Blogs from 2021

Over the past year, there has been a strong push to develop, approve, and distribute the COVID-19 vaccine nationwide. But there are many who are opposed to it for religious, philosophical, or political reasons. Now that the vaccine has been approved for children, divorced couples will need to figure out how to handle child vaccination decisions -- and other health decisions -- as co-parents.

Child COVID Vaccine Approved for Ages 5 - 11

On November 2, 2021, the CDC gave the Pfizer BioNTech Covid-19 vaccine formal approval for use in children ages 5 - 11. Within the first week, approximately 900,000 children nationwide received their first dose, with another 700,000 awaiting their appointments. Teens 12 to 15 have been able to receive the vaccine since May 2021.

However, one survey by KFF COVID-19 Vaccine Monitor, published on October 28, 2021, revealed that nearly three quarters of parents expressed hesitance or even refused to vaccinate their children and teens. Of those surveyed, 53% worried that their children may be required to be vaccinated over their objections to go to school. Parents also worried that they would need to miss work to get their kids vaccinated, have to pay out of pocket, or would be unable to find or travel to a trusted vaccination location (like their children’s pediatrician).

Is the Child Covid Vaccination Safe?

Any medication or vaccination comes with potential risks and side effects. If you have any question about whether the Pfizer vaccine is safe for your child, you should speak to your pediatrician about their specific medical history, including any preexisting conditions, and the risks associated with the vaccine.

Initial studies suggest that healthy children experience similar side effects as adults, including short-term fatigue, headache, fever and chills. However, perhaps because the child’s dose is approximately one third the medication as the adult dose, the percentage of children experiencing these symptoms are significantly lower.

Who Can Make Healthcare Decisions for Kids After Divorce?

Still, parents are divided over whether to get their children vaccinated right away, wait and see if there are side effects, or simply refuse the vaccine altogether. When parents are married, the law assumes that spouses will work through these issues together with the help of their children’s pediatrician and doctors, their religious leaders, and other professionals, to come to a decision that is best for their child’s health and welfare.

But what about after the parents have separated? Who can make healthcare decisions for kids after divorce?

Whether to vaccinate your children, or not, is a legal custody decision. Legal custody defines whether one parent has the authority to make major life decisions for a child, or if the consent of both parties is required. Legal custody includes:

• Medical decisions
• Choices over school and education
• Religious participation and upbringing

Types of Legal Custody in Maryland

When parents get divorced, the Maryland family court judge will assign:

• Sole legal custody: one parent has decision-making authority, without needing consent of the other parent
• Joint legal custody: co-parents must work together to reach consensus on child-related decisions
• Joint legal custody, with tie-breaking power: one parent has the final say on decisions in the event a consensus cannot be reached, so long as the parties have attempted joint decision making.

Parents can also agree on who will have decision-making authority and include that information in their Parenting Plan.

If you and your co-parent have different perspectives on whether your child should receive the COVID-19 vaccine, you should refer back to that Parenting Plan to see who has the final say. If you share joint legal custody (as many families do), it will be up to you and your co-parent to communicate your concerns, educate yourselves about the risks and benefits of the vaccine, and make a decision that is in your child’s best interests.

Who Can Make Healthcare Decisions for Kids When Parents Never Married?

When co-parents were never married, who can make healthcare decisions depends on the paperwork parents signed when the child was born, and whether the family has gone to court for custody since. When a child is born to an unmarried mother, only the mother is automatically assumed to be the child’s legal parent. But the father’s rights can be established easily and quickly if both parents sign an affidavit of parentage. Often, this happens right in the hospital.

When co-parents were never married, who can make healthcare decisions depends on the paperwork parents signed when the child was born, and whether the family has gone to court for custody since. When a child is born to an unmarried mother, only the mother is automatically assumed to be the child’s legal parent. But the father’s rights can be established easily and quickly if both parents sign an affidavit of parentage. Often, this happens right in the hospital.

Once the affidavit of parentage is filed with the state, the mother retains initial custody, giving her the final say on medical decisions. But the father or second parent named on that affidavit has the right to seek custody of the child at any time without any extra steps. Filing that complaint is one way that unmarried parents can resolve a disagreement over child vaccination or other medical decisions.

Factors Maryland Courts Consider in Awarding Legal Custody

Once a divorce or complaint for custody is filed, Maryland law doesn’t give preference to either parent, and instead focuses on the best interests of the child. Also, your judge isn’t required to award joint legal custody, but he or she will consider it in most cases. If the issue of custody goes to trial, then the judge will consider the proposed legal and physical custody arrangements suggested by each parent, and enter an order based on the following factors:

• Ability of the parents to communicate and reach shared decisions affecting the child’s welfare.
• Willingness of parents to share custody
• Fitness of parents
• Relationship between the child and each parent
• Preference of the child
• Risk of disruption of the child’s social and school life
• How far apart the parents live (primarily as to physical custody)
• Demands of parental employment (this can play into legal custody if one parent has specialized knowledge about a legal custody issue, such as working in healthcare)
• Age and number of children
• Sincerity of the parents’ request
• Financial status of the parents
• Impact on state and federal assistance

This isn’t an exhaustive list. You and your family law attorney can make arguments that other factors affect your child’s best interests. However, if you are requesting joint legal custody, be certain that you and your child’s co-parent are willing and able to work together to make tough decisions, like whether to give your child the COVID-19 vaccine.

How MD Courts Treat Religious Objections to Vaccinations

The news is full of stories about workers and parents who object to the COVID vaccinations. Many of these objections are religious. For example, a person’s faith may not allow them to receive injections, or may oppose the use of fetal material in manufacturing or testing the vaccine. While there aren’t many cases yet about how the courts will address the COVID vaccine specifically, a look at past cases involving other vaccines and healthcare decisions can help understand how a Maryland family court judge may resolve a dispute when divorced parents disagree on vaccination.

The Maryland courts will consider a parent’s religious beliefs in deciding whether a medical procedure, including vaccination, is in the best interests of the child. However, the court will also try to determine if that parent’s claimed religious belief is sincere, or is masking a personal desire for their child’s care. For example, if one parent is objecting to giving their child the COVID vaccine primarily because they don’t want the other parent to make decisions for the child anymore, the courts may not give as much weight to their religious objection.

Even if the parent’s religious belief is sincere, it may not be enough to convince the court not to require vaccinations. In 2019, a child was immunized while in state care as a result of alleged parental abuse. The mother raised a religious objection to vaccination, but the Maryland Court of Special Appeals (second only to the Maryland Supreme Court) ruled that the mother’s religious beliefs could not be given so much respect that it posed significant life or health risks to the child.

Out-of-Court Options for When Parents Disagree on Child Vaccination

When parents disagree about healthcare decisions, it is often a time-sensitive and emotional issue. These aren’t always the best kinds of disputes to take to court. Especially in the pandemic era, court dockets can be slow and it can take months for a motion to be resolved. In the meantime, children continue to be exposed to the virus, or could face additional health complications as a result of delayed treatment. While parents absolutely have the right to file a motion in court, other alternative dispute resolution strategies may be a better fit when parents disagree over vaccines or their child’s health.

Collaborative Co-Parenting Strategies that Apply to Child Vaccination Disagreements

Collaborative (or the collaborative process) is an alternative to traditional litigation that helps former spouses and co-parents negotiate disputes without getting the court involved (except for to grant the absolute divorce). Collaborative allows parents to work with professionals focused on helping them resolve their disputes privately, with dignity and respect toward one another, and their child.

