Author: JGL Law

In October 2024, my colleague and family law attorney here at JGL, Lindsay Parvis and I were excited to be contacted by the Magazines and Supplements Editor for ALM/Law.com and The Legal Intelligencer to write a follow-up piece based upon our previous JGL Podcast “When Family Law and Personal Injury Collide. You can listen to the podcast here.

This blog highlights a few of the key takeaways from the article we wrote from a personal injury perspective.

As personal injury and family law are both complicated areas, they become more so when they overlap.

Four Tips to Help Attorneys Avoid Potential Hazards and Pitfalls During Representation

This article provides practical tips to help attorneys avoid potential hazards and pitfalls during representation.

Representation

During the initial intake, personal injury attorneys should inquire with their clients for marital relationships, separating (or separated) couples, divorcing spouses, and child custody issues. Identifying these relationships early can help to identify current or prior conflicts. Attorneys should also be aware of the potential physical and emotional strain to a marriage or custodial relationship when one or both spouses suffer a severe injury during representation and how this may impact which claims may be pursued, and how they may be pursued if the case proceeds to litigation.

Timing

If the personal injury attorney has properly inquired into a client’s marital or custodial status, this information provides vast opportunities for strategically structuring a settlement. A couple may be newly separated, separated for a period of time, or will be separated at some date in the future, and these are all factors that may affect how personal injury awards may be structured and which claims your client may or may not want to make. Personal injury attorneys can specify categories of settlements which may or may not be marital property.

Jurisdiction

Nearly all states have comparative negligence laws regarding liability, so when in accidents where one spouse is driving and the other is a passenger, comparative negligence does not present a problem as both spouses can make claims against any of the other drivers depending upon presumed liability.

However, in Maryland, Washington, D.C., and Virginia, the law of contributory negligence holds barring recovery for the spouse who was driving, even if he/she were only partially at fault. This now presents a problem for the passenger spouse, who has no liability or fault, who would only receive recovery from suing their own spouse. Various martial situations provide different results.

Damages

Personal injury attorneys classify damages as economic and noneconomic; however, depending on where your client is in the divorce process, categorizing damages may be tricky. In marital property states, all assets and debts acquired during the marriage are divided equally (or about equally). This also includes personal injury settlements. Equitable distribution states inventory assets and categorize as separate or marital property. Personal injury awards can be a mix of both.

For the attorneys, take note of your client’s damages. Awards for medical expenses and lost wages during the marriage are generally treated as marital property, especially when marital assets are used to pay for such expenses. Awards for noneconomic damages, such as pain and suffering, and loss of consortium are generally separate property as the victim incurs them individually. Personal injury attorneys can maximize the benefits of a personal injury award for their client just by categorizing the distribution of funds.

Takeaways

Most importantly, when a personal injury attorney finds themselves in a tricky situation, reach out to a trusted and respected family law attorney who can provide the guidance necessary when discussing claims and settlements.

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Q&A:
Does the ground for divorce, “Irreconcilable Differences” mean that my spouse’s bad acts no longer matter anymore in Maryland?

In Maryland, the grounds for divorce have evolved to reflect our changing society. Specifically, in 2023, Maryland revised the grounds for divorce to include “irreconcilable differences” and was seen as part of Maryland’s shift towards ‘no-fault divorce’. With more than a year having passed since the change, it is worthwhile to discuss reactions to irreconcilable differences, including whether there is a net benefit to the parties involved in a divorce.

First, what is the ground, ‘Irreconcilable Differences’?

For years, we have heard about ‘Irreconcilable differences’ related to high-profile divorces, usually involved celebrities. The ground for divorce refers to significant issues or conflicts between spouses that cannot be resolved, which leads to the breakdown of the marriage. Notably, these differences can stem from various factors, such as infidelity, cruel treatment, or simply fundamental disagreements that make it impossible for the couple to continue living together as a married couple. But importantly, the law does not require to find that infidelity or cruel treatment occurred, but rather that differences arose between the spouses that are irreconcilable and therefore, the marriage must end.

