistrate;
- DO IT NOW!
- each parent has a legal responsibility to financially support their children until the later of 18 years of age; or graduation from high school/19 years of age;
- in Maryland, the amount of each parent’s child support obligation is determined by the “Maryland Child Support Guidelines”;
- the Guidelines take into consideration each of the following factors in determining the amount of a parent’s monthly child support obligation:
- each parent’s income from all sources including alimony;
- the number of children;
- the cost of child care incurred so a parent can work;
- the cost of health insurance premiums paid to cover each child;
- any extraordinary medical expenses for each child; and
- the number of overnights each child spends with each parentthe Guidelines take into consideration each of the following factors in determining the amount of a parent’s monthly child support obligation:
- NETTED OUT. Once set, each party’s child support obligation is “netted” so that one parent pays and the other parent receives.
- DEBT DOESN’T MATTER. Generally the amount of either parent’s debt or regular living expenses are not considered under the Guidelines in determining child support.
- an “exemption” is an amount of money that a Taxpayer can subtract from their “Adjusted Gross Income” for each “dependent”;
- an exemption reduces the amount of income on which a Taxpayer is taxed;
- in 2015 a Taxpayer can claim a $4,000.00 exemption for each qualifying “child”;
- exemptions can be claimed for dependent adult children [like college students] as long as you are providing for 50% or more of their living expenses;
- incident to divorce, the court can award exemptions to one or both parties.
- Issues for Consideration:
- which of you and your spouse will claim each child as a dependent on their Tax Returns in the future after you are divorced and no longer filing joint returns?
- will you alternate claiming the exemption(s) each tax year?
- will you “split” the exemptions each year?
- generally the court issues an order determining the amount of child support and directing the “Payor-Parent’s” employer to deduct the same each month from salary or wages and pay the same to a division of the Department of Social Services known as “Support Enforcement”; which remits the same to the “Recipient-Parent”. This is known as “earnings withholding”;
- earnings withholding can substantially delay the receipt by the Recipient-Parent of much needed child support;
- if the Payor-Parent is self-employed or has a track record of financial responsibility, earnings withholding may not be best;
- subject to court approval, the parties can agree that earnings withholding not occur; and that the Payor-Parent pay child support directly to the Recipient-Parent.
- incident to separation and divorce, the court can order either spouse to continue and pay for health insurance coverage for the other spouse and the children;
- private family health insurance for 2 parents and at least one child can easily cost $1800.00 per month;
- annual increases in health insurance premiums can be 25% or more – HOW ARE YOU GOING TO AFFORD THIS?
- Issues for Consideration:
- how is health insurance provided currently?
- which spouse has the “best” plan that “covers the most” or “includes your medical providers?”
- which plan is cheaper?
- how is the cost of the same paid now?
- are both spouses and the children covered on one plan?
- will one spouse stay on that plan: Until divorce? Afterwards?
- will each child stay on that plan?
- which spouse will pay the health insurance premiums?
- how long will one spouse pay for coverage for the other spouse?
- will the other spouse contribute to the cost of such coverage for themselves or the children: Immediately? When divorced? When employed? By a set date?
- will one spouse be obligated to accept group coverage when and as the same becomes available from an employer in the future?
- what happens if the spouse having coverage looses or changes a job?
Uninsured Medical Expenses:
- health insurance generally does not cover 100% of all medical expenses;
- excluded services; deductibles and co-pays vary plan-to-plan;
- Issues for Consideration:
- who pays the cost of insurance co-pays and the uncovered cost of treatments, medicines, drugs, therapy and medical appliances: For each spouse? For each child?
- will the same include dental and orthodontic treatments?
- what portion of the same will each spouse bear?
- who will bear responsibility to submit bills for the children’s medical services to the insurer for coverage?
- will submission and denial by the insurer be required before an obligation to pay or contribute arises?
- generally, a court cannot force either parent to pay the cost of a child’s education after high school – exceptions do exist;
- Issues for Consideration:
- do you want your children to be educated?
- will each parent agree to contribute to the costs of the same?
- what types of programs will be included: Jr. college? Trade school? College? Graduate school?
- how much and when will each parent contribute?
- will the children be required to exhaust all available financial aide first?
- will a “cap” be imposed on the dollar amount of each parent’s contribution to a child’s education?
- will a parent’s obligation to contribute terminate if the child: Stops attending? Goes part-time? Fails to graduate in a set time-frame? Does poorly academically?
