#FamilyFriday: Marital v. Non-Marital Property

When couples get divorced they are required to identify marital property and non-marital property.  Many individuals don’t know what makes property marital and therefore, how they may unintentionally make a non-marital asset marital. 

When couples get divorced they are required to identify marital property and non-marital property.  Many individuals don’t know what makes property marital and therefore, how they may unintentionally make a non-marital asset marital.  This week’s #FamilyFriday article defines marital and non-marital property and offers a few tips to protect your non-marital property.

Maryland defines marital property as any property – no matter how titled – acquired by 1 or both parties during the marriage.  Individuals mistakenly believe that if the property, personal or real estate, is in their sole name it means that it is not marital – not true.  By virtue of being married, what’s theirs is yours and what’s yours is theirs.

As logic flows, non-marital property is any property which was acquired prior to marriage.  There are also some ways to acquire non-marital property during your marriage.  These include an inheritance, a gift from a third person, an agreement between you and your spouse stating what is or is not marital, or any monies which were received through any of the above means.  For example, if your parent passes and leaves you $10,000.00.  You can put that $10,000.00 into a bank account in your sole name and still have that remain non-marital property.

How does non-marital property then become marital property?  When you comingle the property.  Take the example of receiving a $10,000 inheritance described above.  Say you decide to transfer your inheritance into the joint account.  Many would think that $10,000 of the balance of their joint account would remain non-marital since it was clearly from their inheritance.  Wrong.  The moment those monies were comingled, all of that money became marital property.

So, what do you do?  One of two things: (1) keep non-marital property separate or (2) enter into a prenuptial or postnuptial agreement and define what each of you will maintain as non-marital property.  You and your spouse can enter an agreement and list what property will be marital and what will not.  That may include real estate, jewelry, bank accounts, etc.  Or, you can keep it simple and keep your non-marital money separate.

Call ERA Law Group, LLC today at (410) 919-1790 to learn how to protect your non-marital property!

#FamilyFriday – Mediating Family Disputes

Sometimes costly litigation can be avoided with mediation.  Especially in family law related matters, mediation could be key to ensure that the issues involving your family are decided by your family. 

Sometimes costly litigation can be avoided with mediation.  Especially in family law related matters, mediation could be key to ensure that the issues involving your family are decided by your family.  On this week’s #FamilyFriday article, ERA Law Group, LLC wants to explain the pros and cons of mediation.

Mediation is a process of resolving disputes outside of the Courtroom.  A third-party neutral, often a lawyer or retired judge, will attempt to facilitate fruitful conversations between the parties to find common ground, highlight that ground, and hopefully create an environment which will lend itself to a settlement.  An important factor of mediation is that it is not the mediator’s job to create the settlement.  Whether a settlement occurs is always left to the parties.  The mediator is there to facilitate the conversations so that the parties can discuss their positions, opinions, wants, etc. in the best manner possible.

In cases involving family matters such as divorce, child custody, child support, and/or marital property settlement, having a third-party neutral is imperative.  When feelings are at an all-time high, it is difficult to set aside those feelings.  Mediation can offer the environment necessary to have those feelings heard while simultaneously engaging in a meaningful conversation about the issues at hand.  In situations where there is abuse or an uncooperative party, mediation may not be the best method.

To help identify whether mediation is the right process for you, below is a list of its pros and cons:

PROS

  • Save money and avoid costly litigation.
  • The parties decide what is best for them and their family rather than a Judge not familiar with the family or dynamic.
  • The parties have an opportunity to use their voice in ways that a courtroom would not permit.
  • The parties control and orchestrate the settlement, not their attorneys or a judge.
  • Parties may settle more issues that may not be appropriate for a courtroom.
  • Perhaps a total settlement isn’t possible but could limit the issues for court.

CONS

  • History of fear or abuse would render mediation impossible and, if forced, only perpetuate those fears and the abuse.
  • In highly contentious relationships, some parties may only “listen” if a Judge is issuing an Order.
  • There’s a sense of finality in a courtroom that may not be present in mediation.
  • If one party is not willing to engage in any conversation it may be impossible to have a meaningful mediation.
  • One party may not make a good faith effort to disclose vital information.

If you are looking to hire a third-party neutral to mediate disputes in your family or want to know if mediation is right for you, call the attorneys at ERA Law Group, LLC today at (410) 919-1790!