So, How Does It Work?

To file for divorce based on irreconcilable differences, one or both spouses must believe that the marriage should end due to unresolved conflicts. Unlike the fault-based grounds of old, there is no need to prove wrongdoing by the offending spouse. The concept by lawmakers was to make the process simpler and quicker and only focus on the fact that the marriage is no longer viable rather than on assigning blame.

What is required to file based on ‘Irreconcilable Difference’?

To successfully file for divorce on the grounds of irreconcilable differences in Maryland, the spouse asking for the divorce must be a resident of Maryland for at least six months prior to filing the complaint, you must identify that you are filing based on irreconcilable differences, and you must briefly identify what those irreconcilable differences are.

Does this mean that my spouse’s bad acts are irrelevant now?

One common question that arises in this new world of ‘irreconcilable differences’ is whether or not a spouse’s prior bad acts are irrelevant if proving the acts is no longer necessary. While it is true that there is no longer a requirement to prove that (for instance) adultery occurred, that does not mean that the adultery is rendered irrelevant. In fact, Maryland still considers spousal conduct as a relevant consideration when deciding alimony or property distribution.

As the ‘victim-spouse’, how do ‘Irreconcilable Differences’ help me?

Going through a divorce is an extremely emotionally taxing experience that is surpassed only by having lived through the reason for the divorce in the first place. For many, having a court find that their spouse is ‘to blame’ is often more important than the monetary outcome. While transitioning away from fault-based divorce does mean transitioning away from the focus of ‘blame’, irreconcilable differences can provide an easier path for a victim-spouse to exit a difficult or harmful relationship without the burden to relive the trauma that caused the divorce in the first place. Additionally, irreconcilable differences can lead to a quicker divorce by way of focusing on how to resolve issues related to alimony, custody, and property division as opposed to proving fault.

Ultimately, transitioning to ‘irreconcilable differences’ allows spouses to focus on formally ending their relationship as opposed to focusing on what caused the end of their relationship. It is this nuanced paradigm shift that aims to reduce fees and litigation time and allow for the emotional recovery stage to begin quicker. If you want to talk about how irreconcilable differences can impact your case, contact Christopher R. Castellano.

In this episode of JGL LAW FOR YOU, JGL family law attorneys Lindsay Parvis and David Bulitt discuss tips for managing the holidays when shared between two households during and after Divorce.

Potential clients often ask whether prenuptial agreements (also called ante-nuptial agreements) are enforceable in court. The answer is – they can be and often are. Prenuptial and postnuptial agreements often avoid costly litigation and permit parties to amicably resolve complex issues without submitting the issues to a court. In fact, Maryland courts favor agreements between parties that resolve issues. However, not all prenuptial and postnuptial agreements may be enforced simply because both parties signed.

The Maryland appellate courts have been clear that “a party seeking to attack the agreement may resort to the other potential contract defenses . . . fraud, duress, coercion, mistake, undue influence, or incompetence on the part of a party.” Cannon v. Cannon, 384 Md. 537 (2005).

Further, when the parties enter into a prenuptial agreement, the court is required to consider other additional factors as well. The court moves away from a “straight forward contract” analysis to a focus on the confidential relationship that exists and whether there was frank, full and truthful disclosure of income and assets when the agreement was entered into. Cannon at 567.

The Supreme Court of Maryland ultimately set forth a five-factor test gleaned from John F. Fader, II & Richard J. Gilbert’s Maryland Family Law, which summarized what it considered five “important considerations to determine the validity of a premarital agreement”:

1. Fair and equitable in procurement and result;
2. Parties must make frank, full and truthful disclosure of all their assets;
3. The agreement must be entered voluntarily, freely and with full knowledge of its meaning and effect;
4. The importance of independent legal advice in evaluating whether the agreement was voluntarily and understandingly made is emphasized;
5. There is a confidential relationship between the parties which, if a contest to validity occurs, shifts the burden of proof to the one attempting to uphold the agreement to prove that it is fair and equitable.
   
