Maryland Divorce & Family Mediation Attorney

Emergency Child Custody: Child Custody Disputes over Holidays

2011-11-02T16:03:00.000-07:00

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

2011-10-14T07:09:00.000-07:00

“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

2011-09-06T09:52:00.001-07:00

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.

Fairly Legal

2011-04-08T08:30:00.000-07:00

The television drama, “Fairly Legal” is the story of a lawyer-turned-mediator and her ability to cut to the chase to resolve a garden variety of legal disputes in a way that is always superior to litigation in the legal system. All I can say is “thank you” USA Network, thank you.

When I re-trained from litigator to attorney-mediator and launched my new private practice, I read a bunch of books on marketing my divorce mediation practice. Among them was Malcolm Gladwell’s “Tipping Point” a book about how trends catch like wild fire. Now that I had been enlightened to the profound wisdom of divorce mediation, and its incorporation as part of the Maryland Court process, I thought to myself, “Nancy, get ready to ride the wave because mediation has to be at the tipping point…” But no, not really. So impressed was I with Gladwell’s analysis, that I wrote a draft of an article which I entitled “The Tipping Point of Mediation.” But I never published it, because early in practice, I realized that, at least in Maryland, it seemed that Maryland had not reached that “tipping point.”

So I turned my attention to how I might contribute to the push to the tipping point? I attended bar association social events, the Maryland State Bar Association Annual Convention, and sent letters to every lawyer, marriage counselor and clergy person I could find online or in the yellow pages and let them know I was available for hire. My practice puttered along in growth. I revamped my website, once, twice, thrice. I used all of my meager profits to purchase advertising. I snapped up all of the available domain names that I could find. I gave seminars and took continuing education classes. I applied to and was approved as a mediator for the Circuit Courts of the State of Maryland. I gave a presentations to my peers. I had lunches with former legal colleagues and begged them for the cases who couldn’t afford to pay lawyer fees to negotiate. I wrote blogs.

The blogs kept my content in my website fresh. But how fresh can the topics of child support, custody, alimony, property division, divorce or separation agreements be? I researched mediation in the news to unblock writer’s block, and that’s when the new show “Fairly Legal” caught my attention.

I was excited. At least with a tv show I had a jumping off point to write. I’d watch an episode and write a blog. What could be easier? I watched one episode and thought, ok, well that’s not really mediation- a mediator doesn’t leave the disputing parties in her conference room to duke it out while running across town to the courthouse, quickly mediating to save a golden boy from the getto from prison and then run back to the conference room to deliver the wise and profound mediator words which caused the mediation participants to arrive at a magical resolution. No that’s not really mediation, not to mention the numerous ethical violations that the Fairly Legal Mediator beauty (I do love that the mediator is gorgeous) commits each episodes are mind-boggling, but hey, it’s fiction and entertainment. Real mediation would be much more boring. But before I could start my episode by episode blogs a crazy, crazy thing happened. My business phone started to ring off the hook. My part-time mediator friends who use my office for the occasional mediation started calling “hey we are busy we need space” and my email contact forms were filling my inbox.

While I was basking in my suddenly booked calendar and watching my operating account grow, I was in a self-congratulatory mood. I thought to myself, “look at me, my practice is just like ivy, plant it in the spring, and then the next year “sleeping” the next year “creeping” and then finally the next year “leaping!” Just as my financial viability seemed hopeful my fiancé, John, rudely stated “Geez, I guess there’s been no better advertising for you than that show Fairly Legal.”

Hmmmmm….well that burst my bubble a little bit. How dare he not attribute my success to me? I was mad at him for undermining my self-confidence and he scrambled to recover from foot-in-mouth syndrome. “No, honey, sweetheart, wonderful mediator, my love! Let me explain! You can have the biggest boat in the harbor, but if the water level is too low, you’ll just trudge through the silt, when the tide rises, your boat and all others will rise with with it ! The show is the only national, mainstream advertising out there!" (Did I mention my fiancé is a writer, and hence he metaphors his way out of a lot of tight foot-in-mouth spaces?) So I thought about it. Wasn’t it just last week that one of my mediation participant couples mentioned the show? Was John correct?