The collaborative process is well suited to healthcare disputes because it puts parents in contact with professionals like divorce coaches, therapists, and doctors, in addition to collaborative law attorneys, who can give parents real answers to their questions about the vaccine, and help them sort through all the information and opinions available online and in the news. Armed with the advice of these professionals, collaborative law makes space for parents to come together and decide what is the best choice for their family, and their child’s health and wellbeing.

Mediation to Resolve Healthcare Disputes Between Parents

Even if collaborative law is not for you, you can still resolve healthcare disputes without going to court by hiring a private mediator. A professionally-trained mediator can help parents communicate their concerns, work through their issues and objections, and ultimately negotiate a resolution that is in the child’s best interest. Mediation is often the fastest option to resolve co-parenting disputes, which makes it an especially useful tool if a healthcare decision needs to be made quickly. Mediation is also private, which protects information about your child’s health or disability from becoming part of the public record.

However, unlike in collaborative law, it will be up to the parents to gather information about the child COVID vaccine and how it may affect their child’s existing health conditions on their own. The mediator is simply a facilitator for the parents’ conversation, and generally will not provide additional information about the issues up for discussion.

Get Help Resolving Co-Parenting Healthcare Disputes

At the Law Office of Shelly M. Ingram, our Maryland child custody lawyers can help you understand your family’s legal custody situation, and make decisions about the COVID-19 vaccine that put your children first. We also offer collaborative law options and neutral mediation services to help parents resolve their legal custody disputes quicker and have more control over their families’ future. We want to help you make the best decisions for your children’s wellbeing. Contact us today to schedule a consultation with an attorney, or set up a mediation.

Halloween marks the beginning of the extended holiday season. What you do now in making your holiday visitation schedule will shape your children’s holiday experience today, and memories for years to come. Here’s how to make a child’s holiday visitation schedule that gives them time with both parents so that you can build memories together.

Maryland’s Standard Holiday Visitation Schedules

There is no one standard holiday visitation schedule built into Maryland family law. The Court will assign a holiday schedule if requested to do so, but oftentimes it will not reflect all of the nuances of your individual family celebrations. The Courts give parents the opportunity to fashion their own holiday schedules outside of the court process, and frequently parents are able to craft a more customized schedule that will allow your children to honor long-standing traditions and also develop some new traditions. The most durable holiday visitation schedules are often a by-product of the regular visitation schedule included in your child custody and visitation agreement. Most frequently, regular visitation schedules fall into one of the following categories:

• Flexible Visitation: Parents work together to create a mutually agreeable schedule
• Fixed Visitation: Parents follow the set routine included in their order
• Supervised Visitation: One parent only sees the children in the presence of a third party (this is not common)
• Zero Visitation: the non-custodial parent is not allowed to see the children (this is very rare)

Most families’ visitation schedules will be either flexible or fixed. If you do have supervised visitation, you should speak to your visitation supervisor now to see if they offer holiday visitation options. If they don’t, you may be able to negotiate a phone call or other safe holiday contact directly with the children’s custodial parent. But you will need to be flexible and considerate of the reason the court didn’t give you unsupervised time with your children (for example, by abstaining from alcohol or drugs leading up to the visit).

Flexible Visitation and Making Your Holiday Visitation Schedule

If your child custody and visitation agreement includes a flexible visitation schedule, that gives parents the power to make their own holiday visitation schedule. Communicate with your co-parent to account for:

• Each parent’s extended family holiday events
• Your child’s holiday parties, school concerts, plays, etc.
• Religious observances (including travel restrictions)
• Making time for kids to celebrate with each parent, step-siblings, and half-siblings
• Dividing the school break in keeping with your overall visitation schedule
• Parents’ work schedules and days off

Try not to over-commit your kids’ time. Make sure they have time to relax during school breaks, and spend time with friends as well as family. If there are conflicts, talk to your co-parent and your children about which events are most important. Be ready to stand up for your children against your own extended family who may expect them to be at family reunions or gatherings.

Try not to over-commit your kids’ time. Make sure they have time to relax during school breaks, and spend time with friends as well as family. If there are conflicts, talk to your co-parent and your children about which events are most important. Be ready to stand up for your children against your own extended family who may expect them to be at family reunions or gatherings.

Adjusting Your Child’s Holiday Visitation Within a Fixed Schedule

If your divorce or custody case was high-conflict, or if you preferred certainty to flexibility, your child custody order may include a fixed visitation schedule. This will likely include specific instructions for holiday visitation, such as:

• Alternating holidays every other year (i.e. Mom gets Thanksgiving on odd years and Dad on even years)
• Splitting school breaks in half (i.e. Mom gets the first week of Christmas break and Dad gets the second week)
• Dividing multi-day holidays (i.e. dividing Christmas Eve and Christmas Day or the multiple nights of Hanukkah)
• Splitting the day in half (i.e Thanksgiving day with Dad, and dinner with Mom)
• Assigning fixed holidays (i.e. Mom will always have Christmas Eve and Dad will always have Christmas Day)

With a fixed schedule, you have two options when planning holiday parties and events:

1. Agree to adjustments, often trading one day for another
2. Be flexible with your own celebrations, scheduling a second event during your visitation

If you can’t come to an agreement with your spouse, you will need to follow the parenting plan set out by the court. However, you can still celebrate the holidays with your children during your own time. You might build a new tradition of celebrating Thanksgiving on Black Friday or Christmas at New Year’s. Think about how you can make it special for your kids so it doesn’t feel second-best. Be mindful about how you incorporate extended family and friends in these celebrations so that your children don’t feel as though they have missed out.

Resolving Co-Parenting Disputes Over Holiday Visitation Schedules

Whether your visitation schedule is flexible or fixed, you can still face co-parenting disputes when key traditions and celebrations create scheduling conflicts or parenting priorities don’t align. But that doesn’t mean you need to run back to the courts. These kinds of co-parenting disputes are perfect for mediation or the collaborative process. Working with a mediator or collaborative professional to make a holiday visitation schedule will be faster, easier, and often less expensive than hiring a lawyer and filing a motion in court. And you can be certain the issue gets resolved in time for everyone to have a happy holiday.

At the Law Office of Shelly M. Ingram, our Maryland family lawyers are trained in collaborative divorce, mediation, and litigation strategies. We can help you make a holiday visitation schedule that works best for your family, and then stand by your side throughout that process. To talk to a collaborative divorce attorney or schedule a mediation, contact us today to schedule a confidential office consultation.

In the heat of intense divorce negotiations, it can be easy to lose sight of the long-term effects of your settlement or litigation decisions. When those effects include the IRS, the tax consequences of divorce can turn what seemed like a wise choice at the time into a costly mistake. Here are several tax consequences to consider during divorce.

How Does Alimony Affect Taxes?

The intersection of alimony and taxes is one of the most talked about tax consequences of divorce in recent years. On December 22, 2017, then-President Donald Trump signed the Tax Cuts and Jobs Act (TCJA), a tax reform bill that changed the way taxes apply to alimony payments. If your divorce was finalized before January 1, 2019, the spouse paying alimony was allowed to take a tax deduction for alimony payments. The recipient of the alimony then reported the spousal support as income and paid taxes on what he or she received. This generally meant that alimony payments were taxed based on the lower income bracket of the recipient spouse.

Since 2019, however, the roles are reversed. No longer will alimony reduce taxes for the payer or count as taxable income for the payee. Instead, the higher wage earner — the one paying alimony — will need to report and pay taxes on all income, including the part to be paid to an economically dependent former spouse. The difference between these tax consequences can be substantial, especially if there is a large gap between the parties’ incomes. You and your divorce attorney should account for the impact of taxes paid on alimony when negotiating the appropriate amount to be paid – and also received.

