Maryland Legislature Update: Termination of Parental Rights

For ten years, a bill has been introduced into the Maryland legislature that would allow women who become pregnant as a result of sexual assault to terminate the parental rights of their assailants. 

 

The woman would need to prove, in short, that the man whose parental rights she is seeking to terminate is the father of her child, that he sexually assaulted her, and that it is in the best interests of the child for the parental rights to be terminated. The proposed burden of proof is “clear and convincing” which is the same standard used throughout family and civil cases, which is lower than the “beyond a reasonable doubt” standard used in criminal court.

 

Hesitation in passing the bill in the past has come from lawmakers’ constitutional concerns with terminating parental rights if a man has not been convicted of the sexual assault in criminal court.

 

Currently, the senate has passed one version, and the house has passed a different version.  Now they must reconcile the versions and present it to Governor Hogan. Last year, the legislature was working on reconciling the versions between the two chambers but was unable to do so before the session ended in the summer. Governor Hogan has expressed support for the bill, and many Maryland lawmakers are anxious to see the bill pass this year.

 

The legislature is still in the early stages of the process. This post will be updated as progress is made.

Is my [blank] marital property?

One question we get regularly, is whether a certain piece of property or account is ‘marital property.’ In order for something to be marital property, generally, it must be property that was acquired during the marriage.  For certain items, such as a house, bank account, car, etc. it is easy to determine whether it is marital property, based on its purchase date, and subsequent change in value, and the reason for the change in value.

For example, if one party owned a house prior to the marriage, but during the marriage the parties jointly put money into renovating the home, thereby increasing its value, that house is partly marital property. But, if one party owned a house prior to the marriage and the value of the home increased solely due to changes in the real estate market, then it is not marital property.

What about things like airline miles, credit card points, retention bonuses, and awards from workers’ compensation claims or personal injury claims? These are generally things that either are received in cash or are used in lieu of cash, so are these marital property, and if so, how is their value determined for purposes of an equitable distribution?

Marital property, if intangible such as airline miles or credit card points, must be transferrable, and must be capable of being converted into a monetary amount. Owners of such accounts must be careful to read the policies of the individual programs to see if points are transferrable. Also, it is best if the parties can agree on a value for these types of accounts or to agree to a work-around if the points are not transferrable.

Awards for personal injury or workers’ compensation claims can be both marital and non-marital property. If any part of the award is for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for the joint loss of consortium, then that part of the award would be considered marital property. Any part of the award that is for compensating something personal to the award recipient, such as compensation for the actual personal injury, those funds are personal to the recipient and therefore not marital property.

Retention bonuses are generally marital property, because their purpose is to be another form of compensation to the employee. This classification of marital property takes into account that the retention bonus is not characterized as compensation on the employee’s pay statement.

As our world becomes more technologically advanced and more property is held only in an intangible, electronic form, lawyers are becoming more creative to find simple solutions to new questions. 

Modifications of Child Support

Are you currently paying child support?  If there has been any change in circumstance that could potentially lower the amount of child support you are paying, then you should act sooner rather than later to preserve your rights.  There are two mistakes that parties often make when paying child support.

We frequently have clients consult with us that have overpaid child support for many months or even years.  They wait to consult with an attorney, and then seek what is known as “recoupment” of the funds they overpaid. While recoupment is a legal term, it is rarely seen.  Recoupment means that the child support payee is ordered to pay you back for any overpayment.  Unfortunately, the courts rarely order recoupment because if they often find that the money “overpaid” was used for the benefit of the children. So even if you feel that you have overpaid, it will be an uphill battle to see that money again and it is better to fix the problem before it occurs.

The other mistake people make is that if they feel they are overpaying child support, they will either go ahead and begin paying a lower amount unilaterally or stop paying child support all together, without seeking a court order.  The problem is that when this issue eventually gets to Court, the Court will likely assess arrears calculated pursuant to the last child support order.  For example, if at the time of the last order, it was agreed that you would pay $1,000 per month for child support, and then a year later you unilaterally begin paying $500 per month, and then you end up in Court a year later, you may be ordered to pay $6,000 in arrears ($500 x 12 months). 

