Marriage Equality- The Case that Challenges the “Defense of Marriage Act” (“DOMA”)

On   March 27, 2013, the United States Supreme Court will hear the case of Edie Windsor, who sued the government for Estate taxes she paid after the death of her same sex spouse, Thea Spyer, in 2009. The couple was legally married in Canada in 2007 after a 42 year engagement. Ms. Spyer died of multiple sclerosis, and Windsor, now age 83, was forced to pay more than $363,000 in federal estate tax because their legal marriage was not recognized under federal law because of DOMA. It is not disputed that had Spyer been married to a man, no estate tax would have been owed. The implications of DOMA extend to all federal inter-spousal benefits, such as filing joint federal tax returns, or as here, estate tax exclusions for married couples. 

Did you know that there are 1,138 benefits, rights and protections provided on the basis of marital status in Federal law? See Defense of Marriage Act: An Update to Prior Report, General Accounting Office, 2004. Also according to this report, as of 1997 there were 179 tax provisions that took marital status into account. Considering the data shows that at least 1 million children are being raised by same-sex couples in the United States, the implications of the inequities caused by DOMA have far-reaching effects upon those children.

Making the list of these gross inequities arising from DOMA between heterosexual and same sex marriage under federal law are: Social Security benefits; tax on Employer-Provided Health Benefits to Domestic Partners, tax gains from the Sale of the Taxpayer’s Principal Residence, Estate Tax laws (i.e. the Windsor case), taxation of Retirement Savings, the Family and Medical Leave Act rights, immigration laws, employee benefits for federal workers, the Earned Income Tax  Credit, Head of Household status, and the Child Tax Credit.  These inequalities also extend to divorcing same sex couples relating to federal tax law (i.e. Alimony, division of retirement accounts).

In the Spring of 2011,  the GOP House Republicans took over the legal defense of DOMA  when Obama’s Attorney General Eric Holder announced the administration would no longer defend it on the grounds that they found it unconstitutional. House Speaker John Boehner (R-Ohio) and other GOP leaders hired attorneys at the law firm Bancroft LLC to represent the House in court cases involving the federal ban on gay marriage -- all with up to 3 million taxpayer dollars!

Thus the implications of the outcome of the Windsor case are enormous.  If DOMA is struck down, “Windsor” will go down as a great civil rights benchmark.  If it is upheld, it will become another Dred Scott-like decision; an embarrassment to be endured until the fight for marriage equality cannot be contained.

If DOMA is upheld, progress may stumble, but history tells us that progress will not be stopped.  

Mediation in Maryland

Mediation in Maryland took another step forward in the passage of Senate Bill SB856, known as the Maryland Mediation Confidentiality Act.

This Act formalizes the confidentiality rules already in play with most private mediators- namely that the settlement offers and proposals and documents created solely for the purpose of formulating offers and proposal are confidential. If the mediation participants can’t settle, and wind up in court, there will be no testimony permitted about the offers and proposals which were exchanged in mediation. Your pay stubs, or tax returns, or other documents that are introduced in mediation would not be confidential, because they were not created for the purposes of the mediation (for example, a bank statement would be discoverable and admissible but the financial statement created for the mediation would not.)

This law basically extended the same rules that currently bind attorneys leading traditional settlement negotiations; specifically, that where there is an allegation of fraud, irregularity or duress, or if a mediator has to defend him or herself against malpractice claims, confidentiality goes out the window.

This closes a gap in the rules of procedure in the current practice of mediation in Maryland. The passage of the bill demonstrates that mediation is here to stay and is a process which is evolving on an ongoing basis. Mediation in Maryland has come a long way to take its rightful place in the dispute resolution process.

Mediation in Maryland with Nancy Caplan, Esquire. http://www.divorcemediationmaryland.com/. Sign up for our free monthly seminar and learn what Mediation in Maryland is all about.

My Husband or Wife Won't Mediate....Help!

It takes two people to make the decision to marry, but only one spouse to make the decision to divorce. That is reality. One spouse wants to be separated. One spouse does not. This is the case most of the time. Which spouse wants to mediate and which spouse does not? What is the mindset of two people during this heart-wrenching period?