When I began practicing mediation exclusively I attended a meeting with the Mediation And Conflict Resolution Office (MACRO) to hear what they were all about. There were very few people seeking to be part of the leadership and leadership was focused more on professionalism in practice than whether mediators could earn a living wage. I offered what I thought were marketing pearls of wisdom- “Why don’t we utilize whatever funds we have for organizational advertising? If we wait for litigators to farm us their business we’ll starve.” My thoughts were heard, applauded and dismissed, it simply wasn’t part of their agenda, and who knows, perhaps the funds available to them were few. My point was and is this- if people really understood mediation, and/or knew it existed, felt it was mainstream and not a new age form of meditation, then if we built it- they would come.

Over the years since I opened my practice in early 2006, mediation has grown in an organic and steadily strong way. Not just divorce mediation, but business mediation, and mediation on the world stage of international disputes- mediation is picking up steam. And hence the creation of Fairly Legal. Mediation began to grow, and therefore Hollywood followed. And when Hollywood follows, how far behind can be the tipping point be? Ask my appointment book.

Mediation and Attorney Consultation and Review

2011-03-02T06:39:00.000-08:00

I firmly believe that one day, Maryland, like a few other States will expressly permit attorney-mediators to draft formal Legal Separation Agreements (i.e. also known as Marital Settlement Agreements) for folks who are not represented by his and her own attorneys. What this will mean if it happens is that folks will put themselves at risk in the future for a possible challenge against the Separation Agreement's validity by one party or the other. This is because an attorney review of a mediated legal Separation Agreement for each party is the insurance that neither party can say in the future "I didn't understand the legal ramifications of the Separation Agreement" and challenge the validity of the Separation Agreement.

Thus even if the Committee on Legal Ethics in Maryland reverses its current position and grants separation or divorcing folks the right to choose the level of risk they are willing to take when forming legal contracts, as a mediator, ethically I will feel the need to scare the pants off of mediation participants to compel them to obtain attorney reviews, except in limited cases (i.e. no children, no assets, no debts.) As a mediator I always tell my participants that the goal is to reach a (1) "Fair" agreement- one that reflects a healthy collaboration of the standard of fairness set forth in the law and the personal standards of fairness of the parties; a (2) "Practical" agreement- one that when implemented is workable by the parties when living in real life (i.e. no one agrees to pay or take on more than they can afford, or a party doesn't agree to a custody schedule he or she can't keep); and (3) a "FINAL" agreement.

It is the "final" part which is in jeopardy when there is no attorney review. Most people come to mediation for two reasons: It is less stressful and more economical. If the legal Separation Agreement is vulnerable to challenge in the future (meaning one party is now filing suit to invalidate the legal separation agreement in whole or in part), how has the mediator alleviated the stress or the expense of divorce? Where's the finality? And thus avoiding an attorney review to save money is a bit "penny-wise, dollar foolish."

When obtaining an attorney review it is important to understand the quality of the legal opinion you seek. The question each party will ask is this "How would the issues be decided in a court of law" because the answer to that question gives a party the parameters of his or her negotiating strategy. To get the most accurate answer to that question, you have to ask a lawyer with litigation experience in the county in which you intend to seek the divorce.

For instance, if you live in Harford County, but can't find a Harford County Separation and Divorce Mediator, you might seek out me, a Baltimore County Separation and Divorce Mediator. However, just because I'm a Baltimore County Mediator does not mean that the reviewing attorneys should be from Baltimore County. Ideally the parties will seek legal advice and review from Harford County attorneys. After all, which attorney can best tell you how the individual judges in the county in which the parties' live might decide child custody, child support, alimony or property division. Judge "A" from Baltimore County might tend to favor joint physical custody; Judge "B" from Harford County might consistently rule against joint physical custody. Only the true litigation attorneys who practice regularly in Baltimore County, or Harford County, or as the case may be, can provide you with real life advice on the individual differences between the judges, to provide you with the best possible quality of legal advice.

Now before I get a rash of negativity from mediators who feel that attorney advice is not a necessity, I will qualify my position like this: Most things in life involve balancing a risk versus a cost to avoid the risk assessment. I believe that intelligent folks can make this assessment themselves and don't need the paternalistic sweeping protection of an association run and overseen by attorneys ("fox guarding the hen house" comes to mind) to make the choice for them. Armed with rational information and an accurate perception of their specific financial condition, people should be able to reasonably make this decision on their own. But in my humble opinion, if there is room on the credit card, or home equity line of credit, etc., there is room for rational "Legal Separation Agreement" insurance, i.e. an attorney review of a mediated legal Separation Agreement.

