#FamilyFriday – What is Discovery?

Discovery is a process used to provide each party an opportunity to obtain evidence related to the opposing party’s case.

Advertisements

Discovery is a process used to provide each party an opportunity to obtain evidence related to the opposing party’s case.  In this week’s #FamilyFriday article, the attorneys of ERA Law Group, LLC want to describe the process, its purpose, and what you should expect.

Discovery usually takes place shortly after the Plaintiff files their complaint.  Maryland Rules allow for different forms of discovery.  The two most common forms of discovery are Requests for Answers to Interrogatories and Requests for Production of Documents.

A Request for Answers to Interrogatories is a series of questions that one party serves on another party to be answered.  Maryland Rule allows for a maximum of 30 questions to be served.  There are standard questions involving your income, assets, personal information, etc. and then there are custom questions that will specifically relate to the issue at hand.  For example, in a custody dispute there may be a specific question about why one parent refused visitation on certain dates.

A Request for Production of Documents is a series of requests for specific documents that one party serves on another party.  In responding to the request you simply state whether you have the document or will produce the document.  In accordance with those responses, you then provide the documents.  There is no limit to how many document requests you may ask.  Many of these requests are also standard and ask for documents such as your bank statements, communications between the parties, etc.  You may also ask for specific questions.  For example, if you’ve learned your spouse was cheating on you with another person, you may ask for copies of all communications with that specific person.

Each party has a right to object to any interrogatory or document request, however, there must be a basis for the objection and that reason must be stated.  For example, in any case involving children, a parties income is going to be relevant and necessary for the purpose of establishing child support.  If in this example you ask for paystubs and the other party objects, you will need to take the necessary steps to compel that party to provide their paystub.  Generally this first involves a letter demanding the production then a Motion to Compel if the production does not occur.

We often hear clients complain and say that discovery is a “waste of time” or that “s/he already knows this information” or “why do I have to answer this?”  The response to all of this information is simple; discovery is important.  Discovery allows your attorney to see what sort of items the other party is focusing on and perhaps get a glimpse into their strategy.  Interrogatories are also signed under oath and provide an opportunity to get a sworn statement of sorts from the opposing party.  Additionally, once everything is on the table it sometimes becomes easier to have a more honest settlement discussion.

If you have been served with discovery, don’t wait.  The rules only allow for 30 days to respond.  Instead, call the attorneys at ERA Law Group, LLC at (410) 919-1790 and ask how we can help you!

#FamilyFriday – Filing Exceptions

What happens if you disagree with the Court’s order for Pendente Lite relief?  What if the Court denies any Pendente Lite relief?

As previously discussed in an earlier #FamilyFriday article, the Court, upon request, will schedule a Pendente Lite (PL) hearing while the parties wait for their final hearing.  What happens if you disagree with the Court’s order for Pendente Lite relief?  What if the Court denies any Pendente Lite relief?  On this week’s #FamilyFriday article, the attorneys of ERA Law Group, LLC discuss the process for filing Exceptions.

As a reminder, 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, spousal support, and/or use and possession of the marital home while the parties await the final hearing on the merits.  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.

In most counties this hearing takes place before a Magistrate.  A Magistrate takes the place of a Judge but don’t issue Orders.  They issue Proposed Orders.  At the PL hearing, the Magistrate will hear the case presented by both parties as to why there should or should not be temporary relief and, if so, how much is fair and reasonable.  The Magistrate then states their finding and submits a Proposed Order.  After 10 days, the Proposed Order is sent to a Circuit Court Judge for a signature effectively making the Proposed Order an Order.

Why the 10 days?  At the conclusion of the PL hearing, both parties have 10 days to file “Exceptions.”  Exceptions are written reason(s) why the Magistrate’s Proposed Order should not be signed by the Judge.  For example, perhaps the Magistrate decided to award more child support than the paying party believes is fair.  The paying party would have 10 days to file Exceptions detailing why the Magistrate’s ruling should not be adopted by the Judge.

The Exceptions process is very similar to an appeal and should not be taken lightly.  There are many requirements involving the timing of the filing, the contents of the Exceptions, the timing for requesting a Transcript, the hearing, etc.  By failing to file timely exceptions or abiding by the statute, you could lose your ability to challenge the Proposed Order.

If you disagree with the Proposed Order for Temporary Relief, call ERA Law Group, LLC ASAP at (410) 919-1790 and ask how we can help you get the relief you need!

