Contemplating Divorce: the Courage to Settle

  Settlement or Court Litigation During Your Divorce   A quick check of the dictionary indicates that the word “settle” has many meaning.  Settle can mean, among other things, to agree, covenant, compensate, reconcile, mend, compromise, reside, or verify.   As I use the word, settle or settlement means to resolve a dispute. While representing clients over the years, I have identified certain factors to consider when addressing the pros and cons of a proposed settlement.  The basic calculus boils down to resolving a dispute through negotiation with an opponent or by way of a judicial decision.  To begin, settlement does not mean capitulation.  If an opponent’s position is so rigid or fundamentally divergent from what the law would provide, resolution by court is appropriate.  That being said, the contrast between negotiating with an opponent and the uncertainty in determining a court outcome is not usually so stark.  Settlement, particularly in divorce or custody cases, is made up of many shades of gray. It is also useful to understand that a court decision is inherently limited by the boundaries of the law.  Judges are prohibited from granting relief for anything other than what is available to a party through statute or case law.  These boundaries can diminish the creativity of parties to find a solution to the problem that they really may wish to address.  Similarly, the emotional concerns of parties are rarely dealt with adequately when a dispute is resolved through a judicial decision, especially in fights that involve members of a family.  Resentments that are not dealt with because of the limitations of the litigation process can continue...

Mediation and Expectations of Privacy

Mediation is a popular dispute resolution tool.  During a typical mediation, the parties sit down with an impartial mediator who facilitates discussions between the parties with the goal of having them reach a mutually acceptable agreement.  A mediator may help identify issues and options, assist the parties and their attorneys in exploring the needs underlying their respective positions, and upon request, record points of agreement expressed and adopted by the parties.  The mediator does not recommend terms of an agreement. Parties in a dispute can always engage the services of a mediator before filing a claim in court.   Over the past twenty years, courts have also recognized the utility of mediation and have routinely made referrals to court-appointed mediators in civil cases, notably family matters, but also in relation to business disputes and probate actions.  By using mediation to facilitate settlements, courts can clear their dockets and operate in an efficient manner. While disputes may be resolved by courts, most people prefer to avoid the expense and lengthy time commitment associated with a trial.   Court records are also generally open to the public, while mediation places a premium on privacy.   Standards of conduct for a mediator, including procedures related to confidentiality, have been incorporated in Maryland law and continue to evolve. The recently reported Maryland case, Sang Ho Na v. Malinda Gillespie, gives us insight into the matter of confidentiality during a mediation procedure.  The mediation in the case involved a custody dispute between two parents.  Prior to a hearing before a court on custody, the parents attended a private and voluntary mediation.  As a part of this procedure, the...

New Tax Laws: Estate Tax Exemptions & Alimony

In the wake of the recent tax legislation signed into law by President Trump in December 2017, we are all scrambling to absorb its impact on us as individual tax payers and as business entities.  Soon enough, we will be able to determine if Will Rodgers was correct when he said, “The only difference between death and taxes is that death doesn’t get worse every time Congress meets.” A key piece of the 2017 tax legislation relates to the exemptions associated with federal estate taxes.  Recently, federal estate, gift and generation-skipping (GST) tax exemptions were $5.6 million per U.S. domiciliary.  With the new tax law, the federal estate, gift, and GST exemptions are doubled to $11.2 million per U.S. domiciliary.  Notably, as is consistent with most of the provisions of the new law related to individuals, these exemptions “sunset” after 2025.  This means that absent a future change by Congress in this part of the tax code, the law will revert to what was in effect for 2017 with certain inflation adjustments.  In addition, those preparing estate plans must also consider estate taxes imposed by state governments, including Maryland. While it hasn’t received a great deal of attention in the general press, the 2017 tax legislation will also have a major impact in the area of family law.  For divorce decrees granted and marital separation agreements executed after December 31, 2018, alimony income will no longer be deductible to the donor of alimony nor considered as income to the recipient of alimony.  This shift in the tax treatment of alimony under the new law likely will make the negotiation...

Digital Assets: Access after Disability or Death

Estate Planning for the High Tech World In our technology-driven environment, many of us have created “digital assets.”  Digital assets include many types of things such as music, videos, medical records, financial statements, or photographs.  These items may be stored on a computer hard drive, online, or in the “cloud.”  Digital assets may also include accounts on social media websites, e-mail accounts, or merchant websites including credit card companies that offer rewards in the form of points that can be applied to purchase certain goods and services. The world of digital assets can become complicated if the owner of the assets is either deceased or lacks capacity to access to these assets.  It is not unheard of, for example, to receive a notice on a LinkedIn list of a person’s work anniversary years after the person has died.  This is obviously an unsettling event.  What can or cannot be done in these types of situations? Digital assets are governed primarily by terms of service agreements between the owner of digital assets and the provider of services related to digital assets.  Most of us have had experience simply clicking the “agree” button with a provider of digital assets, but equally, most of us do not read the extensive and complex terms of service agreement.  It cannot be assumed that what is included, for example, in a terms of service agreement for Southwest Airlines is the same for Delta Airlines.  Awareness of the contents of the term of service agreement for each digital asset in a portfolio will be informative about how to access a digital asset. Both federal and state...

New Law Untangles Health Care and Divorce

NEW LAW UNTANGLES HEALTH CARE DECISIONS FOR DIVORCING SPOUSES As of October 1, 2017, legislation that will likely change the drafting of separation and marital settlement agreements is in effect. This new law, is entitled Health Care Decisions Act – Advance Directives and Surrogate Decision Making – Disqualified Individuals. The new law imposes prohibitions on specific individuals from serving as health care agents or surrogate health care decision makers for their spouses. The individuals who would be disqualified are those who – in relation to the patient – are subjects of protective orders. But this new law goes beyond cases involving domestic violence. The new law also disqualifies a spouse when he or she has signed a separation agreement with the patient or when an application for divorce has been filed by either the patient or the spouse of the patient. The impact of this new law may only affect a small number of divorcing couples, but it is nevertheless an important change. While it is not a universal phenomenon, in the event of a serious medical crisis, most people who are separating or divorcing would prefer to have someone other than an estranged spouse serve as his or her health care agent or surrogate health care decision maker. Before this new law went into effect, a spouse was deemed to be automatically the first in line as a “surrogate decision maker” for health care matters if the patient had not previously executed an advance directive. The new law may permit a spouse to serve as a health care agent following the execution of a separation agreement or filing...