Frequently Asked
Questions About Child Custody in Maryland
The question of
"Who gets custody of the kids?" is one of the most difficult and
often the most emotionally draining both for parents and their
children, when spouses divorce.
Custody and visitation are the
legal terms in court ordered determinations of which parent the
child lives with and the conditions for the child to visit the other
parent. Custody and visitation are never considered to be
final.
In Maryland, the law does not favor either the mother
or father. Rather, they look to the relationship of each parent with
the child. While grandparents and others may seek custody, there is
a presumption in favor of the natural parents. This section is
designed to give you a general knowledge of the issues involved in
determining the parties custody and visitation rights.
When should you have an
attorney?
In the event that you have a
highly volatile, hostile or contested custody issue you should seek
out a lawyer to represent you. Additionally, if the other parent is
using the services of an attorney, it is advisable that you also
have an attorney. The Court of Special Appeals has held that
representing yourself is not a good enough excuse for not answering
a motion by an attorney of the opposing party.
Jurisdiction
Jurisdiction is the imaginary
fence that separates the subjects one court hears from another.
There are two types of jurisdiction: personal and subject matter.
The court must have both types of jurisdiction to hear a case.
Personal jurisdiction, the power to require a person to appear in
court, is discussed in the Service of Process section of this Web
site. The Circuit Court is the court in Maryland with jurisdiction
to hear matters of Custody and Visitation. To have jurisdiction over
your specific custody or visitation case the court will require one
of the following:
Maryland is the home state of the child (lives in
state, goes to school in state) and the parent has sufficient
contact with the state (works, votes, lives, pays taxes in
Maryland).
Maryland was the child's home state within the last
six months and the parent filing for custody continues to live in
Maryland and the child is absent from the state because another
person took them out of Maryland claiming
custody.
The child and at least one of the parents have
significant connection with Maryland (live, work, go to school here)
and in Maryland there are more records and witnesses to give
evidence of the child's present or future care, protection, training
and personal relationships.
The child is physically present in Maryland and was
abandoned or emergency protection is necessary (the child was
threatened or subjected to abuse or
neglect).
No other state would have jurisdiction based on 1,2,3,
or 4 above.
Another state says Maryland has
jurisdiction.
Child was removed from Maryland and the Uniform Child
Custody Jurisdiction Act does not apply and no other state has
jurisdiction, then Maryland will have jurisdiction
if:
Maryland was where the married couple lived, paid
taxes, voted, etc., but the parents are now currently separated or
divorced or Maryland was where the marriage contract was last
performed.
One parent is a resident of Maryland and was a
resident when the child was removed.
Court has personal jurisdiction over the parent who
has removed the child. The Uniform Child Custody Jurisdiction Act
(UCCJA) has been adopted by Maryland, as well as the other 49
states. This act gives jurisdiction for custody cases to the
location that is most closely associated with the child. Within
Maryland, the Circuit Court has jurisdiction to hear child custody
cases. That court has the power to override any agreement if they
believe the agreement is not in the best interest of the child. If
you do not understand what you have just read or are not sure if the
court will have jurisdiction to hear your case, you should consult
an attorney.
Unmarried Cohabitants
If the parents are unmarried,
the child is the child of his/her mother. In order for the father to
assert rights to the child (including rights to custody or
visitation), paternity must be admitted or established in
court.
Paternity
Paternity can be established
by:
judicial determination of
paternity;
father's acknowledgment of paternity in
writing;
father's open and notorious recognition of the child
as his own;
or by marrying the mother and then acknowledging
himself as the father, either in writing or
orally.
In order for a father to bring suit to establish
paternity by judicial determination, he should file an action for
"filiation"; but, this is not required to seek custody if any of the
other three methods has established paternity. Once paternity is
established, neither party will be given a preference based solely
on the gender. The Domestic Relations forms do not cover paternity
actions. If you are seeking to establish paternity, consult an
attorney.
What if we agree about custody and
visitation? Custody Agreements
If you and the other parent
have already come to a fair agreement on the custody and visitation
issue, you may want to write your own stipulation and consent order.
A stipulation is a statement of the settlement that you have
reached. It is accompanied by a consent order for the judge to give
the agreement the power of a court decision. If you choose to go
this route, you and the other parent should be as specific as you
can to avoid future conflicts.
Who has legal custody?
Which holiday does the child spend with
you?
What time and where may the other parent pick the
child up?
What time should the child be returned
home?
What is the procedure to follow if either of you are
running late and won't be there on time?
How much notice should you be given if they are
planning a vacation?
How far away may the other spouse
move?
What you might think you can figure out as you go
along could actually blow up into a full scale war
later.
The Stipulations should state everything that you have
agreed upon. You should not rely on any oral promises. If you both
agreed on it, write it down (no matter how trivial it may seem now).
Your agreement should be included with your Complaint for Custody
(Dom. Rel. 4), Complaint for Visitation (Dom. Rel. 5) or Complaint
for Divorce (Dom. Rel. 20 or 21). Additionally, you should be sure
to read this full section before proceeding in order to avoid having
your stipulation and consent order ignored by the court or giving
away rights of which you were unaware.
What if we disagree about custody and
visitation?
What does the word "custody"
mean?
legal v. physical?
joint v. sole?
shared?
Temporary Custody
De facto (means in fact)
custody refers to who actually has custody of the child at this
time. This does not carry the weight of the court behind it. In
order to formalize custody before you begin litigation, one should
file a motion for Pendente Lite (meaning pending litigation) or
temporary custody.
Temporary custody is subject to review based on the
"best interests" of the child standard, to be discussed below. It is
not an "initial" award of custody because it is understood to be
temporary pending a full hearing. In order to be awarded temporary
custody you must file a request for hearing and an order for
temporary custody and support (Form Dom. Rel. 51) along with your
Complaint for Custody or Divorce.
Sole Custody
Custody is made up of: legal
custody and physical custody. A person with legal custody has the
right to make long range plans and decisions for the education,
religious training, discipline, non-emergency medical care and other
matters of major significance concerning the child's welfare. A
person with physical custody has the child living primarily with
them and they have the right to make decisions as to the child's
everyday needs. Sole Custody is when both legal and physical custody
are given to one parent. The child has only one primary residence.
Split Custody
Split custody is easiest to
describe in a situation where there are two children and each parent
obtains full physical custody over one child. Some of the
considerations that may bring about this result are age of the
children and child preference.
Joint Custody
Joint Custody is actually
broken down into three categories. Joint Legal custody is where the
parents share care and control of the upbringing of the child, but
the child has only one primary residence.
Shared Physical Custody
In Shared Physical Custody the
child has two residences, spending at least 35% of their time with
the other parent. Additionally, you can make your own special joint
custody agreement that is any combination of Shared Physical and
Joint Legal Custody. One example of this is when there is one
residence for the child and the parents live with the child there on
a rotating basis. In order to assure the best interests of the child
the court looks very closely at Joint Custody
agreements.
The most important factor to Joint Legal Custody that
is also very relevant to Shared Physical Custody is the ability of
the parents to talk about and reach joint decisions that affect the
child's welfare. If you are constantly fighting over what religion
or what school, the court may strike down your agreement. Other
factors include: willingness to share custody; fitness; child's
relationships with parents; child's preference; ability to stabilize
child's school and social life; closeness to parent's homes
(primarily a factor during the school year) ; employment
considerations (e.g. long hours, extensive travel, etc.); age and
number of children; financial status; benefit to
parent.