If you cannot come to an agreement, you or your spouse can also ask the Maryland divorce judge to determine whether an award of alimony is appropriate in your case. The law directs judges to consider a variety of factors in determining a fair and equitable alimony award. While none of these factors specifically mention tax consequences, they do include the financial resources, needs, and obligations of each party. Your Maryland divorce attorney can present the tax consequences of paying or not paying alimony as part of your case at trial to ensure that the tax consequences are considered as part of any alimony determination.

Does Child Support Count as Income for Taxes?

The TCJA means that child support and alimony payments are now treated the same way by the IRS. Child support payments are not tax-deductible. The government assumes that you will spend a significant part of your income supporting your children. Child support also does not count as income for recipient parents. They are not required to report or pay taxes on child support received according to a child support order.

However, unlike in the case of alimony, you cannot necessarily negotiate a different payment amount to make up for the tax consequences of paying child support. In most cases, Maryland child support orders are calculated based on the child support guidelines that are written into the law. That law does allow the court to deviate from the child support guidelines if the recommended amount is “unjust and inappropriate” as long as it considers the best interests of the children. Still, child support deviation is usually based on the child’s unique financial needs, not the tax consequences to the parents. Factors in support of deviation include:

• Health insurance costs
• Extraordinary medical expenses
• Child care expenses
• Private tuition
• Shared or split custody or extraordinary visitation
• Needs of the parents’ other children
• In-kind support (such as one parent paying the mortgage on the home of the other parent)

Each of these deviation factors are specific to the child being supported. The fact that a parent paying child support bears a higher tax burden than the parent receiving that support is true in most child support cases. However, it is unlikely that this disparity alone will support a deviation from the Maryland child support guidelines.

Who Gets to Claim Your Kid’s Child Tax Credit?

One way to offset the tax consequences of child support within your divorce settlement is to negotiate over which parent will claim the Child and Dependent Care Credit for each child each year. This applies to your federal income tax return, as well as your Maryland state income tax return.

One way to offset the tax consequences of child support within your divorce settlement is to negotiate over which parent will claim the Child and Dependent Care Credit for each child each year. This applies to your federal income tax return, as well as your Maryland state income tax return.

As a general rule, the parent with whom a child spends more overnights during the year is entitled to claim that child as a dependent on their federal tax return. This allows the custodial parent to claim the child tax credit and reduce their adjusted gross income by a set amount ($6,000 in 2020).  However, the noncustodial parent may claim the child instead if the custodial parent signs a Release of Claim to Exemption for Child by Custodial Parent each year. This can be beneficial if the noncustodial parent’s income is taxed at a higher rate, or if the custodial parent cannot take advantage of the full $6,000 tax credit (because they do not have enough taxable income or to avoid having the amount reduced because one or both parents earn too much).

At the state level, Maryland parents claiming the credit are entitled to 32.5% of the federal credit amount, up to an adjusted gross income of $20,500 for individuals, or $41,000 for married couples filing jointly. Maryland taxpayers can also qualify for an Earned Income Tax Credit and can subtract certain childcare expenses from their income for state tax purposes. Because of this, parties often negotiate to alternate claiming the children, or to allow the child support payer to claim the children as dependents and then pay the payee a portion of the child tax credit in addition to their regular child support.

COVID-19 Advanced Child Tax Credits

The question of who claims the children for tax purposes is especially important in 2021. The American Rescue Plan Act, part of President Joe Biden’s COVID-19 relief strategy substantially increased the value of the child tax credit for tax year 2021 (from $6,000 to $16,000 per child). Eligible taxpayers will receive advance payments of the 2021 child tax credit in monthly installments over the second half of 2021. In addition, unlike in previous years, parents claiming their children on their taxes will be entitled to the full amount of the credit even if they don’t owe that much in taxes. Right now, these changes only apply until the end of the year, but with the Coronavirus still a problem across the country, it could be extended to apply in 2022 as well.

If you and your spouse separated in 2021 or anticipate filing your 2021 tax returns separately, you should carefully consider who is entitled to the state and federal child tax credit, and be certain that any judgment orders both parties to file the necessary paperwork with the IRS to avoid unintended tax consequences of divorce. Otherwise, the primary taxpayer on your family’s 2020 tax return (or the parent claiming the children if filing separately) will be the one to receive the advance child tax credits even if they are not the parent who is paying the extra childcare expenses and remote schooling costs created by COVID-19.

Tax Consequences of of Divorce Property Distribution

Alimony and child support each present ongoing tax consequences that will affect taxpayers for years after the judgment of absolute divorce is entered. However, the year your divorce is finalized you may face some additional tax consequences as a result of the property distribution in your divorce settlement agreement or judgment following trial. Before you agree to any property settlement, you should speak to your divorce attorney, financial planner, and accountant to make certain you understand the tax consequences of divorce.

Income Tax on Rental Properties

In some high asset divorces, one or both spouses will anticipate using rental income from the real property they receive to supplement income and help maintain a high standard of living. When couples own multiple properties, renting those properties can provide a temporary boost of income and ease the transition to a single income household.

However, owning a rental property has complicated tax consequences. The party receiving the rental property in a divorce will need to:

• Report the rental income on his or her tax return
• Deduct maintenance and upkeep costs (including mortgage interest payments and HOA dues)
• Deduct depreciation on improvements and repairs made on the property over several years
• Apply the Qualified Business Income deduction to pass-through income from any rental property business entity (if they created an LLC or S-Corporation for property management)

Before deciding whether to rent out a marital home, you should discuss these tax consequences of divorce with your accountant. That way you will know the net income value of the property and can set aside enough savings to pay for the income tax on rental properties awarded to you in the divorce.

Capital Gains Taxes on Property Sold After Divorce

Often parties will  decide or be ordered to sell a marital home after divorce and split the net proceeds. However, depending on how you effectuate the sale, this can have tax consequences, too. If you sell your house together, you may end up paying capital gains tax on the proceeds.

Often parties will  decide or be ordered to sell a marital home after divorce and split the net proceeds. However, depending on how you effectuate the sale, this can have tax consequences, too. If you sell your house together, you may end up paying capital gains tax on the proceeds. If the property sold was your primary residence for 2 of the last 5 years, you can exclude up to $250,000 per person, or less if you purchased the home in the last 2 years. However, any capital gains above that amount will have tax consequences.

If, instead, one spouse buys out the other spouse’s share of the equity in the property as part of the judgment, capital gains will not apply because the sale is part of the divorce. However, if the new sole owner of the home later decides to move out and sell the property, that party will bear all the capital gains tax consequences.

Early Withdrawal Penalties on Retirement Accounts

One last tax consequence to consider during divorce involves tax-deferred retirement accounts including 401(k) and 403(b) accounts. Contributions to these accounts are made with pre-tax money. The taxes are paid when the money is withdrawn — generally in retirement. However, if you make an early withdrawal from a tax-deferred retirement account before age 59 ½, you will incur a tax penalty of 10% on top of those taxes.