The spouse who desires a separation is often emotionally light years ahead of the spouse who does not. The spouse who desires the separation has made a decision. The one who doesn't has a decision made for him or her. The spouse who desires the separation has formulated some sort of plan at least in his or her own mind. The one who doesn't feels unprepared. Blind-sided. Ambushed. Terrified. Vengeful. The spouse who desires the separation feels ready to move on and is usually more calm. The one who doesn't is often emotionally devastated and upset.

So which spouse wants to mediate? The spouse who desires a separation, of course. It is easier to be rational when you are in this slightly less compromised position.

What are the best ways to convince the reluctant spouse to attend to find a divorce mediator in Maryland?

Give him/her time to adjust if possible. Jumping into the "how-to" of separation and divorce when the reluctant spouse is processing the information works against you. First of all, he or she may not agree to anything the other wants 'just because'. He or she may feel the ultimate decision was made for them and now want to be the decider. It may be more productive to allow the other to decompress, if possible under the circumstances. Sometimes attending marriage counseling as marriage closure counseling might help with the transition.

Stressing the needs of the children is a good way to get your spouse's attention to turn to divorce or custody mediation. Let your spouse know that in Maryland, almost all custody and visitation disputes are ordered to mediation. Hopefully the reluctant spouse will rise instinctively to the protection of his or her children. That reluctant spouse may try mediation with the right incentive. Ask the pediatrician to recommend mediation. Ask your marriage counselor to recommend mediation. Appeal to your Husband or Wife's more rational close friends or relatives. Try easing him or her into it by attending a free mediation seminar at Maryland Divorce Mediation http://www.divorcemediationmaryland.com/. Send him or her a link to the website.

If the spouse still won't go to a family law mediation seminar, ask the reluctant spouse's parent or sibling to attend the seminar and report back. If you go alone, bring home a packet of information for the reluctant spouse. Trying mediation is the key- a great mediator will keep your spouse in the mediation process from the start.

Harp on the financial incentive of mediation. If there are no children-related issues, then appeal to the reluctant's spouse's financial incentives. Contact or interview a few attorneys to find out what their retainer is. Speak to friends or relatives who have been through the hell of divorce litigation or attorney-led negotiations and ask them frankly, "How much was the retainer and how much did it cost in total?" These are two different questions. If you can pry, ask them who paid all the fees? One or both of them? When you speak to your reluctant spouse, relating this specific information may be very persuasive when seeking to mediate. Where talk doesn't work, send an informational email, "Dear Spouse: I just wanted you to know I contacted 4 attorneys, and the requested retainers ranged from $2,500.00-$5,000.00. All the attorneys I spoke to informed me that that total cost of the case might be as much as 2-5 TIMES the retainer cost. I spoke to Sue Jones who just went through a divorce, and she told me that their total legal fees were more than $25,000.00, and that she paid 25% and that Jerry paid 75%. Please at least consider attending one session of mediation before we go that way? From, Your Spouse."


Frame the discussion as a discussion. "I have been researching and our options are: letting our lawyers negotiate the settlement, letting our lawyers fight it out in court, or trying to directly negotiate a settlement with each other in mediation. What do you think?" This sounds different than "I want..." conversations. Of course, if he or she asks what you think, then, by all means say "I think we can do this for less money and more peacefully through mediation." Avoid "I want" and try present the option of mediation as a choice.



Even where your spouse refuses to mediate from the start, mediation remains a viable option throughout the divorce process. Whereas attorneys do generally attempt to settle cases during the course of contentious litigation, the mediator is removed from the litigation, and therefore has a better chance at successful settlement. Sometimes it takes the reluctant spouse's ugly foray into litigation to change his or her mind but by then, he or she feels it is too late. IT IS NOT TOO LATE. You can mediate a settlment at any stage of the process. Keep offering mediation to your spouse throughout your litigation if this is where you end up.

Sometimes, as a last resort, initially hiring an attorney for the sole purpose of sending your spouse a letter stating: "Dear Mr. Spouse: I represent your wife, Mrs. Spouse relating to the likely dissolution of your marriage. Mrs. Spouse would like to mediate the divorce issues which is often far less costly then litigation. If you are interested in considering mediation, I recommend the mediators listed below. " By doing this, you are telling your spouse that you mean business, while simultaneously making a peace offering.


