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Thyden Gross and Callahan LLPCounselors and Attorneys at Law

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Maryland Divorce Legal Crier

News and comments about divorce, child support, child custody, alimony, equitable property distribution, father’s rights, mother’s rights, family law, laws on divorce and other legal information in Maryland.

Archive for April, 2013

Certificate of Service

Monday, April 29th, 2013

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

Grey Divorce (Elders Facing Divorce)

Friday, April 26th, 2013

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.

Tax Planning for Divorce (Part 7-Home Sales)

Wednesday, April 24th, 2013

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.

Negotiation Tip: Best and Final Offer

Thursday, April 18th, 2013

“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.”

Negotiation Tip: Listen for Leakage

Wednesday, April 17th, 2013

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.”

Valuing the Business

Friday, April 12th, 2013

Valuing a business in a divorce is no easy matter.  Alfred J. Pleasant had a business as a real estate broker when he got divorced.  His tax returns showed he made a gross income of $6,240 in 1989 and $7,343 in 1990.  His net was a loss of $2,500 each year.  He testified that his business was worth nothing.

The judge said, “I’m not going to buy the fact it is not worth anything because he takes a tax loss of $2500 on it each year.  I think the IRS would be rather upset if he was taking a tax loss on nothing.”

The judge then found that the business was worth $8,000.  On appeal, the court upheld the judge saying it could find nothing clearly erroneous in his finding.  This is why we encourage clients who own businesses to hire a business appraiser.  Even that’s no guarantee because the other side will hire one too and the judge will still have to decide the value.

Pleasant vs Pleasant, 97 Md. App. 711; 632 A.2d 202 (1993)

Meetings

Friday, April 5th, 2013

Opposing counsel wants to have a meeting to “present” a counterproposal in a divorce case.  I wonder why they can’t just send it to me.  I know how to read.  Do they think they will hypnotize me into accepting it at the meeting?

I agree to the meeting out of professional courtesy, but I am reminded of the following quote:

“If you had to identify, in one word, the reason why the human race has not achieved, and never will achieve, its full potential, that word would be ‘meetings.'” — Dave Barry

A Doll’s House

Thursday, April 4th, 2013

I just finished reading A Doll’s House, a play written in 1870 by Henrik Ibsen, available free from Amazon.com for Kindle.

The play is about a marriage and its breakup.  I’d like to tell you more, but I don’t want to spoil it for you if you haven’t read or seen it.  It has been interpreted as a play about women’s rights or about finding your true self.

If you want to be a good lawyer, read literature.  The stories of your clients are all in there.

Realtors Who Specialize in Divorce

Tuesday, April 2nd, 2013

The New York Times has an article today about real estate agents and divorce.  In a divorce, someone is moving out, and frequently the house is sold.

Real estate agents and brokers have to represent two people who are sometimes not speaking to each other.  They may have to deal with court orders, half empty closets or a spouse in residence that doesn’t want to sell and move.

They don’t want the buyer to know about the divorce, because then the price goes down.

Sometimes an agent’s most difficult task is not keeping the divorce under wraps, but navigating between the two clients who are in the middle of it.  If you are a real estate agent, tell us some of  your stories about selling a house in the middle if a divorce.

 
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