#FamilyFriday – I’m Getting Divorced: What Happens in Court?

A source of worry and concern for many clients involve what to expect when they go to Court for their divorce.  What will  my spouse’s attorney ask me?  What dirty laundry is going to be shared?  What will the Judge decide? 

A source of worry and concern for many clients involve what to expect when they go to Court for their divorce.  What will  my spouse’s attorney ask me?  What dirty laundry is going to be shared?  What will the Judge decide?  On this week’s #FamilyFriday article, the attorneys of ERA Law Group, LLC want to give an overview of what it will actually look like in a courtroom the day of your hearing.

First, it’s important to point out that no matter what sort of courtroom you’re in, some things don’t change and all parties should remember.  For example, make sure to look presentable and put together.  Remember that the Judge can see everything and will notice if you’re laughing, rolling your eyes, or make any other facial or physical gesture.  And, most importantly, be honest.

Second, getting divorced is emotional.  It often involves children, hurt feelings, betrayal, loss of love, etc.  Stay calm and be prepared to be emotionally challenged.  This is part of the process and it is to be expected.  Your attorney will be there to help protect you and make your voice heard.

Third, many times last minute settlement discussions occur.  Often this happens just minutes before your hearing.  Don’t feel pressured to take a settlement.  Listen to what is being offered, considered what you want and how far off the offer is from your wants, and speak/listen to your attorney.  If you are the one suggesting a settlement, the same considerations apply.  Make sure you can separate your feelings and emotions from the case in a way that lets you see the potential settlement in the most rational and logical situation.  If you do not want to settle, say so.  Make your attorney aware so that s/he knows to deny any potential offering and move straight to trial.

The process is the same regardless of the county, Judge, or attorney.  If you are the Plaintiff – that is the person who filed the case – you will present your case first.  This will begin with an opening statement, calling witnesses, calling you, and presenting evidence.  Your testimony is arguably the most important piece of your case.  It is your voice, your basis for filing, your argument, and proving why what you want should be granted.  To do so, your attorney will call witnesses and present evidence to further support your testimony.  Presumably these witnesses are people who will show you as a great parent, good spouse, kind person etc.  Some witnesses may also be daycare providers, employers, etc.  Other times, you may call a witness to prove something.  For example, you may want to subpoena your spouses’ lover to prove s/he has cheated.

Your spouse’s attorney will then have an opportunity to ask you and your witnesses questions.  This process is called Cross Examination.  Your attorney will object to some questions asked and/or evidence presented.  If you hear your attorney object, stop talking.  The Judge will need to rule on whether or not to allow you (or your witness) to answer the question.  Be calm and be honest.  You may feel pressured, put on the spot, nervous, etc. and that’s okay.  Remember you have an attorney and s/he is there to protect you.

After you’ve presented your case, the Defendant will be given an opportunity to present their case.  They will be able to and will likely do the same things you did – the Defendant will testify, his/her witnesses and present evidence.  Your attorney will then have an opportunity to Cross Examine the Defendant and his/her witnesses.

When the Defendant concludes their case, both attorneys will have an opportunity to present closing arguments.  These arguments are spoken to the Judge and tend to recap what happened at trial, highlight important testimony or pieces of evidence in support of their case, and ask the Judge to do grant their client’s wishes.

Once the Judge has heard both sides and collected the evidence that has been presented, s/he will likely go back into their chambers to review and make a decision.  If the case is long, has many documents, many witnesses, etc. the Judge may state that they will make their decision in writing and dismiss the parties to wait on receiving that decision.  If the Judge does make the decision that day, s/he will return to the courtroom and state their decision for both parties to hear.

For questions and to talk about your case, call the attorneys at ERA Law Group, LLC today at (410) 919-1790 and ask to schedule your FREE 30 MINUTE CONSULTATION!

 

 

#TuesdayTips: DIY Estate Documents Gone Wrong

Estate planning can be a very complicated area of the law.  Before going online to print off your documents, ask yourself, if I needed open heart surgery, would I go to WebMD to get the “how-to” instructions?  Not likely, so why go online to get the how-to instructions to complete your own estate documents? 

Did you create your own documents?

Why pay a lawyer when I can get my estate documents online for free (or at least at a lesser cost than a lawyer)?  Every estate planning attorney has fielded that question at some point or another.  My response is usually: “I love online documents…because it usually means I’ll have more work that makes more money in the future.”  After I say that, I typically get a grin across the client’s face and then they ask “why”?

