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May 21

CHANGE IN THE LAW: The Before & After of “Legitimate Child,” “Presumed Parentage,” and Adoption

SB697 Bill Signing; Photo by: Patrick Siebert & Joe Andrucyk, 5/13/2019

http://govpics.maryland.gov/pages/Download.aspx?EventItem=7036&ImageItem=717545&Month=05&Day=13&Year=2019&Event=Bill+Signing&Photographer=Patrick+Siebert%2c+Joe+Andrucyk&Path=ImageHandler.ashx%3fEventID%3d7036&ImageID=717545&Thumbs=False

By: Valerie E. Anias, Esq.

On March 6, 2019, I testified before the Maryland Senate on Senate Bill 697. Senate Bill 697 sought to redefine Parentage and to create a process for Second Parent Adoption. On May 13, 2019, I appeared standing behind Governor Hogan to watch Senate Bill 697 be signed. This day is a tremendous win for so many families in Maryland.

The Before and After of a “Legitimate Child” and “Presumed Parentage”

Before: Maryland defined a “legitimate” child as one that was born as a result of a marriage between a man and woman, a child legally adopted, or a child conceived through artificial insemination with the presumed consent of the Husband. In practice, this meant that a child born between a married man and woman was presumed the legitimate child of both, regardless of the biological makeup. For example, if a woman in a heterosexual marriage used donor material, the husband was always the presumed parent and automatically received the title as a legal parent. However, lesbian couples in an identical situation – one gestational parent and one non-gestational parent – were not granted the same legal presumption. As a result, lesbian couples in an identical situation involving artificial reproduction were forced to petition a court to grant the adoption of their child by the non-gestational parent.

After: Effective June 1, 2019, a child born between a mother and her spouse is presumed to be the child of the spouse. Removing the identification of “husband” removed the implication that a legitimate child could only be born between a married man and woman. In just a few days, a child born from a mother is presumed to be the legitimate child of her spouse, regardless of sex, by virtue of being married. This enables both spouses to be considered the legal parent without having to formally adopt the child born as a result of their marriage. It should be noted that same-sex couples should still formally adopt their child to ensure safety as the legitimacy of the child would only be presumed in Maryland.

The Before and After of a “Second Parent Adoption”

Before: In some states, a second-parent adoption is different from a traditional adoption proceeding of two non-biological parents. In Maryland, however, there was no special rule or consideration for second-parent adoptions by same-sex parents or step-parents. The statute, Maryland Rule 9-103, which requires a doctor’s letter, consent by the biological parent, proof of income, and various forms of “proof” that the adoptive parent is an appropriate candidate to adopt the child all apply. The non-gestational spouse/step-parent was forced to request the Court to approve, evaluate, and then determine their parentage of a child they have intentionally brought into this world in the same way a heterosexual married couple could have or raised as their own.

After: Effective June 1, 2019, the process for a step-parent or same-sex parent to adopt is much more simple and less invasive. It provides a separate process for parents using a surrogate or for a step-parent to adopt their spouse’s child without having to navigate the waters of a traditional adoption. It allows parents to proceed as the intended parents of the adoptee.

This law allows families to establish themselves as families without belittling their status. It ensures children’s safety and security, by removing complex procedures and technicalities to simplify the process of recognizing their parents. Formal recognition of a parent’s “legal parentage” protects all aspects of a parent – child relationship such as ensuring that their child will be able to access that parent’s health insurance, Social Security, and other benefits as the parent’s beneficiary; whether the child will inherit after their parent’s death; or whether the parent’s relationship with their child will be legally recognized in states other than Maryland.

Put simply, this change recognizes families as families. Love wins.

Apr 09

Personal Care Contracts

By: Jessica L. Estes

If you currently provide care for a chronically ill, disabled, or aged family member, likely you spend, on average, twenty hours per week providing that care. This is in addition to your own personal commitments, which may, and often do, include managing a full-time job and your own family. Not only can this be overwhelming, but it can be extremely stressful. Moreover, family caregivers usually are not paid, as they feel some responsibility to provide this care solely out of love and affection.

But what happens when they can no longer provide adequate care for their loved one? The loved one may not have the resources to afford in-home, assisted living or nursing home care. And, unless the loved one has less than $2,500 in countable assets, they will not qualify for Medicaid benefits. Although one can “spend-down” assets below the $2,500 limit, Medicaid does not allow reimbursement for the care you provided. If you are reimbursed and your loved one files an application for Medicaid benefits, that reimbursement will be considered a gift subject to penalty and your loved one may not qualify for benefits for a very long time.