Often, in divorce negotiations, retirement accounts are used to offset other valuable objects, including the marital home. The transfer of pre-tax dollars from an account in one spouse’s name to the other as part of a divorce using a Qualified Domestic Relations Order (QDRO) for 401(k)s or an Eligible Domestic Relations Order (EDRO) for 403(b)s does not trigger tax consequences. However, if the person receiving the retirement account plans to use that money to purchase a new home, for example, they will incur the taxes and penalties associated with early withdrawal. If that is your plan, be certain your attorney negotiates an appropriate setoff to account for the net value of the funds, rather than their gross value in the retirement account. It is also important to consider the difference in value between a pre-tax (and subject to penalty) retirement assets and after-tax cash.

Understanding the Tax Consequences of Divorce in Your Situation

At the Law Office of Shelly M. Ingram, our divorce attorneys keep the long-term effects of our clients’ divorce decisions in mind. While we are not tax attorneys or accountants and we are unable to offer you specific tax advice, we will help you identify concerns that may trigger detrimental tax consequences, and help you negotiate a reasonable settlement or property award that takes the IRS implications into account. Contact us today to schedule a confidential office consultation.

When couples with a high net worth get divorced, there is more at stake than in lower income cases. Treating a high asset divorce like just another breakup can lead to costly mistakes. But these errors can easily be remedied by working with an attorney experienced in the property issues that arise among more affluent families. Here are five common mistakes, and how to avoid them.

Mistake #1: Failing to Set Values in High Asset Divorces

High asset divorces are much more likely to include property without a clear value. This might include:

• Marital home
• Vacation property
• Timeshares
• Recreational Vehicles, like boats and off-road vehicles
• Collectibles, such as sporting firearms and high-end athletic equipment
• Business ownership or stock
• Investment portfolios
• Cryptocurrency accounts

It can be easy to assume that your wife will keep her own business or that your husband will be awarded all the motorcycles. But that doesn’t mean you should surrender their value.

In Maryland, each spouse is entitled to an “equitable division” of all property earned, accumulated, or acquired during the marriage. This is not necessarily a 50/50 split (though it is often approximately equal). The mistake high asset couples make is substantially over- or under-valuing these high-worth assets. Unless you work with your attorney, appraisers, business valuators, and other experts to set clear values for each asset, you could be leaving hundreds of thousands of dollars on the table.

Mistake #2: Hiding Property from Your High Asset Divorce Attorney

Another common mistake is trying to protect specific assets by hiding them from your attorney and the court. It is true that some non-marital property is excluded from property division by the court. Still, if you believe specific property belongs solely to you -- say shares in the family business -- it is better to disclose the asset and immediately state the reason it is non-marital property:

• You owned it prior to the marriage
• You inherited it or were given it as a gift (other than from your spouse)
• It was excluded as part of a valid marital agreement
• It is replacement property for something that would otherwise be non-marital

It is especially dangerous to hide assets from your divorce attorney. If you hide assets from your lawyer and your spouse discovers them later, the Court may hold it against you, and you could end up being subject to sanctions, which can include an inequitable division of the newly discovery property or assessment of attorney’s fees.

Mistake #3: Skipping Discovery Because You “Know Your Spouse’s Assets”

However, entering agreements before you know what is in your marital estate, and the value of those items, can be short-sighted. It is possible to get the information that you require without formal discovery, but frequently a limited, informal exchange of relevant statements and documents can help everyone feel more comfortable about the terms to be negotiated.

At the same time, couples trying to minimize conflict in their high asset divorce often make the mistake of skipping discovery altogether. You may assume that your spouse is treating you fairly. However, entering agreements before you know what is in your marital estate, and the value of those items, can be short-sighted. It is possible to get the information that you require without formal discovery, but frequently a limited, informal exchange of relevant statements and documents can help everyone feel more comfortable about the terms to be negotiated.

In high asset divorces, it is common for one spouse to be the money manager, or for the question of finances to be delegated to someone else entirely -- like an accountant or financial advisor. This can make it easy to lose track of accounts or their value. It is important to know what you have, and also what you may be giving away, before you enter into an agreement. Settlement agreements are hard to change after they have been signed, so it is crucial that you and your attorney know what assets exist before you go to Court or to mediation.

Mistake #4: Ignoring Tax & Investment Implications

Another mistake to avoid in divorce is reaching a property settlement without considering the tax and investment implications. In a high asset divorce, it can be tempting to even the scales by transferring retirement accounts or investments. This can be an excellent solution, if both parties have enough liquid assets to move into living independently. However, if a spouse takes disbursement of age-limited assets early it could have substantial tax consequences.

In addition, the investment options available when a nest egg is $100,000 may be very different than when it is worth $10,000. This can affect your ability to rebuild your retirement accounts after divorce. Before agreeing to a property settlement, be sure to discuss the tax and investment implications with your attorney, accountant, and financial advisor, so that you know what the net result will be after the IRS is satisfied.

Mistake #5: Not Working with an Experienced High Asset Divorce Attorney

There is a lot to think about in a high asset divorce. It takes a certain skill set to work with the necessary experts and professionals to create a clear financial picture for you and the courts. Unfortunately, not every family law attorney has experience working with high worth cases. If you don’t work with a high asset divorce attorney, your law firm could overlook key assets or ignore tax consequences leaving you with far less than your equitable share of marital property.

At the Law Office of Shelly M. Ingram, our high asset divorce attorneys know how to handle a portfolio. We understand the issues affluent couples face during divorce. We can assist you to discover, evaluate, and divide your property in a way that is fair, equitable, and anticipates the cost of building a new future. Contact us today to schedule a confidential office consultation.

Sometimes marriage is simply a mistake. Maybe your spouse led you to believe something that wasn’t true. Or maybe you or your spouse were not mentally capable to be married at the time of the marriage. Under certain circumstances, you may be able to have your union annulled to undo the legal effects of the marriage. Here’s how marriage annulments work in Maryland.

What is an Annulment?

Despite what you may have heard, in Maryland an annulment is not just an alternate way for the recently married to divorce. An annulment is a separate legal proceeding to request that the court deem that your marriage never existed because it was either void at the time or became voidable because of one or both spouses’ actions prior to the marriage ceremony. A legal annulment is also different from a religious annulment, where the Catholic Church, for example, may declare that a relationship did not meet the standards for a valid Catholic marriage. In some faiths, a religious annulment is necessary before a second marriage can be performed in the church.

Marriage Annulment vs Divorce

The difference between annulment and divorce has to do with when the problems in a relationship occurred. To request an annulment, you will need to demonstrate that there was a legally significant problem with your relationship before the marriage ceremony was performed. With divorce, the Court determines that a once-valid marriage relationship has fallen apart due to one spouse’s fault, following a separation, or after a mutual breakdown of the marriage relationship. The Court will enter a Judgment of Absolute Divorce, which will put an end to your marriage. With an Annulment, the Court enters an Order that your marriage never legally existed.

Practically speaking, there is little difference between what the court can do when there is a request for annulment or for absolute divorce. In either type of case, you can ask a Maryland Family Law judge to:

• Determine child custody and visitation
• Award child support and alimony (spousal support)
• Resolve property disputes between the parties

Because some grounds for annulment are difficult to prove, many family law attorneys will ask the court for both -- an annulment, if the grounds are established or a divorce, if they are not.

MD Grounds for Annulment

Before a Maryland court will grant a request for annulment, you will have to prove that there are one or more valid reasons to invalidate your marriage. Under Maryland law, grounds for annulment fall into two categories:

• Situations that make the marriage void for public policy reasons
• Circumstances that allow one spouse to object to the marriage, rendering it voidable

The difference between void marriages and a voidable marriage is that occasionally a third party -- like a person’s relative or first spouse -- can file the complaint for annulment. In voidable marriage cases, it must be a spouse asking to dissolve the marriage.

