Family Law Updates

Economic Impact Payment Guidance On Child Support

The guidance and Administrative Orders issued by the courts make clear that court orders regarding child support remain enforceable. With that said, if a parent subject to an order to pay child support has been laid off, whether due to the impacts of COVID-19 or for any other reason, that parent can (and should) file a request to modify child support with the appropriate Maryland court. Even though Maryland courts remain closed through June 5, 2020 (at least), and a hearing on a parent’s request to modify child support might not take place for quite some time, by filing a request, in the interim, that parent may be able to obtain a retroactive modification of child support backdating to the date the request was filed. Also, the parent has then “gotten in line” in terms of having his or her case scheduled, as the courts reopen and work through the backlog of cases.

Due to the March 27, 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, many individuals have received or will receive economic impact payments. In general, individual taxpayers receive a payment of $1,200, married couples filing jointly receive a payment of $2,400, and families receive an additional $500 per qualifying child under age 17. These payments begin to phase out for individual taxpayers with adjusted gross income over $75,000, married couples filing jointly with adjusted gross income over $150,000, and heads of household with adjusted gross income over $112,500. The receipt of these payments may give rise to questions with respect to the impact on and intersection with child support payments.

When a parent’s child support payments are overseen by the Maryland Department of Human Services, the federal government will intercept the economic impact payment for people who owe child support arrears. If the amount of child support arrears owed is less than the economic impact payment, that payment will be reduced by the amount of child support owed, and the paying parent will receive the remainder of the payment.

For parents who are separated or divorced but share custody of a child, whichever parent claimed the child as a dependent in the most recently filed tax return is the parent who is likely to receive the economic impact payment. If parents most recently filed their taxes jointly but have since divorced, the economic impact payment may be deposited into an account that was formerly joint, or perhaps to which both parents had access, but which is now only owned by one parent. In this situation, individuals should notify the IRS to provide an update as to the change in their tax filing status.

A family law attorney can help address specific child support and custody issues relating to the economic impact payments and the COVID-19 outbreak in general.

Changes To Family Law Cases in the Court System

By an Administrative Order issued April 14, 2020, the closure of Maryland courts has been extended through June 5, 2020. Courts remain restricted to mandatory and emergency operations. Please refer to our Court Status During the COVID-19 Crises in Maryland, District of Columbia, and Virginia Update for more information. What is considered an “emergency” in the realm of family law matters is defined on a jurisdiction-by-jurisdiction basis. Typically, a situation is not considered an “emergency” unless there is a substantial risk of harm to a child.

In general, deadlines prescribed by Maryland Rules and Court-issued Scheduling Orders remain unaffected by the April 14th Administrative Order, and its predecessors, which provide only that modifications to Scheduling Orders issued in family cases are to be addressed by Motion on a case-by-case basis. Each individual jurisdiction may handle these matters, as well as other administrative matters, such as conducting proceedings remotely, differently. Below is a sampling of information from various jurisdictions with varying or more specific policies than set forth in the April 14th Administrative Order.

Howard County

Howard County has been conducting certain matters remotely, including uncontested divorce hearings where both parties are represented by counsel and all parties and counsel are willing to “appear” for the virtual hearing. Also, notwithstanding prior Administrative Orders directing that domestic violence temporary or final protective order hearings—the hearings that follow issuance of an interim protective order by a police commissioner—would be set no earlier than May 5, 2020, the district court has, in certain circumstances, set domestic violence matters in for temporary hearings on a remote basis.  Our firm has also experienced the scheduling of petitions for emergency evaluation and for emergency guardianship to be scheduled for remote hearing.

Baltimore City

Pleadings and motions can be filed by mail or via the secure drop boxes located in the Mitchell Courthouse. Litigants and attorney’s should mark a matter as either “Emergency” or “Non-Emergency” on the envelope to ensure that the limited staff working in the Clerk’s office is able to process emergency matters appropriately. The Administrative Judge has requested that Motions to Modify Scheduling Orders not be filed at the present time, and that such motions filed after the court’s reopening will be timely addressed.

Montgomery County

Montgomery County is a jurisdiction in which electronic filing is not yet enabled, but the Court has established a Virtual Drop Box only for certain civil cases and for limited purposes (i.e., motions for failure to provide discovery, motions for discovery protective orders, motions to quash deposition subpoenas filed in cases designated as “Civil Track 3”). More information can be found here. All other filings must be by regular mail or via the physical drop box located at the courthouse.  With regard to Scheduling Orders, Motions seeking to modify these Orders—which the Court requests be filed after the court’s reopening, will be addressed, with extensions to be liberally granted, based upon time lost due to the court’s closure, but will not be considered during the closure.

Baltimore County

Baltimore County will currently consider Motions seeking to extend deadlines set forth in controlling Scheduling Orders, which will be considered in light of the current circumstances.  In addition, the Circuit court for Baltimore County is currently working on establishing a protocol for conducting settlement conferences in family law cases during the COVID-19 emergency; however, as of this publication, there are no remote proceedings yet in effect.

Carroll County

Unlike other jurisdictions, where requests to modify a Scheduling Order may be made by Motion, the Administrative Judge in Carroll County issued an Order suspending deadlines in all scheduling Orders in family members and extending them by the number of business days that the Court is operating under restricted operations due to COVID-19.