Additionally, the sincerity of the parties involved is
important. The court will want to make sure that joint custody isn't
being traded for concessions on other
points.
Another consideration is whether the grant of joint
custody will affect any assistance programs. Currently, AFDC and
Medical Assistance are affected based on the award of Joint Legal
Custody. Be sure to check with your contact at any social service
agencies before entering into an agreement or you may be
jeopardizing your benefits. This list is not meant to be exhaustive
and the court will hear anything that they believe to be relevant.
The Best Interests of the Child -
Standard
Regardless of any agreement
you may have reached, the court's standard for initially awarding
custody is to determine the best interests of the child. In order to
do this they look at several factors. It is important to remember,
though, that no one factor carries any more weight than any other.
The following list is some of the factors, but not all, that courts
will consider.
Primary Care Giver
Who is the person who takes
care of the child? Who feeds the child, shops for their clothes,
gets them up for school, bathes them, and arranges day care? Who
does the child turn to when they get hurt?
Fitness
What are the psychological and
physical capacities of the parties seeking custody? The court may
also consider evidence of abuse by a party against the other parent,
the party's spouse, or any child residing within the party's
household (including another child).
Character and Reputation
Agreements
Is there a custody stipulation already drawn
up?
Ability to Maintain Family
Relationships
Who will be able to keep the
child's family most intact? Who is going to let the child speak with
their ex-mother-in-law, for example? Who will not penalize the child
for any adverse action on the part of the other parent. Child
Preference The decision of the court may be considered reversible
error if they won't hear the child's
preference.
However, the court has the discretion to interview the
child out of the parents' presence. A child as young as 5 or 6 years
of age may be heard. Though it is rare the court will hear from a
child under 7 years, the child's ability to tell the truth from
fiction and maturity will be the guidelines for whether a child may
be heard. A child of 10 or 12 years of age is certainly entitled to
have their opinions heard and given weight in legal proceedings
about custody. Additionally, the court has the power to appoint an
attorney for the child in contested cases.
Material Opportunity
Which parent has the financial
resources to give the child more things? What is the Age, Health and
Gender of the Child?
Residences of Parents and Opportunity for
Visitation
How close do the parents live
to each other? How close do they live to members of the child's
extended family? Which parent lives closest to the child's school
and social circle?
Any Prior Abandonment or Surrender of
Custody
Is there a history of one
parent walking out and leaving the other parent to cope with the
child and the home? Which parent left when you last broke
up?
Religious Views
These will bear on the court's
decision only if shown to affect the physical or emotional well
being of the child.
Visitation
Visitation is the part of the
court order that defines the conditions for the non-custodial parent
to have contact with the child. Visitation is limited by legal
custody being vested in the other parent. This means that your
visitation does not give you the authority to conflict with the long
range decisions and policies of the parent with legal
custody.
For example, if the parent with legal custody has
decided to raise the child in the Jewish tradition, the parent with
visitation rights may not take the child to be baptized in a
Catholic church. There are no reported cases of a court honoring
complete denial of visitation for a parent. Even in cases of abuse,
the only reported cases have upheld supervised visitation.
Supervised
visitation
Supervised visitation
is when the parent is only allowed to visit with the child in the
company of another person. This person is usually a friend or
relative that the two parents agree will be allowed to act as a
chaperon. Supervised visitation often calls for a restriction of
visitation to a particular location and
time.
Who can be awarded
visitation?
Obviously a biological parent
can be awarded visitation. Additionally, grandparents (even when the
parents weren't married or are not currently divorced) and
step-parents may be awarded visitation rights. While there are no
reported cases of brothers or sisters being given visitation, a
strong argument could be made that it would be in the best interest
of the child.
When can visitation be
denied?
The court has the power to
deny visitation. Normally the court will only stop visitation for a
certain time or until a certain task is performed. For example, the
court has previously stayed visitation until the parent met their
financial obligation. If your spouse should deny you court ordered
visitation, you first file for a modification of visitation for a
more definite schedule, before filing a contempt action. (Dom.
Rel.3). Many parents feel they have the right to stop paying child
support, but they are wrong. Withholding of child support will only
get you in trouble and possibly arrested.
When the Custody Order Agreement is
Violated
People go into courthouses
everyday telling clerks that the parent has not returned the child
at the scheduled time following visitation and they don't know what
to do. When a custody order is violated the law requires the
custodial parent/lawful custodian to first demand the return of the
child.
If the child has actually been stolen by the other
parent you should report this to your local police department
immediately. The FBI can be called in to find the fugitive parent
and the child as well. The only exception to this rule is when the
child is in clear and present danger (the victim of abuse or
abandonment) requiring the noncustodial parent to save them. The
noncustodial parent must be ready to prove this clear and present
danger and they are required by Maryland law to file a petition
within 96 hours. In that event, both parents will need a lawyer.
Once an incident like this has happened, you may want to consider
modifying the custody order.
Modification of Custody
When a parent seeks to have
the custody order changed, it is his/her burden to show the court
why it should be changed. The court follows the old notion of, "if
it isn't broke don't fix it." This is based on the idea that
stability is best for the child unless you can show that there is
something in the environment that will adversely impact on the well
being of the child. This is not as simple as it may seem. The
factor(s) in the environment have to not just make your home as good
as the custodial parents, but better. To do this you must show that
there has been a substantial change in circumstances and that it is
in the child's best interests to make the change you are proposing.
If the two homes are thought to be equal, then custody will stay as
it is.
Remember, a temporary or pendente lite custody order
is not a final order. You would not be required to show a
substantial change in circumstances to have custody changed in the
"permanent" custody order. A child at least 16 years of age can seek
a change in custody on change of custody would be in his/her best
interests at this time. The court that made the original custody and
visitation order retains jurisdiction to decide modification unless
the parties and child no longer have close ties to the court and the
court surrenders its jurisdiction. However, the court with original
jurisdiction may refuse to hear the custody case if a child has been
wrongfully taken from another state or taken without the consent of
the person entitled to custody.
What's A Motion Hearing? The first hearing generally happens
almost immediately. I mean REALLY immediately. You have 28 days to
file an answer after you are served, but you may have only seven
days to file a response to a request (it's called a MOTION) for
temporary relief: you really have less than that to file the
response, the hearing itself can be seven days after you are served.
These "little" hearings are called MOTION hearings, and they are
presumed to be small little hearings (very different from a trial:
no testimony is generally allowed) to resolve small little problems,
presumably based upon things that "no reasonable person could
dispute". Well, of course, people DO dispute some of the things set
forth, and, when there is an honest dispute, nothing much gets
accomplished at a motion hearing. When there is not a reasonable
dispute, however, orders get entered, because they SHOULD be
entered: there is no reasonable dispute about the facts claimed by
the moving party, and the moving party is entitled to the relief, so
why not give it to him now?
