Slow Rolling Divorces Over Health Care Debate

by James J. Gross

Are you putting off your divorce because you don’t know which way Congress is going to go on health care?  Some couples are according to divorce attorneys and financial planners.

Some spouses are entering into post-nuptial agreements while continuing to live together.  Others are delaying filing their papers with the court until there is clarity from Washington, D.C.

The Affordable Care Act prohibited insurers from charging more for people with pre-existing conditions.  Some of the various bills under consideration by Congress would end those restrictions.  Divorcing spouses who were in therapy or taking medication for depression might not be able to obtain health insurance.



Click Reply If You Want to Stay Married.

by James J. Gross

“Hubby, you know where I am, why don’t you visit me?” wrote Ms. Lin to her husband online.  She had moved out of his home because his family was unfriendly to her.

“I got into a car accident, I’m in the ICU!”

“Hubby, I’m in the hospital ward.”

“Hubby, why do you keep reading my messages but not replying?”

“Hubby, is it necessary for things to become so cold between husband and wife?”

“Hubby, are you just going to be so ruthless and not ask me anything?”

“Hubby, why do you treat me like this?”

There was no reply.  When Ms. Line recovered, she filed for divorce, and presented the messages to the judge.  The judge said that failing to respond to the messages showed the state of the marriage and the foundations of the union had fallen apart.  He agreed with Ms. Lin that it was heartless of her husband to read her messages without replying, and granted her a divorce.

The Motorcycle

by James J. Gross

When we were boys, my pal, Jerry, and I built a motorcycle one night. Somehow Jerry had gotten his hands on a motorcycle.  But it was in pieces scattered on the floor of his room. There were no instructions. Only a frame, a motor, gears, cables and hundreds of nuts and bolts. We had screwdrivers and wrenches. And we were young and insane with the possibilities of where that motorcycle could take us if we got it working.

We worked all night on that machine. We built it wrong, tore it down, bolt by bolt, and started over many times that night. We probably built a dozen motorcycles before we got it right.

By morning, we had a motorcycle. It didn’t look like much, but to us it was worth its weight in gold. We took it out for a test drive. That’s when we discovered a major design flaw. At the first stop sign, you had to disengage the clutch with one foot, and press the brake with the other foot at the same time, so there was no foot to put on the ground and hold the contraption upright.

That motorcycle taught me a lot about problem solving.  You have to keep working on it, all night long, if necessary.  This requires patience and persistence, focus and concentration.  You may have to tear down the solution and rebuild it several times to get it right.  Even then you may have to go back to the drawing board in the morning.  I’ve lost many night’s sleep solving chemical engineering problems, briefing cases in law school, and studying tax law. And now I’m solving problems in marriages, divorces and separations.  It’s as complicated as building a motorcycle.

Divorce Voids Revocable Trust Gift to Spouse in Maryland

by Michael F. Callahan

You should take action after a divorce to remove bequests to an ex-spouse in your will and other documents.  If you fail to do so, however, there are laws that provide that the judgment of divorce eliminates prior bequests or certain beneficiary designations to a former spouse. See Va. Code Sec. 20-111, 20-111.1, 64.2-412; Md. Code, Estates and Trusts Article, Sec. 4-105(4); DC Code Sec. 18-109 and Estate of Roscoe H. Liles, 435 A.2d 379; 1981 D.C. App. LEXIS 355.

But what if your estate planning was done through a revocable trust and not a Will?  In Maryland as of October 1, 2016, a judgment of divorce voids any term in a revocable trust that would distribute assets to the former spouse or appoint the former spouse trustee or trust advisor.  Md. Code, Estates and Trusts Article, Sec. 14.5-604.  Virginia and the District of Columbia do not have a similar law.

The effect of all these statutes on the treatment of a now former spouse in an estate plan is uncertain and incomplete and may be frustrated by federal law spousal protections. The savings statutes are no substitute for careful review of estate planning documents and beneficiary designations, and corrective action to ensure that you do not unintentionally include a gift to your former spouse.

What Would Helga Do?

by James J. Gross

One of my clients was having difficulties dealing with her controlling husband in a divorce.  He was  always dictating times and dates when my client could see or call their child.

Finally my client said “enough” and started pushing back.  She emailed her husband a clear and strong statement of how things were going to be from now on.  When he didn’t respond, she wrote him that she would take his silence as acquiescence.

I call this “What would Helga Do?”  Helga was another client.   She was from Germany.  She had her own business.  In her 70’s she became a ski instructor so she could ski for free.

Helga did not allow a speck of dust to settle in her office.  Her books were balanced to the penny every night.  If she hired you to repair something, you better do it right.

My wife worked for her.   Whenever we are having trouble with someone, like a repairman or other vendor, we say, “What would Helga do?”  She would not put up with bad behavior.

The Phone Call (Part 2)

by James J. Gross

Greg is talking to experienced divorce lawyer, Jeb, about property distribution in a divorce.

“We have separate bank accounts and that $60,000 is in my name alone,” Greg says.

“Doesn’t matter,” Jeb advised, “it’s still marital property.”

“What if I should spend the $60,000 before the divorce?”

“It depends on how you spend it.  If you buy a car or a Rolex, those items become marital property.  If  you buy consumables, then the money is gone and the court can’t divide it.”

“What if I give it to my brother as a gift?”