However, a family caregiver may be compensated for their services without any impact to their loved one’s Medicaid benefits if they have a personal care contract. A personal care contract is an agreement between a caregiver (one who provides care) and a care recipient (one who needs care) detailing the services to be provided for a set amount each month. To avoid a Medicaid penalty, the personal care contract should be written, signed and dated before you begin providing services or receiving payment. Also, the personal care contract should specify which services will be included and which will be excluded. Services can include meals, lodging, furnishings, utilities, laundry, housekeeping, personal assistance (bathing, dressing, grocery shopping, transportation to/from medical appointments, etc.), medical care and costs, and materials and supplies necessary to perform the services.

Additionally, the personal care contract should include the amount the caregiver will charge the care recipient for these services. You cannot, though, be paid more than someone with your equivalent experience and skills who does this professionally in your general area. For Medicaid purposes, though, the caregiver should keep a log of the services they are performing on a daily basis and a record of the payments received for these services. In the event the care recipient applies for Medicaid, the caseworker will want to see a record of the services provided and the payments made, which should be in accordance with the contract. As long as the services and payments are in accordance with the personal care contract, Medicaid will not penalize payments made to the family caregiver.

Finally, because this is a legal contract, I recommend having a qualified elder law attorney draft the contract for you, especially if Medicaid benefits might be needed in the future.

Mar 05

Prenuptial and Postnuptial Agreements – Why You Should Have One

By: Valerie E. Anias, Esq.

There is a misconceived notion that asking for or discussing a prenuptial or postnuptial agreement implies distrust or concern over your relationship and its future. This isn’t true! There are a significant number of benefits gained as a result of a prenuptial agreement, or postnuptial agreement if you’re already married.

There are two ways to dissolve a marriage: divorce and death. Prenuptial or postnuptial agreements help in making the dissolution as easy as possible.

The reality is this: marriage is both a romantic and business relationship. With very few exceptions nearly everything is or becomes marital. As such, nearly everything can become subject of costly litigation in the event of divorce or death. A well drafted and all-inclusive agreement will limit many of these issues. For example, the agreement will identify what is and is not marital property, each parties’ rights in the event of death or divorce, predetermine rights and obligations for spousal support, inheritance, and more. In addition, the agreement will have a complete financial disclosure including each spouses’ assets, liabilities, and income.

A properly drafted agreement will provide a full financial disclosure to both prospective or current spouses. It will list all assets, income, real property, personal property, etc. For example, what if you have your great-grandmother’s engagement ring? You’d want to be sure that said ring would remain with you, your children, and/or your family. If you were to pass, the value of that ring may ultimately be considered part of your estate and have to be divided. That could mean sold.

When contemplating whether you think a prenuptial or postnuptial agreement is needed for you, you should consider whether you want to be on the hook for your partner’s debt in the event of divorce or marriage? Whether you want your spouse from a second marriage to inherit more than your children from their first marriage? Whether you want your private business to be impacted in the event of divorce or death?

Obtaining a prenuptial or postnuptial agreement is simply a combination of planning and protection. Planning for the future of your spouse, children, and yourself while simultaneously protecting your spouse, children, and yourself.

Jan 29

How the Titling of Assets Could Have a Major Impact on Your Estate Plan

By: Jessica L. Estes

The one thing that can mess up even the best estate plan, is the titling of assets. I cannot tell you how many times a client will tell me they have the best trust or best will that encompasses everything from tax planning to creditor protection and disability planning for beneficiaries. For many of them, though, it does not matter how good their documents are if their assets are not titled appropriately.

Often, clients will add a child or other family member to their account so if something happens, that joint account holder can access the funds to pay bills. But what are the consequences of having a joint account holder? First, it is important to understand that a joint account holder is deemed to own 100% of that account, even if they never contribute any money to it. Not only does this mean they can withdraw all funds without your consent, but it also means that their financial power of attorney can control and/or access your funds. For example, if your son is joint on your bank account and he gets into a car accident and becomes disabled or requires long-term care, his power of attorney (likely, his spouse if he has one, or if he does not, a court-appointed guardian), might legally be required to use those funds for his benefit. Even if that does not occur, if your joint account holder files bankruptcy, gets divorced, or gets sued, that account could be garnished or liquidated. And, finally, when you die, that account will automatically pass to the joint account holder, who is under no legal obligation to distribute it in accordance with your will or trust. So, what good was that trust or will?