I have to get a little technical with you to properly explain how
this stuff works: it can't be helped. Just bear with me. At a trial
(and thank goodness, we all saw the O.J. Simpson trial, so making
this point is now easier) things are long, technical, boring, and a
real mess: witnesses get to drone on and on, lawyers (dontcha love
'em?) get to drone on and on, judges drone on and on (how
unusual...) and it's going to be FOREVER until it's actually over.
Hmmmm, problem here, eh? Oh, but wait! Not only is it going to be
forever until it's over, IT'S GOING TO BE FOREVER UNTIL IT ACTUALLY
STARTS! Yep. You, my friend, are entitled to a trial. You have a
real dispute here, and you've paid your filing fee, and therefore
the whole court system is available to you. Independent judge,
competent, efficient staff, roomy, air conditioned courtroom, the
whole works. We're going to put your name on the list for trial,
first come, first served (meaning that the oldest case gets tried
first). Well, now that we've got you on the list, when are you
actually going to get access to that courtroom, in order to DO your
trial? Fourteen months from now. Really. A year and two months from
today. The judge is going to be hearing a trial today, and he does
every day, and that trial was scheduled over a year ago. It takes
that long to actually get to it, given the crush of business that
the judges have to contend with. It's a legitimate delay. In most
jurisdictions, there aren't enough judges and courtrooms to go
around. So write to your state legislator, and tell him (or her) to
please raise your taxes, and spend that money on more judges and
courtrooms. After you do, they probably will. Until you do, they
probably won't. So what about a LITTLE dispute, that could be
resolved now? Oh, and by the way, it really NEEDS to be resolved
now. Isn't there any way to get a little 'face time' with the judge,
other than waiting until next year? What about next month? Or next
week? The judges have dealt with that, and have set aside one day
(or, in smaller circuits, one half of one day) each week, for MOTION
HEARINGS. These little mini-hearings are designed to resolve smaller
disputes, on the assumption that a big trial isn't necessary to
resolve some disputes, and further, that some disputes literally
can't wait for a trial date to get resolved. Let me give you some
rules that generally apply, then I'll give you some examples of what
gets resolved at a motion hearing. Keep in mind these rules are
deliberately restrictive: we're weeding out only those cases where a
trial probably wouldn't be necessary (which is to say, waiting for a
trial wouldn't do any good, so why wait?). Rules: 1. If the facts
are not in dispute, but the facts can be agreed upon, and the facts
are brief, and all we need is a judge's decision, we can ask for a
judge's decision now as to those stipulated facts. 2. If the law
were one way, one party would win. If the law is the other way, the
other party would win. We all know that. We don't however, know
which law applies in this fairly simple situation. We need a ruling,
not as to what the facts are, but as to what law applies. If the
judge could give us a ruling as to which law applies, the dispute
would be resolved, because we can figure out who will win, after
that. 3. If testimony needs to be taken, if there is a reasonable
dispute as to the facts, you're outta here. You will wait until the
court can provide you with some time to do a hearing, and then the
court will, at that hearing, listen to everybody, be fair to
everybody, and make up its mind. But not now. Then the lawyers got
creative, and this last one developed: 4. We asserted a right to
relief, and they asserted a defense which might make you think that
a hearing is required. BUT THEY ASSERTED A DEFENSE THAT ISN'T
RECOGNIZED BY THE LAW. We want a ruling, now, that their defense
isn't valid, and THEREFORE, after their defense is stricken (crossed
out) we are entitled to a ruling now. We really qualify under Rule
#1, above, as soon as you strike out their defense. So listen,
judge, on the question of whether you ought to strike out their
defense, and THEN grant us our order. And don't forget the most
important rule, from the judge's point of view: YOU WILL BE BRIEF.
Don't take all day, because the judge won't let you take all day.
There are a lot of people waiting who ALSO want some time on motion
day, with little problems, and ALL OF YOU are going to be brief, or
we'll never get through this. So be brief. If you've read this far,
you know that this is a long chapter. I'll try to come back and put
in some examples of each of the types of motions mentioned above.
Watch for the changes. Meantime, our next chapter is on the
'temporary hearing', which is really a motion hearing. And now you
know a little something about motion hearings. Good luck with it.
What's A Temporary Hearing? How Temporary Is It? The Temporary
Hearing is more correctly called the Temporary Custody Hearing, or
the Temporary Support Hearing, or the Temporary Relief Hearing,
because that's what is decided at the hearing, most of the time. The
name gets shortened by common usage, and it's referred to as the
Temporary Hearing. Remember this: IT'S NOT TEMPORARY AT ALL! It's
referred to as temporary, as in "Let's set up some temporary spousal
support, so the spouse gets some money now, each week, and that will
keep things quiet until the trial." True, there may be a need for
some spousal support, but the active words here are "until the
trial". Since you now know that the trial is fourteen months away,
what happens at that temporary hearing is going to be operative
(well it CAN be changed, but it's a real pain) for the next several
months, while you're waiting (and waiting) for your trial date. If
your lawyer tells you "we can agree to this spousal support figure,
it's only temporary..." you might consider getting RID OF that
lawyer. If your lawyer tells you "Well, here's the figure. Now this
is important, because it's going to continue until we get a trial",
well, then, you've got an honest one, so be sure to pay her bill:
you don't want her to quit. Competent lawyers are worth keeping.
Here's a list of common requests for "temporary" relief (there may
be more, depending on how imaginative your lawyer really is:
remember, you need to fit within the rules that we've already
discussed, or you can't get the relief): 1. Request for temporary
custody of minor children, and request for temporary child support.
2. Request for exclusive use of the marital home.(Or, in some cases,
request for an order OF SALE of the marital home). 3. Request for
exclusive use of motor vehicle. 4. Request for injunction ordering
that Defendant leave the Plaintiff on the health insurance as a
beneficiary thereof.This motion will succeed: it's reasonable. Look?
5. Request for injunction that neither party have access to the
joint investment/brokerage account until the further order of the
court. 6. Request for Personal Protection Order, directing that
defendant not come within 500 feet of Plaintiff, nor her residence,
nor her children.This motion won't succeed: it's not
reasonable.Look? 7. Request for award of attorneys fees. 8. Request
for spousal support. 9. Request for Friend of the Court
investigation, and recommendation, as to custody, support,
visitation, or CHANGE in custody, support, or visitation. And, in
some cases, you get ALL OF THE ABOVE, AND MORE. Remember, the ruling
here is going to last UNTIL THE TRIAL. If you want that ruling to be
in your favor, or along terms you can live with, you'd better spend
some time with your lawyer, have him/her file an appropriate
response to the other sides request (or file YOUR request with
enough detail and supporting documents), and get your facts
straight, prior to the hearing. Get your lawyer prepared. The lawyer
is brand new to this case, and doesn't know everything you do.
Inform your lawyer of the relevant facts (he or she will probably be
doing most of the questioning), but don't bore him to tears with
trivial detail. After all, you're paying by the hour.
