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What is Collaborative Law?
When you think of a divorce or custody case, you probably think of a contentious courtroom drama. However, there is a lesser-known, family-centric process to resolve divorce and/or custody. This process is known as Collaborative Law.
What Is Collaborative Law?
The Collaborative Law process is a multidisciplinary approach that utilizes professionals in relevant areas such as law, accounting/finance, and psychology/social work to consult with clients on various objectives and outcomes. The Collaborative process is party-focused with professionals offering advice and the parties making the decision. This process is intended to help alleviate any anger and resentment between parties and facilitate a positive, healthy relationship following the divorce. The professionals and parties work collaboratively to achieve the goals of the family.
How Does Collaborative Law Work?
Many think of the first step in divorce or custody as filing and serving “papers,” aka initiating a lawsuit against your spouse/partner. In Collaborative Law, your case is kept out of the courtroom. Rather, the first step in Collaborative Law is to establish your goals and interests with your attorney. These goals and interests will guide the process and ultimately help you reach a resolution in line with those goals and interests. In the beginning, you and your attorney will determine which professionals can assist with your matter, including, if applicable, a parent coach and a financial neutral. A parent coach is a mental health professional who will help you execute a parenting plan that is in the best interests of your child(ren) and your family. A financial neutral is a certified financial professional that aids you in reaching an agreement on the division of your assets and property. The process develops through a series of meetings with the coaches, your attorney, and the team. Team meetings consist of all professionals and parties and is a forum designed to facilitate transparency between the parties and promote open discussion on issues and options with professional guidance. The process ultimately concludes with the execution of a global agreement made for and by you.
Why Choose Collaborative Law
The family court system is designed to be adversarial. As such, divorce/custody litigation is painful, destructive, and costly to families. Collaborative Law circumvents the adversarial process and helps families remain whole and resolve their divorce/custody matter with their interests at the forefront. By working with professionals in various disciplines, you are well-equipped with the resources and information to make the best decision for your family. Unlike in Collaborative Law, in litigation, a judge, who has limited information on you and your family, would make those decisions for you.
Our attorneys are trained and experienced in Collaborative Law, so if you are interested in engaging this process, please contact us at 240-396-4373 and we are ready to assist you.
Is My Spouse Entitled to Property I Acquired After the Date of Separation?
Going through a separation or divorce can be a challenging and emotionally charged time. Among the many concerns that arise during this process is the division of property and assets. One common question that arises is whether a spouse has any claim to property acquired after the separation has occurred.
What is considered marital property?
In Maryland and the District of Columbia, if property is acquired by one spouse after separation but before the divorce is finalized, it is still considered marital property. Campolattaro v. Campolattaro, 66 Md. App. 68, 81 (Md. Ct. Spec. App. 1986); Boyce v. Boyce, 541 A.2d 614, 616 (D.C. 1988); D.C. Code § 16-910(a). Marital property includes assets acquired during the marriage, while separate, premarital property typically includes assets acquired before the marriage, through inheritance, or as a gift.
What is equitable distribution?
Maryland and the District of Columbia follow the principle of equitable distribution, which means that marital property is subject to an equitable division between spouses by applying several factors. The factors include the circumstances surrounding the property's acquisition, both parties' monetary and non-monetary contributions, and the overall equitable distribution of assets. Separate, premarital property is generally retained by the individual who acquired it.
Do I need a written agreement to divide assets?
To avoid potential disputes and resolve the division of property, many couples choose to enter into a written separation and property settlement agreement. A written separation and property settlement agreement is a legally binding contract that establishes the terms of the division of assets. A signed separation agreement will stop the accumulation of marital assets after the separation but before the divorce is finalized and therefore will govern whether your spouse has an interest in property acquired after the date of the separation agreement.
If you need assistance with your separation and property settlement agreement, please contact Markham Law Firm at 240-396-4373 .
NEW: Maryland Divorce Laws as of October 1, 2023
On May 16, 2023, Governor Wes Moore signed new legislation into law which completely overhauls the Maryland divorce law scheme. This new legislation went into effect on October 1, 2023.
How does this new legislation affect you and your divorce?
