Blog - Page 4 of 32 - Cynthia H. Clark & Associates, LLC

IRAs and child support calculations

Income for purposes child support calculations pursuant to the Maryland Child Support Guidelines is defined by the Family Law Article of the Annotated Code of Maryland as actual income. This includes, but is not limited to, salary, wages, pension income, social security benefits and disability insurance benefits.

Withdrawals from one’s IRA accounts are also deemed to be income to a party pursuant to the Family Law Article as they are taxable income. However, issues have arisen as to whether the amount in a payor’s IRA can be deemed a potential source of income for the payor. Along with that comes the question that if the payor chooses not to take any withdrawals from this account, would that refusal lead a court to believe that the payor is purposefully diminishing his income in order to pay a lower amount of child support. If the Court deemed this to be true, then the income (annuitized) could potentially be imputed to the payor for child support purposes.

There is no definitive answer to the above issue. Courts in other jurisdictions have been reluctant to impute annuitized IRA income to the payor that were not actually made, especially those withdrawals that would trigger an early withdrawal penalty. However, an argument can be made that this income could be imputed to payors who have reached the age in which penalty-free withdrawals are permissible, or if the payor has no other available income and the child is in need (best interest of the child).

Cynthia H. Clark & Associates, LLC is an Annapolis-based family law firm serving clients throughout the state of Maryland. If you have a child support calculations questions, please contact our firm to reserve a consultation time at our office.

Divorce

Emergence of Pet Custody Disputes

Often times, a client will be sitting in their attorney’s office discussing settlement terms of their divorce matter will bring up pet custody. They will say “she can have the timeshare … I don’t care about the Porsche … but under no circumstances can she have Fido!” Fido, or course, is not one of the parties’ children. He is the parties’ eight year old Beagle.

This scenario is becoming more common as pets are not treated as items of property, but rather as members of one’s family and their companions. Elderly persons have a therapeutic, if not spiritual, attachment to their pets. Single persons rely on their pets for security. Grieving persons rely on their pets as a source of comfort. Young children experience pure joy and contentment at the companionship and friendship their pets provide. The Courts are beginning to change their outlook regarding pet custody disputes to adopt this point of view as well. More often than not, people are willing to expend copious amounts of legal fees to ensure that they receive ownership of their companion pets.

Animals are technically considered to be property, and in divorce matters, as with any other items of property, the presiding Judge or Magistrate will typically equitably divide up all items of property between the parties. Animals would be included in this mix, similar to items of furniture or kitchen appliances. However, an increasing trend that is now emerging is that the Court is beginning to reject the strict property analysis when determining custody of parties’ pets, and is now using the best interest standard applied to determining child custody disputes. Many Courts are finding that animals have feelings and are individuals, and their welfare and best interest need to be taken into consideration when an award of custody is made.

Among those factors to be considered are which party paid attention to the pet’s basic daily needs; who takes the pet to the veterinarian; who provides for the pet’s social interactions (in the case of dogs) with other dogs and/or people; which party maintains appropriate supervisions to ensure state and local regulations are complied with; and which party has the greatest financial capability of providing for the pet’s needs.

I consider my dog, William Wallace (named after the valiant tough-as-nails warrior in Braveheart, but he is really more of a soft teddy bear), to be my first born child. I treat him just as I treat my son – he gets a birthday party, birthday presents, Christmas presents, and presents for no reason at all. I take him on car rides, and have special “Mommy-Wallace” time with just us. These issues speak to my heart, and if you find yourself in a dispute regarding pet custody, please contact me at Cynthia H. Clark & Associates, LLC

Divorce

Restoration of Former/Maiden Name

When a party divorces, often times a spouse will desire returning to your maiden name afterwards.

Under current Maryland law, a spouse who took on the other party’s name during the marriage may be restored to any former name:

if they no longer wish to use that name;
the name change is requested in the divorce action;
the request is not for any fraudulent, illegal or immoral purpose. The request to begin returning to your maiden name name needs to be made at the time of the divorce and entry of a Judgment of Divorce.