Using online documents to accomplish your estate planning goals is not generally a good idea and in many cases can lead to severe consequences.  Have you ever heard the saying, “you get what you pay for”?  When you get your documents online, you don’t have the opportunity to talk to an attorney, to ask questions about your specific situation unique to only you or your family, and your documents will not be tailored to your specific circumstances.

Prior to your documents being drafted, you meet with an attorney to discuss your estate planning goals and objectives at the consultation.  My estate planning consultations usually last at least an hour if not an hour and a half.  During the consultation, we review your health status, family status and financial status all before we even mention the words “will” or “power of attorney” or “trust.”  You also have the opportunity to ask questions and receive specific answers related to your situation.  When you get your documents online, they are almost  never tailored to your specific situation.

What happens if you are a blended family?  I can almost guarantee you that the basic online Will does not address how to provide for your spouse and your biological children if you were to die first.  Many estate litigation cases arise from blended family situations where the surviving step parent does a new will after the spouse dies cutting out the spouse’s biological children from any inheritance.

What about your million-dollar IRA?  Who does that go to?  Many clients think the Will directs who gets that money.  WRONG!!  If you have beneficiaries on that IRA, then the beneficiaries listed on the IRA account receive the money and the beneficiaries named in the Will get none of it!  So many people believe the Will controls everything, and unfortunately, if you get your documents online, you will not be educated on what happens to each asset that comprises your estate.

What if you own property in multiple states?  Chances are you were not advised by the online website that you will have to likely do probate in each state you own property.  To avoid this common situation, often times estate planning attorneys will employ trusts so that ownership of those properties are consolidated into the Trust.  That way, upon the death of the owner, the Trustee can sell the properties and does not have to go through the probate/ancillary probate process in each state the Decedent owned property.

Estate planning can be a very complicated area of the law.  Before going online to print off your documents, ask yourself, if I needed open heart surgery, would I go to WebMD to get the “how-to” instructions?  Not likely, so why go online to get the how-to instructions to complete your own estate documents?  Instead, call ERA Law Group, LLC at (410) 919-1790 today!

#TuesdayTips: Financial Powers of Attorney – To Be or Not to Be?

The purpose of most powers of attorney is to authorize your named agent to act on your behalf when you are incompetent or unable to make decisions yourself.  So, if your plan is to wait until you need the power of attorney before talking to your named agent, likely, it is too late.   

That is a valid question.  One that is not pondered enough and often results in a family member being thrown into a position of great responsibility without any direction or idea how they are to act or what they are to do.  In fact, most people sign power of attorney documents naming someone, but then never tell them or have a conversation with that person about what will be expected of them.

Instead, they leave the attorney’s office feeling relieved that they have a plan in place in the event something happens to them, and as soon as they get home, shove those documents into a filing cabinet, drawer or safe (not even telling anyone where they are located), knowing that when the time comes, they will let the named individual know.  Except, the purpose of most powers of attorney is to authorize your named agent to act on your behalf when you are incompetent or unable to make decisions yourself.  So, if your plan is to wait until you need the power of attorney before talking to your named agent, likely, it is too late.

The conversation needs to happen before naming anyone as your power of attorney so you can pick the right individual for the job (and it is a job, make no mistake).  Generally, a financial power of attorney authorizes your agent to manage your finances, and specifically itemizes everything your agent is allowed to do on your behalf.  However, a power of attorney does not list your assets or provide instructions regarding how those assets should be managed.  Only you know that.

 

Thus, it is imperative that you let your agent know about every asset you own – real estate, personal property, bank accounts, mutual funds, stocks, bonds, life insurance policies, retirement accounts, trusts, etc.  Where the assets are located, what company or institution holds them, how they are titled, and their values also should be disclosed to your agent.  Your agent should also know your sources of income and when you receive your income so they can pay bills accordingly.

Additionally, you should tell your agent what your wishes are in the event you require long-term care.  Do you want your assets used to keep you at home, or would you want them preserved for your beneficiaries?  Either way, your agent will be in charge and if assets need to be liquidated, are there certain assets that he or she should liquidate first?  These and many more decisions should be made and discussed with your power of attorney.

Being a financial power of attorney requires a lot of organization, work and time.  It is a commitment that cannot be taken too lightly.  You should choose a power of attorney that is trustworthy and has the time available to devote to managing your assets.  And please, make sure your power of attorney knows what you have and what you want done with it.  Call ERA Law Group, LLC today at (410) 919-1790!

 

#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!