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. 

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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.

Ms. Markham listed in Best Lawyers in America

In 2017, Ms. Markham was honored to be recognized by her peers for inclusion in "The Best Lawyers in America"© in the field of Family Law, for the Washington D.C. Area.  Best Lawyers is a purely peer review publication. 

Congratulations to Leslie Miller

Congratulations to Leslie Miller, who is now a Fellow of the Montgomery County Bar Association Leadership Development Academy.  The group engages attorneys in training and activities to develop and enhance their skills as future leaders of the Bar Association.  

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