The moral of the story is that if for any reason you believe that you should be paying less in child support than you are currently paying, you should either immediately consult with an attorney and/or immediately file a pro se motion to modify child support.  Some common reasons why child support may decrease are as follows: 1) your salary decreased; 2) one or more of your children are no longer in daycare; 3) a change in health insurance cost, and 4) one or more of your children is emancipated (in Maryland, he/she has reached the age of 18 and/or has graduated high school, but is not yet 19).  If any of these things have happened to you or anything else that you believe is significant, contact an attorney.

UPDATE: Tax Cuts and Jobs Act

            Friday, December 22, 2017, President Donald Trump signed the Tax Cuts and Jobs Act into law.  On November 3, 2017 we posted about the proposed change to the alimony deduction as written in the first draft of the bill. As a brief recap, prior law allowed the alimony payor to deduct the amount paid from his or her taxable income, meaning the recipient would include the alimony in his/her taxable income. The effect of repealing this section of the law means that the alimony payor will not be able to deduct the amount paid from his or her taxable income.

            The new act still includes a repeal of the alimony deduction provision. However, now, it will not take effect until 2019, meaning that all separation agreements signed and divorce decrees entered on or before December 31, 2018 will not be affected.

            For persons  in 2019 and later seeking modifications of agreements, or decrees executed on or before December 31, 2018, it is presumed that the current tax scheme will still govern. If the parties want the new tax scheme to govern, they must state it explicitly in the modification agreement. 

Ms. Markham Quoted in ABA Experience Magazine

Ms. Markham was recently quoted in American Bar Association's Experience Magazine regarding creative ways to pay for college.

“One good way to pay for college is to stretch your existing savings,” advises Jessica Markham of the Markham Law Firm in Bethesda, Maryland.  “Not everyone is aware that the savings bond education tax exclusion allows the exclusions from gross income all or part of the interest paid upon the redemption of eligible Series EE and I Bonds issued after 1989 when used to pay qualified higher education expenses.” 

"In addition, you can use retirement savings effectively,” adds Markham.  “Normally, if you withdraw money from an IRA before age 59 and a half, there’s a 10 percent early distribution penalty, plus you pay any regular income tax due.  There is, however, an exception for distributions used to pay qualified higher-education expenses.”

Be advised though, that the bond exemption mentioned above has limitations that phase out as income increases, so not everyone may be eligible for it.  In addition, the IRA penalty is waived for qualified education expenses, not the tax.  Consult your tax advisor before making any decisions about how to pay for college that may result in tax consequences.

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House Proposed Tax Bill and Alimony

 

            The House of Representatives introduced their proposed Tax Bill yesterday, which includes a lot of changes and the end of many income deductions. One such proposed repeal was the alimony deduction. Under the current tax law, a payor of alimony deducts the amount paid from his or her taxable income. The payee includes the alimony in the payee’s taxable income. The new law, if passed, gets rid of this alimony deduction, so the payor still has to pay the taxes on that money. 

 

            The good news is that this law, if passed, will apply only to couples that sign separation agreements or have their divorce decree entered after December 31, 2017, so all of the alimony payment schemes currently in place or finalized this year will not be affected.

 

            People who modify their alimony payment schemes after December 31, 2017 will have the option to partake in the new law, if passed. Only modifications that expressly provide that the new law will apply will subject the alimony payor to pay taxes on the alimony. 

Destruction & Discovery of Electronically Stored Information

          In order to present a case in Court you need proof of your facts. This proof comes in the form of testimony from witnesses or documents. Historically, documents meant tangible items and paper files. That definition of ‘documents’ has evolved to include the electronic versions of the same documents, such as downloaded statements from financial institutions.

            Today, not only can the electronic version of documents be discovered, but files that exist primarily in electronic form, such as draft Word documents, e-mails and text messages, and even social media profiles can all be collected and possibly used as proof.