Limited Divorce
The new legislation repeals limited divorce in its entirety. Limited divorce did not dissolve the marriage and could be more easily compared to a legal separation. It provided parties a basis to seek relief when they did not otherwise qualify for, or for some other reason could not request, an absolute divorce. This relief included child custody, child support, and alimony. However, you can no longer request a limited divorce in Maryland.
Absolute Divorce
The new legislation also revises how you can receive an absolute divorce under the law. When you file for a divorce, you must do so under certain statutory grounds. Prior to the new law, you could receive an absolute divorce in Maryland under the following grounds:
Adultery
Desertion
Conviction of a felony or misdemeanor with incarceration
12-month separation
Insanity
Cruelty of treatment or vicious conduct toward a spouse or minor child
Mutual consent
However, the new legislation has changed these grounds and now, you can request an absolute divorce under these new grounds:
6-month separation
Irreconcilable differences
Mutual consent
Why this change matters
While limited divorce was rarely used, it gave parties who could not end their marriage a way to still obtain necessary protection under the law. Parties may have been unable to end their marriage for many reasons, including religious restrictions and access to health care. Repealing limited divorce may have a negative impact on individuals in these, or related, circumstances.
However, the new legislation has rendered it easier to seek an absolute divorce in Maryland than it was before. Previously, the law only provided two ways to seek a divorce on no-fault grounds: 12-month separation (including separate homes) or mutual consent. A 12-month separation is often not economically feasible for many couples, because maintaining two separate households is costly, creates childcare issues, etc. To qualify for a divorce under mutual consent, parties are required to settle all outstanding issues related to the marriage, including property division, alimony, child support, and child custody, expressed in a signed, written agreement.
If you did not qualify for either of those grounds for divorce, you had to prove that your spouse committed some wrongdoing under one of the fault-based grounds. Proving fault-based grounds for divorce could be difficult, timely, expensive, and often heightened the conflict between the parties.
The new law makes divorce more attainable in multiple ways. First, it shortens the requisite period of separation to six months and removed the requirement that parties must live in separate homes. Rather, parties can now be separated but reside in the same household as long as they maintain separate lives and bedrooms. The law also repeals many of the fault-based grounds for divorce and added “irreconcilable differences” as a non-fault basis for divorce. While it is unclear how the courts will address “irreconcilable differences”, it is generally applied in situations where the marriage has broken down and the parties wish to seek a divorce without proving fault, separating for the requisite time frame, or coming to a mutual agreement on all related issues.
Pending Divorce Actions
If you have a divorce action currently pending in a Maryland court, this legislation will not affect your case. These changes only apply to filings initiated on or after October 1, 2023.
If you have further questions regarding Maryland’s new divorce laws, please contact Markham Law Firm at 240-396-4373 to setup a consultation.
Preparing for the Holidays During Divorce or Separation
The holidays are a stressful time for everyone – but especially those battling custody issues or in the process of a divorce or separation. However, you can take action now to reduce stress this coming holiday season.
If you and your spouse have an interim agreement, whether formal or not, it is important that you follow it. Stability is important for children and your compliance demonstrates a willingness to co-parent to the Court.
However, if you don’t have an interim agreement in place, now is the time to create one. In proposing a holiday schedule to your spouse, here are some important factors to consider:
Work schedules
School schedules
Role of religion
Any family traditions or events
Children’s relationship with extended family
Travel and logistics
Current custody arrangement
You and the other parent should work together to come up with the best holiday schedule for your family. Some popular holiday schedules include:
Fixed holidays (i.e. one parent always gets Thanksgiving)
Alternating holidays (i.e. one parent gets Thanksgiving this year and one parent gets Thanksgiving next year)
Dividing school breaks (i.e. one parent gets the first half of winter break, one parent gets the second half)
Dividing the day (i.e. one parent gets Thanksgiving for the first half of the day, one parent gets the second half)
Or any combination of the above (alternating which parent gets the first half of winter break and which parent gets the second half)·
Mediation is a great avenue to help you and your spouse communicate effectively and create a holiday plan that works for your family. Please contact the Markham Law Firm team at 240-396-4373 to schedule time with one of our trained mediators today.