So if your Husband won't mediate or if your Wife won't mediate, don't give up. What process you pursue may set the tone for your entire divorce and post-divorce life (if you have children). This is among the very first issues to negotiate- and if you "win" this issue with your spouse, then it will wind up being a "win-win" for both of you, and for your children and bank accounts.



Try divorce medation with Nancy Caplan, Esquire, through Maryland Divorce Mediation and Legal Services. At the very least attend the free seminar to see if it is an option for you and your family. It will cost you nothing and may save you from one another.

Differences of Law in Same Sex Divorce in Maryland

Now that same sex marriage is nearly a reality in Maryland, getting divorced in Maryland will be quite different for same sex marrieds than for heterosexual marrieds. Your divorce mediator must have a firm knowledge of the underlying legal issues applicable to heterosexual divorce and homosexual divorce in order to guide the couple through the process.


A federal law, the 1996 Defense of Marriage Act (“DOMA”), defined marriage as the union of one man and one woman. DOMA gives rise to many of the greatest financial differences between same sex and hetero divorces. Based on this law, other federal laws including the federal tax code, fail to recognize same sex marriages and therefore the same sex couple is denied the favorable tax laws which were designed to assist families to avoid financial disaster during separations and divorces.


For example, “Alimony” has federal tax implications. Usually it is deductible by the payor and included in the gross income of the recipient. This permits “family money” which would be taxed at the higher-earning spouse’s rate to be transferred to the lower earner's income. Thus by lowering the higher earner’s tax bracket and paying taxes at the lower earner’s rate, the entire family pays fewer tax dollars. Not so for same sex divorces. Rather spousal support paid in same sex divorces might actually cause greater tax liability for the same sex family. Similarly, social security benefits are restricted. The same sex former spouse is not permitted to make the election for benefits arising from having been married to the same person for 10 years.


Same sex couples in marriage and prior to divorce, cannot file federal tax returns as “married filing jointly” returns. Most divorcing heterosexual couples happily continue to file jointly even if they have been separated for years to obtain the favorable filing status.


A monetary settlement payment from one spouse to the other in a divorce is typically a non-taxable event. Not so with same sex divorce! A tax liability will diminish any such award. Ditto on transfer of a family home and corresponding capital gains tax under the federal tax code. Heterosexual divorcing spouses enjoy tax-free transfers.


The power of a State court to transfer retirement assets from one spouse to another while avoiding tax consequences is pursuant to federal ERISA laws. For the same sex spouse to receive a portion of the other spouse’s retirement, the withdrawing spouse will pay tax at the current rate and penalties in most situations.


Same sex family law divorce issues extend to matters of State law as well. It has long been established that the definition of adultery means intercourse between a man and a woman only. Thus it is grounds for divorce only in heterosexual marriages. It is simply unavailable in homosexual divorce.



Only 8 states and the District of Columbia permit same sex marriage. In custody relocation cases where a parent relocates from a State with favorable same sex laws to one without might produce hurdles for the same sex couple in child custody matters. The differences in State adoption laws might also negatively impact the same sex couple. And what happens when same sex parties are legally married and one or both parties subsequently relocate to a State or States where same sex marriage is not recognized? I call it “marital purgatory.” You can be separated but you might not be able to obtain a divorce if neither party is a residence of a same sex marriage state.


It is clear that to approach same sex divorce with mediation in Maryland, the couple will need a knowledgeable family law attorney-mediator to produce a sound divorce settlement in a civilized and far less expensive manner than traditional attorney-led negotiations or litigation. Nancy Caplan, Esquire of Maryland Divorce Mediation and Legal Services can provide you with the guidance you need to navigate these very unsettled waters.

Take a look at this latest update:

http://www.cnn.com/2012/06/07/living/same-sex-divorce-marriage/index.html

Emergency Child Custody: Child Custody Disputes over Holidays

It is that time of year again- “The Holidays.” The period of time which makes even the most well-adjusted, intact family flutter with the normal anxiety of the season, namely shopping for gifts, preparing homes for guests, spending money, arranging for adult children’s return from colleges.

Heap on top of the ordinary anxious frenzy, the issue of a child custody dispute and what do you get? Stressed out. Over-whelmed. Angry. So what to do if you have an emergency child custody disagreement with your child’s other parent? Can it be resolved in time for the holidays? How will a judge decide your case? Will a judge decide your case?

