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Divorce Lawyers

Thyden Gross and Callahan LLPCounselors and Attorneys at Law




News and analysis about divorce, child support, alimony, equitable distribution of marital property including pensions and other retirement assets and closely held businesses, post-divorce financial planning, tax issues. life insurance and other divorce-and-money matters in Maryland, Virginia and the District of Columbia.

Post-Separation Strategies in Maryland Divorce Cases

May 9th, 2014

A 2013 Virginia case, Wright v Wright, 61 Va. App. 432; 737 S.E. 2d 519; 2013 Va. App. LEXIS 53 prompted me to observe that a high earning spouse can increase what he, or she, gets to keep by paying expenses out of marital property and banking the post –separation earnings because in Virginia those earnings are not marital property. Conversely, if you are the lower earning spouse you want prompt filings, quick hearings and, if the stakes justify it, an injunction on expenditure of marital property. See The “Wright” Strategy for Increasing What You Keep in Your Divorce, April 2014.

In Maryland, a spouse’s earnings after separation are marital property in the absence of an agreement to the contrary. So there is no advantage to paying expenses with accumulated marital property and banking post-separation earnings in Maryland. What then is the proper strategy for a high earning spouse in Maryland in a case with a relatively long separation?

First, if there is any existing non-marital property, don’t spend that. And remember that from separation to divorce you are earning marital property, increasing the marital proportion of retirement accounts, and adding to the duration of marriage, which is a factor in determining both alimony and marital property distribution. So it pays to settle early because a Separation and Property Settlement Agreement will exclude subsequent earnings from marital property.
Getting to settlement usually requires making a good offer. Getting to settlement early may require making a good offer early. This runs directly contrary to many negotiator’s instinct to make a low ball offer and move up in baby steps to wear down the adversary and get a “good deal”.
For high earners the good deal achieved by extended negotiations may be at the cost of hundreds of thousands of extra dollars added to the marital estate, and then divided. Sometimes it makes sense to make a really good offer early.
What about the Maryland financially dependent spouse? Certainly this spouse wants to settle temporary support and custody, visitation and access early, if possible. But what about the final settlement distributing marital property? It may pay to delay. But the advantage of dividing a bigger pie later must be balanced against the obligation to negotiate in good faith. Also, the additional costs and stress of getting-to-yes later rather than earlier are big negatives. Perhaps a bigger issue is that if the moment for settlement passes, it may not come again.

Related posts:

  1. Post-Separation Strategies in Maryland Divorce Cases

The “Wright” Strategy for Increasing What You Keep in Your Divorce

April 22nd, 2014

In a post titled “Determining Marital Property in Maryland, Virginia and the District Of Columbia” (June 17, 2011), I said:

“This article is about when the accumulation of marital property ends. It starts at the time of the marriage. When you return from the honeymoon and go to work the next Monday morning you are earning marital property – the stuff the divorce judge divides. When is the first day you can go to work and earn separate non-marital property? It depends on the jurisdiction.”

And after reviewing the applicable statutes, I said:

“When you and your spouse have separated, intending to remain separated, and do not have a property settlement agreement, in Maryland and the District of Columbia the property you acquire from the date of separation until the date of divorce is marital property. In Virginia such property is not presumptively marital, and in general is determined to be separate property, unless special facts and circumstances are established to overcome the presumption.”

In a recent case, Wright v Wright, 61 Va. App. 432; 737 S.E. 2d 519; 2013 Va. App. LEXIS 53, the Court of Appeals of Virginia considered whether Mr. Wright’s strategy in the two plus years between the date of separation and date of the divorce hearing required a finding to bring post-separation expenditures of marital property back into the marital pot to be divided with Mrs. Wright.

Husband had certain marital accounts totaling about $2,800,000. Husband earned approximately $1,500,000 per year; Wife was a homemaker. During the post-separation period, the marital accounts declined to about $1,415,000 on account of Husband’s payment of joint income taxes, real estate taxes on the marital home, tuition and school expenses for a child of the parties, spousal support to Wife and his own attorney’s fees and expert witness fees. Husband deposited the money he did not spend on these expenses to his separate accounts which, of course, were not marital.