#FamilyFriday – Adultery

Statistics range from 25% to 75% where at least one partner has admitted to committing adultery at some point during their marriage.  Perhaps this makes sense given the 40% to 50% divorce rate in America.

On this week’s #FamilyFriday article, the attorneys at ERA Law Group, LLC want to talk to you about adultery.  Not surprisingly, it is difficult to obtain the rate of adultery in marriages today.  Statistics range from 25% to 75% where at least one partner has admitted to committing adultery at some point during their marriage.  Perhaps this makes sense given the 40% to 50% divorce rate in America.

As discussed in previous blog posts, there are many ways to obtain a divorce.  If there are children and/or unresolved property issues, you must wait at least twelve months to receive your Judgment of Absolute Divorce.  There are a few exceptions to this general rule.  One of these exceptions is if a spouse has committed adultery.  Adultery is defined as sexual intercourse between a married person and another person that is not their spouse.  Maryland Courts have indicated that any sexual activity can be adulterous even if it does not include intercourse.  This takes into consideration same-sex couples and others who may be engaging in nefarious and inappropriate conduct but stopping at intercourse.

Proving adultery can be problematic.  Sometimes spouses suspect that their partner has been unfaithful but can’t prove it.  In these circumstances, it may be difficult to obtain your divorce within twelve months.  When you do have proof whether it be text messages, catching your spouse, receiving contact from the “other” person, etc., that can be your way to divorce within a year.  In some instances, the adulterous spouse even admits to the adultery.

In the case when adultery is proven or the alleged unfaithful spouse’s actions are highly suspected of adultery, the Court may take this into consideration when making a marital award.  Perhaps they’ll find that the unfaithful spouse deserves less of a marital share than what the Court would have otherwise awarded the spouse.  Perhaps the Court may order the unfaithful spouse pay more alimony or rehabilitative alimony considering their actions.

If you know or believe your spouse has cheated on you, call the attorneys at ERA Law Group, LLC today at (410) 919-1790.  We are here to advocate for you!

#FamilyFriday – Military Retirement Pay, Disability Benefits, and Divorce.

Due to a recent Supreme Court decision, a former spouse may now lose a significant amount of their ex-spouse’s military retirement pay despite what was awarded to them in their Judgment of Absolute Divorce.  

On this week’s #FamilyFriday article, the attorney’s at ERA Law Group, LLC are discussing the recent change in how Court’s treat a service member’s waiver of retirement pay for disability benefits and the effects it may have on the former spouse.  A service member’s retirement pay is considered marital property.  Depending on the length of the marriage and the Court’s Order, a percentage of the marital portion of the retirement pay is reserved for the former spouse upon the service member’s retirement.  Due to a recent Supreme Court decision, a former spouse may now lose a significant amount of their ex-spouse’s military retirement pay despite what was awarded to them in their Judgment of Absolute Divorce.

In Maryland, upon entering a Judgment of Absolute Divorce, couples negotiate what, if any, percentage of the service member’s retirement pay will be awarded to the former spouse. If a service member applies for and receives disability benefits, the Department of Veterans’ Affairs (DVA) automatically reduces the member’s retirement pension on a dollar-for-dollar basis.  This automatic waiver prevents members from double dipping and receiving both retirement pay and disability benefits.  In practice, in exchange for the disability benefits, a member’s retirement pay is decreased which also results in a decrease for the former spouse.  Put simply, the former spouse will receive a smaller piece of the pie than what was originally contemplated.

Until recently, Maryland and many other states, treated the award of the service member’s retirement pay as a contractual arrangement.  This permitted the former spouse to retain their agreed upon portion of the service member’s retirement pay if and when a service member obtained disability benefits or increased benefits after the divorce which resulted in a waiver of their retirement pay.  The Court interpreted the waiver as a dilution of the former spouse’s share.  Finding this arrangement unfair, Maryland Courts continued to enforce the award in the Judgment of Absolute Divorce.  In other words, the service member was still required to pay the difference.

A recent Supreme Court decision, Howell v. Howell, has changed the way Maryland and other states have treated such circumstances.  Now – regardless of what the award was – a former spouse is only entitled to receive a portion of the retirement pay even if that retirement pay is now significantly smaller.  The Supreme Court suggested that state courts consider the unreliability of the former spouse’s portion of retirement pay when making a marital award and, if applicable, compensate the spouse elsewhere.  For example, perhaps this would increase alimony or a lump sum award.

