This is Legal Talk Maryland, hosted by the Maryland Law Firm of Kahn, Smith & Collins, the only legal podcast focused on the issues affecting ordinary people in the State of Maryland. Kahn, Smith & Collins, representing people and labor organizations in the State of Maryland for twenty years, and found on the web at kahnsmith.com.
Andy: Welcome to Legal Talk Maryland, this is episode 24 and I’m joined again today by David Diggs of Kahn, Smith & Collins. David, this is going to be our last episode on family law and so we’ve covered really the full gamut of the beginning conversation about divorce, all the way through custody, child support, alimony, and property disbursement. This episode’s going to be a bit of a catch up on a bunch of different topics.
I’d like to start with the very first one, which is we’ve recommended a number of times throughout the episodes that people get a lawyer involved early so that they get good advice, and a lot of times it can grease the skids and make the process a lot smoother. What happens to the fees that get charged? Do we need two lawyers in a divorce scenario, does each spouse need one? If they do, who pays for them? Is one at a disadvantage if they can’t pay for their own upfront? How does that all work and what’s involved?
David: In most cases attorney’s fees are charged based upon the attorney’s hourly rate. I would say in the Baltimore metropolitan area hourly rates for lawyers are going to range from $150 an hour, that’s really low, to $400 an hour. You really need two attorneys. If there are contested issues there have been attorneys who have been sanctioned for trying to represent both parties in a divorce. You owe your undivided loyalty to your client and if you’re representing two parties in a divorce you have a conflict of interest and you can’t have undivided loyalty to both folks.
It is a really tough issue when one party can’t afford an attorney. There are statutes in place that allow a financially dependent spouse to request contribution toward their attorney’s fees. If a spouse is looking for child support, alimony, or division of property, the law allows for awards of fees. But it’s difficult to prosecute a case against a promise of fees from a court down the road.
In some cases where you have one spouse who is financially superior and particularly enlightened, that spouse might voluntarily pay the other spouse’s fees, frankly because that spouse has an interest in making sure his soon-to-be ex-spouse gets good advice so that whatever agreement or arrangement they come to can stand a challenge later, so that it’s fair, so that there’s full disclosure, so that there’s no allegation of duress or anything like that.
Andy: Does the cause issue that we talked about play into this at all? I’m the spouse, you cheated on me, you’ve got a girlfriend, I caught you and I’ve got pictures or whatever the scenario. I have to go to court now and spend all this money fighting you in a divorce. Can I recover that at all?
David: It is a factor. I would say it’s probably not as big a factor as the spouse who’s caught their cheating spouse might wish. The law says we have to consider whether there was substantial justification in bringing the action or defending the action. But, the bottom line is if one spouse is very difficult, obstinate, just refuses to do the things that they’re required to do under the court rules, that spouse can be ordered to pay fees.
Andy: Anything else on fees or hiring an attorney that we ought to cover before we move on from that?
David: I don’t think so. Fees are very particular from case to case, it is possible to get divorced cheaply where children aren’t involved and there is no property. A real basic separation agreement can be prepared in an hour or two by a competent attorney, but the thing I see often is folks who get into big messes because they thought they could do it themselves. Then you end up spending more on an attorney to fix it when having legal advice early on would have prevented the mess in the first place.
Andy: For most attorneys, and I guess you can speak for your firm as well, is the initial consultation something you do, is there a charge for it?
David: The initial consultation on the phone is not charged. The initial consultation in person is charged at my hourly rate. I know there are certainly lawyers who give a free initial consultation in these cases. Frankly, I don’t think you get as much out of the consultation. My initial consultation takes at least an hour; it might take three hours depending upon the case. But we usually ask that that be paid.
Andy: Because you’re actually working on the case at that point, not doing a sales pitch.
David: That’s right, I don’t charge for the phone call.
Andy: Moving on, you’d said in the last episode you wanted to talk about retirement accounts. Tell us about how that plays.
David: I did because usually the retirement benefits for spouses are perhaps the most valuable asset in a marriage if not second to a house. Retirement benefits are unique in that a court can change title. If I have a 401K with 200,000 dollars in it and my spouse has no retirement benefits, she can ask a court for a QDRO, a qualified domestic relations order that awards her an equitable share, perhaps 100,000 dollars because even is equitable in this case.
Then that QDRO is prepared and it would require that the holder of my 401K pay that amount into a retirement vehicle, usually an IRA in that case, set up for the other spouse. It’s important to consider because while a 401K is easily valued, defined, benefit plans may not be easily valued. Yet you have to again get an expert involved to look at the defined benefit plans to make certain actuarial assumptions and then give a present value to these so that you can then look at a defined benefit plan that might pay wife 400 dollars a month when she retires at sixty-five, but she can retire early and take a little less. You have to put a present value on those. Again, we’re back to there can only be one monetary award, and a court adjusting equity. Usually you don’t have to get into a monetary award with a retirement because the court is allowed to transfer title.
Andy: That’s fascinating. When you talked about some of the other benefits plans, you’re talking about things that would pay on a monthly basis rather than lump sum or any other types of medical benefits, that sort of thing?
David: Medical benefits can also be addressed with something like a QDRO, a qualified medical support order. A defined benefit plan is sort of the old-fashioned pension plan. If your dad worked at General Motors he’s got a defined benefit plan that’s going to pay him when he retires. Those are becoming less common as more folks are involved in defined contribution plans, where they’re setting aside X amount of dollars in a 401K and maybe there’s a profit-sharing component. Those are easily valued. You at least know how much is in them by the statement. Defined benefit plan is not so easily valued.