But at the hearing, when your lawyer starts talking, or when the
other lawyer starts talking, it's too late to change direction, for
the most part.(Although I've seen lawyers change direction in
mid-argument faster than Dennis Rodman reverses after he grabs that
rebound, when they think it helps the client: half a loaf is still
better than none). Plan on attending the temporary hearing, along
with your lawyer. While you observe the arguments ahead of or behind
yours, you'll get a feel for just how your case is fitting in,
compared to the rest. You'll also see what the judge does for a
living, which is basically listen to a bunch of pain-in-the-ass
lawyers argue for a bunch of pain-in-the-ass people who are trying
to maintain unreasonable positions. You'll also see a great deal of
"street justice" dished out. The judge has to make snap decisions,
after five minutes of argument, that will affect people's lives for
the better or for the worse, and it's all a matter of public record,
and it's all done right there in front of God and everybody. And the
courtroom's packed. There must be forty different motions up for
today, which means about eighty lawyers (although many of the
lawyers are there on more than one case: more on this later), and
eighty litigants, sitting there waiting. "ALL RISE..." Good luck
with it. What Is "Street Justice"? Isn't There Some Legal Standard?
The term "street justice" doesn't mean anything, really, it's just a
term I used to try and make a point. The reference to "street
justice" is to that stereotype of police movies, like Dirty Harry,
where Our Hero Harry takes mostly non-legal "shortcuts" to expedite
things, like the promotion of the interests of justice, The American
Way (I guess that was Superman, wasn't it?), and Getting The Job
Done. Sometimes judges have to do the same thing. Well, all right,
not THE SAME thing, but MAYBE SOMEWHAT SIMILAR things, like
procedural shortcuts, in order to Get The Job Done. These things can
have an impact on your case, and thus on your life. How much impact
do these things APPEAR to have? Very large. How much impact do these
things REALLY have? Very small. In our last chapter, you saw the
motion to reinstate insurance (filed by Mrs. Jones) and the response
(filed by Mr. Jones) and you heard what the judge had to say about
it. That was an example of "street justice", or a procedural
shortcut, that was done to expedite things. You should take the
following lessons from that example: 1. Doing something like
cancelling the other party's health insurance is serious enough that
the judge will find some time to deal with it right now, before the
trial, in a summary manner, like at a motion hearing. 2. The judge
has some informal rules to help him get these cases managed, and one
of them seems to be "don't mess with the other party, just for the
sake of messing with him", and further, Mr. Jones seems to have
violated that rule, and the violation got corrected, by the judge,
pretty quickly. You should NOT take the following from that example,
because these are NOT TRUE: A. Mr. Jones has to keep on paying those
bills. (No indeed, the judge didn't rule that at all.) B. Mr. Jones
is out a bunch of money, because when we finally get to trial, he
will have paid those bills for a year or so, and they might not
exist anymore. They might be all paid off. (No. The judge will
listen, at trial, to this testimony, and the judge will make the
appropriate adjustment to each party's property. But the judge isn't
going to do that right now. It has to wait until trial, or at least
wait until the attorney for Mr. Jones brings the issue back before
the judge for a motion hearing. If she does, you'll note that the
judge gave her a big hint: don't just claim that your client is
unhappy, show me that the lady has an ability to pay. There's a
difference, isn't there?) C. The judge isn't willing to listen, he's
got his mind all made up, and that judge is prejudiced in favor of
[the other side: you can insert "men", or "women", or
what-have-you]. (No. The judge is willing to listen to tales of woe
about bills, but not today. Today, for those that don't get the
point yet, is the day that we fairly quickly establish whether or
not Husband cut off Wife's insurance in order to save eleven bucks a
month, and, if he did, what are we going to do about it? The answer
isn't that tough to figure out.) The point is that the judge, in a
divorce case, is generally overworked, and, in the interests of
justice, really, in the interest of trying to maintain a system of
justice that will actually work, that judge has to shoot from the
hip a lot. And he does. Usually with pretty good results, if by
pretty good results you mean "fair". Fair to everybody, equally.
THERE IS A LEGAL STANDARD THAT DICTATES WHAT THE JUDGE CAN AND
CANNOT DO. The judge is obligated to follow the law in a divorce
case. That state law, or state statute says (here in Michigan):
"...The judge, in a divorce case, will divide the property of the
parties equitably..." and that's all it says. That's the extent of
the requirements of the law, as far as the statute goes. (I'll try
to post here the exact wording of the statute, so watch for it.) Now
we know that "equitably" means "fairly", and that's the full
description of the judge's obligation. He has to divide the property
of the parties FAIRLY, and that's what he's attempting to do. In the
child custody statute, for instance, the legal standard is much
different, but in the divorce area, a judge has one job. Be fair to
each party. He has a lot of discretion that he can exercise in
trying to get that job done.
You can even appeal a judge's ruling, and take the case to the
Court of Appeals, or to the Supreme Court. Those judges will review
the transcripts (they don't hear testimony, and they don't consider
things that the trial judge wasn't told. Just the transcripts. More
on this later.) of the case and ask themselves "Did this judge abuse
his discretion? Was he being fair to each party?" In this case, I
hope that the point is made, the judge is trying to be fair, whether
or not Mr. Jones would agree with me. Some things have to wait for
later determination by the court. Some things don't. Cancelling your
spouse's health insurance, so you can save eleven bucks a month, is
something the judge can deal with today. What Happens Next? The Calm
AFTER The Storm Well, it's been a interesting few weeks, eh? You
have lived through the final breakdown of the marriage, and then the
filing and serving of the case, maybe met a brand-new lawyer, and
have endured the stress and contentiousness of the temporary hearing
or some motion hearing. You're an emotional and financial wreck, but
you made it. What happens next? Maybe nothing, for a little while.
When things start happening again, it won't be at the same frenetic
pace. For now, take a little break. That's what the system has more
or less designed in for you. At this point, both parties need to get
used to things, which is why this pause in the process is here. You
(and your soon-to-be-ex) need to get used to the new living
arrangements: there is an excellent chance that someone has moved,
or is planning to move. Let's get the personal property divided (she
gets the VCR and television, he gets the stereo, etc.) and settle in
for a little bit. The kids are with one party or the other at all
times, but not with both at the same time, and they need a little
time to settle in as well. Help them through all this. The finances
are a mess. You may have a big new deduction from your check each
week, called an income withholding order, which sends your support
to the Friend of the Court for forwarding to your soon-to-be-ex. Or,
you may be the one waiting for that check to arrive in the mail (or
be deposited into your account. Friend of the Court doesn't like
writing and sending checks, they're going to start an
automatic-deposit system) each week. Start getting used to it, it's
going to continue for quite some time. Visitation problems, if they
are going to occur (and there are some families that go through
divorce with ABSOLUTELY NO VISITATION PROBLEMS, but not many) will
surface now, and need to get resolved. Resolve those problems the
same way you do the other problems throughout this case: BE
REASONABLE. You are entitled to a hearing, in front of the judge, on
those issues that can't be resolved. If it needs to be resolved
right now, your lawyer can file a motion and get it done, unless it
involves the taking of testimony, which means that it will wait
until the court can get you a hearing. In addition, we know that
motion hearings tend to be a little rapid, a little superficial, as
we saw back in Chapter 8. The judge tends to sit up on that bench,
and say to himself "Who's not being reasonable here?". And he
should. You just make sure that when he asks that question, the
answer isn't YOU. While we're on the subject of "reasonable" (and we
will be, for the duration of this project) ask yourself, and your
attorney, as to EACH issue, "Can we get it settled without going to
court?" That new attitude, that new feeling, that new procedure, is
something that takes a little getting used to, and that's what this
lull in the proceedings is for, to allow both parties to make the
adjustments necessary. There is a waiting period, by law, before a
divorce can go through and become final. If there are no children,
the waiting period is sixty days. If there are children, then the
waiting period is six months. The government, as a matter of public
policy, wants parents to think about things a little longer before
they go off in separate directions, if there are kids involved. Not
a bad idea. In addition, the waiting period will vary from state to
state. I understand that the attraction of Nevada, as a place to get
divorced, was that its residency requirements (prior to filing) and
its waiting period (after filing) were quite small. You go to Las
Vegas, you move into the Flamingo Hotel, you wait ten days,
congratulations. You're now a Nevada resident, and can file for
divorce, and serve your spouse by mail. If your spouse doesn't show
up, you get divorced anyway. It's over. There are complications (the
Nevada judge can't award you any Michigan property, for example.