            In today’s world of technology, even the most innocent Word document can contain interesting pieces of information. For example, say one spouse types a letter to the other detailing her desires for a divorce, prints it, and gives it to her husband. Husband will almost surely bring that hard copy of the letter when meeting with an attorney, but the electronic copy can say so much more than just the words written by the wife. For example, a document’s metadata can provide information such as when the letter was first created, how many versions there were, and how long was spent editing the letter, and much more. Additionally, hard drives can store old versions of documents that can also provide more information. Moreover, sites such as Facebook, Instagram, and YouTube can all be captured and copied to reflect a single moment in time, including comments, posts, ‘likes’, photographs, and private messages.

            How does this impact the ‘average’ family law case participant? With the changes in technology and the ease of simply hitting the “delete” button, the Maryland legislature passed a law to preserve these documents and pieces of information. Once it is reasonably likely that the matter will go to litigation and such information might be relevant to a court proceeding, none of it can be deleted. That means that regularly scheduled erasures of computers should be stopped, and when cell phones are upgraded, the old phone must be kept.

            To be clear, however, this does not mean that junk mail must be kept – the law requiring the maintenance of documents only applies to information that might be relevant to the case. This applies also to hardware that the documents can be stored on, such as computers, phones, tablets and flash drives, even if they are broken or have been replaced. The Court can impose severe penalties for the destruction of evidence or potential evidence, so if in doubt, keep it and ask your lawyer. 

Pets and Divorce

           Once a marriage ends, the law is fairly clear about how to divide property, and factors to examine how to determine custody of children – but now on the rise is a movement to create legal status for our beloved pets.

            There are three main means of determining pet ownership at the time of divorce: property, custody, and a hybrid approach. Alaska is the first, and so far only state to give its courts power to grant custody of a pet in line with the best interests of the pet. (This is the same standard that Maryland uses for determining custody of children.) Although, other state courts, such as in Alabama and Connecticut, have simply applied the ‘best interests’ standard when determining pet ownership, without the passage of a statute.

            The majority approach views pets as  property, in which case title generally controls. This approach makes sense in theory, however, it completely ignores the emotional relationship between pet and owner.

            The hybrid approach clarifies pets as a special type of property, and may even use a standard that takes into account the ‘best interests of all’ involved living beings (which could include the pet, owners, and children, if any). It appears that Maryland’s approach will be along these lines.

            Maryland has not yet passed a law with respect to pets and divorce or annulment; however, the General Assembly is working to include pets in the existing property distribution statute. As the bill stands now, it would allow a court, during an annulment or divorce proceeding, to determine pet ownership, transfer ownership interest between parties, and award either party with access rights to the pet. (See House Bill 749).

            Although Maryland is including pets in its property division statutes, it is clarifying that pets are a special kind of property. For example, the General Assembly is including pets as part of its definition of “family use personal property” which also includes cars and household appliances. “Family use personal property” terminates after three years, meaning that the other party’s interest in the item must be bought out, or the item must be sold and the proceeds divided, etc. The General Assembly has carved out an exception for pets in this instance, in that pets are not subject to the three-year limitation. Therefore, any determination made about the ownership and/or access schedule for pets is intended to remain in place for the remainder of the pet’s life.

            In 2014, the American Academy of Matrimonial Lawyers noted a 27% increase in attorneys reporting couples fighting over pet custody during the previous five years across the country. With this rise in pets in family disputes, it may be the right time for state legislatures to advise courts on how to address the emotional bond between pets and their humans, in the event that the humans cannot agree.

Discovery: Finding Hidden Assets in a Divorce

Ms. Markham quoted in "Discovery: Finding Hidden Assets in Divorce" on Avvo stories.

"When working through the discovery, family law attorney Jessica Markham of  takes her lead from the client. “If they feel they know where the assets are located and don’t want to turn over every stone, that’s fine with me,” she says. “If they aren’t sure what’s out there, then I conduct discovery with their input on how many years to back to look.”