The Court of Appeals said none of those expenditure were improper so they did not amount to “marital waste.” They explained that there are only two categories of expenditures of marital funds “proper” and “waste.” If your spending of marital funds falls into the “proper” categories it’s okay even if that permits a big decline in marital assets to be divided and a big increase in the separate funds of the party following the strategy.

The result in Wright provides a road map for the higher earning spouse to skew the division of marital property in his or her favor in some Virginia cases. If you are the lower earning spouse you want prompt filings, quick hearings and, if the stakes justify it, an injunction on expenditure of marital property.

Also, for multi-state or potentially multi-state cases, Wright is another reason that in a case with a relatively long separation, all other things being equal, the higher earning spouse probably wants the divorce case to be heard in Virginia. As I’ve said here before, a little planning and a little audacity can get you into the Court you want to be in. And a little more planning during separation can increase the property you get to keep.

Some of the facts here are from an article by one of the lawyers involved in the case. What’s wrong with Wright, Ronald R. Tweel (Virginia Family Law Quarterly, Spring 2014)

Related posts:

  1. The “Wright” Strategy for Increasing What You Keep in Your Divorce

JDR, Fault Divorce or Wait

April 10th, 2014

My last post said that when a spouse needs support or custody relief in the first post-separation year in Virginia, the choices are filing a petition requesting custody and/or support relief in Juvenile & Domestic Relations Court (hereinafter “JDR”), asserting fault grounds in a complaint for divorce from bed and board and for the custody and/or support relief in Circuit Court, or waiting one year from separation to file a complaint in Circuit Court for final divorce (called divorce a vincula matrimonii) on separation grounds and for the custody and/or support relief.
JDR is structured to be friendly to the self-represented. There are forms for most pleadings, the clerk’s office schedules the hearings and hearings are relatively informal. However, dockets are crowded and relief is not as speedy as in Circuit Court where you can be before a judge for temporary relief in 21 days. Also, either party can appeal to the Circuit Court and have the entire case reheard. The Circuit Court does not just review the record of what happened in JDR (there is no actual record), the Circuit Court rehears the entire case. In general, the unsatisfied party simply has to file a notice and pay an appeal fee. So when you prevail in JDR it often only means you won round one. And if you had an opportunity to start in Circuit Court instead, it was an unnecessary and inconclusive round one – a waste of time and money.
When you have evidence of clear fault grounds – adultery, physical cruelty, actual abandonment – the choice of where to file is a no-brainer. You file for divorce in Circuit Court and seek the additional custody and/or support relief. But this discussion is about choices so it concerns those cases where the evidence or the fault is less than clear. The advantages of a Circuit Court suit must be weighed against the downside risks. These include, for example, possible harm to the parenting relationship, the general ratcheting up of conflict, costs and attorney’s fees that often result from an accusation of fault, and the loss of credibility with the court if there is a failure of proof. In this weighing, one must also consider how important it is to be in the Circuit Court and how important it is to get into court now rather than wait out the year.
That is the third choice a party can make in this situation – wait one year, then file for divorce on one year separation grounds. This is what is often done. Because, of course, the choice is not between going to court now or doing nothing for one year. In the meantime there are negotiations with your spouse, getting the time-sharing schedule set by action and discussions, dividing accounts by self-help – just take your half, and dealing with many other issues. Often the important work of separating your affairs, dividing property and debt, and settling how to raise the children post-divorce is worked out during that first post-separation year, resulting in a Marital Settlement Agreement that resolves all issues. And if you agree on less than all, you can bring a complaint for divorce on one year separation grounds in Circuit Court and ask the judge to grant your divorce and decide the remaining support, custody or property issues.