You are divorced and awarded whatever personal property is in
your possession, by and large.) In any event, your attorney, in your
state, will know what your state's requirements are. That's what the
pause in these proceedings is all about, using up some of the
waiting period. But there are still things to do, and your lawyer is
going to want to get started, after some period of time. You will
probably have a conference with the lawyer, and be asked "What would
it take to settle this case?" Or, you will be asked "Would
counselling save this marriage? Do you even WANT to save this
marriage?" YOU answer for YOU. Nobody wants, not the judge, not the
attorneys, not the court clerk, nobody, wants you to get divorced,
and nobody wants you to stay together. It's between you and your
spouse, and that's that. As to anyone else, it's not their business.
If the focus becomes giving one last shot at saving the marriage,
the lawyers will assist in agreeing on a counselor who may help. If
the focus becomes continuing with the divorce, there are still a few
things that need to be done. The principal things that need to be
done, in order, are: 1. Discovery. 2. Attempts at settlement. 3.
Preparation for trial. 4. The trial itself. We'll be dealing with
these subjects next. If you're at this point in a real divorce
process, you might get that phone call, from your attorney, who
advises "Well, I telephoned the other attorney, and sent along the
message that we'd still be interested in having some counselling,
maybe saving the marriage. After checking with the client, the
lawyer called back. I'm sorry, but they're not interested. You'll
have to come in and see me, we've got some work to do. You're going
to get divorced, and we've got to prepare for the trial." What Is
Discovery? It's a legal term, referring to a PROCESS, rather than an
event. Discovery is that series of things that you do to, well,
DISCOVER what you want to know from the other side. It takes months,
and several different procedures are available to you during the
discovery process. Those same procedures are available to the other
side. The other side would be nuts to settle the case, without
getting all the information first. YOU would be nuts to settle the
case, without getting all the information first, wouldn't you? The
discovery process is how you find out that information, and how you
provide similar information to the other side. Several different
discovery tools are available to you and your lawyer. You may have
heard of some of them, and I haven't listed them all here, I'm just
trying to give you an overview of the process: 1. Depositions. This
is where you can call a witness, and take that person's testimony,
under oath. Only it's not done in a courtroom, its done in your
lawyer's office. A court reporter is present, and transcribes
everything, or, nowadays, a video crew is present, and videotapes
everything. This can save a lot of time, and can accomplish two
things very well: locking down someone's testimony, to the point
that they won't have to appear at the trial, and/or obtaining
information that you didn't have before. 2. Interrogatories. These
are written questions, as opposed to verbal questions, submitted to
a party to the lawsuit (the PARTIES to this lawsuit are the
plaintiff and the defendant. You and your soon-to-be-ex). The
questions have to be answered under oath. It's not uncommon to see
twelve pages of questions submitted in a divorce or custody case,
and every question has to be answered. It's a real pain, but it does
have one advantage: almost all the information you need is now
contained in one place, and that's the ANSWERS TO INTERROGATORIES
that are provided in response to the questions. 3. Request For
Production Of Documents. This document is titled as a "request" but
that's just to be polite. It's really a "demand" for production of
documents, and it's directed to the other side, to obtain copies of
documents that they have, but that you want. You're entitled to
those documents, and this is how you get them. 4. Subpoena "Duces
Tecum". Don't get hung up, or intimidated, by the Latin words. The
Latin means, more or less, "for things". So it's a subpoena for
things, as opposed to being a subpoena for a person. (You might as
well learn how to pronounce the thing as well: here we go. "duces"
is pronounced just like the playing card, the deuce, if you have
more than one of them. I have two deuces, and three trays, for a
full house. "tecum" would be better spelled if it was tekum. Try
this: in our hi-tech world, you can make a hi-tech assault on your
enemies? Just TECH 'EM. Deuces Tek 'em. You've got it.) This
subpoena is delivered (served) on someone, or something (like a
bank) that is NOT a party to the lawsuit, usually for copies of
records that are maintained by that person or business ("Dear bank:
send over copies of all of John Jones' bank statements for the last
three years").
5. Requests For Admission. This one is really neat. You send over
to the other side a "request" that they admit something (a fact, not
an opinion) is TRUE. They HAVE TO ADMIT IT, IF THEY KNOW IT'S TRUE.
Oh, and if they DON'T admit it, and you have to go to the trouble
and expense of proving that it's true, THEY HAVE TO PAY ALL OF YOUR
FEES that you expended in proving that the fact was true. Including
the attorneys fees, by the hour.
Of course, the same thing applies to you. Let's suppose that you
get served, though your lawyer's office, a Request For Admission:
Defendant requests that the Plaintiff admit that she has eighteen
years of service, for purposes of computing her retirement benefit.
You answer back "Plaintiff does not admit that she has eighteen
years of service. Plaintiff hired in with Genesee County, as a park
ranger, in 1985. This year is 1996." And, of course, your statement
"Plaintiff hired in with Genesee County in 1985" is a true
statement, as is the statement that this very year is 1996. What
happens next? 1. The other side schedules the deposition of the
Genesee County Personnel Director, and demands (by delivering a
subpoena duces tecum) that he bring all of his records that bear
your name to the deposition. 2. The other side hires a court
reporter to attend the deposition, which she does, and she
transcribes everything said, and prepares a written transcript. 3.
The other side asks the personnel director to describe his job, his
duties, what kind of records he maintains as part of his job, and
then they ask him "Does Genesee County have some sort of program
where an employee can "buy back" time that was served in the
military service of this country, so that an employee could retire
sooner than twenty five actual years on the job?" 4. The personnel
director says "Yes, we do". 5. The next question: "Has the Plaintiff
utilized that program? And if so, how?" 6. The answer: "Well, the
Plaintiff served in the military for seven years, from 1978 until
1985, when she hired into Genesee County. She paid a fee of two
hundred dollars, four years ago, and exercised her right to "buy
back" that military time. For all intents and purposes, she has
eighteen years of service with Genesee County, and she will be
eligible for a full twenty-five year retirement in seven more
years". Your goose is cooked. The other side is going to file a
motion, and ask the judge to order you to pay ALL OF THEIR COSTS.