Automatically Void Marriages

A void marriage is one that was never valid in the first place. This could happen because:

• Either party was married to someone else at the time of the marriage ceremony
• The parties are too closely related under Maryland law (closer than first cousins)
• Either party lacked the mental capacity to agree to the marriage or was legally insane at the time of the wedding

Voidable Marriages When Spouses Object

A voidable marriage is legal until either spouse seeks to have the marriage invalidated and succeeds. This can occur when:

• One spouse was not of legal age (usually 18 unless with parental consent)
• The marriage was entered under duress (physical force), misrepresentation, or fraudulent concealment of something essential to the marriage
• Either party was temporarily unable to consent due to mental illness or temporary lack of mental capacity

Accidental Bigamy as Grounds for Annulment

Perhaps the most common example of a void marriage is where one party was already married at the time of the wedding. Someone may have become married automatically while living in a common-law marriage state.

Perhaps the most common example of a void marriage is where one party was already married at the time of the wedding. Someone may have become married automatically while living in a common-law marriage state.

In other cases, someone may have started the process to divorce, but the proceedings were dismissed or on-going at the time of remarriage. In limited cases, a third-party can ask the court to determine your marriage void if, for example, they were married to your husband or wife when your marriage took place.

Special Considerations for Fraud-Based Annulment

Fraud-based grounds for annulment are the most complicated to prove. The fraud must be related to some essential element of the marriage. The fact that your husband hid his video game habit or that your wife lied about her temper won’t be enough. Instead, the fraud should be related to health/well-being (yours or your spouse’s) or your children. For example, an annulment may be appropriate if:

• The wife hid the fact she was pregnant at the time of the marriage or lied saying the child was conceived by her now-husband
• One spouse concealed a serious mental health issue or chronic medical condition
• An immigrant spouse coerced a citizen to marry him or her to obtain spousal immigration status
• One spouse misrepresented his or her desire or ability to have children prior to the marriage

How to Get an Annulment in Maryland

Maryland has specific annulment requirements that must be met before a judge can declare your marriage void. Your Complaint for Annulment will need to lay out details related to the marriage, any children you share, and the grounds for the annulment. You will then need to prove those grounds existed at an annulment trial.

Annulment cases often involve complicated legal and factual issues, including who knew what before the marriage was performed. At the Law Office of Shelly M. Ingram, our divorce attorneys can help you determine if your marriage was void or voidable, and do the work to prove your spouse committed fraud or coerced you into getting married. We will help you file all the necessary paperwork with the court, and make sure you and your children are provided for after your marriage is annulled. You don’t have to work through annulment alone. We will help you protect your rights and find a solution that works for you and your family. Contact us today to schedule a consultation with an attorney.

Leaving an abusive spouse takes courage and a strong support system. After years (possibly decades) of manipulation and control, you need to know there is someone you can trust to stand by you and help you through a domestic violence divorce. That includes understanding how domestic violence affects your divorce legally and emotionally.

What is Domestic Violence in Maryland?

Maryland domestic violence law defines abuse as:

• An act that causes serious bodily harm
• An act that puts a person in fear of imminent serious bodily harm
• Assault
• Rape or sexual offenses (including attempts)
• False imprisonment (kidnapping)
• Stalking
• Child abuse (but not reasonable corporal punishment)

For abuse to be domestic violence, the person eligible for relief must be a:

• Current or former spouse
• Roommate
• Relative by blood, marriage, or adoption
• Parent, stepparent, child, or stepchild who lived with the person for at least 90 days in the last year
• Vulnerable adult
• Co-parent

Domestic violence divorce actions most often focus on abuse against a spouse or child. Domestic violence can target any gender and can include intimate partner violence between same-sex couples.

Protective Orders Shield Spouses, Children from Further Abuse

If you are worried about your safety as you escape your abusive relationship, you can talk to your family law attorney about seeking a Protective Order or Peace Order. These are civil orders that prevent your abuser from continuing their patterns of violent behavior. They can be obtained any time, 24/7, even before you file for divorce. Your divorce attorney can help you make the case that you and your children need protection, and can seek an order preventing your abuser from:

• Abusing you further
• Contacting you at home, school, or your job
• Visiting your child’s school
• Coming to a family member’s home or place where you are staying
• Returning to your shared home
• Taking your children away by granting you temporary custody

A Temporary Protective Order can be entered right away. Then, the court will set a hearing, usually within about a week, to allow you and your spouse to make your cases about whether or not the abuse occurred. A Final Protective Order can do all the things listed above, as well as:

• Set temporary visitation with your children
• Award emergency family maintenance payments
• Give you possession of a shared car
• Send you, your children, or your abuser to counseling
• Force your abuser to surrender their firearms
• Make your abuser pay the filing fees and court costs

If you are concerned about safety, it is wise to have a Temporary or Final Protective Order in place before you separate from your spouse. Coordinate with your divorce attorney and the local police about where you will be when your spouse receives service of the order. This will help protect you and your children from retaliation if your spouse takes the news poorly.

Cruelty or Vicious Conduct as Grounds for a Fault-Based Divorce

In Maryland, most spouses seeking an absolute divorce have to be separated for at least one year before they can file their complaint. But Maryland’s fault-based divorce allows you to skip the waiting period if you have been the victim of “cruelty or excessively vicious conduct.” This includes both mental and physical abuse, controlling behavior, isolation, taunting, threats, and other forms of domestic violence.

However, except in cases of particularly severe injury, most “cruel treatment” must continue for an extended period of time. One physical assault generally won’t be grounds for a fault-based divorce. Instead, if you choose not to wait, you should be prepared to testify about the extent and nature of your abuser’s violent acts against you or your children.

However, except in cases of particularly severe injury, most “cruel treatment” must continue for an extended period of time. One physical assault generally won’t be grounds for a fault-based divorce. Instead, if you choose not to wait, you should be prepared to testify about the extent and nature of your abuser’s violent acts against you or your children.

Domestic Violence and Child Custody

If either spouse says there has been domestic violence in the home, Maryland judges must determine whether that abuse occurred before awarding custody. If the court finds domestic violence did occur, then the abuser will not be awarded custody or unsupervised visitation unless he or she can convince the judge there is no likelihood of future abuse. Instead, the court will impose visitation restrictions, limiting when and how an abusive parent can have contact with their children, by:

• Expediting the case
• Ordering third-party supervision by a professional
• Ordering the abusive parent to pay for supervised visitation costs
• Prohibiting all contact between an abusive parent and his or her children, although this is an extreme and uncommon result

If you believe your spouse poses a threat to your children’s health or welfare, be sure to discuss possible visitation restrictions with your divorce attorney. That way, you can advocate for safe exchanges and protections to protect your children from further harm.

Applying Custody Factors to an Abusive Parent

In addition to specific findings of abuse, the court will also consider several factors in awarding custody based on your children’s best interest:

• Who has been their primary caregiver
• Each parent’s physical and psychological fitness
• Each parent’s character and reputation
• The existing custodial arrangement and each parent’s desires
• Maintenance of existing family relationships
• The child’s preference
• Financial considerations
• The child’s age, health, and gender
• Geographic considerations
• How long a parent and child have been separated
• A history of abandonment or surrender of the child
• Parents’ religious views affecting the child’s physical or emotional well-being

While domestic violence doesn’t specifically appear among these factors, the behaviors and mindsets that make up domestic violence often relate to several factors considered by the court. You and your attorney can work together to tell a story of how your spouse’s domestic violence has affected all areas of your child’s life to strengthen your argument that you should be awarded custody.