Sad to say that a parental emergency to have a child for a holiday is unlikely to be the kind of emergency that gets heard in time for the holidays at this juncture. Emergency situations are often limited to situations where irreparable harm or bodily injury may occur without judicial intervention, for instance, parental kidnappings, parental disagreements over an emergency medical decision, domestic violence situations. Missing your child’s first Thanksgiving or Christmas may not qualify as an emergency, depending on the judge, and perhaps, depending on the expertise of your lawyer.

If you had a dispute over holiday child custody, in the State of Maryland, most times parents will be ordered to participate in mediation before a judge will give you a court hearing on the matter.
So why not head to mediation in the first place? Call your family law mediator. That is the solution for resolution. The family law mediator is trained to assist families to resolve child custody matters – quickly in time for the holidays! The money you save from avoiding litigation can be used to pay off those holiday bills.


Mediation with Nancy Caplan at http://www.divorcemediationmaryland.com/ can be scheduled during regular business hours, evenings and weekends. That means you won’t have to take time off from work. The court system simply cannot provide that kind of convenience and control over your schedule and life.

So if you are facing a holiday child custody battle, lay down your arms and come to the negotiating table to arrive at a solution which will assure that you have a Happy Thanksgiving, a joyous winter break, a Merry Christmas and happy holiday season. In Maryland, call 410-296-2190 to schedule mediation with Nancy Caplan, Esquire, attorney and mediator located in Baltimore County, Maryland.

Nancy Caplan, Esquire is an attorney and mediator located in Baltimore County, Maryland. Ms. Caplan’s practice focuses primarily on family law mediation for separation and divorce, unmarried parents, same sex parenting issues and all other custody disputes.

Custody Battle Becomes Deadly

“He was a really nice guy.”

That is a quote from a friend of the custody-battle embroiled beauty salon killer from Seal Beach, California. When I first heard about the horrible killings and listened to the friends, former friends and neighbors of the killer I said to my psychologist-fiance- “Huh, you don’t usually hear that about these kinds of nuts.”

By the next day’s news cycle the motivation for the killings was revealed. Embroiled custody battle over an 8 year old boy. The shooter and his ex-wife had been in court that very week. Then I thought to myself- “Ok, now I get it.”

I am a divorce mediator and I conduct private mediations as a majority of my practice. People who agree voluntarily to resolve their disputes in private mediation are a different breed of divorcing couples. They’ve decided from the get-go to resolve their differences. They are not all touchy-feely “I’m divorcing my best friend” types. What they have in common is that the divorce has not gotten the better of their good sense. And that’s no small feat. I congratulate them every time.

Every now and again, a couple of divorce litigators will throw a child custody warring couple into my office. The nature of these couples is an altogether different animal. These folks are angry to the point of tears and table banging. They are standing on an emotional ledge. It is my job to talk them off the ledge.

And as the Seal Beach Killer demonstrates, I’m not over-stating the emotional mindset of these folks. I don’t need a psychologist’s expert opinion to tell me that a custody battle is enough to turn a “nice guy” into a monster. Is there anything more primal than a parent-child bond? There’s no negotiating that away. That’s why in Maryland 100% of family law matters filed in court involving visitation or custody (often referred to as “access”) are referred to mediation as a first resort. The mediation referral should not have to wait for a court filing.

Every day separating and divorcing couples turn to divorce lawyers out of ignorance, fear and/or with vengeful motivations. The divorce lawyer attempts to negotiate the custody issues. The problem is that the middleman (or woman) attorney is the dead wrong approach. A couple who comes to the legal system whether via divorce lawyer, divorce mediator or the courts requires an immediate intervention to ratchet down the heat. To reality check. To be monitored by the system. Because a parent threatened with the loss of a child is completely unpredictable. Heap on the financial and romantic devastation (imagine an adulterous spouse who has a “leg up” on the custody dispute due to his or her stay at home parental status) and you have a chemistry experiment waiting to go bad.

A divorce lawyer is sworn to zealously advocate for his or her client. Unfortunately in custody situations this sworn duty is in direct conflict with the true needs of parties to de-escalate the situation. A few years back the Maryland Bar fought like trapped animals to block an attempt by the ethics rules committee to add in a requirement that lawyers must advise clients about the option of alternative dispute resolution. They won. Of course. They are litigators. Their clients have lost.