The witness fee for the personnel director, the transcript fee, the
hourly wage of the court reporter, about six hours of attorneys
fees, the motion fee which they had to pay to get in front of the
judge on motion day, everything they can think of that might
possibly fit. ...And the judge is going to give it to them. You are
going to pay it all. Because you did not admit what you knew was
true after the other side demanded that you admit it, by delivering
to you a Request For Admissions. You will learn (either the easy
way, or, the hard way, but you will learn) that most lawyers know
how to do their job. That lawyer is going to do fifty divorces this
year, and you're going to do one. Yours. Do you really want to bet
that he doens't know how to do this case? That you can try to pull a
stunt like that, and get away with it? The discovery process is
designed to get at the facts, the truth, and it usually does. Let's
move on, shall we? That's how the discovery process works,
generally. It takes a little time to gather all of the information
that you need, but you'll get it. It's not particularly cheap,
either, as far as attorneys fees are concerned. You can help a lot:
just ask your attorney what you can do to help, so the attorney
doesn't have to do it at the attorney's hourly rate. You can go and
get a letter from the bank, on bank letterhead, that tells, to the
penny, how much is owed on the mortgage on the marital home. Why pay
your lawyer to do that job? Here comes that free legal advice again:
what you are paying me for: BE REASONABLE. ALWAYS TELL THE TRUTH.
Your lawyer will tell you the same thing. Would you like to know the
REAL cost of that failure to admit that we just looked at? It's not
the eighteen hundred dollars that you had to pay to the other side
for your failure to admit what you knew was true. You paid it. You
felt like an idiot, but you paid for it, and it's over, and the case
goes on, and, sooner or later, you get to trial. Your case gets
called. The judge says "Have I seen this woman before? Isn't she the
one that was playing games with the pension last year?" Back To
Table Of Contents Can We Settle This Case? That's the question that
needs to get asked the most. One lawyer will telephone the other,
and ask that question. Your lawyer will telephone you and ask that
question. You may, or may not, consult with others (your family,
your friends, another lawyer, etc.) and ask that question, but the
question definitely NEEDS to be answered. If the answer to that
question is "no", then both sides are going to spend vast sums of
money, invest large chunks of time, spend days or weeks or even
months in a courtroom, endure the psychological and physical strain
of a trial, and then win, or lose, or get some totally
unsatisfactory middle ground, that amounts to less than winning, but
more than losing. Don't get me wrong: sometimes you HAVE to try the
case. It may be true (not often, but it happens) that your facts are
so unique that you believe that you do not fit within existing law,
and the existing law happens to be against you. This is far more
likely in other sorts of civil litigation than in a divorce case.
More likely, the other side is being so unreasonable (and they,
undoubtedly, think that YOU are being unreasonable) that the only
way you can get what you think you have coming to you is to try the
case. If you try the case, you are going to spend thousands of
dollars. That's the main point against going to trial, as we add up
the pros and the cons of "can we settle this case?" It's simple
economics. Some things are not WORTH going to trial over. Household
goods are the first example to come to mind. Here's how a lawyer's
nightmare unfolds. It seems that every lawyer has to deal with,
eventually, THE YOUNG COUPLE WHO MADE A MISTAKE. They are a
stereotypical couple (and fictitious: if you are twenty, and reading
this, I apologize in advance. I didn't mean you. Really.) They were
married, against their parents advice, when they were eighteen, and
they have been married about a year and a half. Fortunately, they
have no children (they didn't get along that well, even then, to
accomplish that) and frankly, their respective parents are paying
their attorneys fees for them. ("Thank god he's finally come to his
senses." "She's finally going to leave that no-good.") They fight
like cats and dogs. They can't even agree on what time of day it is.
They're getting divorced, and most everyone who knows them would
agree that they never should have been married in the first place.
They may own a house, but it has no equity: they paid two or three
thousand dollars down, on a price of thirty thousand dollars, but
the closing costs were twenty eight hundred, and they still owe
twenty nine thousand and change on the mortgage, and if they sold
the house, and paid a commission, they would lose money on the deal.
They're arguing about the personal property: who's going to get that
stereo? Who's going to get the big-screen TV? HE owned the stereo
before they got married, but SHE supported him for six months, after
he lost his gas station job, and made some of the payments on the
stereo. SHE owns the TV, because it was a Christmas gift from him,
but HE is still making payments on it. These items are used
furniture, and not worth anything near what was paid for them, if
the items were sold at auction. Here's the problem: they won't
agree. They won't agree as to who keeps the house (it's more of a
liability than an asset), and they won't agree as to who gets what
items of personal household goods. You'd think that SOMEONE could
drive a little maturity into their thick skulls, and say "Look, it's
not worth it. We're talking about a used stereo, and a used TV, and
if we have to, we're going to toss a coin, but we are NOT GOING TO
TRIAL OVER A USED STEREO!" Then, of course, you get the following
retort, from the client: "I'm gonna get screwed out of my [house],
[stereo],[big-screen],[computer],[bedroom set] aren't I? That
[bitch], [bastard] is doing it to me ONE MORE TIME."
Well, of course, those of us who are over twenty recognize that
these things aren't really that important, and we all feel a little
smug over the fact that we are older than twenty, and unlikely to be
maintaining that (unreasonable) position. Why, it just doesn't pay,
does it? It's not worth it, is it? Go get a NEW stereo, for crying
out loud, with the money you saved by just giving up the old one,
and not paying the lawyers to argue over the old one in court....
Well, that's the problem, and, if you're experienced, that's the
solution. Don't forget, MOM AND DAD are paying for the divorce, so
the kids think it doesn't cost them anything to keep up this
bickering. Maybe it doesn't. They don't have to agree, and they
won't. Let the other side give in, and, if the other side won't give
in, then we'll just GO TO TRIAL, and if mom and dad's bill for the
divorce is higher, then, so be it. But I'M NOT GIVING IN. I want my
[stereo], [bedroom set], [computer]. Get me a trial date. Now, if
you're older than forty, you see this coming, and if you're older
than fifty, you probably nailed it some time ago, and I'm boring
you. Sorry. But if you are a young lawyer, looking for a solution to
get you out of this mess, here it is.Solution. Look? So there we
are. Some things are just not WORTH going to trial over, and, if
it's sufficiently not worth it, your lawyer will advise you to just
give in. Let it go. You're saving money. It will cost less to give
in than it will cost to go to trial and win. And you might not win.
The better course is to list those items still at issue, and let
your lawyer do a little horse trading. Telephone the other attorney.
About your last offer: We'll give in on B, D, and E, but we have to
get A, C, and F. We're positively rigid on F, there's no room to
negotiate. Talk it over with your client, and get back to me. Yes,
we can settle this case, but your client seems to think that being
reasonable means giving us more time, so that we can come to our
senses, and agree with him. We're not going to agree with him. If
you want to talk, let's talk. But we've got a trial date coming up,
and we have to get ready for trial if your client isn't willing to
be reasonable. My client knows it will cost a lot of money, but does
yours? Does he really want to spend all that money for those
witnesses, knowing that two of his witnesses have to apply for work
release from the jail, just to come to court? The judge is going to
believe people like that? C'mon, Harry, I'm saving you money here.
Your client, too. You'll call me tomorrow? Thanks. Talk to you then.
