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. 

What is a Power of Attorney? What is an Advanced Healthcare Directive?

A Power of Attorney and Advanced Healthcare Directive are legal forms that give authority to another person to act on your behalf in certain circumstances. 

Power of Attorney

A Power of Attorney deals with your assets and debts, to include your home, cash accounts, retirement interests, car, personal property, and insurance. The Power of Attorney lets you delegate authority to make decisions regarding these assets to another person, either in all circumstances or in limited circumstances. For example, you might be closing on a house, but have pre-planned and paid for travel. You could delegate your authority to sign the closing documents, sign for the mortgage, transfer funds from your bank account, etc. so that closing on the home can continue while you are away. The Power of Attorney could be revoked or could automatically terminate once closing was complete. 

Alternatively, you could use a Power of Attorney as a part of your long-term estate planning. A Power of Attorney form can become effectively immediately and not terminate, even if you become mentally incapacitated in the future. In this circumstance, the Power of Attorney is used to make sure you have someone of sound mind with authority to access your assets to make sure your bills continue to be paid, and that you have cash on hand to be able to purchase life necessities. 

The Power of Attorney also allows you to state who you wish shall serve as the guardian of your person or property, if that becomes necessary. 

 Advanced Healthcare Directive

 The Advanced Healthcare Directive is a form of long-term estate planning, as well as an unforeseen emergency tool. Anyone could encounter an unforeseen emergency, leaving them in the hospital without the ability to confer with doctors for their care or are simply aging and looking to round out their estate planning. 

 The Advanced Healthcare Directive is a set of instructions to another person with respect to the type of care you would like to receive in certain circumstances. In the event that you have a minor child, the Advanced Healthcare Directive also includes an option for you to designate who you would like to take care of the minor child in the event the parents are unable to do so. 

 If you do not have these documents currently in place, call 240-396-4373 to schedule your appointment.

Using Private Investigators in Your Legal Battles: Common Pitfalls and Best Practices

Are you curious about hiring a private investigator in your divorce case? 

Law firms often turn to the use of private investigators to find out additional information about opposing parties. While the practice is growing in trend, there are some common pitfalls you need to be sure to avoid. 

In Washington D.C., there are two rules of professional conduct that are relevant to attorneys to using private investigators in their cases. D.C. Rules of Professional Conduct 1.3 mandates that counsel should represent a client zealously and diligently. Rule 3.1 of the Code of Professional Conduct states that lawyers are required to inform themselves about the facts of their clients’ cases and determine that they can make good faith arguments in support of their clients’ positions. 

What are some common pitfalls when using private investigators? 

You should stay far away from lawyers and investigators who engage in pretexting. Pretexting is the practice of contacting witnesses either by phone, in-person, by e-mail, or through social media and misrepresenting your identity to get information. The temptation to engage in pretexting is high, as lawyers and investigators know that they are more likely to get people to talk to them if they conceal their true identity. While pretexting can be highly successful, it is a violation of DC Rules of Professional Conduct 4.1 and 8.4, as well as mail and wire fraud statutes, and the FTC Act. 

You should also be wary of investigators who engage in so-called, “dumpster diving.” While it may be tempting to think that anything put in a trash can is fair game, if the dumpster is located on private property (such as at an apartment complex), or if there are jurisdictional regulations prohibiting such acts, the lawyer or investigator can be liable for trespassing. 

So, what are the best practices? 

Any hired private investigator should be hired through legal counsel. An investigator’s work is generally going to be protected under work product doctrine if hired by counsel, otherwise, the investigator’s work will be open to discovery. An attorney can also set and document in writing clear rules and guidelines for the investigator’s conduct. 

Markham Law Firm has experience ethically using private investigators in family law litigation cases. To learn more about how Markham Law Firm can help you through your domestic dispute please call us at (240)-396-4373. Markham Law Firm is located in downtown Bethesda, MD.   

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.

Samantha Kravitz Featured in DC Bar Magazine

Samantha Kravitz was featured in the January/February issue of DC Bar Magazine. Samantha joined the firm as Senior Counsel in December 2018 and will continue to focus her practice on family law in Maryland and Washington D.C.

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 our office at 240-396-4373.

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.