- alimony is money paid by a higher-earning spouse to a lower-earning spouse for a period of time following separation and divorce intended to enable the lower-earning spouse to “rehabilitate” themselves and become “self-supporting”;
- alimony is generally taxable to the recipient and deductible by the party paying it;
- alimony generally terminates
- on the death of either party;
- on the marriage of the recipient; orif the court finds that termination is necessary to avoid a harsh and inequitable result.
- if the court finds that termination is necessary to avoid a harsh and inequitable result.
- no state mandated “Alimony Guidelines” or “formula” currently exists that determines the entitlement to or amount and duration of alimony;
- whether alimony is awarded and the amount and duration of the same varies on a case-by case basis;
- each judge and magistrate approaches alimony differently so it is impossible to accurately predict whether alimony will be awarded or the amount and duration of the same;
- incident to settlement, the parties can “fix” the amount and duration of alimony and agree that the same cannot be changed by the court in the future no matter what.
- Issues for Consideration:
- are both spouses earning income and capable of self-support now?;
- if not, how much time will the dependent spouse need to gain sufficient education or training to enable that party to find suitable employment?;
- what “standard of living” did the parties establish during their marriage?;
- how long have the parties been married?;
- what monetary and nonmonetary contributions did each party make to the well-being of the family?;
- what circumstances contributed to the estrangement of the parties?;
- how old is each party?;
- what is the physical and mental condition of each party?;
- does one party have the ability to both pay alimony and meet their own needs?;
- does any agreement between the parties bearing on alimony exist?;
- what are the financial needs and financial resources of each party, including:
- all income and assets, including property that does not produce income?;
- the nature and amount of the financial obligations of each party?; and
- the right of each party to receive retirement benefits?;
- Indefinite Alimony: A court can award alimony for an indefinite period, if the court finds that:
- due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or
- even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.
- a “monetary award” is money paid by one spouse to the other, whether in a lump-sum or in increments over time;
- a monetary award is generally neither taxable to the recipient nor deductible by the party paying it;
- incident to settlement, a monetary award may be considered to either (a) “even out” each party’s financial position incident to divorce; or (b) “induce” the other party to settle;
- incident to divorce, the court can order a monetary award to “adjust the equities” of the parties including imposing “punishment” for “bad behavior”.
- often, substantial equity or value can accrue in “whole life” or other non-term life insurance policies;
- life insurance benefits can also serve to replace the financial security for child support or alimony recipients that would be “lost” if the payor-spouse dies;
- Issues for Consideration:
- will one or both spouses be obligated to continue life insurance on their lives?
- for how long?
- who will pay the premiums for such coverage?
- who will the designated beneficiaries of each policy be: The spouse? The children?
- will the beneficiary designations be irrevocable by the insured spouse: Until child support ends? Until alimony ends? Until college graduation? At a fixed date in the future?
- can the insured spouse borrow against the policy?
DIVISION OF PERSONAL PROPERTY:
- “personal property” is the tangible and intangible property acquired during the marriage by either party other than real estate and includes business ownership interests; vehicles; furniture; appliances; stocks, bonds, or other securities; savings or checking accounts; certificates of deposit; money market funds; retirement accounts, pensions, profit sharing plans, and deferred compensation of any kind;
- “title” to personal property is generally legally irrelevant incident to divorce;
- personal property owned by either party prior to the marriage or acquired by either party after marriage by gift or inheritance is generally not included in a division of personal property;
- incident to divorce, the court can order (a) the “in-kind” division; (b) re-titling; and/or (c) sale of personal property and division of the sale proceeds;
- divorcing spouses are wise to attempt an “equal” or “fair” division of personal property by agreement (a) using the value of the same as a guide; and (b) bearing in mind that ANY DIVISION, EVEN BY THE COURT WILL NOT BE “EXACTLY EQUAL”;
- personal property is replaceable-it is short-sighted and expensive to “fight” over personal property; especially if the cost of the “fight” in terms of legal fees, time and emotion is greater then the true “value” of the property – DON’T SPEND “THOUSANDS” FIGHTING OVER THE “BIG SCREEN”.
- frequently one or both spouses are vested in a retirement plan of some type, whether through work; a Financial Consultant, or an “IRA”;
- to the extent that retirement benefits are “acquired” during the marriage, they are “marital property” and subject to division between the parties;
- incident to divorce, retirement benefits accruing during the marriage are generally divided equally – each spouse receiving their “marital share” of the other party’s retirement benefits “if, as and when” they retire;
- each party’s “marital share” of the other party’s retirement benefits is awarded using a “Qualifying Domestic Relations Order” or “QDRO” signed by a judge;
- you do not have to fight in court to have a judge sign a QDRO – YOU CAN DO IT BY AGREEMENT –THE JUDGE WILL GLADLY SIGN THE QDRO IF YOU DO;
- retirement benefits are easily valued and divided by QDRO; accordingly, division of the same incident to settlement should be pursued – DO IT NOW!