Andy: We have a lot of military service members in this area. Does military change any of this in terms of how those benefits play?
David: Conceptually no, it’s still marital property. As a practical matter it’s just an added layer of complication because the military retirement benefits are so complicated and there are a lot of hoops to jump through to perfect a spouse’s interest in her military spouse’s retirement benefits and other benefits besides retirement.
Andy: Let’s talk about the same-sex marriage, and it’s a big issue these days in terms of property rights and marital rights. I suppose it seems complicated when those folks want to get together. It’s probably even more complicated when they want to go apart, right, so what can you tell us about the state of things there?
David: The state of things are in flux at this point, as it relates to same-sex marriage. I think six or seven states in the country are allowing same-sex marriage. A gay couple that gets married in Massachusetts or D.C. may certainly move to Maryland. Then the question is what happens if their marriage breaks up. It’s really no different than a heterosexual couple’s marriage breaking up. The issue is whether Maryland courts are going to allow these folks to divorce.
I understand that these cases are working their way through the circuit courts or the trial courts. I haven’t handled any but I’ve talked to colleagues who have. It seems as though the consensus is the courts are granting divorces to same-sex couples married elsewhere. In that respect it’s no different from a heterosexual couple divorcing.
I guess the question is what’s going to happen with same-sex marriage in Maryland and we’ll know more after the next legislative session the governor said he wants to make it a priority. We may have same-sex marriage in Maryland by then. In the interim there’s been an attorney general’s opinion, Doug Gansler the Attorney General has issued an opinion that says, and as I mentioned the trial courts seem to be following it, we honor the laws of other states. The full faith and credit clause of the United States
Constitution says that.
For example Maryland doesn’t have common-law marriage. Briefly, common-law marriage are folks who are together for a long period of time without the benefit of a ceremony. Common-law marriage is allowed in Pennsylvania, D.C., and other places. We allow divorce between those folks married by common law in Pennsylvania and D.C. and basically the attorney general’s opinion said we should also allow same-sex couples who’ve married elsewhere under the laws of those jurisdictions to get divorced in Maryland.
Andy: That’s interesting and that will change as the same-sex marriage laws change, but maybe not in the divorce side because we’re already recognizing it as if it was normal.
David: It seems to be, I don’t think any case has made its way to the appellate court. You have to understand cases get appealed when one party’s aggrieved or presumably the divorce [00:11:34.4] gay and lesbian couples at least agree on being divorced, and those cases are not likely to be appealed.
Andy: You talked a bit about the common law and the fact that we don’t have it in Maryland. You were going to talk about people who are living together and have common property or there are other peripheral issues, right?
David: There are lots of issues that relate to unmarried couples. Unmarried couples can have children, and their relationship may end and they don’t have the benefit of Maryland divorce law. They do have the benefit of Maryland custody law. The same analysis applies to unmarried couples and a court will look at what’s in the children’s best interests.
The real issue is grounded in some fear. I’ve talked to unmarried persons who are really concerned that there’s nothing in writing. What happens if my estranged partner leaves with my children and goes elsewhere; that’s a real problem, as it is in a married couple case and somebody relocating.
What an unmarried couple wants to do — first we have paternity cases. If the dad is not acknowledging that he’s a father, then a paternity action can be brought so that genetic testing is compelled and we ultimately determine who the dad is.
Andy: Can that be compelled in the other direction? If the dad thinks he’s the dad but the mother won’t — does it go both ways?
David: It can, it obviously happens less frequently but it can. There are cases where mom is married and has a relationship outside the marriage and the dad has compelled the mom to submit to genetic testing so that he can be determined to be the dad. There’s a very complicated analysis and it’s a case-by-case basis, but a court may or may not grant that. Again, depending upon what’s in the children’s best interest.
Andy: Anything else on the paternity front or splitting of assets between couples that aren’t married?
David: Again, couples that aren’t married who have property together don’t have the benefit of divorce law. They’re stuck with basic property law.
Andy: They’re business partners, basically at that point.
David: That’s an excellent analogy. We look at how property is titled. A lot of cohabiting folks might decide to title a property together. They think they’re protecting one another. If something happens to me I want my partner to have the property. Then what happens if that relationship goes sour? You’ve created this title — have you given the property away? Folks don’t think about these things. What’s your intent when you do that? Do you want your spouse to share evenly in the property if the relationship ends?
A lot of this can be remedied by contracts but most people don’t think of it. You might find yourself in a position where you’ve titled a property to your spouse. You might have owned it ten years before this relationship started and now the relationship five years later is deteriorating. That person has a joint interest in your property.
I have a case right now with similar facts where we’re trying to figure out how to determine what the other spouse’s interest in the house is. It’s not as easily done. These are complicated issues at best, and it’s further complicated if you don’t have divorce law to guide you.
Andy: That was pretty good on that, is there anything else in the miscellaneous category we want to cover?
David: I think we’ve hit mostly everything. I think that covers it Andy, thank you.
Andy: Great, thank you David and we’re going to figure out what our next set of podcast episodes will be and we’ll let everyone know. Thank you for that great coverage on family law. Again, I think to reiterate the point; anybody that’s going through these issues should give you a call and the sooner and more often you get advice the easier some of these things are to get through.
David: Thank you, yes.
Andy: Thanks David.
As always, none of the content of this program should be considered legal advice. Please seek an attorney for specific legal guidance relating to your individual circumstances. This podcast does not create an attorney/client relationship between Kahn, Smith & Collins, and any individual.