   Callahan & Ries, Maryland Family Law, Seventh Ed., § 14-5.

An analysis of each of these factors is case specific. An experienced family law attorney will seek to avoid the appearance of any impropriety in guiding you while drafting a prenuptial or postnuptial agreement. Such issues as providing your partner a limited time for review, only weeks or days before a wedding, using fraud, duress, or coercion to obtain his or her consent and other issues can lead to a court not enforcing an agreement. Parties must also fully disclose all of their assets, not leaving a party to take his or her partner at their word. Additionally, even if a partner chooses not to engage a lawyer, he or she must be provided the opportunity to seek independent legal advice. In one prior case, a husband consulted with his own legal counsel for almost seven months and then presented the prenuptial agreement to his wife-to-be only a few days before the wedding. Clearly, she was deprived of the opportunity to seek independent legal counsel.

While prenuptial and postnuptial agreements are incredibly important and useful tools in equitably dividing premarital assets and resolving issues in the event of a marital dispute, you should seek an experienced family law attorney who is familiar with both the intricacies of drafting such an agreement and the pitfalls should the agreement ever be challenged.

Darin L. Rumer is a partner in Joseph, Greenwald & Laake’s Family Law practice group. He has successfully tried multiple divorce, custody and child support cases throughout the state of Maryland for over 20 years and routinely provides counsel to clients as they navigate a difficult and stressful time in their lives. David routinely advises and represents clients in family law matters including child custody and divorce litigation, separation agreements, child support and alimony issues, property distribution issues, domestic violence, and all other areas of family law.

Personal injury and family law are complicated areas and become even more so when they overlap, for example, when one or both spouses is the victim of a personal injury accident during a divorce settlement. In their article in The Legal Intelligencer, Lindsay Parvis and Renee Blocker provide practical tips for attorneys navigating these issues. Read the article “When Personal Injury and Family Law Collide” to learn what steps to take to avoid potential hazards and pitfalls during representation.

Brian Markovitz, JGL Principal and Andy Santillo of Winebrake and Santillo represent Estephanie Martiniz, a former warehouse employee at Amazon in Baltimore in claims against Amazon for unpaid wages and unjust enrichment. On November 11, 2024, the Court certified her class action against Amazon on behalf of 23,914 other workers.

In this episode of JGL LAW FOR YOU, JGL family law attorneys Christopher Castellano and David Bulitt discuss AI’s Impact on Your Divorce.

The EEOC stands for the “Equal Employment Opportunity Commission.” This agency investigates potential cases of employment discrimination and harassment—based on protected categories—and retaliation.

In Maryland, in addition to filing a charge with the EEOC, aggrieved individuals can cross-file their charges with Fair Employment Practices Agencies (“FEPAs”). In Maryland, these FEPAs include the Maryland Commission on Civil Rights (“MCCR”) and various county agencies, such as the Prince George’s County Office of Human Rights.

After the EEOC completes its investigation of the charge, if the EEOC cannot determine that there is reasonable cause to believe that discrimination or retaliation took place, the EEOC will issue a “Dismissal and Notice of Rights.” This notice advises the Charging Party that they have 90 days from receiving the notice to file a lawsuit based on the EEOC charge in court.

However, if the EEOC finds reasonable cause to believe discrimination occurred, the EEOC will issue a Letter of Determination to both parties, inviting them to seek to resolve the charge via conciliation. If conciliation is unsuccessful in resolving the charge, the EEOC can file a lawsuit on behalf of the Charging Party. Alternatively, if the EEOC decides not to file a lawsuit, the EEOC will send the Charging Party a Notice of Right to Sue, and the Charging Party will have 90 days to file a lawsuit.

For additional information regarding the EEOC, read our post “What is the EEOC, and Do I Need Labor & Employment Representation?”