What does the extended court closing mean for the status of my case?

If your case is pending, you may still be receiving rulings on motions or pleadings. Rulings on matters that do not require hearings are continuing uninhibited. Deadlines for filing motions, pleadings, and providing discovery responses have, in general, been unaffected by the closure of the courts.

If your hearing was set to occur during a time period when the courts have been closed, the case was or will be automatically postponed and it has or will be rescheduled. It may be helpful to work proactively with the court and the opposing party to clear a reschedule date for your case and possibly avoid a further postponement, due to the inevitable influx of reset dates necessitated by extended closures.

If you had planned to initiate a new case, you can still file your initial pleading. All courts are still accepting filings. The case may just proceed more slowly than it would have previously and the hearing may be scheduled farther in the future.

The time period for rescheduling cases is also jurisdiction-specific. For example, the Circuit Court for Howard County has already been rescheduling matters for June 2020, July 2020, and beyond. Meanwhile, the Circuit Court for Baltimore County is waiting for an announcement as to when courts will reopen before rescheduling matters.

Protective Orders

People may still be able to obtain Protective Orders during the closure of the courts. Persons who need a peace order or a protective order should call the District Court commissioner in the jurisdiction where he or she lives. Some information may be provided by phone to limit in-person contact. Commissioners have the authority to issue Interim Protective Orders.

Interim Protective Orders will remain in effect until action is taken by the Court. The Administrative Judge, or his or her designee, of each jurisdiction have the discretion to review these Interim Protective Orders, paying special attention to orders involving custody of a child, an order to vacate a home, and a firearm, and may determine that a hearing is necessary. If so, a hearing will be scheduled within seven (7) days.

According to the latest guidance issued by the courts, Temporary Protective Order Hearings were being scheduled for May 4, 2020, or May 5, 2020. This policy will necessarily be modified now that the court closing has been extended through June 5, 2020, and we are awaiting updated guidance from Chief Judge Morrissey of the District Court of Maryland.

Compliance with Court Orders is still Required – But Family Law Situations are Not Always so Clear Cut

On March 27, 2020, the Maryland Judiciary issued a Statement on Matters Concerning Children & Families, including custody, parenting time, child support, protective and peace orders, etc. This Statement provides that all orders regarding child custody, access, parenting time and child support remain in effect and are controlling absent an alternative agreement between the parties. However, litigants and attorneys should use common sense and consider that the over-arching concern in cases concerning children is the best interest of those children. Facts in family law cases vary widely and are often rapidly evolving. An attorney can assist you in exercising judgment regarding family law issues that arise during these unprecedented times.

Other COVID-19 Related Family Law Issues

What if there has been a change to my employment or salary and I can no longer pay the Court-ordered child support amount, or need more child support?

You are still required to comply with the Court order. If that is impossible, obligors should pay as much as they can and maintain clear records of what was paid and when.

Even with the Courts closed, parties should still file a Motion for Modification of Child Support to preserve the retroactivity of a future award once the Court does consider the claim. The Court can order an increase of child support to be retroactive to the date the pleading requesting that increase was filed. The same does not apply, however, with respect to recoupment of child support. If the Court ultimately orders a reduction in a child support obligation, that reduction is likely to only being forward looking and will not be retroactive to the date of the filing.

What if my opposing party is not following our agreement or court order?

A party still has the ability to file a Petition for Contempt of a Court Order or a Petition to Enforce an Agreement. However, any hearing on such a Petition will probably be set out farther into the future, unless there is an emergency situation (i.e., there is an imminent risk of harm to a child).

Parties may be able to look into other resources, such as mediation, to address these issues. Many mediators are still providing services by way of phone or video conferencing.

What if my spouse and I planned to separate but we were not able to due to the COVID-19 pandemic?

As much as possible, designate a space in the home for each spouse. For example, one spouse might be sleeping in the guest room, and the other spouse is not permitted to enter that room.

Practice “nesting” with the children within the same household.  For example, a week-on, week-off, or 2-2-5-5 access schedule (this is a schedule where, for example, the mother has Mondays and Tuesdays, the father has Wednesdays and Thursdays, and the parents alternate weekends from Friday to Sunday) might be followed, with the parents dividing child care responsibilities in accordance with that a specified schedule, even though both parents are living under the same roof.

Focus on the children. What can be done by each parent to limit their anxiety? This may mean going out for a walk, connecting with family and friends via phone or video, and participating in a virtual meeting with a therapist or attorney. Working with an attorney may help parties put plans in place ahead of the eventual return to business-as-usual.

My wedding has been postponed – what should I do?

During these unprecedented times, due to social distancing guidelines, stay-at-home orders, and prohibitions in Maryland and other states against gatherings of more than ten people, many weddings have been postponed. While we are dealing with the unthinkable and unexpected, it is a good reminder to consider how we may be able to plan for the unthinkable and unexpected as it relates to marriage. Pre-nuptial or pre-marital agreements are entered into between parties prior to their marriage, and set forth alimony or property issues between the parties in the event they ultimately divorce. Our Family Law Practice Group can assist parties with the preparation of these agreements.