Blogs from October, 2022

Many Maryland families depend on government social security benefits and social security disability insurance payments to pay their bills. When those families fall apart, it may be hard to understand where those payments will go. You may have questions about how divorce affects social security benefits for the recipient, your former spouse, and your children.

SS Benefits and Divorce

When planning for retirement, most older Maryland couples count on receiving social security retirement benefits as part of their income. However, divorce can change those calculations. If you were planning to receive social security based on your spouse’s income, you may be concerned about your right to receive SS benefits after divorce.

Your entitlement to SS benefits based on your spouse’s income depends on:

• your spouse’s work history
• your own work history
• the length of your marriage
• your age when claiming benefits

Even a stay-at-home parent and homemaker can be entitled to spousal benefits based on their spouse’s social security amount starting at age 62. They will also qualify for Medicare at age 65. However, if you are below the full retirement age (between 65 and 67, depending on the year of your birth) or are working while receiving benefits it can reduce the amount of monthly social security benefits you receive.

This remains true throughout the divorce process. Sometimes former homemakers find themselves needing to work to support themselves during separation or divorce. If you do, be sure to consider how that additional income may affect your entitlement to social security benefits.

Can a Former Spouse Receive Social Security Benefits?

If you need help understanding how divorce will affect social security retirement or disability benefits, for you, your former spouse, and your children contact us today to schedule a confidential consultation with a family law attorney.

Qualifying ex-spouses may receive up to one half of your retirement benefit amount. However, this does not decrease your retirement benefits. If your former spouse makes an application to collect social security under your work history, he or she will receive social security benefits directly from the government. Your former spouse may receive social security benefits based upon your work history (even if you have remarried) if:

• You are entitled to social security retirement or disability benefits
• Your marriage lasted at least 10 years
• Your divorce occurred at least two years ago (if you have not applied for retirement benefits)
• Your ex-spouse has not remarried
• Your ex-spouse is at least 62 years old
• Your ex-spouse’s own work history (100% benefit) is less than the benefit they can receive based upon your work history (50% benefit).

However, there is a limit to the maximum family benefits the government will pay. If you have children, a current spouse, and a former spouse who are each claiming benefits on your record, the maximum amount the entire family can claim is between 150 to 180% of your full retirement benefit. In calculating this, your former spouse’s retirement benefits based on their own work history is paid first. Only the increased benefit amount will count toward your maximum family benefit.

SSDI Disability Benefits and Divorce

Social Security Disability Insurance (SSDI) benefits are paid based on a person’s physical or mental disability interfering with their ability to work. SSDI benefits are generally not considered marital property to be divided in divorce. However, if those benefits were received during the marriage and placed in a joint bank account, that account can be divided during divorce.

SSDI may not be considered a marital asset, but it is considered income for the calculation of alimony and child support. If one spouse is disabled and the other has historically provided support, the provider spouse may be ordered to pay rehabilitative or indefinite alimony to help them pay their bills. However, the amount of alimony awarded will be based on multiple factors, including the disabled spouse’s access to government benefits. If you receive SSDI at the time the divorce is entered, it will likely reduce the amount of alimony you are entitled to receive.

Dependents’ Benefits and Child Support

Your biological, adopted, and stepchildren are entitled to receive dependents’ benefits under either your social security retirement or SSDI benefits. Certain dependent grandchildren also apply. To receive dependent benefits, a child must be:

• Unmarried and
• Under 18,
• Between 18 and 19 (and two months) if still a full-time high school student, or
• Have a disability that started before age 22

Just like a spouse, if your child works while receiving benefits, their benefits will be reduced based on the amount they earn. However, your benefits will not change.

In addition to any dependents’ benefits your children may receive, your SSDI payments may be garnished to help pay for court-ordered child support. That is because SSDI is considered income for support purposes. However, if your children are receiving dependents’ benefits, that amount will count toward support first, before dipping into your own payments. If you have not applied for dependents’ benefits for your child already, doing so can increase the total money available to pay for your child support.

At the Law Office of Shelly M. Ingram, our divorce lawyers want to help you protect your government benefits, and make financial decisions that are best for you and your children. If you need help understanding how divorce will affect your social security retirement or disability benefits, contact us today to schedule a confidential consultation with an attorney.

If you have questions or concerns regarding your social security benefits we encourage you to also contact the Social Security Administration. To find a field office in your area visit the online Social Security Office Locator. For general questions, contact the Social Security national office at (240) 652-2596">(240) 652-2596.