“That won’t work,” Jeb told him.  “The court can undo that gift.”

(to be continued)


The Twenty Year Divorce

by James J. Gross

Thirumoorthy Ramakrishnan, 53, and Subhashini Bala Subramanian, 49, met through a matrimonial advertisement in a newspaper.  They married in 1998.

Twenty days later, the wife was arrested for misappropriation of funds. The husband was questioned by the police several times which he claimed embarrassed him and caused tension in his life.  He claimed this amounted to cruelty and he filed for divorce.

Although the couple had lived together only twenty days, it took the court almost twenty years to grant the divorce.  The courts in India have a backlog of millions of divorce cases.


Advance Directives

by Michael F. Callahan

Advance directives allow you to express your wishes regarding health care decisions in the event that you are incapacitated and cannot communicate your preferences yourself.

Components of Advance Directives

Usually advance directives address two distinct issues: 1) directions regarding end-of-life medical care – a living will and, 2) designation of a health care agent to act in the event of incapacity –  a health care power of attorney. These two parts are often combined into one document and called an advance health care directive or by a similar name..

  • Living Will: A living will may also be called a health care declaration, or something similar. The person who makes a living will is sometimes called the declarant.   A living will is different from a last will and testament, which directs the distribution of a decedent’s estate.   A living will, on the other hand, takes effect during the declarant’s lifetime and tells medical professionals the type of care the declarant desires should she become incapable of expressing such wishes herself.

Many state laws on advance directives set forth a statutory form which covers some aspects of end-of-life medical care, containing blanks for individual directions and providing that other forms of living will are also valid (although the state laws regarding manner of execution are generally mandatory).

Maryland’s law provides a statutory form that covers three end-of-life situations: 1) Terminal condition (death is imminent), 2) Persistent vegetative state (coma), and 3) End stage condition (incurable condition that will result in death).  For each, there are three choices for level of care: a) just keep me comfortable, b) keep me comfortable and use an i.v. for hydration or nutrition if necessary, and c) use all appropriate medical interventions to prolong my life.

A living will can address other subjects including: Cardiopulmonary resuscitation (CPR); artificial life-sustaining equipment (ventilators, dialysis machines, etc.), and organ donation.

These, of course, are deeply personal decisions that require thoughtful consideration if the living is to reflect the declarant’s values and wishes.

  • Health Care Power of Attorney: A health care power of attorney may also be called a medical power of attorney or durable power of attorney for health care (among other names). You use it to nominate someone to oversee your healthcare decisions in the event you are unable to do so, either temporarily or permanently.  The person who makes the health care power of attorney is sometimes call the principal.  The person named in the document to make decisions for the principal may be referred to as an attorney-in-fact, health care proxy, health care agent, health care surrogate, or something similar.

Regardless of what the agent is called, he is obligated by law to follow your instructions regarding health care decisions.  Your instructions are included in your living will or in the health care power of attorney.  Depending upon your situation, the selection of your primary and back-up health care agent may be obvious and perfectly satisfactory – your spouse or your local and responsible child, etc.  Sometimes it is a tough choice requiring careful thought and difficult conversations.  But it is always an important choice.

When is the best time to create an advance directive?

The best time to create an advance directive is when you’re healthy because you have the opportunity to consider your options carefully when immediate health concerns aren’t on your mind. You can also discuss your choices with your loved ones ahead of time.

It is especially advisable for those who are scheduled to undergo surgery or who are critically or terminally ill to consider making an advance directive.

When does an advance directive take effect?

In general, the provisions of your living will become applicable when you are unable to make or communicate decisions regarding your medical care.  Your health care agent has authority under your advance directive under the conditions specified in the document or under state law – usually when you are unable to make or communicate the decisions yourself.  So your doctors and your health care agent will refer to, and generally be bound by, the instructions in your living will.

Can I change an advance directive?

Your advance directive remains in effect from the time you sign it until and unless you change it, which you can do at any time.  You should review your advance directive periodically to make sure it still accurately reflects your wishes regarding your medical care. If you do want to modify an advance directive, it is often advisable to simply create a new one so there is no potential confusion created by conflicting changes.

Where should I store my advance directive?

You should make several copies of your advance directive. Keep the original in a safe place that is accessible to your health care agent and let someone know where it is.  You should provide copies to the person named in the document as your agent, your doctors, and anyone else you think may be involved in your medical care.


Illness or old age eventually come to us all. The time will probably come when you will need an Advance Medical Directive.  An Advance Medical Directive should be included in every estate plan. Contact us if you have questions or want to make an Advance Medical Directive.

The Phone Call

by James J. Gross

Jeb, the venerable divorce lawyer, sat in his office, trying to straighten his bow tie, when the phone rang.

The man on the other end, whose name was Greg, said he was going through a separation.  After some preliminaries, Greg said.  ”We’ve only been married for 13 months and she wants half of everything!”

“She’s not entitled to half of everything,” Jeb assured him.  “The court will only distribute marital property, and that means property acquired during the marriage.”

“So, if I made $150,000 during the marriage and she made $30,000, the court will distribute $180,000 between us?”

“Not exactly,” Jeb replied, “the court only distributes what is there on the day of trial.  So if you made $180,000 and spent $120,000, you saved $60,000 which the court will distribute as marital property.”

(To be continued)