Same Sex Marriage in Maryland?

2011-02-21T14:26:00.000-08:00

Even the small-minded masses can't stop same sex marriage from coming to Maryland or elsewhere in the United States. Over and over again history reminds us that social progress is as unstoppable as democracy in Egypt.

I thought about what the happening of same sex marriage would mean to separation and divorce mediation in Maryland. Obviously, the more marriages that occur, the more divorces that will occur. In fact, if same-sex marriage comes to Maryland...I mean when it comes to Maryland, the first thing that will happen is that many same-sex partnerships will break up. Say what??? Yup. A lot of commitment-phobes will be running scared away from their "marry-me-now-because-it's-legal" partners. I doubt statistical records will be kept but I venture to say that the legalization of same-sex marriage will be the death knell for many partnerships where one partner was either perfectly happy with their personal status quo; or unhappy but silent about it, but now when pushed on the issue...well it doesn't take a heck of a lot of imagination. People are people, relationships are relationships. Yes, I know, it is a cynical vantage point that we divorce professionals have. How could we not?

How will same-sex divorce work from a procedural perspective? Duh. It will be exactly the same as any other family law matter. Long gone are the days when couples sharing children are necessarily married to one another! Divorce mediators and attorneys are mediating and trying child custody matters in Maryland between heterosexual unmarried couples every day.

However, same sex marriage in Maryland, while in its infancy (of course I am assuming it is coming), will produce certain sticky issues when it comes to Alimony and division of marital property within the court system. Why? Because the "length of the marriage" factor often won't equal the time in which two same-sex partners have been together. For alimony/property division questions this will mean that "length of marriage" in a same-sex-partnership-turned-marriage, should be given less weight and the "any other consideration" factor should encompass how many years the pre-marriage partnership preceding the marriage existed. This "any other factor the judge finds relevant" should balance the inherent unfairness that long partnerships/short marriage relationships might face when gay marriage finally arrives in Maryland. I say "should."

Here's the problem- a judge biased against same-sex marriage might not be fair. Ok, there goes the cynic in me again. That's why I am a mediator. Not because I'm a cynic, but because judges are human beings and they bring their own personal biases to the bench and therefore into your homes in family law matters. I am a mediator because I believe that especially in family law matters, if one is looking for fairness in settlements, one needs to rely on the fairness of the participants.

And therefore I urge same-sex partners and hopefully in the very near future, same-sex spouses who are separating or divorcing to choose mediation above other divorce processes. In same-sex family mediation in Maryland, the parties will work from their own value system when making choices for their post-separation/divorced families who will continue (albeit in a different separated/divorced format) after the choices are made. My point is this- Same-sex partners or spouses better make darn sure that they subject themselves to a process which guarantees that they are treated the same as their heterosexual counterparts. If the same-sex couple tries to screw one another in the separation/divorce process by capitalizing on the system which was and may continue to be biased against same-sex couples, then....well the phrase that comes to mind is one step forward, two steps backwards, or something like that.

Both mediation and same sex marriage have a lot in common. In reality, both have been around since the beginning of time in one form or another. Both the process of mediation and the legalization of same sex marriage represent a positive progression for society. Both are unstoppable and inevitable.

Child Custody and Mediation in Maryland

2010-12-09T09:37:00.000-08:00

Why begin with mediation when you have a child custody dispute in Maryland?

Reason #1- Because a child custody dispute in court is like a gun fight in the wild west. Bullets are flying, and a lot of people will be caught in the crossfire, including your child or children, and your children's parents (in other words, the parties themselves).

Reason #2- Because in Maryland, child custody disputes are ordered to mediation! Be ahead of the curve, begin your child custody negotiations in mediation.

Reason #3- In child custody mediation the tone of the discussions are geared towards settlement and threats and fear tactics are discouraged and who needs to pile on more fear in a child custody dispute?

Reason #4- Who are the experts in your child? The Judge? The Lawyers? You?

Reason #5- Because your relationship with your co-parent will continue no matter the manner in which your child custody dispute is handled; Ugly handling of the dispute = ugly co-parenting relationship.

Reason #6- In child custody mediation, creative solutions, finely tailored to the parties and the child/children are readily crafted; litigated child custody disputes are decided in black and white terms.