Related posts:

  1. JDR, Fault Divorce or Wait

Where to File for Custody and Support in Virginia

April 3rd, 2014

When separated spouses in Maryland and the District of Columbia require the aid of the court to resolve issues of support or custody they know where to file their case – in the local Circuit Court in Maryland and in Superior Court in the District of Columbia. And if they have been separated for less than the period required for an absolute divorce, they can include a request for limited divorce (legal separation in DC) in the support and/or custody suit.

Not so in Virginia. The circuit courts are the trial courts of general jurisdiction, and are the trial courts preferred by lawyers, including family lawyers. But the court with jurisdiction of minors, including custody and support of minors, and support of spouses, is the Juvenile & Domestic Relations District Court (“JDR”). The Circuit Court only has concurrent jurisdiction over these matters if there is a divorce case pending. And, unlike in Maryland and DC, when the spouses have been separated for less than the required period (one year in general, six months with a written separation agreement and no minor children), a complaint for limited divorce is often not an option because in Virginia there aren’t any no fault grounds for limited divorce (called divorce from bed & board or, in Latin, a mensa et thoro ).
In this situation, the spouse needing custody or support relief faces a choice. He or she can:

1. File a petition requesting custody and/or support relief in JDR;

2. Assert fault grounds and file a complaint for divorce from bed and board and for the custody and/or support relief in Circuit Court; or

3. Wait the one year period and then file a complaint in Circuit Court for final divorce (called divorce a vincula matrimonii) on separation grounds and for the custody and/or support relief.
Each of these choices has advantages and disadvantages which I will address in my next post.

Related posts:

  1. Where to File for Custody and Support in Virginia

How to Disinherit Your Spouse

February 6th, 2014

Most married people want their surviving spouses taken care of when they die. The statutes of Maryland Virginia and DC reflect this. See a prior article here – Wills and Decedent Estates of Divorced and Divorcing Spouses.

Of course when the marriage breaks down, most people no longer want to provide for their estranged spouse. But divorce takes time. And the state statutes and federal statutes protect spouses. Is there a way to successfully disinherit your spouse before the divorce is final?

State law generally grants the surviving spouse all or part of the probate estate of the decedent by intestate succession when the decedent did not make a Will and by right of election against the Will when the decedent made a Will. Virginia, but not Maryland, expands the spousal protections to the “augmented” estate. The augmented estate includes certain non-probate assets and prior gifts.

Maryland case law suggests that Maryland’s statutory surviving spouse protections can be avoided by the common device of using a revocable trust instead of a Will as the primary estate planning document. Generally this requires executing a revocable trust which includes a clause stating who is to receive the grantor’s property at his or her death and transferring all or some of the grantor’s property to the trust. This keeps the property out of the probate estate and out of reach of the surviving spouse’s election against the Will.

The surviving spouse’s recourse is to seek to invalidate the trust. Karsenty v Shoukroun, 406 Md. 469 (2008) was a case where the decedent transferred property to a revocable trust with a disposition at death other than to his wife. The Court of Appeals of Maryland spent 40 pages discussing fraud on marital rights, unlawful frustration of marital rights and also legitimate estate planning. But the court stopped short of saying you cannot do by a revocable trust what you cannot do by Will. They sent the case back to the trial judge to consider the facts in light of the Court of Appeals 40 page discussion. So if you want to disinherit your spouse so that he or she doesn’t inherit in case you die before the divorce is final, a revocable trust is certainly worth a try in Maryland.

Not so in Virginia. The property transferred to the revocable trust is part of the “augmented estate” and the surviving spouse gets a share of that.
This sort of unilateral action to disinherit the spouse is appropriate only for protracted, contested divorces. In most divorce cases, estate planning is done by each spouse pursuant to an agreement with mutual waivers of estate rights. After all, your spouse doesn’t want you to inherit from him or her either.

Related posts:

  1. How to Disinherit Your Spouse

Pendente Lite Relief in Virginia

January 28th, 2014

There are many divorce cases where only one spouse is employed and there are no significant liquid assets or those assets are all under the control of the employed spouse.

In such cases, the financially dependent spouse can seek an award of pendente lite support.  “Pendente lite” is Latin for “pending the litigation”.  It means temporary support until the divorce trial.