JGL principal David Bulitt and his wife Julie, a therapist, were interviewed on Fox 5 Washington, DC on November 8. David and Julie discussed five ways couples can divorce-proof their marriage:

1. Engage in a physical touch first thing in the morning
2. Maintain some connection during the workday to let your partner know you are thinking about them
3. When you arrive home from work, pay attention to your partner first; it’s important to prioritize your relationship
4. Carve out a little alone time in the evening to catch up and check in
5. Finish the day like you started it with a physical touch

Watch the interview to get more information about ways to create habits that will divorce-proof your marriage.

Do you know about illegal billing or fraud at (1) your work, (2) by one of your family’s medical providers, or (3) through any other interactions that you have where someone or some company receives government funding?

Then, you might have a False Claims Act, 31 U.S.C. §§ 3729 – 3733 (“FCA”) case (also known as a qui tam) if the billing involves federal money, a state False Claims Act case if the case involves state funds, or both if there is joint funding like Medicaid. You should certainly investigate whether you should report it to the proper authorities. Fraud and illegal billing are wrong, costs taxpayers a lot of money each year, and if it is happening at your work, you could be on the wrong side of a government investigation. Plus, if you report the fraud, you can receive a finders’ fee or share of whatever the government recovers.

Here are five tips to remember when you know about illegal billing or fraud:

1) Get an Experienced Attorney

You will need an attorney who practices in the False Claims Act (FCA) or whistleblower law. In fact, depending on what you are reporting, you must have an attorney. As the United States Court of Appeals for the Second Circuit explains when filing an FCA case, “we conclude that they [individuals] are not entitled to proceed pro se [a fancy way of saying without an attorney].”[1]

Do your research on who to meet with and possibly hire. Properly filing and prosecuting FCA matters, or other whistleblower programs, is complicated work that is full of pitfalls. As Mark Twain said, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” An attorney who has not worked on an FCA matter before is likely to be unclear about the process and will inevitably fall into the FCA’s pitfalls. Getting an experienced lawyer should alleviate this concern.

2) The Seal and Your Secret Agent Status

All FCA matters are filed under seal until the court unseals them, often at the Government’s request. Do not go to the press or try to negotiate with a defendant prior to or at any time while the case is sealed. Violating the seal can tip off the defendant and greatly undermine the Government’s ability to investigate the case. “The mere possibility that the Government might be harmed by disclosure is, in fact, the point of the [the seal] requirement.”[2] A guaranteed way to demonstrate to law enforcement officials that you cannot be trusted is to violate the seal by talking to anyone. This puts those officials at a disadvantage and in an adverse position to you.

3) File Your Non-FCA Claims with the FCA Complaint

If you have any other claims against the defendant, such as you are an employee who was fired wrongfully, file your personal claims in the underlying FCA matter so they stay under seal. You want to avoid having a concurrent proceeding where the defendant has the opportunity to ask you questions, whether in a deposition or otherwise, that could reveal your FCA case while it is under seal. Simple questions from a defendant’s attorney, such as “list all court filings you have participated in,” can lead to huge complications because you have to answer the question but not reveal that an FCA matter has been filed under seal. In sum, if you have weak, personal claims but strong whistleblower claims, you may want to forget the personal claims altogether.

4) Gather Appropriate Documentation

The Government will want evidence of the fraud and will not just take your word for it. If you have normal access, especially within your normal duties if you are an employee, make copies or take pictures of documents that support that the fraud is occurring. Do not, however, go through and copy a server or documents outside of your normal work duties. Also, you should never give your attorney something that the company attorney wrote as that information could be attorney-client privileged information.

If possible, get documents that show detailed and specific examples of false submissions to the government such as billing statements or patient records. This will make the government interested in your case and stop it from getting dismissed.