What is Nesting?
Unlike typical shared parenting time agreements, which have children traveling back and forth between each parent’s home, in a nesting agreement, the parents alternate spending time in the family home (the nest), and the children stay put.
In most cases, separating parents who opt for nesting see the arrangement as a temporary fix for the benefit of the children. Eventually, each spouse will need his or her own home to live separately with the children. Separating parents may opt for nesting if they cannot afford to support two households, if they are still working out their final divorce settlement, or if they want to delay any potential disruption to the children. If used, nesting should only be a temporary arrangement. Nesting may help children through the separation because it allows the children to temporarily stay in the home to which they are accustomed.
There are few options for parents when it comes to nesting. Some separating parents opt to share or have separate rental accommodations. Others will stay with family or friends. Some will organize a combination of each option when they are not with the children.
The most obvious benefit of nesting is financial. Couples who reside together can save money when they only have to support one family home. If the plan is eventually to sell the family home, nesting can be a beneficial financial decision because couples can nest until the housing market is favorable to their needs or until other ancillary matters are resolved. Sometimes, nesting is necessary for couples that need time to reestablish themselves financially before they sell the family home. Arguably, the emotional benefit of nesting for children is maintaining the children’s stability while the parents work through their differences, and avoiding any abrupt changes for the children.
There are, however, considerable downsides of nesting, particularly for extended periods of times. For instance, couples may struggle to move on with their lives after separating if they are continuing to share living spaces. For separating couples that do not communicate well, nesting can be complicated because it requires the couple to agree on the continued maintenance of the home and the nesting schedule. Further complications may be added when the separating spouses have started dating new partners. There may be privacy concerns for any shared spaces in the nest. Nesting, even for a temporary period, is not recommended for couples going through contentious litigation.
For separating parents who communicate well enough to share spaces, nesting can be financially and emotionally beneficial, in the short term, for both the children and parents. Of course, it is vital that nesting couples have a written agreement outlining the parameters of the nesting situation. If you are interested in exploring a nesting arrangement or looking for legal representation in your divorce, reach out to Markham Law Firm today at 240-396-4373.
Divorce and Frozen Embryos in Maryland
When a relationship dissolves, disputes may arise over cryopreserved embryos that the couple preserved during the relationship. In early 2021, a California judge ended a six-year-long legal battle between actress Sofia Vergara (of Modern Family fame) and her former fiancé over embryos the couple created during their relationship. The California judge in Vergara’s case ruled that she and her ex-fiancé must obtain each other’s written permission in order to use the embryos. In Maryland, the Court of Special Appeals recently issued an important decision on embryo disposition in Maryland. The appellate decision in Jocelyn P. v. Joshua P. addressed an issue of first impression in Maryland, and has now clarified the legal landscape for embryos disposition at separation or divorce. Notably, ART is common in Maryland, which ranks among the top quarter of states with the highest rates of ART usage.
In Jocelyn P., the lower court aligned with the California judge’s approach in Vergara’s case, which was ultimately overturned by the Maryland appellate court. The lower court’s approach is commonly referred to as “contemporaneous mutual consent,” and requires both parties to agree before anything can be done with frozen embryos. The Maryland appellate court instead outlined a “blended contractual/balancing-of-interests approach,” finding that, “courts should first look to the preference of the parties in any prior agreement expressing their intent regarding pre-embryos” and, in the absence of such an agreement, “courts should seek to balance the competing interests.”
The most impactful language came from the appellate court’s discussion about ART contracts. The court condemned “boilerplate language” and held that “as matter of first impression, progenitors, not fertility centers, must expressly and affirmatively designate their own intent with respect to disposition of pre-embryos.” The court further held that “boilerplate language in third-party form contracts that lack expression or direction from the progenitors will not qualify as express agreement regarding what to do with pre-embryos.” The appellate court is directing parties engaged in ART to create clear contracts stating their plans for preserved embryos in the case of divorce or separation. Anything less, such as personal and inarticulate contracts, will no longer suffice to control the disposition of cryopreserved embryos.