Similarly, if you name a beneficiary on your bank account – usually referred to as “pay on death” or “POD” – that account, upon your death, will automatically pass to your named beneficiary. Likewise, any beneficiary you designate on an investment account (“transfer of death”, or “TOD”) or a life insurance or annuity policy will also pass upon your death to your named beneficiary. In these situations, neither your will nor your trust will govern who gets your stuff.

Also, if you have an individual retirement account (“IRA”) with a beneficiary designated, that account will pass upon your death to your named beneficiary. This could cause any provision in your documents that would allow the beneficiary to stretch-out the payments from the IRA over their lifetime, to be ineffective and require the beneficiary to receive the all funds within five years of your death.

Moreover, if you have an account “in trust for” or “ITF,” that account belongs to the individual for which the funds are in trust. Because the funds in this account do not belong to you, this account will not be distributed in accordance with your will or trust. Rather, you should name a custodian to take over the management of the account upon your death.

And, if you have a trust, it does not mean your assets are now automatically in the trust. Your assets need to be retitled and the ownership changed to the trust. This will require action on your part to go to the bank or other financial institution and fill out change of ownership forms to have the account retitled in the name of the trust. If you fail to transfer the ownership of the assets to the trust, then the trust will not necessarily govern how the assets are distributed upon your death. Additionally, one of the benefits of a trust is to avoid probate, but if the assets are never transferred to the trust prior to your death, your beneficiaries will first need to go through probate.

So, review your assets and make sure they are titled in a way that is consistent with your estate plan.

Sep 28

Family Law: New Laws

On this week’s #FamilyFriday article, ERA Law Group, LLC wants to discuss some recent changes in Maryland Law that will become effective October 1, 2018 including getting a quick divorce with minor children and what happens when you owe child support!

1. Divorce by Mutual Consent expanded!

As some may know, effective October 1, 2016, Maryland Law permitted couples to divorce without waiting the formerly required one-year if they settled all marital issues and did not have any minor children. Now, Maryland has permitted this type of divorce – by Mutual Consent – to occur for couples with minor children. The couple still must resolve all marital issues such as alimony, marital property, debt, etc. and also must resolve all issues concerning the children including child support, physical custody and legal custody.

Additionally, mutual consent no longer requires both parties to be present for the divorce hearing. Only 1 party needs to be present.
Now, more than ever, Courts are going to want to see detailed and thorough separation agreements which completely capture the settlement arrangement between parties. Additionally, parenting plans – plans that focus on the upbringing of children in a divided household – will be a useful tool in ensuring that the matters concerning the minor children truly are and remain settled.

2. Failure to Pay Child Support!

When an individual fails to pay child support one of the immediate consequences is the revocation of their license. While this is a significant consequence, it often creates more harm than good. Without a license, the obligated person can’t get to work. If that person can’t get to work, they can’t pay child support. If they can’t pay child support, they become further in arrears. The cycle continues.

Effective October 1, 2018, a person who has suffered the above consequence and has successfully enrolled in an employment program with the Child Support Administration can have their license reinstated and can, upon referral from CSA, have their driving record expunged of the suspension. This new law encourages those parents who are in arrears to enroll in programs which will assist in the improvement of their employment and thus, pay their child support.

3. You can orally modify your grounds for divorce!

In most contested divorce cases, couples have various reasons they are seeking a divorce. That could mean adultery, cruelty of treatment, desertion, etc. When filing for divorce the filing party must select the grounds for their impending divorce. If, after a period of months and negotiation, they later decide to settle their issues and wish to proceed on an uncontested ground such as a 12-month separation, they would need to formally file an amended complaint. Unless represented by an experienced attorney who catches the need to file an amended complaint, this often creates unnecessary delay.

Effective October 1, 2018, parties do not need to file the amended complaint and can orally modify their complaint in open court at their final hearing and state that they wish to proceed on a 12-month separation. This is especially useful for couples who may not settle until just days or hours before the final hearing and/or couples not represented by an attorney. It allows couples to proceed with their divorce without having to prove the original grounds in which they filed.

Aug 07

WHO IS RESPONSIBLE FOR PAYING A DECEDENT’S DEBTS?

By: Jessica L. Estes

The last thing anyone wants when a loved one dies is to be harassed by that person’s creditors. Unfortunately, it happens all too often. The mail comes, and in it, a letter from a creditor expressing their condolences and wanting to know who is responsible for paying the bills. Having just lost a loved one, you are not sure what your obligations are, nor is that your top priority. Likely, you toss the letter aside; you will deal with it later.

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1. Divorce by Mutual Consent expanded!

2. Failure to Pay Child Support!

3. You can orally modify your grounds for divorce!

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