Pendente lite support hearings are short and the only issues considered are need for support and ability to pay.  Some jurisdictions have established guidelines for  pendente lite spousal support.

For example the Fairfax County formula is:

When child support is also payable – monthly spousal support equals 28% of the payor’s monthly gross income minus 58% of the payee’s monthly gross income.

When child support is not payable – monthly spousal support equals  30% of the payor’s monthly gross income minus 50% of the payee’s monthly gross income

Child support is generally determined under the child support guidelines. Those guidelines are also used to determine child support pendente lite.

Virginia Courts can also enter pendente lite orders on maintaining health insurance coverage for a spouse or children, responsibility for debt payments during the case, exclusive use and possession of the family residence during the case, payment of attorney’s fees and other costs of the suit, and custody of the children pendente lite . However, most courts are reluctant to rule on custody pendente lite.  This is because custody matters have scheduling priority and will soon be heard as a final matter so pendente lite relief is not necessary unless there is an emergency.  And the judges do not like emergencies, so if you claim you have an emergency it better be a real emergency.

The Court’s ruling on any issue at a hearing on pendente lite relief can be reviewed and modified at the final hearing.

Related posts:

  1. Pendente Lite Relief in Virginia

New Notice Required in Virginia Divorce Orders

March 5th, 2013

In a prior post here I said: Post-divorce you should review your Will and all beneficiary designations to ensure that you do not unintentionally include a gift to your former spouse. Although we strongly recommend against relying on statutes to correct your estate plan despite your own inaction, there are statutes that provide that the judgment of divorce eliminates prior bequests or certain beneficiary designation to the former spouse. See Va. Code Sec. 20-111, 20-111.1, 64.1-59; Md. Code, Estates and Trusts Article, Sec. 4-105(4); DC Code Sec. 18-109 and Estate of Roscoe H. Liles, 435 A.2d 379; 1981 D.C. App. LEXIS 355. The effect of these statutes on the treatment of a now former spouse in an estate plan is uncertain and incomplete and may be frustrated by federal law spousal protections. The savings statutes are no substitute for a careful review of estate planning documents and beneficiary designations and corrective action based on the divorce settlement or judgment.
The Virginia legislature recently ensured that the Virginia circuit courts tell all divorcing parties what we’ve been telling our clients and the readers of this blog. They added section E to Va. Code § 20-111.1. Revocation of death benefits by divorce or annulment. It provides:
… E. Every decree of annulment or divorce from the bond of matrimony entered on or after July 1, 2012, shall contain the following notice in conspicuous, bold print:

Beneficiary designations for any death benefit, as defined in subsection B of § 20-111.1 of the Code of Virginia, made payable to a former spouse may or may not be automatically revoked by operation of law upon the entry of a final decree of annulment or divorce. If a party intends to revoke any beneficiary designation made payable to a former spouse following the annulment or divorce, the party is responsible for following any and all instructions to change such beneficiary designation given by the provider of the death benefit. Otherwise, existing beneficiary designations may remain in full force and effect after the entry of a final decree of annulment or divorce.

Once you are divorced, review your beneficiary designations and your Will and make changes as necessary.

Related posts:

  1. New Notice Required in Virginia Divorce Orders

Is Retirement Foreseeable?

May 4th, 2012

           The Court of Appeals of Virginia answered this question in the negative in Dailey v Dailey, 59 Va. App 734, 722 SE 2d 321, 2012 Va. App LEXIS 57. 

            The parties had an agreement that provided for alimony of $1,000 per month, modifiable upon a material change in circumstance.    The agreement was silent on whether Mr. Dailey’s retirement constituted a material change in circumstances.   The agreement was incorporated in the final decree of divorce entered in September 2009.

            In November 2010, Mr. Dailey retired, Ms. Dailey began receiving her share of the pension as agreed, $2900 per month, and Mr. Dailey moved to terminate or reduce spousal support.  The parties stipulated that the retirement was a material change in circumstances.  Ms. Dailey argued successfully that it did not warrant a termination or reduction of spousal support because while retirement was a material change, it was also one that was entirely foreseeable.  The trial court denied Mr. Dailey’s motion.

