The Emotional Divorce

At the start of the new year it is common for many of us to face the challenge of an unknown future while reflecting on our experiences of the past.  This is especially true as we contemplate our choices about the structure of our families.  For most people, the decision to remain in a marriage or to disengage from a marital relationship is a radical change that may promote serious anxiety.  To address the anxiety that comes from this uncertainty, I have found it useful to consider three intertwined yet distinct aspects of divorce: the emotional divorce, the financial divorce, and the legal divorce. As I have come to understand it, an emotional divorce occurs when a spouse truly realizes that there is nothing more that can be done to ameliorate the unhappiness that he or she feels in relation to the marriage.  This unhappiness can be manifested in many ways: constant bickering, stony silences, or eruptions in physical violence.  Typically, at the root of this unhappiness is a profound difference in basic values held by each spouse.  An emotional divorce often – although not always – precedes a financial and legal divorce which I will discuss in future newsletter articles. Thinking about the signs of a healthy relationship may be useful in determining whether or not a spouse believes an emotional divorce is either happening or has occurred.  Here is a brief– and non-exhaustive – list of some elements that mental health professionals suggest are signs of a healthy relationship between spouses: Sensitivity to the feelings of the spouse; Respect for the spouse’s opinions and values; Acceptance of...

Child Custody – The Courts Can Do [Nearly] Anything

In evaluating child custody cases, the Maryland appellate courts give wide berth to the decisions of the trial courts.  A judicial determination associated with child custody will not be disturbed unless the trial court abuses its discretion.  This standard of review accounts for a trial court’s unique opportunity to observe the demeanor and credibility of the parties and the witnesses. What happens in situations in which parents cannot communicate with one another?  Can a trial court require parents to participate in a joint legal custodial arrangement when parents do not have the ability to come to the simplest of agreements about the issues having a long term impact on the health, education, and religious practices of their children? According to the holding in the recently decided case, Santo v. Santo, filed on July 11, 2016, the answer to this question is ‘yes’.  The Maryland Court of Appeals did not abuse its discretion when it awarded the parties joint legal custody with tie-breaking provisions over several major matters affecting the lives of their children.  Trial courts have broad discretion in how they fashion joint custody awards.  The Court further held that although the parents clearly lacked the capacity to communicate or cooperate well, this inability to communicate does not preclude the court from making an award of joint legal custody.  To elevate effective parental communication so that it becomes a prerequisite to a joint custody award would undermine the trial court’s complex task of evaluating the facts and circumstances of each case; a task that is necessary to determine the best interest of the children. The Court of Appeals further...

The Presidential Debates: Legal Lessons Learned

With the beginning of fall, we see that the days are growing shorter and that we are all collectively counting down until our elections finally take place.  Along with the millions of words written in all sorts of media, on the evening of September 26, we were able to observe both the Democratic and Republican presidential nominees confront each other in real time without much filtering from either their campaign organizations or the media.  Just the two of them – Hillary and Donald – plain and simple.  I watched with fascination – not only to learn more about the candidates – but to see what I could glean to enhance my law practice. The split TV screen allowed viewers to see the differences between the candidates.  I was struck with the calm and cool expressions on Hillary’s face in comparison to the highly animated and agitated expressions on Donald’s.  It seemed as if every time Donald was challenged – either by Hillary or occasionally by moderator Lester Holt – you could see his discomfort.  His anxiety appeared also to be apparent with his frequent head shaking, wiggling eyebrows, and incessant sniffing and gulping of water.  In contrast, when Donald spoke, Hillary’s face remained smooth and unruffled.   She did not interrupt his commentary, although he often interrupted her. In lieu of eye rolls when Donald made some patently false assertions (quite notably about the issue of “stop and frisk” as an effective and legal police tool to reduce crime), Hillary did smile, but she did not appear to me to be particularly frustrated. How does all of this relate to...

New Laws Go Into Effect on October 1

The recent modification of our laws by the Maryland General Assembly demonstrates the strong connection between criminal and civil law with regard to interpersonal and family relationships.  In 2016 General Assembly passed legislation that redefines the crime of stalking.  Stalking has been defined as “malicious course of conduct that includes approaching or pursuing another, where the person intends to place–or knows or reasonably should have known the conduct would place– another in reasonable fear of: serious bodily injury; an assault in any degree; rape or sexual offense or attempted rape or sexual offense; false imprisonment; or death.”   With the passage of this new legislation, effective October 1, our Code now includes language that the person charged with stalking “intends to cause or knows or reasonably should have known that the conduct would cause serious emotional distress.” What are the kinds of anti-social behaviors experienced by victims of stalking?  The Bureau of Justice Statistics, an agency of the U.S. Department of Justice, prepared a special report which identified and measured seven stalking behaviors that would cause a reasonable person to feel fear. These behaviors include:   Making unwanted phone calls; Sending unsolicited or unwanted letters, e-mails, messages or texts; Following or spying on the victim; Showing up at places without a legitimate reason; Waiting at places for the victim; Leaving unwanted items, presents, or flowers; Posting information or spreading rumors about the victim on the internet, in a public place, or by word of mouth.   While these acts individually may not be criminal, collectively and repetitively these behaviors may cause a victim to fear for his or her safety...

Social Security & Determination of Monetary Award

In a case of first impression, a point of law never before presented to a Maryland Court, the Court of Appeals has now provided guidance on how social security benefits shall be considered when dividing marital property in divorce cases.   In the case Jackson v. Jackson, Maryland’s highest court ruled that trial courts are now required to take into consideration the parties’ actual or anticipated social security benefits as a relevant factor under the Marital Property Act when determining whether to grant a monetary award to adjust the equities and rights of the parties in marital property. The basic facts in the Jackson case help explain the issue.  In essence, the parties wished to divide their assets equally and were able to do so with the significant exception of their retirement assets in the form of their pensions.  During the marriage, Husband was employed for the majority of his career as a federal worker and was eligible for the Civil Service Retirement System (CSRS) pension.  Federal workers who receive retirement benefits from the CSRS are ineligible by law to receive social security benefits.  Wife was also employed during the marriage and was eligible to receive retirement benefits and social security benefits.  The dispute between them related to the accounting of Wife’s social security benefits when calculating the division of their marital property. In form, a social security benefit is a monthly payment to a beneficiary much like any other pension payment.  Social security benefits may certainly accrue during the time of a marriage, but because social security is a federal program created by Congress, states are prohibited by the...