#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? 

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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!

 

 

#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!