Reason #7- Couples who handle their child custody disputes in mediation, usually return to mediation for future dispute and vice versa- start your child custody disputes in litigation and you may be litigating over the child/children for life- KER-CHING!

Reason #8- KER-CHING!!! Child custody battles cost the big bucks! Just call a child custody lawyer and ask how much of a retainer he or she will charge for a child custody case. Then ask the lawyer to give you a range of the total fees and costs for a litigated child custody battle.

Reason #9- What kind of example do you set for your child/children by handling a dispute with a battle vs. handling a dispute with calm, considered negotiations in a non-hostile manner?

Reason#10- In child custody litigation nobody wins. The only way to win, is not to play. Choose child custody mediation to resolve your Maryland child custody disputes.

How Do You Choose A Maryland Divorce Mediator?

2010-12-06T08:48:00.000-08:00

When searching for a separation or divorce mediator in Maryland thoroughly explore the goals of the mediation. Are you looking for a Maryland divorce mediator to assist to negotiate a child custody arrangement to reach a parenting agreement? Are you looking for a Maryland divorce mediator to negotiate a complex financial settlement involving business valuations or a complicated tax analysis? Are you looking for a Maryland divorce mediator to settle support and property issues in a same-sex partnership? Are you looking for a Maryland Divorce Mediator to help you settle routine child custody issues, division of non-complex financial and property issues and to help you agree on alimony?

There are many kinds of separation, divorce and family mediators. Typically qualifications range from attorney-mediators, to psychologists, social workers, and finance experts. What the mediator is qualified to do should be the first line of inquiry.

Attorney-Mediators are authorized to draft formal agreements. However if they do so, the parties must have an attorney review prior to signing the agreement (at least in my practice, other practitioners may have differing opinions, but to me the ethical standards currently in effect mandate this requirement). This process blends negotiating efficiency with protection of legal rights. It remains a fraction of the cost of cumbersome attorney-led negotiations, which are too often fraught with threats of litigation escalating conflict rather than reducing conflict. So long as the divorce mediator is a competent draftsperson, this option is probably the most economically efficient where the financial issues are less complex.

Where there a business valuations or other complex financial or tax issues, an attorney-mediator may still be employed supplemented by consultations with financial experts. So long as the parties grasp the concepts that they are negotiating mediation remains a viable alternative. However, if one party or the other is “lost” in the technical complexities then mediation is no longer appropriate, unless the parties mediate with their knowledgeable attorneys present. Of course the more professionals involved the greater the cost, however, financially complex cases often have most resources available to fund the process. Another option might be a mediator with a financial professional background, or a collaborative law arrangement.

Non-Attorney Mediators are not qualified nor permitted to draft formal separation agreement and property settlement documents. They still may be a great option if they are skilled at helping the parties reach satisfying agreements. If the child custody issue is complex, for example, if one party seeks relocation of the children to a different State or country, or where a party has a substance abuse issue, a psychologist-mediator may be your best guide. However, the drafting portion of the process will then be placed in the hands of attorneys, and the drafts which are exchanged, re-reviewed, revised, etc., may still add up to expensive attorney hours and larger than necessary legal fees, then if the parties started with an experienced and competent divorce attorney-mediator who drafted the document for attorney review.

The goal of seeking to mediate your dispute is financially sound. But the inquiry doesn't stop there. Choose the right Maryland mediator to help settle your family law disputes in Maryland. Nancy Caplan, Esquire is an experienced and competent choice for most typical separation and divorce matters in Maryland.

I Want A Separation Agreement

2010-12-03T05:50:00.000-08:00

“I’m looking for a Separation Agreement.” Of the calls I receive each week, this is the most frequent request. A Separation Agreement in Maryland usually refers to the comprehensive “ Separation and Marital Settlement Agreement” drafted by attorneys or attorney-mediators.

A “Separation Agreement” in Maryland can also be the preliminary agreement between the parties that ratifies their voluntary separation- in other words the parties sign a written document which states that they are separating by their mutual and voluntary agreement, even before all the details are negotiated relating to child custody, alimony, or other support, and division of marital property like cars, bank accounts, pets, furniture and retirement or business interests.