5) The Dr. Evil One Million Dollar Rule

In Mike Myers’ 1997 comedy, Austin Powers: International Man of Mystery, the villain, Dr. Evil, states that “we hold the world ransom for . . . ONE MILLION DOLLARS!” To which his henchman states, “Don’t you think we should ask for more than a million dollars? A million dollars isn’t exactly a lot of money these days”[3] ― completely true. But one million dollars should generally be the rule of thumb for going forward on whistleblower cases. Practically speaking, these cases take significant time and effort, and while there is no written U.S. Justice Department policy, it has been our experience that the Government is generally not interested in using its limited resources to pursue FCA matters worth less than one million dollars.

Now, you should be well prepared to get a meeting with an attorney to see if you have a case. Good luck.

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[1] United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2nd Cir. 2008).

[2] United States ex rel. Summers v. LHC Group, Inc., 623 F.3d 287, 297-298 (6th Cir. 2010) (emphasis in original)

[3] See Memorable quotes for Austin Powers: International Man of Mystery, http://www.imdb.com/title/tt0118655/quotes (visited Nov. 5, 2024).

It is illegal for your employer to fire or take any other adverse action against you because you requested FMLA leave or took FMLA leave. It is similarly illegal for an employer to do this to interfere with your FMLA rights, such as firing you because you are about to take FMLA leave.

However, your employer can fire you while you are on FMLA leave (or about to take FMLA leave for reasons that are not because you are exercising your rights under the FMLA). Your FMLA leave may also be protected under other laws such as the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and/or other state and local laws that may provide some broader protections in relation to medical leave.

What Is the FMLA?

The Family Medical Leave Act (FMLA) was created to protect employees while on leave due to medical reasons. The FMLA is a federal, nationwide law that provides employees with twelve weeks of unpaid leave per year. Employers cannot retaliate against an employee for applying or taking medical leave covered by the FMLA, nor can an employer interfere with an employee’s rights to take FMLA leave.

Types of FMLA Leave

FMLA allows employees to take leave for a personal medical issue; take care of an immediate family member; take care of a newborn child, a newly adopted or a new foster child; take care of pregnancy complications; and for other serious medical necessities. FMLA can be used for issues related to pregnancy and/or disability; however, it can also be used for other medical matters such as routine illness from the flu, or medical appointments such as an annual physical or urgent care visit. FMLA leave can be a stretch of consecutive time, or it can be used for part days. Your FMLA leave can be a fixed schedule request, such as going to a medical appointment every Wednesday morning. It can also be for intermittent leave, such as for a condition that may cause you to be out of work and/or seek medical care when you are experiencing symptoms.

FMLA Coverage Requirements

Requirements for FMLA coverage are:

• The employee must have worked for a total of 12 months for the employer.
• A minimum of 1,250 hours must be worked by the employee during the 12 months immediately preceding the leave.
• FMLA only applies to companies with 50 or more employees within 75 miles.

The FMLA is a federal law that sets minimum requirements across the country. In addition to the FMLA, policies regarding unpaid medical leave may vary from state to state. Some states offer greater options and benefits. Special rules apply to education agencies such as schools that may give more flexibility than other employers. Additionally, there are different requirements for military caregiver FMLA. State and/or local laws can add to the protections of the FMLA but cannot reduce them.

If you qualify for FMLA medical leave, it provides job-protected leave benefits. This means when you take FMLA leave your job (or an equivalent) must be available to you upon your return.

Can Your Employer Fire You When You Are on FMLA?

An employee cannot be fired for retaliatory reasons for taking or requesting FMLA medical leave or for the purposes of interfering with an employee’s FMLA leave. Retaliation could include termination, as well as other actions such as a demotion, denial of a promotion, reduced pay and/or bonus, unfavorable reassignment and more. It’s important to meet with an experienced labor and employment attorney if you feel you have been wrongfully terminated due to FMLA.