Does Spousal Abuse Affect Your Alimony or Property Division?

Maryland judges also consider a variety of factors in awarding alimony (post-judgment spousal support) and dividing the family’s property. Domestic violence, whether or not it is the reason for the break-up of the marriage may be one of them. In requesting alimony, you and your divorce lawyer can describe how your spouse’s abusive and controlling behaviors kept you from working, going to school, or becoming self-supportive. Their behavior also may have affected your standard of living during the marriage and be the reason you are seeking divorce. While surviving domestic violence does not automatically mean you will receive post-judgment support, it can make an argument for alimony more persuasive.

Domestic violence’s effect on property distribution may be less obvious. Often, it does not play a significant role unless your spouse destroyed family property as part of their abuse. However, the reasons for the break-up of the marriage are a factor that the Court will consider in the division of marital property.   In recent years, Maryland law has changed to allow parties to present evidence of a Protective Order or Peace Order in their divorce action. If the judge ordered your spouse to vacate your shared home or gave you use of a shared car in a protective order, you can use that order to advocate for a similar property award in your divorce.

The Emotional Effects of Domestic Violence Divorce

Domestic violence doesn’t only affect the way judges view your divorce case. It can also impact your own ability to interact with your spouse, negotiate a potential settlement, and present your case to the court. Domestic violence survivors experience a variety of different emotional, mental, and physical effects from the trauma they experience. Long after bruises and cuts heal, the emotional injuries caused by years of dominance and control can interfere with your ability to stand up for yourself and demand fair treatment.

Develop a Strong Support Team

Any divorce is hard. A domestic violence divorce can be crushing. It is essential that you do not go through it alone. You need a support team beyond your divorce attorney to help you deal with the emotional effects of divorce and to help you process the feelings you have about your spouse, your children, and the divorce process. Ideally, your support team should include:

• Therapists (for you and your children)
• A domestic violence social worker or advocate (who can help with practical issues that arise)
• Family members or close friends (although keep in mind these communications are not confidential)
• Someone to take you in if it is unsafe to be at home
• A family lawyer with experience handling domestic violence cases

Check in with your support team often, even when things are going well. Encourage them to reach out if they haven’t heard from you. Ask for help whenever you need it. Many abusers use isolation as a tool in controlling their spouses. That is because when a domestic violence survivor receives support from family and friends, it is much easier for them to see their spouse’s behavior as abuse. Supported survivors are also much more likely to be successful in leaving the relationship.

Mediation Doesn’t Always Serve Domestic Violence Survivors

Nearly all Maryland divorces involving children are referred to mediation. The goal of mediation is to help the parties negotiate a resolution without having to go through the time and expense of trial. However, one of the few exceptions to mandatory mediation referrals applies to domestic violence divorces.

The abuser and his or her survivor almost never have equal bargaining power. The patterns of dominance and control you learned over the course of your marriage will be on full display as you try to advocate for your needs post-divorce.

The abuser and his or her survivor almost never have equal bargaining power. The patterns of dominance and control you learned over the course of your marriage will be on full display as you try to advocate for your needs post-divorce. Some domestic violence survivors can mediate with the help of a trauma-informed divorce attorney and a mediator who understands the situation. However, for many others, mediation is simply inappropriate. If you attempt mediation as a domestic violence survivor, it is essential that you tell the professionals in the room if you are feeling intimidated or threatened before you agree to anything.

Trauma Affects Your Ability to Testify

Serious domestic violence can literally affect your brain. Trauma survivors’ brains often record traumatic memories differently. You may connect incidents based on the way they made you feel, rather than when they happened. You may simply not remember details at all.

This can make testifying, particularly on cross-examination, exceedingly difficult for trauma survivors. When you can’t recall an abusive incident or have difficulty saying when it happened, your abuser’s lawyer will try to claim it makes you a less credible witness.

Still, an abuse survivor’s personal testimony is essential to a domestic violence divorce case. You and your attorney should work ahead of time to put your story in order and commit it to memory. Your family law team can help you anchor your memory of events to other things that happened around the same time (like a child’s birthday or a vacation) so that you will be better prepared to respond to questions about when, where, and how the abuse occurred.

At the Law Office of Shelly M. Ingram, our family law attorneys know how hard it can be to leave an abusive relationship. We want to advocate on your behalf and ensure you have the support you need to remove yourself from an unsafe environment. We will review your matter thoroughly, and guide you through the process with your safety in mind, helping you to take back your autonomy and move on to a healthier future. Contact us today to schedule a consultation with an attorney.

Frequently, people are upset to learn that individually titled property can be deemed marital and subject to division in divorce. One of the ways that a lawyer can guide you and mitigate your property exposure in divorce, is by helping you to identify and trace property that may be non-marital. In short marriages, second (or subsequent) marriages, and cases with prenuptial agreements, identifying each party’s non-marital property may be an important part of resolving a couple’s divorce. But what is considered non-marital property in Maryland? And how will the Maryland family courts treat non-marital property if your case goes to trial?

What is Non-Marital Property?

In Maryland, marital property includes “property, however titled, acquired by 1 or both parties during the marriage.” That includes land or real property held in either party’s name, gifts one spouse gave to the other, and anything either of you obtained after you separated, but before the divorce was final.

Maryland only recognizes 4 categories of non-marital property:

1. Property acquired before the marriage
2. Inheritances or gifts given to one spouse by someone other than the other spouse
3. Property explicitly excluded in a valid agreement (most commonly: prenuptial, postnuptial, or separation)
4. Anything that is directly traceable to one of the first three categories (for example, if you owned a car prior to your marriage and sold that car to buy a new one)

The last category is particularly dangerous, though. If marital assets (like your own income) is combined with non-marital property to supplement the cost of an asset, that asset could be sufficiently commingled that it would be deemed marital, rather than non-marital property.

How Do Prenuptial Agreements Affect Non-Marital Property?

One category of non-marital property would be items excluded in a prenuptial or other agreement. This contract, entered before the marriage, can explain specific property, or types of property, that each party will receive in divorce. This can convert items that would be deemed marital property by operation of law into non-marital property.

For example, it is common for a prenuptial agreement to say each party will keep his or her own retirement accounts no matter when they were created. Normally, retirement accounts opened, earned, or contributed to during the marriage are marital property (though any balance that existed at the time of the wedding would be non-marital, and sometimes appreciation on that balance). However, in the prenuptial agreement, each future-spouse agrees that he or she will instead treat retirement accounts as non-marital property.

You and your spouse can also protect property you want to keep separate by entering into a postnuptial agreement (signed after the marriage but before a complaint for divorce is filed, or contemplated), or a separation agreement (entered in anticipation of an upcoming divorce).

You and your spouse can also protect property you want to keep separate by entering into a postnuptial agreement (signed after the marriage but before a complaint for divorce is filed, or contemplated), or a separation agreement (entered in anticipation of an upcoming divorce). Just like a prenup, these contracts can carve out property from the marital estate, by agreeing to treat it as non-marital.

Examples of Non-Marital Property

It can often be difficult to determine what is marital property and what is not. If you suspect property is yours alone, you should discuss that property with your divorce attorney to see if it qualifies. However, here are a few common examples:

• One spouse’s premarital home
• The portion of a retirement account that was invested before the marriage
• Family heirlooms inherited by one spouse during the marriage
• Ownership interest in one spouse’s family business
• Monetary gifts received by one spouse and held in a separate account from the family funds

Can You Turn Non-Marital Property into Marital Property?