HB793 of the 2017 (PDF) legislative session revised some of these requirements. Effective October 1, 2017, the request to be restored to a former name may now be granted within eighteen (18) months of the date of the divorce upon motion of the party requesting the restoration. Additionally, the request must be made by the spouse seeking the restoration of their former name. A spouse may not request the name change for the other spouse.

Cynthia H. Clark & Associates, LLC is an Annapolis-based family law firm serving clients throughout the state of Maryland. If you and your spouse are considering a divorce, please contact our firm to reserve a consultation time at our office.

Uncategorized

Tips for Getting through a Divorce

Going through a divorce, and a long one in particular, is a difficult, emotional, stressful and tense situation. Family members, friends, and even those acquaintances that have also been through a divorce are a good support system to lean on throughout this difficult process. Here are 5 divorce tips from a divorce lawyer.

Randall M. Kessler, a blogger for The Huffington Post, provided some helpful tips to further assist you throughout your divorce:

Help your attorney help you. You know your marriage, your spouse and your children better than anyone else, certainly more so than your attorney. Provide suggestions to your attorney as to how to best deal with your spouse and inform your attorney as to those issues that are most important to you so that your attorney can focus on those issues.

Provide your attorney with all necessary information. Create a detailed history of your marriage and provide it to your attorney. Further, if you think an event, situation or fact isn’t important to your matter and that you do not need to inform your attorney as to same, do it anyway. Let your attorney determine its importance.

Make your divorce a priority. If your attorney needs to speak with you or needs you to come into the office, be available. They do not attempt to speak or meet with you if they do not have something important to discuss with you. Further, not being available to discuss your case, or if you are not willing to take leave from work to attend mediation or 4-way meetings with your lawyer, spouse and their attorney, gives the impression that you are uncooperative. Settling your matter may prove to be even more difficult.

Spite will only harm, not help. Resist the urge to be spiteful and the need to win every battle you may engage in with your spouse. It is important to focus on the “bigger picture” and on the best way to prevail on those issues most important to you. Antagonizing your spouse, or “rubbing it in” when you either get a good result in court or get them to agree with your position on an issue that is important to you, does not help your cause and may backfire on you later down the road in settlement negotiations.

Check in regularly with your attorney. Schedule regular status appointments with your attorney. This will give you and your attorney the opportunity to discuss strategies moving forward and also ensures that you are both on the same page. Regular meetings may also bring to light questions you have for your attorney that you may otherwise not have thought about.

Uncategorized

Resolution of Child Dependency Exemption Issues in a Separation and/or Divorce

As the tax filing season approaches, a common question amongst couples who are considering a separation or are currently in the process of divorcing centers around how to resolve who will be claiming the parties’ children as dependency exemptions on their income tax returns. Another related question that often arises is who will be claiming head of household.

Parties can agree upon a myriad of ways to resolve how to determine which party will claim the parties’ children as dependency exemptions on their income tax returns in certain years. In matters where parties agree to have joint custody of their children, the parties either alternate claiming the children every other year, or if there is an even number of children, each party will claim the same number of children each year as their dependents (i.e. if the parties have four children, each will claim two). If the parties’ have an odd number of children, by way of example three children, each may claim one child every year and alternate the third child. This is an issue that should be discussed when considering a separation from your spouse or if you are currently in the process of a divorce.

The party who is the custodial parent is permitted to file as head of household on their income tax returns. A question arises when parties are sharing 50/50 custody of their children. If the parties agree to alternate claiming their children as dependency exemptions, the year in which one party is claiming the children they can be designated to have 183 overnights, instead of 182 overnights, with the children in that year so that they would be permitted to file as head of household. This is also an issue that should be discussed when considering a separation or if you are currently in the process of a divorce.

Divorce

Financial Preparation for Divorce

Financial preparation for divorce is a large part of discussion when filing for a divorce in Maryland. It is important to review your financial situation when considering a separation to make sure you have a handle on your current financial position.

Review your debt and expenses. What are your monthly household expenses? If you are moving out of the marital home, will any of these monthly expenses increase? For what debt are you going to be responsible for? What assets will you have to fund your expenses and pay for your debt?