Regardless of the lower court’s outcome for Jocelyn and Joshua when addressing this new case law on remand, the appellate court opinion exemplifies the importance of creating a clear contract addressing ART, which frequently arises in the family law context. At Markham Law Firm we continue to stay knowledgeable about recent family law decisions from our courts of appeal. Do not hesitate to reach out today at 240-396-4373.
What we know about the high-profile Bill and Melinda Gates divorce
On May 3, 2021, in what may be Twitter’s most famous divorce tweet of all time, Melinda French Gates and Bill Gates announced that they are ending their marriage. Bill Gates is the fourth richest person in the world, with a net worth of approximately $124 billion. The Gates’ settlement of marital property could be the largest of all time. Understandably, the Gates desire to keep the details of their high-profile divorce private. One month into the Gates’ announcement, here is what we do know about this multi-billion-dollar divorce.
Each party will be represented by at least three law firms, including attorneys versed in Washington State family law. One of Melinda French Gates’ attorneys is celebrity divorce lawyer Robert Stephan Cohen.
Melinda French Gates could become the second richest woman in the world after the divorce is finalized. In fact, on the day the couple announced their separation, Bill transferred $2.4 billion dollars in securities to Melinda, officially making her a billionaire separate from her husband.
Melinda French Gates is not asking for alimony. Instead, she will likely receive billions of dollars in assets—similar to Mackenzie Bezos, who received a four percent stake in Amazon (worth $38 billion), when she divorced Amazon founder and the richest man in the world, Jeff Bezos.
The couple has no minor children. The youngest Gates child is 18, suggesting that the couple may have waited for her to reach legal adulthood before divorcing.
In 2017, Bill Gates announced that each his three children would inherit $10 million of his fortune, but there is speculation that Melinda French Gates is attempting to increase that amount in the couple’s settlement.
While there is speculation that the Gates had a prenup, their separation agreement will likely supersede the terms of any premarital agreement.
In addition to billions of dollars in Microsoft stock, the Gates’ divorce will divide the couple’s real estate, which is worth $170 million and includes their 66,000 square foot home outside of Seattle, Washington.
The Gates’ art collection is worth $124 million and includes works by artists from Leonardo da Vinci to Winslow Homer. The collection could also be divided in the divorce settlement.
Although the Gates announced their divorce in 2021, it is rumored that Melinda French Gates hired divorce lawyers in 2019 when news broke about her husband’s alleged friendship with convicted sex offender Jeffery Epstein.
While the Gates are divorcing, they will both continue to devote time to the Bill and Melinda Gates Foundation which aims to reduce disease, poverty and inequity worldwide.
Those are the highlights of what we know so far about Bill and Melinda Gates divorce. Dividing 27 years’ worth of monetary and non-monetary contributions to a marriage is no simple task.
If you are considering separation or you are involved in a divorce in Maryland or the District of Columbia, contact our team at Markham Law Firm at 240-396-4373. It is vital that you secure highly competent legal representation even if your assets do not include a da Vinci.
Divorce and Custody Agreements: How to Navigate the Coronavirus Quarantine
How do you successfully co-parent when you are also forced to quarantine? The spread of COVID-19 has divorced parents asking a lot of questions about how to stay safe and practice “social distancing” while also following their custody agreements. Here are some good tips.
Stick to the agreement
While this may not be easy, try to follow the terms of the agreement as much as possible. These are stressful and changing times for everyone, which is why maintaining some form of stability can benefit both you and your children.
Prepare for flexibility
With schools closed and activities cancelled, there may be certain aspects to your agreement that actually require change. That being said, both parents should be prepared to be flexible. Communication is essential.
For example, if pick-up and drop-off typically takes place at your child’s school, you may want to establish an alternative location or agree to some other form of exchange. Regardless, remember that this must be a mutually agreed upon decision that works for all parties involved.
Be safe
Given the contagious nature of the virus, it is important to avoid social contact if someone in your family presents with symptoms. This may cause disruption to your agreement, however, ensuring that the rest of your family is safe should remain a top priority. Fortunately, there are no shortage of virtual hangout applications that allow you to remain in isolation while also getting facetime in with your kids!
Don’t forget the priorities
Remember, it should always be about what is in the best interest of your children.
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.
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:
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.
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.
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.
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