Custody cases generally center on disputes between a child’s primary parents – mothers and fathers. In custody disputes, the involvement of third parties can change the dynamic and often make things more complicated. Step-parents, grandparents, and new partners can each affect custody cases in different ways, from influencing the judge’s decisions about your child’s best interests to filing child custody cases of their own. Understanding third parties’ roles in your custody case can help you anticipate and plan for the part they will play in your family, and also to do what is best for your children. 

New Relationships Can Create Waves in Child Custody Cases

After a divorce or at the end of a long relationship, many Maryland parents are eager to move on with their lives and that often includes the start of a new romantic relationship. When a parent introduces his or her children to a new significant other too soon, it can affect the children and any related custody case. In addition to impacting your custody case and your relationship with your child, the introduction of a new significant other may also prompt an emotional reaction from your co-parent.

Children’s Response to New Parental Figures

Our Maryland child custody lawyers understand the role in custody that stepparents, grandparents, and romantic partners can play in child custody cases, both legally and emotionally. We can help you understand the limits of third parties’ authority and ability to participate in the child custody process. We will guide you through the entire case, from determining if you have standing, to negotiating a custody agreement with the child’s parents or proving your de facto parent status in court.

Children of divorced parents often struggle with feelings about their parents’ roles in their lives. For very young children, this takes the form of “attachment” and can define how independent and self-sufficient they become. They may experience parental confusion, and be unable to distinguish between their own mother or father and a step-parent or other custodian introduced too quickly.  Older children may come to resent a parent who left the marital home, or blame one parent for the changes in their environment. Introducing a new parental figure into that environment can be confusing and increase those feelings of abandonment or blame. It is best to go slowly in introducing your children to new romantic partners and wait until you are certain the relationship will last before bringing your children into the picture. 

Co-Parenting When New Relationships Start

Often, children trying to process their feelings about one parent’s new romantic partner will talk about the new partner with their other parent. This revelation can often come as a surprise to the co-parent, who likely will have his or her own emotional response based upon the timing and grief for the failed relationship. Co-parenting relationships can suffer when a new partner enters the picture. You can reduce the strain caused by the introduction of a new significant other by having open conversations with your co-parent about your intentions to make the introduction, before any introduction is made. You may even go so far as to let the adults meet first, before bringing the children into the picture.

Sometimes, a new romantic relationship can lead directly to a custody motion in court. If your co-parent has safety concerns about the stability of your new romantic partner (for example: his or her drug use, criminal history,  or anger issues), your co-parent may file a motion to restrict your partner’s role in the children’s lives. This is especially true if you move in with your new partner. These motions could ask the court to:

• Restrict overnight visits while the children are in the home
• Prevent contact between the child and the new boyfriend or girlfriend
• Keep the children from referring to your new partner as “Mom” or “Dad”
• Ban corporal punishment
• Restrict parenting decisions to just the parties
• Adjust child support based on shared expenses

If you begin a new relationship while your child custody case is still pending, your spouse can also use that fact against you in determining custody, especially if your children know about it or have been introduced to your new partner so soon. Once again, moving slowly and maintaining open communication with your co-parent is the best way to avoid the possible negative impact that your new partner may cause for your child custody case. 

Stepparents Role in Custody

If you remarry, you might think things would change around child custody and potential negative impact. However, stepparents are not legal parents of the children. Your new spouse’s relationship to you does not give them authority over your child. This power dynamic can lead to difficult situations within your household, especially if your new partner will be caring for your children or there are other children in the household. 

Can Step-Parents Provide Transportation to Visitation?

Perhaps the most common role step-parents can play is providing transportation for their step-children. They may drive children to school, extracurricular activities, babysitters, or social events. But can they provide transportation to visitation? There is no legal requirement that Maryland parents provide transportation to and from child custody exchanges. Instead, the parent dropping off or picking up is generally responsible for arranging transportation by someone with a valid driver’s license that the child knows and is comfortable with. 

However, before you send a step-parent to an access exchange, consider the emotional and relational forces at play. 

• Is this an occasional event or regular occurrence
• How well do you and your co-parent get along?
• Do your co-parent and your new spouse know each other?
• Will your co-parent be offended that you handed off the transportation duties?
• Is asking a step-parent to drive the children to visitation going to reduce or increase conflict?