Focus on your personal financial preparation for divorce. Look into getting your own credit card if you have a joint card with your spouse or if you need an additional source of funds. Open your own bank account and have your salary directly deposited into this account. Set yourself up for financial success and to be independent.

Consider child support and alimony. If you have children, determine whether you will be responsible for payment of child support to your spouse or if you will be receiving support. Calculate the monthly expenses of your children – activities, clothes, food, etc. If you are the primary monetary contributor to your marriage,

Cynthia H. Clark & Associates, LLC. is an Annapolis-based family law firm serving clients throughout the state of Maryland. If you and your spouse are considering a divorce, please contact our firm to reserve a consultation time at our office.

Child Custody, Child Support, Divorce

Co-Parenting: The Transition from Spouses to Former Spouses

Co-Parenting is one of the biggest concerns parents have when going through a divorce and/or separation is how the transition will affect their children. Adjusting to a new schedule and routine is hard on children, and parents should strive to ease as much stress on their children as they can.

A key way of achieving this is to develop a strong and supportive co-parenting relationship with your former spouse. This may not always be easy at first; however, accomplishing same will greatly ease the transition to your new relationship for your children.

It is important to separate the emotions that led to your divorce from the new co-parenting relationship you are forming with your former spouse. Harboring resentments and dredging up past events/feelings will only serve to negatively effect your communication with your former spouse. Your children should be your top priority and holding onto the past does not help to foster a positive environment for them.

No relationship is perfect and certainly disagreements will develop between you and your former spouse despite your best efforts to avoid them. It is helpful to take a step back before engaging in the disagreement to determine if there is a way it can be resolved without further conflict. If the disagreement cannot be resolved, seek outside support to help aid in resolving the conflict. A helpful resource could be co-parenting classes.

Divorce, Legal News

Pets now subject to custody determination in Alaskan divorce matters

Everyone understands that divorces can be messy, tension-filled and highly confrontational. Amongst other disagreements, most soon to be former spouses argue over the division of personal property items – who is going to get the antique vase? The collection of artwork and paintings? The flat screen televisions? The expensive jewelry? and even the pets in divorce cases.

Up until a few weeks ago in Alaska, pets were included in this discussion regarding the division of personal property items because that is how they were viewed by the courts – as items of property to be divided between divorcing spouses. Pets were included in the same analysis as to how a car or collection of home furnishings was to be divided in divorce matters. As a relationship one has with a pet is more important than how much material value they possess, and as people cannot be “bought out” of their share of their pet, the analysis used for dividing property is not a good fit for resolving pet custody disputes.

Due to a recent amendment of Alaska’s divorce statutes, pets are no longer subject to the classification of “property” in terms of how they are viewed in divorce matters. Alaska is the first state in the country to take into consideration the well-being of the animal and to enable judges to assign divorcing couples joint custody of pets. Pets are given the distinction, for the first time, beyond that as items of property, and the court may award custody based upon what is best for the pet, not it’s human owner. Further, the Alaskan amendment also allows courts to include pets in domestic violence protective orders and requires the owners of pets seized due to cruelty or neglect cases to provide payment for the cost of their shelter.

This amendment embodies the sentiment most of us who are pet-owners feels about our pets – they are members of our family whom we love as much as our own human friends and family. Decisions made as to who retains custody of the pets should take into consideration the best interest of the pet, and not solely the desires of the pet-owners. Hopefully this recent amendment will spark a trend that will begin to sweep across the nation and over into Maryland.

Peters & Clark, P.A. is an Annapolis-based family law firm serving clients throughout the state of Maryland. If you and your spouse are considering a divorce, please contact our firm to reserve a consultation time at our office.

Divorce, Property Division

Valuation of Marital Assets

One question we are often posed with when negotiating marital settlement agreements when there is a division of assets to be determined is what date is to be used to value those assets – date of separation or date of divorce. The question is not a simple one to answer.

Md. Family Law Code Ann. §8-203 supports the idea of assets being designated as marital property up to the date the judgment of absolute divorce is executed. Additionally, a formula established by case law, the Bangs formula, uses a numerator that includes time that runs up until the date of divorce.

