We frequently write about divorce for people over 50 on this website.  Joseph Atkins, webmaster and editor of Senior Dating Blog, has sent along this helpful list of 100 blogs about senior rights.

Police have ordered DNA tests to determine whether Ariel Castro is the father of Amanda Berry’s 6 year old daughter.  He is accused of kidnapping and raping Berry and two other women and holding them captive in his Cleveland home for years.

Many will find it hard to believe that a person convicted of such awful crimes would be able to assert any parental rights such as custody and visitation.

But Maryland, DC and Virginia are among the majority of jurisdictions that do not have laws terminating parental rights upon conviction of rape of the birth mother. So is Ohio.  If Castro sues for custody and visitation, the judge will have to decide based on what’s in the best interest of the child.

In 1978, Robert Swain divorced Nancy Swain because of her adultery.  She did not deny it.  In fact, she was living in an apartment with another man she intended to marry.

What Robert objected to was the order giving Nancy custody of their minor daughter.  His position was that exposure to an adulterous relationship inevitably causes detriment to the morals and welfare of a child of impressionable years.

The Maryland Court of Special Appeals disagreed.  It said there are no presumptions that adultery makes you an unfit parent.  Adultery is relevant only as if it actually affects the child’s welfare.  There is no presumption of harm.  Adultery will not tip the balance against a parent in a custody case.

Swain v.  Swain, 43 Md. App. 622; 406 A.2d 680 (1979)

If your spouse files a Complaint for Divorce against you, you have 30 days from the date you are served to file an Answer if served in the state of Maryland.   Maryland Rule 2-321(a).

You may also file a Counterclaim against your spouse.  Maryland Rule 2-331(a).

But if you file it more than 30 days after your Answer was due, your spouse can file a Motion to Strike your Counterclaim for being late.  The court shall grant the motion unless you can persuade the judge that the delay will not prejudice your spouse.  Maryland Rule 2-331(d).

“There is a busybody on your staff who devotes a lot of his time to chasing split infinitives. Every good literary craftsman splits his infinitives when the sense demands it. I call for the immediate dismissal of this pedant. It is of no consequence whether he decides to go quickly or quickly to go or to quickly go. The important thing is that he should go at once.” George Bernard Shaw, Letter to The Times (19th c.)

Maryland Rule 1-323 requires a certificate of service on every pleading or paper, except the first one.  The certificate of service lets the court know that you have mailed a copy to the other side so they can respond to it.  That’s only fair, right?  Here’s what it looks like:

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the ____ day of _______, 2013, a true and accurate copy of the foregoing was sent, by first class mail, to _______________________________________.

_________________________
James J. Gross

Guest post by Angie Picardo

While it is no surprise that divorce rates are up across the US, an unexpected trend has emerged in recent years. More and more baby boomers – now in their fifties and sixties – are opting out of marriage and venturing into the golden years on their own. In fact, the divorce rate for the 50+ demographic has doubled in the past decade.

Seniors who have navigated the divorce process often report liberation and excitement while embracing the control they have over shaping their lives in retirement. While many younger couples stay in unhappy marriages in order to raise children, elderly couples are able to make decisions without this added complication. They are able to place primary importance on each individual’s happiness, which sometimes means separating – even after years of living together.

Divorce is always a complicated and emotional issue, but couples divorcing in the later years of their life face unique challenges. Seniors have traditionally relied on spouses for support and care for the ailments that can accompany older age. Individuals who are newly single in their later years will likely have to seek out other means of support, from self-care to other family members to medical professionals. Creating a plan for current and future medical issues is an important part of navigating the divorce process for seniors, to ensure many happy and healthy years.

Division of assets also looks a bit different for divorcing seniors than for younger couples. For younger individuals, both have the potential to increase earnings after separating. Older individuals have fewer upcoming working years, and peak earnings are likely behind them. This means that seniors must carefully craft agreements that parse out retirement income, asset protection and division, health care, wills and trusts, and beneficiary designations. Investment assets, in particular, must be carefully divided so that each individual has a diverse portfolio.

Everyone experiences a decrease in mental faculties as they get older, which can play a role in the divorce process for seniors. Sometimes, what lawyers call “issues of competency” – an individual’s mental state and level of awareness – can affect parties’ ability to engage in the legal process.

The financial stress following divorce means that, in most cases, the two individuals may not be able to maintain the lifestyle that they are accustomed to together. Maintaining financial stability is therefore a major concern of many divorcing seniors. In situations when one spouse relies on the benefits received by the other, it is of paramount importance to negotiate a settlement that provides for the needs of each. A “Qualified Domestic Relations Order” is a mechanism used to divide retirement assets and can be used to divide these very important sources of income.

A recent book written by Deirdre Bair called Calling It Quits discusses senior divorce issues at more length. Her interviews demonstrate that individuals are less willing to stay in unhappy marriages now that life spans are longer, and they also observe that women feel more empowered to leave an unhappy marriage. Given the increased frequency of divorce for seniors, an increasing number of attorneys are specializing in “elder divorce” and the particular legal issues that accompany separating for older couples.

Angie Picardo is a writer for NerdWallet and TravelNerd, a personal finance website dedicated to helping you protect and save your money in topics as diverse as facing a divorce or finding the best options for LAX parking.

Guest Post by John Ellsworth, Esq.

If you and your ex decide to sell your home as part of the divorce, that decision may have capital-gains tax implications. Normally, the law allows you to avoid tax on the first $250,000 of gain on the sale of your primary home if you have owned the home and lived there at least two years out of the last five. Married couples filing jointly can exclude up to $500,000 as long as either one has owned the residence and both used it as a primary home for at least two out of the last five years.

For sales after a divorce, if those two-year ownership-and-use tests are met, you and your ex can each exclude up to $250,000 of gain on your individual returns. And sales after a divorce can qualify for a reduced exclusion if the two-year tests haven’t been met. What happens if you receive the house in the divorce settlement and sell it several years later? Then you can exclude a maximum of $250,000.

“How do you know when the other side has reached their limit in a negotiation?” asked Marcia Green, a third year law student, who was clerking for Sam Jones this summer.  Jones was 65 years old, thin, tall, with a shock of black, grey and white hair brushed back.  He wore an expensive, tailored suit and gold colored wire frame glasses.

“The code words are best and final offer,” said Sam.  “It means take it or leave it.  No counteroffer will be considered.  If you leave it, we will see you in court.”

“It sounds rather serious,” said Marcia.

“It is,” said Sam.  “If you say it, you and your client must be ready to walk away from the negotiation and try your case.  But you must use it sparingly and only when all else fails.  I almost never say it.”

“Why is that?” asked Marcia.

“Because, if you or your client settles for anything less than your best and final offer, the opposing counsel will never believe anything you say ever again.  That goes for this case and any future cases you will have against the same counsel.”

Sam Jones, a much sought after divorce lawyer, took his young clerk, Marcia Green, to the negotiation session with Al Briggs, opposing counsel.

“Look,” said Al, “the most we can pay for the marital award is about a $100,000.”

After the session, Marcia said to Sam, “our client is going to be upset that $100,000 is the most they can pay.”

“It’s not!” said Sam. “Didn’t you hear him say ‘about’ $100,000? That’s means he has authority to pay more.”

“I guess I didn’t hear that.”

“In a negotiation, it pays to listen. Words like about, more or less, or almost are leakage. They are like tells in a poker game. They let you read the mind of your opponent. The truth leaks out.”