Bye. How Do We Value Assets? The assets can be divided, for purposes
of this discussion, into two parts: assets that have value as money,
and assets that have sentimental or personal value only. Let's
discuss the sentimental value only assets first because it's easier:
yes, the judge will deal with those assets; yes, the judge has the
sensitivity to recognize that some things mean more than money; and
yes, if the sentimental or personal asset has any money value, it
will be counted at that value in the tallying up of assets awarded
to each party. Examples: 1. More parents (and judges) are
recognizing the value, and the irreplaceability of the kids' baby
pictures. Fortunately, with todays technology, they can be
duplicated very well, at modest cost. The old standard clause, in a
property award, read more or less as follows: "...and the parties
shall confer and agree upon a method of dividing, equally, the
family pictures, and, if no other method is agreeable, then each
shall pick one picture at a time, alternating, until the pictures
are divided." Today, the Court would likely order that the pictures
be duplicated by a shop, and that the parties share equally the cost
of doing it. 2. The obvious remains the obvious: as to Husband's
garage full of tools, he's going to be awarded his tools. As to the
wife's chest full of jewelry, she's going to be awarded her jewelry.
The other party may have these items appraised, at CURRENT MARKET
VALUE, and expect that appropriate credit will be given. The other
party may NOT (repeat, MAY NOT) expect that credit will be given
based upon the COST OF THE ITEM SOME TIME AGO. "...Judge, over the
last ten years, Wife spent fourteen thousand dollars on jewelry. Now
if she's going to be awarded all of that jewelry, my client ought to
be given the house equity, which is only twelve thousand
dollars...." No indeed. You are talking about a chest of USED
JEWELRY. It may even be true that the diamond earrings are kept in a
safe deposit box. The smart lawyer (or client) will take these
items, prior to trial, and have them appraised. Take them to a
jeweler, and ask "What will you give me for this necklace?" That
eleven hundred dollar necklace is worth about eighty bucks, as used
gold, and that's it. "...Judge, over the last ten years, Husband
spent eight thousand dollars on his tool collection. He's got
everything Craftsman ever made, he's got Bob Vila calling on the
phone to borrow things, he even had to put up a pole barn as a
workshop, when he outgrew the garage...." No, no, and no. A new
Craftsman one-inch power drill (that's a big one) costs four hundred
bucks or so. Two days later, it's a used drill. There's one in every
garage. Value: about ten bucks. Maybe twenty.
If you really think it's worth the cost of the appraisal (several
hundred dollars), confer with your attorney, find a reputable
expert, and get an appraisal and some testimony from that expert.
It's true, a Sun Auto-analyzer (a tune up machine for cars) retains
a lot of value as used machinery. A box of used wrenches doesn't.
Don't forget, if he's keeping the house, to value that pole barn.
(grin). 3. Gifts that were given were GIVEN AWAY. To the recipient.
Got that? Gifts that were given were GIVEN AWAY. "I gave her a pair
of diamond earrings, it cost me three thousand bucks, I want them
back...." Can you get them back? Answer Wait! I've got a really
serious one here. You don't understand. I gave her the wedding ring,
and the engagement ring, but the whole damn marriage lasted seven
weeks. Can I get those rings back? They're very expensive.... Can
you get them back? Answer Wait just a cotton-pickin' second here! I
gave her the ring, but I'm still paying on it. My credit rating is
being ruined. I have to make the payments, and she's got the ring? I
still have to pay about four thousand dollars to get that ring paid
off. The jeweler says he'll take it back, and give me full credit.
Can I get that ring back? Answer I hope the point is made: you gave
it away, as a gift. It's hers [his]. Period. Forget it. Really. A
word of warning: I mentioned earlier in this chapter that the judge
is a caring, sensitive person, who will listen to, and appreciate,
the value of assets that have more sentimental or personal value
than actual money value. Here's the warning: THIS DOES NOT INCLUDE
PETS. There is NO judge that's going to do a custody case over
Poopsie the dog, or Chatty the cat. Don't ask. If you have to
disagree over the poodle, have the two lawyers agree upon, and
appoint, a referee or mediator, whose opinion will be binding, but
DON'T expect your lawyer to file a motion for "exclusive use or
possession of Poopsie". It's not going to happen. If your lawyer
should actually file it, he'll be removed from the courtroom if he
actually shows up to argue it. He'll either be removed by all the
laughter, or he'll be removed by deputy sheriffs, because he just
got sent to jail for seriously wasting the judge's time (contempt of
court). I know that some people get attached to their pets, and
that's why I write this warning here: I'm serious, and just don't
ask. Find another way to get it resolved. Good luck wAssets get
valued in two ways: The first question is always "What is this asset
worth today?" That means "fair market value". You can quibble quite
a lot over just what is, and what isn't, "fair market value", but it
means, generally, "What would this item sell for, today, in an
arms-length transaction between a willing buyer and a willing
seller?" The second question is always "How should this asset be
divided in the marital estate?" It may be true that, as to this
particular asset, one party will get 90%, and the other party 10%.
That's NOT the same as saying that one party will receive 90% of the
whole marital estate, and the other party only 10% of that estate.
No indeed, we're talking about one particular asset here. Let's deal
with "fair market value" first. Normally, it's valued as of the date
of filing of the complaint, or valued as of when it was very obvious
that the marriage was over (such as the day he beat her up, took all
the money, turned off the utilities at the marital home, and left,
never to return, even if he or she didn't get around to filing the
complaint until six months later). There can be real issues as to
which of several dates to use, and please remember that the legal
standard the judge will use is "equitable" or "fair" as to each
issue, and that's it. The judge has a lot of room to maneuver, to
get to an equitable result, and that means that there is some
flexibility built into the process, and you have to be aware of it,
both for trial purposes, and for negotiating purposes. Some
examples: 1. The marital home. The judge (and the lawyers) will want
to compute the EQUITY in the home, which is the value of the home,
less the debts against it. In the typical case, that means the
mortgage, and maybe (make that MAYBE) a home improvement loan or
two. It seldom includes the cost of commission for sale, unless the
house is actually sold, at which point all of the closing costs come
out. Here are three examples of the same home.Worksheet 2. The
automobile(s). They are frequently a wash, they frequently have no
value, especially the newer ones. Again, they are going to be valued
at FAIR MARKET VALUE. That can be easily computed using the middle
of the blue book values. (The 'blue book' is frequently available
from your banker. Why? It's the bankers that make the car loans, and
the bankers need the most up-to-date information on changing values,
don't they?) There are usually three values listed for each auto:
retail, wholesale, and loan value. Your typical 1995 Chevrolet
Beretta 2-door coupe might be listed (in November, 1996. Will it be
worth less next year? Are you kidding? It will be worth less next
MONTH) as follows: Retail: $ 9,400 Whols : $ 8,800 Loan V: $ 8,000
That means that if you bought this car off of a used car lot, you'd
be paying retail, and you'd be charged the retail (higher) figure.
If you wanted to sell this car to a dealer, say, on a trade in, or
for cash, you might receive the wholesale figure. The bank will loan
you a bit less than that, on this car. It's the middle figure that
the judge will likely use for 'fair market value'. Now SUBTRACT WHAT
IS OWED ON THE CAR to value the car in your divorce case. Value of
1995 Chevvy Beretta: $8,800, LESS $9,100 owed to your local bank.
It's not an asset, is it? It's a liability. It's value is less than
zero, it's value is a negative number (negative $300, in this case).