There is not a clear answer for this. Some family dynamics can benefit from using a third party to act as a go-between preventing parents in conflict from engaging face-to-face. In other cases, a step-parent can be seen as overstepping his or her bounds if they take over the transportation for an otherwise disengaged parent. Consider your family’s specific interpersonal dynamics, and be sensitive to your co-parent’s feelings on the matter before sending your new spouse into a high-conflict situation.

Stepparents and Discipline

When a stepparent lives in the same home as your children, there will inevitably come some moment when he or she needs to resolve a conflict between your children or address some misbehavior. If your new spouse has a different strategy for discipline than you and your co-parent, it can not only create a conflict, but also serve as a  basis for a child custody motion. Corporal punishment, including spanking, can be especially troubling for some parents. As your child’s legal parent, you – not your spouse – have the final say on discipline issues. You must set clear boundaries for how discipline will be handled. If your spouse insists on doing something different than that which you and your co-parent have agreed, it could hurt you in court. 

Can a Stepparent Make Medical Decisions for Your Child?

The limits on a stepparent’s role are especially apparent in the doctor’s office. Stepparents have no legal authority to make decisions for a child. If you send your child to the doctor with his or her stepparent, it could delay treatment, or create a violation of your child custody order. You may sign a power of attorney to give your spouse permission to hear confidential information about your child’s health and make day-to-day decisions in your place. However, if you share joint legal custody, it should be you and your co-parent making medical decisions, without a step parent’s interference.

Grandparents’ Visitation Rights 

What about when the third party is biologically related to the child? Grandparents often play a role in child custody cases. They may provide childcare to working, single parents, or even act as primary caregivers if a parent is unavailable due to health, employment, or a jail sentence. In the courts, grandparents are third parties just like step-parents. However, they do have the right to file a motion for grandparents’ visitation. A grandparent is not likely to succeed in requesting visitation over parents’ objections. To do so, they will have to show that a parent is unfit, or that exceptional circumstances exist. According to a 2017 case, Burak v Burak, parental unfitness means:

1. “The parent has neglected the child by manifesting such indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge his or her parental duties; 
2. The parent has abandoned the child;
3. There is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse;
4. The parent suffers from an emotional or mental illness that has a detrimental impact on the parent’s ability to care and provide for the child;
5. The parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child; and
6. The parent has engaged in behavior or conduct that is detrimental to the child’s welfare. 

Another case, McDermott v Dougherty, set out factors to determine when exceptional circumstances exist in favor of a grandparent’s visitation rights:

1. The length of time the child has been away from the biological parent
2. The age of the child when care was assumed by the third party
3. The possible emotional effect on the child of a change of custody
4. The period of time which elapsed before the parent sought to reclaim the child
5. The nature and strength of the ties between the child and the third party custodian
6. The intensity and genuineness of the parent’s desire to have the child
7. The stability and certainty as to the child’s future in the custody of the parent

Because these standards are so high, grandparents seeking visitation are often better served using mediation or other forms of alternative dispute resolution to reach an agreement about their role in a child’s custody with the parents without going to court. 

De Facto Parents Seeking Child Custody and Visitation

There are some cases where a stepparent will try to seek child custody and visitation themselves, rather than through a child’s legal parent, including where that parent is unfit (see above), or has died or become incapacitated. When it comes to awarding custody, even as a stepparent, unless you have gone through an adoption, your new spouse is still legally no different than a grandparent, the non-biological parent of a child in same-sex couples’ child custody cases, or an interested stranger. 

That is, unless they can establish themselves as a “de facto parent.” In the 2016 case, Conover v Conover, a Maryland court of appeals set out a four-pronged test to identify a person who has acted as a child’s parent for all practical purposes, without legal custody rights:

1. That the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; 
2. That the petitioner and the child lived together in the same household; 
3. That the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and 
4. That the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Because they cohabitate with the child and the child’s legal parent, step-parents are the most likely to qualify as a de facto parent under this definition. Once they do so, they can request custody and visitation based on their existing parental role in the child’s life – although there is no guarantee that the step-parent will prevail in making this defacto parent request. 

At the Law Office of Shelly M. Ingram, our Maryland child custody lawyers understand the roles stepparents, grandparents, and romantic partners can play in child custody cases, both legally and emotionally. We can help you understand the limits of third parties’ authority and ability to participate in the child custody process. We will guide you through the entire case, from determining if you have standing, to negotiating a custody agreement with the child’s parents or proving your de facto parent status in court. Contact us today through our online form or call us at (240) 652-2596">(240) 652-2596  to schedule a consultation with an attorney.