What will it take to create the requirement that divorce attorneys, when presented with a high conflict custody matter, immediately refer that couple to an intervention to de-escalate the situation? Do we need a Seal Beach killing spree here in Maryland? Why are the courts bound to refer such a matter to mediation, but yet, the attorneys can’t even be burdened with a duty to advise the party about the option of alternative dispute resolution? We all know why the lawyers don’t want to be bound by such an obligation don’t we? And it doesn’t involve the best interests of any child or even the client represented. It is because custody battles command the big retainer bucks.

No doubt that a great litigator can artfully make the argument that the Seal Beach killer was an anomaly, but was he an anomaly? The killing spree reaction may be a fluke but extreme reactions of parents in custody battle situations happen every day. Waiting for an intervention by the courts after a few rounds of threatening letters designed to frighten the pants off of “opposing party” is too late. It is up to the “first responder” in an custody emergency to make the intervention- which due to the hateful nature of the beast is typically the litigation lawyer. Unfortunately it takes two litigation lawyers to agree to advise their clients as one voice to forego the profitable custody litigation, so a single ethical attorney won’t get it done alone unless he or she immediate files in court and requests the intervention- whether it be counseling, parenting classes or mediation.

We don’t need another parental kidnapping or homicidal rage to learn that which the legal system has repetitively learned- custody disputes must be met as an emergency situation by the “first responder” lawyers, and they must be required to do so, because we can’t count on a professional to look past his or her financial best interests in a system that doesn’t require that. That expectation is about as realistic as a parent not reacting badly to an attempt to separate him or her from his or her child.

For more information on divorce mediation in Maryland, visit my website at www.divorcemediationmaryland.com.

Divorce Mediation: How 3 Professionals Cost Less Than 2

A math problem and riddle: How can [1+1] add up to more than [1+2]? The answer? Attorney-led Divorce Negotiations vs. Divorce mediation followed by attorney review of the Separation Agreement.

In attorney-driven divorce and separation negotiations, to arrive at the legal and binding Separation Agreement, 2 attorneys, representing the Husband and Wife independently, negotiate the terms of the parties' Separation Agreement. 1 + 1. Notoriously expensive. Often produces additional animosity between the parties.

In separation and divorce mediation, 1 mediator facilitates the parties' face-to-face negotiations, which are then drafted into a Separation Agreement (often by the mediator), and the Separation Agreement is then reviewed by 2 attorneys, representing the Husband and Wife independently. 1+2. Cost-effective. Usually diminishes animosity between the parties.

Therefore [1+1] is more than [2+1] in terms of financial and emotional costs. This may be counter-intuitive, but it is typically true.

Think about the realities of divorce settlement negotiations, and the truth of this riddle's answer is apparent. What will be the child's schedule? How will Christmas be shared by the parties? How much does each party earn? What are the expenses of the children? Can one party qualify to buy out the interest of the other in the Marital Home? What are the expenses of the Home? What is the fair way to divide the equity or pay the deficiency?What are the income and the expenses of each party? Where are the assets? How are the credit cards titled? Should each party keep his or her own car? How long should the parties jointly maintain car insurance?

The point is that there is little magic to a fair negotiation of a divorce settlement. The parties are typically the experts in their own lives, whether the negotiations are about the children, their home and/or their assets and liabilities. As such, their direct negotiations are far more efficient and knowledgeable.

This does not negate the usefulness of obtaining legal advice. In mediation, very often a party is consulting with his or her own attorney during the negotiation, and always prior to signing the formal Separation Agreement. The parties simply cut out the middleman, by adding a middleman- namely the mediator. The mediator adds the neutral third party to assist the parties in what can be highly emotionally charged situations. The lawyers remain, but only as legal advisors, not negotiators. The parties are their own negotiators.

Hence 3 professionals actually end up costing far less than 2 professionals. The mediator promotes settlement, not antagonism. The mediator promotes settlement, not court battles.

Do the math. Ask your prospective attorneys about the cost to hand the negotiations over to him or her. Then find out about the cost of divorce mediation with Nancy Caplan, Attorney and Mediator. Do the math.