New Gender Designation Law

A new gender designation law is making its way into Maryland this October. House Bill 421 passed both the House and the Senate with a veto-proof majority and was enacted under Article II section 17(c) of the Maryland Constitution on May 25, 2019. The law will take effect on October 1, 2019.

Maryland residents who identify as non-binary will now have the option to designate their gender as X instead of the traditional M or F options through the Motor Vehicle Administration. Persons who identify as non-binary, unspecified, or “other” do not identify exclusively as male or female and often use they/them pronouns. The law allows applicants for licenses, state identification cards, and moped operator’s permits to indicate an “unspecified or other” gender with an X. Maryland joins California, Colorado, Maine, Minnesota, Oregon, and the District of Columbia in allowing designation for unspecified gender on licenses and state identification cards. 

To change gender designation on a driver’s license, the Motor Vehicle Administration requires the change to be done in person and requires the applicant to bring either a court order, federal/state-issued identification, or birth certificate showing the requested gender designation. An applicant may also bring an authorized letter obtained from MVA’s Driver Wellness and Safety Division. This new law, however, prohibits the Motor Vehicle Administration from requiring proof of the applicant’s sex or denying an application because the sex selected by the applicant does not match the sex indicated on another document associated with the applicant. 

Following suit, Montgomery County Public Schools (MCPS) recently announced that students will be able to designate X as the gender option on school records. MCPS Superintendent Jack Smith wrote a letter to Maryland State Superintendent of Schools Karen Salmon stating that the school system receives numerous requests from students and parents seeking to indicate their gender as non-binary or unspecified each year. Arlington Public Schools and DC Public Schools are also allowing for a third non-binary gender option on school records. 

While the Motor Vehicle Administration changes will go into effect October 1, 2019, the MCPS policy change will not be fully implemented until the summer of 2020. However, the school system plans to handle requests to change gender designation on school records on a case-by-case basis until then. To note, the new October law does not cover birth certificates issued by the Division of Vital Records, and as of now there is no option to change your gender on your birth certificate to X.

Markham Law Firm has experience representing parties with relation to name changes and motions to seal so that their documentation matches their identities. To learn more about how Markham Law Firm can help you through the name change or record sealing process please call us at (240)-396-4373. Markham Law Firm is located in downtown Bethesda, MD.   

 

Best Lawyers in America Rankings!

We are honored to have been included again this year in "The Best Lawyers in America"© publication in the field of Family Law, for the Washington D.C. Area. Ms. Markham was ranked again as a “Best Lawyer” and the entire firm was ranked again in the category of Best Family Law Firm.

Ms. Markham was previously recognized by her peers for inclusion in "The Best Lawyers in America"© in 2018 and 2019. The entire firm was previously ranked in the category of Best Family Law Firm in 2019.  

Best Lawyers is a purely peer review publication. Thank you to our peers.

Legislative Update: Permanent Protective Orders

During the 2018 Regular Session, the Maryland General Assembly passed a new bill that would expand the circumstances and streamline the process by which victims of domestic violence can obtain a permanent protective order. The bill was approved by Governor Larry Hogan on May 8, 2018 and has gone effect as of October 1, 2018.

Prior to the new bill (HB1303) being passed, getting a permanent protective order was a lengthy process. Before the bill, a victim had to:

1) obtain an interim or temporary protective order, 

2) satisfy the conditions that would allow the victim to obtain an original final protective order, and 

3) re-file for a second final protective order after the original final protective order expires. This second final protective order would be permanent, unless terminated by the victim. 

Under the new law, a victim can obtain a permanent protective order in a more streamlined process that decreases the amount of court visits and petitions a victim must file. The bill defines two circumstances in which a victim can get a permanent protective order without multiple protective order petitions.

In the first scenario, a victim can receive a permanent protective order from the court if 1) an interim, temporary, or final protective order has already been issued against their aggressor and 2) the aggressor was convicted of and has served at least 12 months of a five-year or longer sentence for the act of abuse that led to the issuance of the interim, temporary, or final protective order. This scenario allows the victim to bypass the prior process of petitioning for a second final protective order for the order to become permanent. 

In the second scenario, a victim can get a permanent protective order from the court if 1) during the term of an interim, temporary, or final protective order 2) the aggressor commits a new act of aggression against the victim, for which the aggressor is convicted of and has served at least 12 months of a five-year or longer sentence for that new act. 

The new bill makes it so that victims are not required to wait and see if an aggressor will attempt another act of violence against the victim after serving a period of imprisonment, rather the victim can take a proactive action for his or her own safety.

 

Adultery: A Crime?