There is the possibility of being terminated while on or returning from FMLA. An employer with any legitimate, non-discriminatory, and non-retaliatory reason can terminate an employee regardless of their FMLA leave status. However, employers cannot do so because of the employee’s FMLA. Examples of legitimate reasons for terminating an employee on FMLA leave are primarily:

• Poor performance or misconduct from the employee before taking FMLA.
• Evidence that the employee would have been terminated even if FMLA leave had not been taken. For example, a reduction in the workforce that had been documented before taking leave.

Remember that just because an employer states a legitimate, non-discriminatory reason does not mean that this is the real reason for the actions. These stated legitimate, non-discriminatory reasons may be pretext for employment discrimination. For example, the employer may say that the employee had poor performance, but the allegations made about poor performance are not in fact true. Or, even if the stated allegations of the poor performance are true, they can still be pretext for discrimination. For example, if the employer’s legitimate, non-discriminatory reason is that the employee came into work late, this could in theory be a legitimate, non-discriminatory reason to fire someone, but could be pretext for discrimination if the employer doesn’t fire other people who come in 10 minutes late, or the employer’s policies are to take other, less harsh steps against employees who are 10 minutes late.

If you believe the reasons stated for terminating you or otherwise mistreating you while on FMLA are pretext for discrimination, you should contact an experienced labor and employment attorney.

Intersection Between the FMLA and Other Laws

There is an overlap between the FMLA and the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and other state and local laws regarding disability discrimination and/or pregnancy discrimination. Your requests for leave and/or schedule accommodations may be protected under these laws as well. In addition, these laws prohibit discrimination because of your pregnancy and/or disability, and require employers to provide reasonable accommodations, which can include leave and/or modified schedules. These laws also prohibit retaliation for requesting accommodations, including leave and/or modified schedules.

Just because your request was framed as an FMLA request does not mean that the underlying reason for the request wasn’t due to pregnancy and/or disability. In fact, the FMLA request can provide employers notice of the same.

In addition, these laws protect you in the hiring process and from day one on the job, unlike the FMLA, which begins after one year. The ADA, PDA, and PWFA, cover employers with 15 or more employees in any location, unlike the FMLA which only covers employers with 50 or more employees within 75 miles. Your state and or local laws may cover even smaller employers, as they do in both DC and Maryland.

The ADA also prohibits discrimination against employees due to their association with someone with a disability, such as having a family member with a disability. This means that if your employer is mistreating you because of your association with someone with a disability, this can violate the ADA. One common example is an employer that stereotypes an employee as unreliable or less hard working due to their need to care for a family member with a disability, or even a perception that they will be a worse employee because of their obligations towards this individual with a disability. An employee in this situation may have a claim under the FMLA for taking and/or requesting leave, as well as a claim under the ADA.

The ADA does not require employers to provide reasonable accommodations related to the disability of anyone other the employee, so requesting leave to care for a sick family member would not be an accommodation under the ADA but would be covered by the FMLA.

What To Do

If you think your FMLA rights have been violated, the best way to handle the situation is to consult with a labor and employment attorney. Call or e-mail us at Joseph, Greenwald & Laake, P.A. to schedule a consultation with an experienced attorney regarding your labor and employment issue or wrongful termination claim. We offer reliable counsel on how best to proceed and what your rights and responsibilities are.

The False Claims Act – What Cybersecurity Contractors Need to Know and Do

In an article published on October 30, 2024, by Cybersecurity Law Report, Veronica Nannis states that the Department of Justice (DOJ) has its sights set on cybersecurity fraud and is pursuing alleged offenders under the False Claims Act (FCA).

The article provides an FCA primer, including the four elements of a violation, the associated penalties, and whistleblowers and their incentives.

Nannis also details the DOJ’s Civil Cyber-Fraud Initiative, which was announced in 2021, and reviews recent cybersecurity fraud settlements and two closely watched litigation matters. The article concludes with tips that cybersecurity contractors can use to mitigate risk and avoid investigations.

Read the article “What to Know (and Do) About DOJ’s Efforts to Identify and Prosecute Cybersecurity Fraud Under the False Claims Act” (PDF) from the Cybersecurity Law Report.