Even if an asset would normally qualify as non-marital property, the way you and your spouse treated that property during the marriage can sometimes convert it into commingled, mixed, or marital property. Financial assets are most likely to become “commingled” when non-marital money is placed into marital accounts. This creates what lawyers call a “tracing” problem. It becomes hard to trace your separate money once it mixes with the marital assets.

Business interests can also become marital property if the non-owner spouse actively works to increase its value or operate the business. For example, if one spouse becomes an owner in the family business and her spouse begins working there as an accountant, the accountant-spouse may be entitled to some portion of the owner-spouse’s share of that business.

Physical objects can be converted into marital property, too. For example, assume one spouse owns a home. If the other spouse spends time building an addition, or the parties use their marital income to pay the mortgage, that home can become a mixed or marital asset.

How Maryland Treats Non-Marital Property in Divorce

If you and your divorce attorney are able to prove that an asset is non-marital property, you will be awarded that property without it counting against your share of the equitable distribution of marital property. If a piece of property is mixed, you will be entitled to the non-marital portion separately, and the marital portion will be divided equitably.

For example, a woman had a retirement account worth $20,000 at the time of the marriage. She continued to contribute to it throughout the marriage, and at the time of the divorce it was worth $200,000. Assuming she had proof of the initial value and no funds have been withdrawn or borrowed from the account, then Maryland family court may award her the first $20,000 as non-marital property (perhaps investment gains on the $20,000 too) and divide the remaining $180,000 equitably between the parties.

The key to protecting your claim to property is your ability to prove it remained separate. At the Law Office of Shelly M. Ingram, our divorce lawyers are well-versed in tracing non-marital assets. We can help you identify what property is marital and what is not and prove its value in the Maryland divorce courts. If you need help protecting your non-marital property, contact us today to schedule a confidential consultation with an attorney.

Same-sex couples have been able to get married in Maryland since 2013, and in other parts of the country as early as 2004. When gay and lesbian couples decide to start families, the law around same-sex couples and child custody can seem complicated.

LGBTQ+ Families Face Challenges Under Maryland Law

There are more than 12,500 LGBTQ+ families in Maryland. Of those, approximately 20% are raising children. These children may be a single spouse’s child from an earlier relationship, a child adopted by one or both parents, or a child conceived with the help of a sperm donor or a gestational surrogate. Even though LGBTQ people make up more than 4% of Maryland residents, the laws in the state aren’t always designed to address the needs of same-sex couples or their children.

For example, Maryland law assumes that “a child born or during a marriage is presumed to be the legitimate child of both spouses.” This includes “a child conceived by means of assisted reproduction during the marriage of the child’s mother with consent of the mother’s spouse…” This law is more inclusive of same-sex couples than some other states, since it uses the word “spouse” instead of “husband.” However, because the use of IVF is limited to “the child’s mother,” the law protects lesbian couples, but not their gay counterparts. Male same-sex couples even face difficulties when attempting to have both fathers’ named on their child’s birth certificate.

De-Facto Parenting in Same-Sex Custody Battles

Because of the way Maryland’s law was written, in the course of a same-sex divorce, family law attorneys usually need to look at each party’s biological relationship to the same sex couple’s baby. A biological parent of the child can establish his or her rights to child custody, child support, and visitation through a DNA test, or because she was the mother who carried the child.

For the non-biological parent, establishing parental rights can be significantly more difficult at times. Unless the family has gone through a second-parent adoption, the non-biological parent does not have the same inherent rights to the child as their biologically related spouse. Instead, the non-biological parent will need to establish that they served as a “de-facto parent.”

A de-facto parent is a person who has acted as a parent for the child, providing love, affection, and support, and assuming the day-to-day responsibilities for the child’s care and upbringing. To establish their status as de-facto parents, non-biological mothers and fathers will need to show:

• That the biological parent consented to or fostered their parent-child relationship with the child
• That they lived in the same household with the child for an extended period of time
• That they willingly provided daily care and undertook significant responsibility for the child’s life including their education and development
• That they had acted in a parental role for an extended period of time, fostering a bond with the child

Where the child has a second legal parent (such as in cases where the child was born prior to the same-sex marriage), only one legal parent must consent to the parent-child relationship to establish a de-facto parent’s status. Once the non-biological parent has established themselves as a de facto parent, the Maryland family court can award them child custody or visitation, and can include them in any child support orders related to the child.

The Proactive Approach: Collaborative Custody Agreements

Unfortunately, gay and lesbian marriages are just as likely to break down as any other. When marriages fail there is frequently a painful and abrupt end. When custody is also an issue, same-sex couples are frequently left to fight time-consuming, emotionally exhausting, and expensive custody battles.

There is an option for same-sex couples to get ahead of this exposure when family planning. Both parents may recognize the important role the other serves in their child’s life, with or without a biological connection. When parents’ relationships break down over time, or where there is little conflict, couples may want the non-biological parent included in their family’s child custody plan. Still, they may not know what that plan should look like, or may have hard feelings about their former spouse that need to be addressed. These same processes may be used to put certain safeguards and agreements as to custody in place, that would go into effect upon the birth of a child. The Collaborative process, is a child-focused and out-of-court process that would allow same-sex couples to reach a child custody agreement that respects both parents’ bond with their children as the onset of family planning or when the relationship breaks down..

The Maryland Courts will honor an agreement by both parties to treat a non-biological parent as a de facto parent. By reaching this agreement out of court with the help of collaborative law professionals, gay and lesbian families can avoid the heartache and expense of proving their parental connection in court, and still protect their on-going rights to act as their child’s parent.

At the Law Office of Shelly M. Ingram, our Maryland divorce lawyers are trained in collaborative divorce, mediation, and litigation strategies. We can help you understand Maryland law and how it affects your individual parental rights in a child custody case, so that you can decide which process is best for your family. To talk to a collaborative divorce attorney, contact us today to schedule a confidential office consultation.

Sometime between the proposal and the wedding day, many Maryland couples find themselves thinking about how marriage will affect their lives, their property, and their loved ones. With more couples waiting to get married, or getting remarried later in life, many Maryland residents are coming into new relationships with assets, debts, and children that need to be addressed and protected. Often, the solution to these complicated family issues comes in the form of a prenuptial agreement.

What is a Prenuptial Agreement?

A prenuptial agreement (sometimes called a “prenup” or a “premarital agreement”) is a contract between two people who plan on getting married in the future. In contract terms, it is an agreement made “in consideration of” the marriage. In other words, each party agrees that in exchange for the rights and interests outlined in the contract, they will say “I do” when standing at the altar.

As a contract, a prenuptial agreement creates a legally binding guide for courts that need to divide up the family’s assets in the future. It can also help to clarify how you and your spouse will deal with finances and debts during the marriage (i.e. Will you use a joint checking account or divide up household bills?), and can even anticipate issues like child-rearing. Many prenuptial agreements include provisions that account for both divorce and the death of a spouse. No matter how the marriage ends, the purpose of the prenuptial agreement is to control the claims one spouse has to the property of the other.

Do You Need a Prenup?

Most people assume that the only people who need a prenuptial agreement are trust-fund beneficiaries and the very rich. However, there are many family situations where negotiating the division of assets ahead of time may be important to protect the interests of everyone involved.