            The Court of Appeals agreed that retirement is foreseeable in the sense that most people eventually retire.  The court noted, however, that Mr. Dailey testified that he had no plans to retire at the time of the divorce.  And the Court reasoned that the effect of retirement was not necessarily foreseeable.  It was noted, for example, that the Agreement provided that Ms. Dailey would be paid her share of the retirement if, as and when Mr. Dailey’s pension was paid out, and that this particular pension plan had no survivor benefits if the participant died before retirement.

            The Court of Appeals held termination or reduction of spousal support upon retirement was not barred under the Agreement on the basis that retirement was foreseeable and therefore not a triggering material change in circumstances.  The Court of Appeals sent the case back to the trial court to determine whether or not to terminate or reduce spousal support.

            Does this mean that in the next Virginia case with a pension with a pre-retirement survivor’s benefit, the spousal support payer’s retirement, and its effect, will be foreseeable and therefore not grounds for a termination or reduction of support?   It is not clear.  Does this mean that a support payer with a pension cannot leave this issue open in the marital settlement agreements because of that risk? Probably so.  It is certainly something we will be looking at very carefully, and in appropriate cases,  negotiating what happens when the support payer retires.  This is especially important in a case like this one where, at the time of divorce, the payer had 29 years of creditable service, and he ended up retiring the very next year.

Related posts:

  1. Is Retirement Foreseeable?

Divorce by Affidavit

May 2nd, 2012

Virginia law will allow for divorce by affidavit beginning July, 1 2012. This will end the requirement of oral testimony at court or deposition by one divorcing spouse and a corroborating witness.  This was required, and affidavits will continue to be required, even when all custody, support and property issues are settled.

                The new law will dispense with the need for these uncontested divorce hearings, which the  divorce apparatus of clerks, judges and lawyers insist on calling ore tenus hearings. 

                This will also end my practice of filing all uncontested divorce cases in the Circuit Court of Arlington County.  I did this because the Court was convenient to most clients, witnesses and me and scheduling was easy – Tuesdays and Wednesdays at 9:30 a.m.  Also because from the point of view of our clients it was a clear event ending the case.  You went to court, you told your story, the judge listened and signed an Order granting your divorce, and you walked out of the courthouse with a certified copy of your Final Order of Divorce, all within an hour.  I’ve always thought that after all most people go through at the end of a marriage, and the all the twists and turns of the legal and financial separation and divorce, it was fitting to conclude with a clear event like the uncontested divorce hearing at which the Judge signed the Final Order of Divorce.  Alas, from now on Virginia clients, like those in Maryland and DC, will receive their Final Order of Divorce in the mail a few weeks or months after signing off on the now-forgotten affidavit – another piece of mail from the divorce lawyer.

Related posts:

  1. Divorce by Affidavit

Legal Separation and Limited Divorce in Virginia

March 21st, 2012

There is no such term as ”legal separation” in Virginia law.  Sometimes people may refer to themselves as legally separated after they have signed a Marital Settlement Agreement with their spouse and are waiting out the required separation period until they can file for an uncontested divorce.

However, you can obtain a limited divorce, also called a “divorce a mensa et thoro” (from bed and board) if you have grounds. The grounds for a limited divorce are different than the grounds required for a final divorce.  They are as follows:

Desertion or abandonment – no minimum duration

Cruelty – no required duration after the act of cruelty.

Note that, unlike for final divorce, there are no “no fault” limited divorce grounds in Virginia.

In Virginia, the reason for filing a limited divorce is usually to get your support or custody case into Circuit Court rather than Juvenile & Domestic Relations District Court when you need a court order regarding support or custody and you do not have grounds for a final divorce.  If you think you have this situation, ask us about it.

Related posts:

  1. Legal Separation and Limited Divorce in Virginia
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