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.  

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. 

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 at 240-396-4373.

Prenuptial Agreements

Potential clients often inquire about prenuptial agreements and why it may or may not be desirable or necessary to have one signed prior to getting married.

Prenuptial agreements are most often used to protect assets in the event of a divorce, but can also include a complete waiver or a cap on alimony, and can modify legal entitlement to assets in the event of death. 

A prenuptial agreement defines "separate" assets, which are those that are to be excluded from division by the parties in the event of a divorce. The definition of "separate" can be narrowly defined or broadly defined.  Separate assets can be limited to premarital, gifts or inherited assets. Or, separate assets can be defined to include any assets held by either party, regardless of whether the asset was accrued or obtained before the marriage or after.

Prenuptial agreements are popular among the “second marriage” crowd, particularly when the parties have accrued significant assets or have children from a previous union.  In such cases, a party may want to provide for his/her child(ren) in their estate planning and ensure that their assets go to their children as opposed to their new spouse. A prenuptial agreement can be a very effective way to do this. 

Prenuptial agreements can be as unique as the couples themselves. Life insurance, titling of current or future homes, retirement benefits and death benefits can all be addressed. 

It is recommended that both parties obtain independent counsel. One attorney cannot represent both parties in the negotiation and drafting of a prenuptial agreement. The agreement is premised on full disclosure and both parties must understand what they are signing. If you wish to learn more, or wish to have a prenuptial agreement drafted for you, please click here to contact us or call us at 240-396-4373.

Custody Evaluations: Are they Worth It?

        Custody evaluations are great tools that can be utilized in the context of a contested custody case, but they can be cost prohibitive.  The uses and benefits tend to outweigh the cost, which is why attorneys continue to request them. This article addresses "private" custody evaluations, which are privately retained by the parties, or are court-appointed based on one party’s motion or a joint motion. It is important to remember that some courts provide free custody evaluations, so in the jurisdictions that do so, they are highly sought after.

            What can custody evaluations be used for? Most simply, they are a single place to find information, and more importantly, a single report or witness to present as evidence or testimony to the judge. In terms of trial, it is much more efficient to present the evaluator and his or her report, rather than parading a child’s entire network of family, friends, and teachers through the courtroom.

            Custody evaluators also have the luxury of taking time to see how all the different pieces of information fit together, and ask follow up questions to get the full picture, and can present the information from a neutral, third party perspective. Judges, on the other hand, are forced to take the evidence as presented, and hope that the system of direct and cross examining witnesses has done enough to minimize any bias that exists in the witness.

            Custody evaluations are a full spectrum analysis, involving multiple issues, many interviews, and many hours to provide as complete an evaluation as possible. The process takes approximately fifty hours over the course of three to six months, at minimum. For cases in which the parents are farther apart in their beliefs of the child’s best interests, the process could take longer. Full custody evaluations can cost approximately $20,000 on the low end, but can easily be more costly.  The evaluation can be quite costly, but the result can often help determine the direction of the case.

            A second option for cases that have smaller, more limited questions regarding the children is a brief focused assessment, or specific issue evaluation. Topics that tend to lend themselves to a brief focused assessment include the child’s attachment level to each parent, relocation research, determining the child’s developmental level, and determining the child’s wishes. A brief focused assessment regarding the child’s wishes is a unique way to present the child’s desires without putting the child through the ordeal of testifying in court.

            These brief focused assessments can be completed in as few as four to six weeks, and cost closer to $5,000. These assessments are faster and less expensive because they are so narrowed in scope that the amount of people the evaluator must interview is significantly decreased, so the process moves much quicker. However, the brief focused assessments provide the same benefits to a judge, simply on a much more limited scale.

            Custody evaluations and brief focused assessments are performed by mental health professionals such as psychologists, psychiatrists, licensed clinical marriage and family therapists or licensed certified social workers-clinical (LSCW-C).

            In sum, despite the hefty price tag, it’s safe to say that custody evaluations, in one form or another, will continue to be used in family practice. Their benefits and uses are significant, and typically justify the associated costs.