Children from a Prior Relationship

If you have children from a prior relationship, you may want to work with a family law attorney to create a prenuptial agreement that ensures that those children will receive your assets upon your death. A prenuptial agreement, along with a carefully drafted will or estate plan, can carve out “non-marital property” that belongs solely to you. If you die before your spouse, these documents can override the state’s inheritance laws that would give those assets to your surviving spouse, to make sure your children don’t have to rely on their step-parent’s good will to receive their inheritance.

Providing for a Homemaker or Caregiver Spouse

A prenuptial agreement in Maryland cannot set the terms for child custody or child support payments related to the parties’ current or future children. However, family planning is still a motivating factor for many couples weighing whether to get a prenup. If you and your fiance plan to have children together, you may want to work with an attorney to prepare a prenuptial agreement that sets out who will be the children’s caregiver, and anticipates how that interruption to his or her career path will affect the homemaker spouse in the event of divorce.

Your prenuptial agreement could set out a plan for alimony based on a percentage of the wage-earner’s income or other financial obligations. This alimony can be awarded for a set period of time, or until the children reach a certain age. This allows the caregiver spouse to carry out your shared plan for child-rearing, even if the marriage itself does not survive.

Interest in a Family-Owned or Closely Held Business

If either you or your spouse own a business before you get married, the terms of your partnership agreement may encourage you to get a prenuptial agreement to protect your interest in the business. Some business formation documents say that a divorce can trigger a buyout of a partner’s interest, rather than creating a risk that the person’s spouse will end up owning the partner’s shares.

If there is a chance your spouse could claim an interest in your family business as their own, your family may want you to get a prenup to protect the family’s legacy.

In other cases, you may anticipate inheriting a business in the future. Ownership of a family business often passes from parents to children only when the founding family member retires or passes away. If there is a chance your spouse could claim an interest in your family business as their own, your family may want you to get a prenup to protect the family’s legacy.

In either case, a prenuptial agreement can explicitly list any business interest you have as your “non-marital property,” belonging only to you. This language will protect your business property from claims by your spouse and shield you from losing your business if your marriage breaks down.

Shielding Premarital Assets

The same consideration applies to any pre-marital assets. Under Maryland law, except for certain circumstances, any property acquired during the marriage is deemed to be marital property subject to equitable division by the courts. Property owned prior to the marriage, as well as gifts and inheritances received prior to or during the marriage are non-marital. You don’t need a prenuptial agreement to argue that certain assets are non-marital during a divorce. However, doing so often involves trying to produce historical records to establish the ownership and value of property on the date of the marriage – which may be many years ago. Most premarital agreements include an inventory of each spouse’s assets and debts at the time the agreement is entered. Creating that list now, before the marriage, will be far easier and less expensive than gathering the same information years or even decades later – when it may not even be possible to collect the historical data required.

Protection of Retirement Benefits

Often, when people get married later in life, one main concern is that their new spouse will claim part of their pension, retirement accounts, or veteran’s benefits in a later divorce. Retirement assets earned during the marriage can be divided between spouses. However, a prenup can waive one spouse’s claim to the pension, 401(k)s, and annuities of the other spouse, so that each of you knows what assets will be available to you when you retire. Your prenuptial agreement can also lay out your agreement with regard to Veteran’s survivor benefits and spousal annuities. However, there may be additional steps you need to take to carry out that agreement should a divorce eventually occur.

Premarital Agreement Pros and Cons

Some people find the idea of a premarital agreement distasteful. If you imagine a marriage in romantic terms, with two lives becoming one and the couple living happily ever after, it may seem premature and unnecessary to anticipate what happens when the marriage ends. You may be concerned that by considering divorce before you get married you make it more likely to come to pass.

However, as of 2020, nearly 4 in 10 marriages ended in divorce. If this is your second or subsequent marriage, the chance of your marriage ending is even higher. Even if you and your spouse do stay together for life, when one or both of you pass away your family will need to know how to divide up your property. Whenever and however your marriage ends, a prenuptial agreement can streamline the process of identifying and distributing your assets, either between spouses or among your surviving loved ones.

In addition, many couples find that being intentional and having the conversation about these difficult issues early — before the marriage begins — reduces stress throughout their married life together.  If you share financial resources and wealth accumulation with your spouse, it is because you choose to do so – not as a result of specific marital property laws which may not have been considered. If divorce does result, having a prenuptial agreement can streamline the divorce process as well, and reduce the emotional strain of separating the family’s property.

What Makes a Maryland Prenuptial Agreement Valid?

Maryland is one of the few states that does not follow the Uniform Prenuptial Agreement Act. Instead, the state treats a prenup just like any other contract. That means that to be valid, a prenuptial agreement must be:

• In writing
• Signed by both spouses
• Entered after each spouse has the opportunity to talk to his or her own attorney (even if a spouse never actually does so)
• Include complete financial disclosures (or a waiver of that right to information)

When Will a Court Ignore a Prenup?

Prenuptial agreements are legally binding contracts. That means they are generally enforceable even if circumstances change over time or one spouse changes his or her mind after the fact. However, there are certain defenses a spouse can raise during the divorce that will allow a Maryland family court judge to ignore a prenup:

• fraud
• duress
• coercion
• mistake
• undue influence
• incompetence, or
• unconscionability (shockingly unfair).

Claims of duress or coercion often involve a prenup that was presented to a fiance as a complete document at the last minute, or which did not include financial disclosures. Also, as mentioned above, a prenuptial agreement cannot include negotiations over child custody or child support — especially for children who have not yet been born. If your prenuptial agreement includes these terms, the court will likely ignore that part of the contract, while the property-related provisions remain.

Should You Get a Prenuptial Agreement Lawyer?

Many couples work together to sort out their plans for a prenuptial agreement in advance. However, because these agreements affect your property rights, divorce law, and inheritance, it is a good idea to speak with an attorney to review the terms that you and your partner have discussed before anything is signed or finalized.  This is true even if your spouse has already presented you with a draft agreement.

Maryland attorneys can only represent one party in the formation of a contract, and they have a legal and ethical obligation to do what is best for his or her client. If your spouse has worked with a lawyer to prepare a prenuptial agreement, there may be parts of the document that work in your spouse’s favor that you didn’t consider, intend, or even fully understand. You should never assume the terms in a draft (unsigned document) are necessary or non-negotiable terms. A draft prenuptial agreement is a great place to start negotiations. However, the final version of a prenuptial agreement should reflect both parties’ interests, and that means getting independent counsel, review, and considerations for each person.

Remember that duress and coercion can negate a prenuptial agreement. The best strategy to make sure your prenuptial agreement will stand up in court involves:

• Starting well before your wedding day
• Hiring two attorneys — one for each spouse
• Negotiating the terms of the prenuptial agreement together
• Including alternatives that account for unlikely but foreseeable life changes (i.e. one spouse becoming disabled)
• A thorough exchange of relevant financial information and supporting and detailed asset schedules

By working with individual attorneys and customizing the terms of your prenuptial agreement, you can anticipate and prepare for future legal troubles at a time when you both still want what is best for one another. Smart, effective drafting of a prenuptial agreement can make life easier for everyone involved whenever the marriage ends and it becomes time to divide up what you own.

At the Law Office of Shelly M. Ingram, our family law attorneys want to help you remove stress from your marriage and from your engagement, while you plan a life together. We can help you negotiate a prenuptial agreement based on a full disclosure of both spouse’s assets and debts, that is fair and anticipates many of life’s unexpected changes. We treat prenuptial agreements as a tool to build better relationships now, as well as an opportunity to protect our clients’ interests and those of their children now and in the future. If you are getting married, or have received a draft prenuptial agreement from your fiance, contact us today to schedule a consultation with an attorney.