However, an equitable argument can be made, and usually is made, that after a parties’ separation, neither party is contributing to the assets of the other party and is therefore not adding any value to those assets, which supports the date of separation as the date used to value marital assets. Parties can be separated for several years prior to filing a divorce petition or their divorce litigation can continue for a protracted period of time. Many assets, including retirement and investment accounts, will continue to accrue value during the time period between a parties’ separation and judgment of absolute divorce, and a fair and equitable argument can be made that the valuation date for these assets should be the date of the parties’ separation.

Cynthia H. Clark and Associates LLC is an Annapolis-based family law firm serving clients throughout the state of Maryland. If you and your spouse are considering a divorce, please contact our firm to reserve a consultation time at our office.

Family Law

Information about Consent for Potential Adoptive Parents in Annapolis

Many situations can present an opportunity to adopt a child in this ever changing world. The deaths of parents often result in an adoption by a family member, also known as a kinship adoption. Children given up by their biological parents, or who have been removed by the state and placed in the foster care system, may become part of another family when a kinship adoption is not suitable.

Adoptions may be open or closed. An open adoption allows the potential for contact between the biological parents and either the adoptive parents, or child, based on the parties’ agreement. A closed adoption will effectively cut all ties between the previous parents and the child’s new family to eliminate any confusion for the child, or interference that could hinder bonding of the new family unit.

Regardless of the type of adoption, the court will always consider what is in the child’s best interests, and has the authority to make changes accordingly.

The purpose of Maryland adoption laws is to ensure that the child’s best interest are served by being placed with a prospective parent who is fit for the responsibility. Some ways the laws attempt to do this include:

Trying to keep biological parents and children together, though that isn’t always possible.
Preventing parents from giving up their legal rights to their children without taking time to think it through.
Protecting prospective adoptive parents by providing them information about the child, and ensuring their relationship with that child will not be disrupted by the former parents.

Whatever the scenario that brought a great prospective parent and adoptive child together, there are times when the adoption process is halted.

Why an adoption may not go forward

If the biological parents’ rights have not previously been legally terminated by the state, or voluntarily by the parents themselves, written consents to relinquish those rights have to be obtained before an adoption can be granted.

Because consent to adopt a child may only be given after the child has been born, a pregnant mother who chooses a family to adopt her child has a right to change her mind and stop the adoption proceedings. Even if the biological parents have already consented after birth, they have a 30-day window of time to think about their decision, and may change their minds when confronted with the reality of losing a child.

If the prospective adoptee is a minor child, or cannot participate in the adoption process due to another disability, an attorney must be appointed to represent him or her. Failure to appoint an attorney typically delays the adoption process until the conditions are met. However, there is always the chance that the biological parents could regret their choice and withdraw consent in the interim.

The possibility also exists that a biological father, who has been absent from the child’s life, or did not know that he had a child until the adoption process began, suddenly comes forward. This can result in the father refusing to consent to the adoption, and possibly retaining custody, or may merely cause a delay until the proper written consent is obtained.

Another unforeseen problem with consent can arise in adoptions when the presumed biological father is found to be a mistake. The adoption cannot proceed without making attempts to locate the true biological father, which again, can result in either obtaining consent to adopt, or losing a child you already feel is part of your family.

Less often, an adoption falls through over a legal or administrative technicality. Errors in obtaining signed forms, or failing to follow proper procedure based on the type of adoption, can hold up the process. Adoption is stressful for prospective parents, who are nervous that they could be forced to walk away without a child to whom they already feel emotionally connected.

If you are seeking to adopt a child, unnecessary time spent waiting for finalization of an adoption has the ability to cause devastating consequences for everyone involved.

Minimize your risk of heartache by hiring an adoption lawyer who knows what you will be going through, and will take every available precaution to ensure the process goes smoothly. Consult with the understanding attorneys of Cynthia H. Clark & Associates, LLC to help you plan for the best, and prepare for the unexpected considerations of adoption. To speak with an Annapolis adoption attorney, we may be reached through our contact page, or by phone at 410-990-0090.