Markham explains that discovery may be particularly appropriate for marriages with a culture of secrecy and mistrust, an attitude of “mine versus yours,” or a business with “not-so-neat” books. “In those cases,” says Markham, “full discovery often yields significant results.” "

Click here to view the article

Ms. Markham quoted in Forbes' "How These Millennials Plan to Use August to Position Themselves for Success"

Ms. Markham was recently quoted in a Forbes article: "How These Millennials Plan to Use August to Position Themselves for Success"

“I take care of things in August that need my attention all year long but I'm too busy to tackle at other times,” says attorney Jessica Markham. 

The full article may be found here: https://www.forbes.com/sites/lisaroepe/2017/08/03/how-these-millennials-plan-to-use-august-to-position-themselves-for-success/#4f920a7c1429

Ms. Markham Featured on Student Loan Hero

Ms. Markham was featured on Student Loan Hero giving advice about how to plan for payment of college with your ex-spouse. 

“Often, the parents either commit to each save $X per month or per year, per child” toward a college account, says Jessica Markham, a Maryland-based attorney specializing in family law. Alternatively, “they will commit to funding college at a certain rate,” such as agreeing to pay the cost of an in-state public college, she adds.

Divorcing parents should enter these agreements carefully, however. They want to be able to honor those commitments later without hardship. “Most parties will be wary of committing themselves far out in the future for a figure they may not be able to afford,” Markham says.

“When a couple is divorcing, they have typically taken their household income and added the extra expense of an additional household, in many cases doubling their expenses,” Markham says.

Remarriage can also add stepchildren to the dependents for whom a divorcee is helping provide. Overall, “there is less expendable income to go around,” Markham adds.

Read the full article here: https://studentloanhero.com/featured/student-loans-and-divorce-work-together/

Welcome Statement

In this current political climate, we think it is important for people to know where they can find a safe space. At the Markham Law Firm you are welcome, no matter your sexual orientation, gender, gender expression and identity, ethnicity, immigration status, religion, or country of origin.

Our owner, Jessica Markham, is the daughter of two immigrant parents.  Our firm as a whole represents several different religions and nationalities and our clients represent a wide array of wonderfully diverse people. 

In the Company of Women- Women's Bar Association

Ms. Markham was recently re-appointed to the Board of Directors of the Women's Bar Association of Montgomery County.  Ms. Miller was recently reappointed as the Treasurer and will also continue to serve on the Board of Directors in that capacity. 

Ms. Markham also recently contributed a third in a series of articles in the WBA Museletter interviewing members of the WBA about the Mission Statement.  The article can be viewed in full here:

http://www.steinsperling.com/wba/mcwba-june-2017.pdf

Social Media Use in Divorce Cases

One question we are constantly asked is whether emails, text messages, voicemails, and/or social media accounts are potentially admissible as evidence.  The simple answer to this question is YES!  The E in E-mail stands for Evidence.  A majority (if not all) of our litigated cases will include text messages, emails, or social media in some form or another. 

We will ask the opposing party to produce in discovery their entire Facebook archive, text messages, and turn over all online communications between themselves and their soon to be former spouse. 

That middle of the night text that was sent after a few two many glasses of wine... 

The Facebook photo of you your friend posted and tagged you in...  

The email from your former spouse asking you to take care of your child... 

It’s all potentially “coming in” at trial and the Judge will hear and see every gory detail.  Knowing this, here is some advice:  

1.  THINK before you post on any social media account.  Even what seems like an innocent photo or post can later be used against you.  Social media accounts have been used to show evidence of adultery, proof of location, and money spending habits to name a few.

2. THINK before you hit send on any email.  Assume that every email will be admitted as evidence.  Make sure that what is put in writing is something you would want the Judge to read.

3.  Same goes for text messages.  Be clear and be short when communicating via text messages.  People are often more brazen about what they say via text. Assume that a Judge will be reading every text.

Recent changes in the law require that individuals now protect from change and destruction all electronically stored information during the pendency of a divorce case.  So make sure what’s out there paints you in the best possible light.  As the old saying goes, “If you have nothing nice to say, say nothing at all”.

In the age of technology, you should not underestimate the impact of electronically stored information on divorces.  To learn more about this newly changing and expanding topic contact the attorneys at the Markham Law Firm by calling (240) 396-4373.

Military Divorce- What's the Difference?

