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"The New Millennium," "The Information Age," "The New Economy,"... whatever label is affixed to the techno-wave shaping society, one fact is undeniable: the "Future" is here. It has already produced revolutionary changes from conducting business via cell phones to purchasing stocks as casually as previous generations bought groceries to spending countless hours browsing the "Net" in search of information, companionship, bargains and everything in between. There is no doubt the growth of the Internet, rapid advances in communications technology and an enticing stock market have presented a variety of fantastic opportunities and challenges. For family law practitioners, the arrival of these new technologies has begun to change the face of law and the way it's practiced.
Possibly the most widely experienced effect of the Information Age is a client's access to a wealth of information about divorce laws in Maryland. Everything from how "marital property" is defined to how to file an "uncontested' divorce can be located on the Internet without effort. While the Internet has made clients more knowledgeable, some of this information is accurate and some is not. Information is almost always simplified or generalized to a point that, now, much of an initial consultation can be spent redirecting a client whose expectations have been pieced together from information mined from 20 websites. Clients that can decipher good websites from bad, however, will meet for the first time armed with a high level of sophistication that enables their attorney to get a significant jump-start on the case. For better or worse, the Internet has changed the way clients see their attorney.
The techno-wave has also spilled into how people can get divorced in Maryland. Grounds for an "absolute" divorce now include adultery, desertion, voluntary separation, conviction of a felony or misdemeanor (under certain circumstances), two-year separation, insanity, cruelty of treatment and excessively vicious conduct. "Cruelty of treatment" and "excessively vicious conduct" were once only grounds for a "limited" divorce; however, effective October 1, 1998, these were added to the list of possible grounds for an absolute divorce. At least one case (which has not been overturned) defines "cruelty" as: "...any conduct on the part of the husband or wife which is calculated to seriously impair the health or permanently destroy the happiness of the other..."
Today, more and more domestic relations attorneys are representing clients whose marriages have been damaged as a result of action on the Internet or through e-mail. Husbands or wives are abandoning their spouses to spend all night in chat rooms. The traditional proof of adultery (the magic words being "inclination and opportunity") was a private investigator armed with a camera to capture the spouse and a paramour kissing and checking into a motel. Today, with increasing frequency, evidence of at least the "inclination" prong of the proof may require the service of a techno-wizard who can magically dig the information from deleted files in an e-mail box. One spouse's cruelty of treatment may also be considered by the court when making a monetary award or an award of alimony. Under the current statutory scheme, one of numerous factors for a court to consider is "the circumstances that contributed to the estrangement of the parties." Return to the example of the spouse who spends all night in chat rooms. If the time spent away from the spouse is great enough, and if there is no other explanation for the estrangement other than the spouse's computer time spent with their new "partner", the judge may find that such behavior was largely responsible for the breakup of the marriage and may weigh that factor more heavily in the alimony or monetary award determination.
Traditionally, when clients complained that their spouse had "met someone" - it meant "in the flesh". Now, examples of Internet romance are commonplace and the unfaithful spouses can be engaged in "cyber sex" while their mate is sitting across the room. In the discovery phase of the litigation, it is increasingly important to request and scour hard drives in addition to credit card statements and bank records.
One of the more intriguing effects of the new economy on marital law has resulted from the unprecedented explosion of instant fortunes that spring out of a spouse's work for a successful technology company. Maryland's statutory provisions for property division (which date back to 1979) offer an exciting arena for viewing the ways advances in technology have challenged long-accepted definitions of property and how and when that property should be divided. The best and most prevalent example of this involves the stock option. The award of stock options to valued employees is now common in high tech companies and is becoming increasingly popular in many other industries as part of a total compensation package. Since 1996, Maryland law is clear that stock option plans acquired during the marriage are "marital property" which may be treated, under the circumstances of the particular case, as vested stock or as a deferred compensation plan. This is an area ripe with opportunities for advocacy for the attorney. In Maryland, these options may be divided on an "if, as and when" basis; that is, if and when the "holder" spouse exercises the options, the spouse would receive a percentage of the distribution. Such a transaction is similar to the disposition of pensions with which many attorneys are familiar, where a separate "qualifying" order ("QDRO") is entered at the time of divorce which addresses the future disposition of a pension or like tax-deferred marital asset.
The division of and tax treatment of stock options requires careful analysis and planning and accountants are often indispensable in helping to craft the precise language of the Order. In some circumstances, the holder-spouse may be willing to exercise the other spouse's agreed share of the vested options. In such cases, an enormous benefit may be achieved for a client if your timing - and planning - is right.
The Information Age is in its infancy, yet in just a few years it has brought significant change to the practice of family law. While the horizon is not clearly defined, it is fair to say that change will be the driving force and it will pose special challenges to family law practices.
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