Especially just about one year after your purchase of the car, the
value of the auto has dropped far more than the amount the last
year's worth of payments has actually reduced what you owe on it.
You are what the dealers call "upside down" in that car, in that you
owe more than the car is worth. Which is not very serious, in that
you need a car, and you like this one, and you plan on paying for
it, but DON'T let the other side flim-flam you. "He's got that
$16,000 Riviera, judge". Horsefeathers. He's got a car that's worth,
today, $14,600, and he still owes $15,450, your honor. He's entitled
to a SUBTRACTION from his column if he keeps this car, isn't he?
3. Pensions. Value them as of retirement TODAY (or some other
significant date: the date of separation, the date of the filing of
the complaint, not what the monthly payment will be after you
retirement, two (or fourteen) years from now. You go to your
retirement/personnel office (or your attorney writes to that office
if the other party has the pension) and request, IN WRITING, an
estimate of pension beneifits. "If I retired today, November 1,
1996, what would be my retirement benefit?" The letter you get in
response will be used to value that pension, and compute the FAIR
MARKET VALUE of the pension. More details on this in the chapter on
pensions. 4. Other assets. I can't, obviously, list every kind of
asset here. But if somebody is wanting it, it's probably got some
value. If so, it gets valued at FAIR MARKET VALUE. That likely means
that you have to hire an expert, usually an appraiser, to testify as
to what that FAIR MARKET VALUE actually is. Now that can be
expensive, but your lawyer can reduce that cost considerably, by use
of the discovery procedures we discussed earlier, such as the
REQUEST FOR ADMISSIONS. Or, you might end up with a settlement
conference, a meeting in one of the lawyers' offices, with the
express intention of putting a value on a particular asset, like a
coin collection, and hash it out, and everybody gives a little, gets
a little, compromises, and you end up with a value on that coin
collection that's agreed upon by both sides. It's a lot cheaper than
hiring a damn coin expert, and paying him by the hour to testify,
and paying your lawyer by the hour to listen to him, isn't it? .
Back To Table Of Contents Why Is MY Pension A "Marital" Asset? This
question comes up now and again, but most people have accepted that
the law has changed over the last twenty years or so, and recognize
that the proposition is true: a pension, or annuity, or 401k plan,
or other benefit from an employer, is an asset of the marriage. The
simple way to look at it is this: it is a financial benefit, that
certainly has value, that was accumulated during the marriage.
Example: Husband and Wife get married in 1976, and that same month,
he goes to work for a large company, say, GM or Ford. Over the next
twenty years, she raises babies, and doesn't work. He works, but for
the most part, doesn't raise babies (Don't start with that email,
guys. Yes, he's a fine dad, etc. It's an EXAMPLE. He was employed,
she wasn't, ok?), and, now, he's got a pension, and she doesn't. The
pension is vested, which is to say that he has some money coming
EVEN IF HE QUITS. It's his, period. He's not yet to full retirement,
that comes several years from now. But if he does quit, today, he
has some money coming in the future. Let's look at the various
figures that apply: 1. If Husband quits today, his employer (or
pension administrator for the employer) will give him a
significantly reduced (as opposed to a full retirement) benefit, of
$170 per month, starting at age 65, and lasting until he dies. 2. If
Husband continues to work there, and stays the whole twenty five or
thirty years, he will get a full retirement, which is to say
approximately $2000 per month, starting at age 65, and lasting until
he dies. It is the first, not the second, paragraph that is going to
be divided by the judge. Why? Because the judge is dividing the
property that these parties have TODAY, not what they might (or
surely will) have in the future. TODAY, husband has a right to that
$170 a month. He must stay, (and stay, and stay, and stay...) into
the future to get the bigger amount, and he'll be doing that part
without his present spouse, she'll be making no contribution, as
they divorced back in 1996. So that's the future, and it's
speculative. Not very (most guys don't walk away from the pension
when they get to this point), but still speculative, and it doesn't
exist TODAY. So the big figure is not marital property. The smaller
figure IS marital property, however, because it does exist today.
And since it was acquired by these parties, either both of them, or
any one of them, during the marriage, it's marital property. It's
not his SEPARATE property any more. You are surely wasting your time
in trying to argue that the pension is separate property. The
appeals courts have already ruled on that point, and the law is
settled: the pension, as it exists TODAY, is marital property, and
is going to be divided.
Several issues exist here, and you need to be aware of them: 1.
How are we going to divide that pension interest that DOES exist,
without interfering with that pension interest that is in the
future? 2. How do we determine what the present interest is, or, to
ask it a different way, how do we determine just what the present
interest is worth? 3. If it matters (and it MATTERS. It really does)
what date do we use for "today"? 4. If it matters (and it MAY. It
just might), what share of the presently existing benefit is marital
property? Let's take the first one first. The division can be done
in just about any creative way, so stay flexible throughout this
process. This is what you are paying your lawyer for: professional
expertise in a complicated, strange, and difficult area that you may
know nothing about, with terms and words that can be confusing.
There are, however, two principal ways of dividing the pension: a.
Husband buys the wife out of her share, by paying her for it, either
in cash or over time (presumably with interest), or b. The pension
is made subject to a court order which directs the pension
administrator to divide the pension, in an appropriate manner, when
the pension administrator starts paying the money out. Under
paragraph "a", the parties are going to have the pension valued, by
a suitable professional: it might be a Certified Public Accountant,
it might be an actuary, it might be a firm that specializes in
valuing pensions. But some professional needs to value the "today"
portion of the pension, if there is going to be a buy-out. (You
really need to do this early, so that you can use it in
negotitations to settle.) That firm will issue a report that says
"the present value of the Husband's pension is worth $18,600". That
means that half of that marital asset, or $9,300, would go to each
party. It may be that Husband writes a check, it may be that husband
trades a different marital asset, such as the house. But after you
get that report, you know what it's worth. Typically, if there is
twenty thousand of net house equity, and wife is keeping the house,
Husband would have ten thousand coming, wouldn't he? If the pension
were valued at the figure above, why not let Wife keep the entire
house, and husband keep the entire pension? The math works out,
doesn't it? But you have to do the professional evaluation, because
you need an ACCURATE figure to use, don't you?
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Taxes
Usually the parent with
custody can claim the exemption for the child. However, the parents
may agree to claim the child exemption on alternate years. In that
case, the parent with custody needs to sign IRS Form 8322, Release
of Claim to Exemption. Whether or not you are taking the exemption
for the child, you may still file as "head of
household."
JACK I. HYATT Family Law
Attorney Child Custody Lawyer
Attorney Profile: Former Assistant State's
Attorney Admitted To Practice
Before: The U.S. Supreme Court All Maryland
Courts Federal District Court Member: Maryland State Bar
Association Baltimore City Bar
Association Baltimore County Bar
Association University of
Baltimore A.A. B.S.
J.D. Honorable Discharge U.S.
Army
Custody and Visitation
Custody and visitation are the
legal terms in court ordered determinations of which parent the
child lives with and the conditions for the child to visit the other
parent. Custody and visitation are never considered to be
final.