Getting a divorce when one or both spouses are military members or former military can present interesting challenges.  In dealing with a military divorce there are unique rules which govern the division of military retirement, impact of deployments on parenting, whether combat related special compensation is divisible, health care and other military benefits, to name a few. 

 

The Service Members Civil Relief Act or SCRA was designed to help deployed servicemembers stay civil proceeding that they are unable to attend.  SCRA applies to all judicial proceeding, including post-decree matters, and to administrive agencies.  SCRA covers active duty servicemembers, including reservists and mobilized members of the National Guard. The stay will generally last 90 days but can be extended. 

 

Child Custody.  What makes custody matters with servicemembers different?  A deployment will trigger the need to modify child custody orders.  Often the custody order will state that during a deployment, custody will transfer to the nonservice member.  However, under the Uniform Deployed Parent Custody and Visitation Act the servicemember may now delegate their parental rights to a third party.  One scenario where this often comes up is with a new spouse of a deployed servicemember.  The deployed servicemember can request that their new spouse be given their same custodial rights during deployment. 

 

Child Support.  When calculating child support the Court will look at base pay PLUS any housing allowance received, VA disability benefits, and any sustenance credits.    If the servicemember lives on base, the Court can impute the amount of housing allowance they would receive if they lived off base. 

 

Military Pension, Retirement and Benefits.  Retirement for active duty servicemembers comes after they have obtained 20 years of active duty service.  Retired pay can be calculated one of 2 ways.  If the Date of Initial Entry to Military Service (DIEMS) is before September 8, 1980 the formula will use the final base pay at the time of retirement.  If the DIEMS is after September 8, 1980, then it is a High-3 formula, which takes the average of the highest 36 months of base pay as the amount for the final base pay.  If the servicemember took a Career Status Bonus election between 14.5 and 15 years of service, this will change the pension landscape entirely.  Military pensions have unique aspects to them, very different from civilian pensions.

 

Thrift Savings Plan (TSP).  Servicemembers may now contribute up to 7% of their basic pay to a TSP, but with no matching funds from the federal government.  It is similar to a private sector 401(k) plan in that taxes are deferred on the contributions and appreciation until disbursement.  A Court must sign a Retirement Order to divide the TSP. 

 

Survivor Benefit Plan (SBP).  SBP is an annuity program that allow retired (and retirement eligible) active-duty servicemembers to provide income to SBP beneficiaries upon death of the servicemember.  It has a premium, and a payout in the form of a monthly payment from DFAS.  Without the SBP, if the retiree dies, the military retirement stops as well.  However, to protect a surviving former spouse’s share of military retirement after a divorce, a Court can require a servicemember to elect former spouse SBP coverage.  As the retiree can only have one beneficiary (except for children coverage), one effect of court-ordered SBP coverage for a former spouse is that if the service member remarries, the new spouse or children are precluded from coverage. In the event of the servicemember’s death, the former spouse receives a monthly payment of 55% of the designated base amount.  The cost for the SBP premium is typically 6.5% of the designated base amount although there are other options available for those entering service before March 1, 1990.  There is not a way to force DFAS to allocate the premium so that the full share comes from one party’s share of the pension. The cost must come "off the top". However, there exist other options to get around this.  If the former spouse gets remarried before age 55, the SBP will terminate. 

 

Healthcare.  A former spouse who was married to a servicemember for at least 20 years qualifies for military health benefits, or Tricare.  A former spouse will receive full benefits under the 20/20/20 Rule if they were married to the servicemember for at least 20 years, the servicemember has at least 20 years of service, and that the marriage and service overlap for at least 20 years.  If this criteria is met, the servicemember will receive Tricare for life.  For 15 years of marriage/service with 20 years of total service the former spouse will receive Tricare for one year.  Medical benefits terminate upon the former spouse’s remarriage.  If the servicemember has fewer that 20 years of service, the former spouse is NOT entitled to such benefits.

 

Hiring an attorney is an important decision.  If you are a servicemember or married to a servicemember, make sure your attorney has experience with military divorce issues.  If you wish to learn more, please give us a call.