Believe, it or not, in Maryland, adultery is not only a grounds for divorce but it also a crime!  Under Maryland Law, adultery is a misdemeanor that if convicted is punishable by only a $10 fine.  Maryland defines adultery to mean a married person voluntarily engaging in sexual intercourse with a person that is not his or her spouse.  Adultery does not include oral sex or sodomy.  Therefore, the current definition is construed in such a way that adultery can only be committed with members of the opposite sex.  Recently, lawmakers have been working to try to abolish this archaic law but it remains on the books to this day.  According to records, at least three people were charged with adultery in Maryland in 2017.  Since the punishment  is nominal and the crime is rarely enforced, the main effect of adultery being labeled as a crime is that in divorce proceedings, the alleged “cheater” can generally plead the 5th when asked about infidelity.  When proving adultery as a ground for divorce, the accuser is required to prove by clear and convincing evidence that their spouse had a relationship that culminated in sex.  The evidence cannot just be just the accuser’s word or even a spousal admission and must instead be corroborated by someone outside the marriage.  Further if the adultery is “condoned” meaning if the innocent party resumed a sexual relationship with their spouse or continues to cohabitate with their spouse after learning of the adulterous act, adultery cannot be used as a ground for divorce.  The District of Columbia repealed the criminal penalty of adultery in 2003.  

This information is intended for general purposes only and is not a substitute for legal advice applicable to your case.  Consult an attorney with respect to your circumstances.

Do I need to pursue Guardianship over my loved one?

Sometimes the answer to this question is simple, however, more often than not the answer to this question is much more complicated.  The unfortunate truth is that many older adults have long periods towards the end of life where they cannot make decisions for themselves.  

A guardian is a person appointed by the Court to make healthcare or monetary decisions for someone who cannot make these types of decisions because of illness, injury, or disability. A guardianship is a crucial legal tool that allows person(s) to make decisions for the disabled adult.  If the person has an advanced health care directive, medical decision making is already being provided for and a Guardianship of Person would most likely not be necessary. Similarly, if the person has a durable power of attorney for finances a Guardianship of the Property would most likely not be necessary.

An illness, injury or disability can make it impossible for someone to make their own decisions.  Admitting this about your loved one can be difficult.  It helps to think of Guardianships as a way to facilitate the independence of the disabled adult and can often help allow the person to maintain as much self-reliance as possible.  

When becoming a Guardian, you may be tasked with deciding where and how your loved will live, what medical treatment they will receive, whether they should buy or sell their property, and what end of life measures should be taken (to name a few).  The Court is considered the “actual” Guardian with the person appointed as a Guardian acting as mere arm or “agent” for the Court.  A loved one is, in most cases, appointed as Guardian because it is presumed they have the disabled adults’ best interest and personal wishes in mind.  The Court will set the parameters for a Guardianship allowing for certain actions to be taken without Court’s approval whereas major life changes such as changes in level of care from at home to an assisted living facility can only be made by the Court.

When deciding if it’s time to obtain a guardianship, hopefully you’ve had a chance to talk about this with your loved one.  He or she may or may not be capable of providing constructive input.  Once you decide to file for a Guardianship, the Court may appoint an independent attorney to represent the alleged disabled adult in the proceeding. This attorney will meet with your loved and determine if a Guardian is necessary and if you are the best choice to become Guardian.  In addition to this, in Maryland, you must provide the Court with two Certifications from a doctor and/or mental health professional certifying that the alleged disabled is incapacitated.  

Again, we understand how difficult this decision can be.  To further discuss your options and learn more, contact Jessica Markham or Chanel Wainstein at Markham Law Firm.

How is child support determined in Maryland?

Knowing what can be included in child support payments and how it is divided can save you from bearing unanticipated costs. In Maryland, child support is governed by the Maryland Child Support Guidelines. Included in the guidelines is the formula on how to determine the basic amount of child support due, what type of added expenses can be included on top of the basic obligation, and how to divide the child support between the parents. 

The guidelines provide a table that reflects how much basic child support is due per child depending on the combined actual income of the parents. However, if the combined monthly income of the parents are above the guidelines, currently $15,000.00, then the court has more discretion in setting the basic amount of child support. Furthermore, the court has the ability to set child support not just based on actual income, but the court could also impute income onto a parent based on historical or projected income. The support calculated pursuant to the child support guidelines is presumptive, but not mandatory.

Different types of costs that can be tacked on top of the basic child support to be split between the parents. Generally, the following expenses can be added on top of the basic obligation: the cost of maintaining health insurance for the child, extraordinary medical expenses, and work-related child care. Costs incurred to maintain health insurance and unreimbursed medical expenses over $100 are normally added on top of the basic child support. The court can also add on child care costs if they find it a necessary expense due to the employment or job search of either parent. Extra costs incurred from regular extracurricular activities are generally not added onto the child support.

The court usually follows the guidelines closely but could depart from it if there is a showing of outside or special circumstances that would make following the guidelines inappropriate. If you find yourself outside the scope of the guidelines based on your income, consult an attorney to learn more about what child support would be appropriate in your specific circumstances.

 

Maryland Legislature Update: Law to Terminate Parental Rights is Signed by Gov. Hogan

Maryland Legislature Update: Law to Terminate Parental Rights is Signed by Gov. Hogan

Earlier this month, Governor Hogan signed the emergency bill which was passed by the Maryland Legislature, which will allow women to petition the courts to terminate the parental rights of the father if the woman became pregnant as a result of sexual assault. The law became effective immediately, so anyone in this situation finally has a means to a resolution. 

Maryland is the 45th state to pass such a law, which has been ten years in the making. 

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. 

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.

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.