- married couples often acquire real estate [residences; vacation homes and investment properties] during their marriage;
- “title” to real estate is generally legally irrelevant incident to divorce;
- real estate owned by either party prior to marriage or acquired by either party after marriage by gift or inheritance is generally not included in a division of real estate incident to divorce;
- real estate is easily valued; and the amount of unpaid debt encumbering the same is easily determined;
- the home where the family lives at the time of separation, known as the “Family Home” may be subject to a “Use and Possession Award” by a court incident to separation and divorce if minor children are involved;
- a “Use and Possession Award” can be made by the court at any time and can last up to three (3) years following the date of divorce;
- the court can order either spouse to pay all or a portion of the mortgage and other expenses of ownership of the Family Home;
- if the parties are unable to reach agreement; a court will order the sale of all real estate and a division of the sale proceeds;
- these “judicial sales” are often like foreclosures, yielding below-market prices and involving significant expenses;
- divorcing spouses are wise to attempt an “equal” or “fair” division of all real estate acquired during the marriage using the fair market/appraised value of the same as a guide;
- settlement terms frequently include either a “buy-out” by one spouse of the other spouse’s interest in marital real estate; or a sale through a real estate agent selected by the parties.
- all too frequently, couples separating and contemplating divorce are loaded with debt –mortgages; car loans; credit cards; personal loans; and – CREDITORS EXPECT TO BE PAID;
- unresolved and unpaid debt can damage the credit of one or both spouses very quickly causing devastating and long-lasting results for years to come;
- generally incident to divorce, it does not matter which spouse “acquired” the debt in their name, provided that the debt was acquired during the marriage and the proceeds were used for marital purposes – exceptions do exist;
- incident to separation and divorce, a judge can allocate responsibility for payment of debt between the parties – DO YOU WANT THAT TO HAPPEN?
- incident to separation and divorce, a court can award “reasonable and necessary expenses” to a deserving party;
- “reasonable and necessary expenses” include:
- “suit money”;
- counsel fees; and
- at any point in a divorce proceeding, the court may order either party to pay to the other party an amount for the “reasonable and necessary expense” of prosecuting or defending the proceeding;
- Before ordering payment, the court is required by law to consider:
- the financial resources and financial needs of both parties; and
- whether there was substantial justification for prosecuting or defending the proceeding.
- if the court finds an absence of substantial justification of a party for prosecuting or defending the proceeding; absent a finding of good cause to the contrary, the court must award the other party reasonable and necessary expenses of prosecuting or defending the proceeding;
- Reimbursement: The court can award reimbursement for any “reasonable and necessary expenses” that were previously paid or incurred by the other spouse;
- Payment to Lawyer: If the court awards attorney’s fees, the court can:
- order that the amount awarded be paid directly to the lawyer for the other spouse; or
- enter judgment in favor of the lawyer;
- Issues for Consideration:
- do both spouses have the financial means to pay for competent representation?
- overall, is it better that each spouse be represented by competent – experienced counsel?
- would it be wiser to make funds available for the other spouse to hire counsel early in the process incident to a settlement plan?
- is it foreseeable that an “investment” of money for the other spouse’s legal fees might “pay-off” in the future?
- WOW, I HAD NO IDEA THAT THIS MUCH IS INVOLVED!! – THIS SOUNDS SO OVERWHEMING AND EXPENSIVE !! – WHAT SHOULD I DO?
- work hard to settle your issues;
- be reasonable at all times;
- don’t give up;
- be patient;
- follow your lawyer’s advice;
- keep your lawyer fully informed at all times and expect the same from your lawyer;
- keep the interests of your children in mind at all times; and
REMEMBER THAT FIGHTING IN COURT IS VERY EXPENSIVE; EMOTIONALLY EXHAUSTING; DISTRACTING; TAKES “FOREVER”; AND RARELY LEADS TO A “GOOD RESULT” WHEN THE TRUE “COSTS” OF GETTING THERE ARE CONSIDERED.
If you’re facing separation and divorce, Coover Law Firm, LLC is here to help. Howard County Divorce Lawyer Fred L. Coover, Esquire has been serving families in Columbia MD, Ellicott City MD and beyond for more than 30 years. Call Coover Law Firm, LLC today to schedule your no-risk initial consultation in our Columbia, Maryland office – (410) 995-1100.
Disclaimer: The information in this blog post is provided for general educational & informational purposes only. It is not intended to convey legal advice or serve as a substitute for legal counsel on any subject matter.