If you are a military spouse, call the attorneys at ERA Law Group, LLC today at (410) 919-1790 to ensure your rights and benefits are protected!

#FamilyFriday – Pendente Lite (“PL”) Hearings

You’ve filed an action in Court for child custody, child support, and/or visitation.  Meanwhile it’s been months since you’ve gotten financial support, visitation is inconsistent, and you’re concerned with the current living arrangements.  Your hearing date is months away or worse, not even scheduled.  What do you while you wait for your hearing? 

You’ve filed an action in Court for child custody, child support, and/or visitation.  Meanwhile it’s been months since you’ve gotten financial support, visitation is inconsistent, and you’re concerned with the current living arrangements.  Your hearing date is months away or worse, not even scheduled.  What do you while you wait for your hearing?  On this week’s #FamilyFriday article, the attorney’s at ERA Law Group, LLC want to help families understand how to obtain temporary relief by way of a Pendente Lite hearing.

When couples divorce, separate, or parent in different households many find it difficult to decide how much child support, who should pay it, when they should pay it, and what visitation schedule is fair.  In the event an agreement cannot be reached or an informal arrangement is not working, one parent is often forced take action and ask the Court to enter an Order setting child support, custody, and visitation.  Unfortunately, in many counties it could take 6 or more months until a hearing date is set to settle the issues between the parties.  In that interim period parties are often at a loss as to how to deal with support or visitation.

Pendente Lite is a Latin term that translates to “awaiting/pending the litigation.”  Maryland Courts use a Pendente Lite hearing as an opportunity to create a temporary order related to child support, custody, visitation, and/or use and possession of the marital home while the parties await the final hearing on the merits.  In highly litigious cases, this also provides a good opportunity to get a glance at the other parties’ argument in support of their case for custody, support, and/or visitation and prepare accordingly for the final trial.  In some cases, the Pendente Lite hearing also encourages the parties’ to settle their dispute prior to the scheduled trial.

In most counties the Court will ask whether a Pendente Lite hearing is necessary during one of your first appearances at Court.  If you and the other party do have an agreement or arrangement, you may not find it necessary.  If you don’t have an arrangement, aren’t seeing your child, aren’t receiving child support, etc., you will want to be sure a Pendente Lite hearing is scheduled as soon as possible.

Call ERA Law Group, LLC today at (410) 919-1790 and ask how we can help you get the relief you need as soon as possible!

#FamilyFriday – How is Child Support Calculated?

Frequently parents are confused by the child support calculation when considering their other bills and obligations.  What many don’t realize is that in nearly all scenarios the amount of child support ordered is determined by a calculator and factors such as “I have student loans” or “I have rent to pay” don’t necessarily matter.

On this week’s #FamilyFriday article, the attorneys’ at ERA Law Group, LLC want to explain exactly how child support is calculated.  Frequently parents are confused by the child support calculation when considering their other bills and obligations.  What many don’t realize is that in nearly all scenarios the amount of child support ordered is determined by a calculator and factors such as “I have student loans” or “I have rent to pay” don’t necessarily matter.

Maryland uses a Child Support Guideline formula to calculate child support.  Both parents are required to complete a Financial Statement which outlines the various components of that formula.  First, the parents identify their actual monthly income.  This would include salary, Social Security benefits, alimony, etc.  Second, the parents then identify earlier child support or alimony obligations – per Court Order – which will reduce their actual monthly income.  This is called their adjusted monthly income.  Third, if there are any work related child care expenses, health insurance expenses, or extraordinary medical expenses such as braces, those will also be identified by both parents.

Once both parties’ have identified the above, the formula then predicts what percentage of the parents combined income would have been attributed to the child(ren) had they continued living together.  This number is then used to determine the “basic child support obligation.”  The additional factors such as work-related child care and health insurance are incorporated to determine the “total child support obligation” that the non-custodial parent would be responsible for paying to the custodial parent.  Some exceptions exist, such as, if a parent receives Social Security Income, food stamps, or transitional services which would not be considered actual monthly income.

If you or a loved one need help obtaining child support for your children, call ERA Law Group today at (410) 919-1790 or visit our website at www.eralawgroup.com!