Many times in mediation the parties only feel comfortable embarking on their physical separation if a written document is signed so that neither party accuses the other of abandonment or throwing the other party out of the marital home. When those fears are set aside, and the separating couple is out of the pressure cooker of living under the same roof, many couples feel more ready to begin negotiations on the comprehensive Separation Agreement- the Marital Settlement Agreement.

I’ve written in a previous blog about “Legal Separation” in Maryland and tried to explain that that common terminology is a misnomer, since most people usually mean simply that they want a Separation Agreement. What they want is a Maryland Separation Agreement which legally binds the parties to the terms relating to child custody, alimony, or other support, and division of marital property like cars, bank accounts, pets, furniture and retirement or business interests.

Must Spouses Live in Separate Homes to Obtain a "No Fault" Divorce in Maryland?

2010-12-01T07:49:00.000-08:00

The short answer is usually “yes.” Throughout the years I’ve heard tales of progressive masters and/or judges who have granted absolute divorces where people establish that a single residence has been divided into separate living areas, having separate entrances/locks, and of course separate bedrooms, bathrooms, and kitchens (think “in-law apartment”).

When I was a young lawyer too long ago I represented a client in an uncontested divorce matter in Prince George’s County. The parties had previously come to a Separation Agreement and Property Settlement and had lived separate and apart for several years prior to seeking a divorce. In the interim years the parties had recovered from their separation trauma and had become friends again. The opposing party was moving from an apartment into a new construction home which at the time of the expiration of the apartment lease, was a few months away from completion. You guessed right- opposing party moved into my client’s basement complete with separate entrance, bedroom and bathroom. There was no sharing of any portion of the main house.

Unfortunately, I was not informed of this development until moments before the uncontested hearing and as an attorney, I could not put up perjured testimony that the parties were living in separate residences. Naturally, as a young associate working in a large downtown firm I called every one of my superiors to seek advice, but low and behold, no one was available. I was terrified and angry at my client.

The only thing I could do was speak to the judge in chambers. He listened to my dilemma and explained that if I could prove a truly separate residence within the residence he would grant the divorce. That’s what I did and that’s what happened.

Today, as the mortgage crisis and the separation laws have financially and emotionally paralyzed parties who desire to be divorced, the issue is more compelling than ever. Imagine a situation where the parties, knowing they want to be separated and divorced, craft a plan to live separately within the same home. Perhaps they spend the year of mandatory separation (assuming a ground for divorce based upon a one-year separation) living separately in the same home and because of this, they are able to financially weather the storm for the benefit of the whole family. Perhaps they spend the year saving the funds to pay the deficiency on their “upside-down” mortgage so they can escape the marriage with their credit intact. Or they spend a year together but separate in order to allow Junior to finish up middle school in the district before selling the home. Or perhaps one of the parties is unemployed and needs the time to seek employment or retraining. The reasons parties might need this are many and varied.

This obstacle to post-divorce financial recovery for the family that the legislature has never seen fit to remove is nothing less than anti-family and overly paternalistic. Whatever antiquated or religion-based purpose it may have served in the past is far out-weighed by the needs of modern families and especially in the current financial crisis climate.

One solution? Put off the divorce. That doesn’t mean putting off negotiating and coming up with a comprehensive marital settlement agreement in contemplation of a future separation and divorce, which will also need a future amendment once the parties actually separate that ratifies that the separation actually occurred (and if it is mutual and voluntary, this will also be part of the ratification.) That can be done whether the parties are living together or apart. I mean, exactly what is the rush to divorce once the agreement is signed? The agreement will address every single issue- from alimony to child custody and support to division of marital and non-marital property. Of course there can be no re-marriage (which in my humble opinion is the sole benefit of the waiting periods, again, what’s the rush in most situations?)

Naturally such an arrangement requires a level of rational behavior not always exhibited by separating parties. Imagine a couple mired in courtroom battles attempting to live in proximity to one another. However, more and more, folks are realizing that their finances deny them the luxury of bitter, money-sucking legal battles. The less money a family has the greater the need to cooperate no matter the emotional circumstances. Finally! A real life situation where people with less money obtain a better solution than the wealthy!

Difficult problems require creative solutions which are born from rational consideration. Where might parties formulate pro-family solutions which facilitate fair, rational and practical solutions? Mediation of course.

Mediation- Picking Your Own Poison

2010-11-30T12:25:00.000-08:00

There are few positive choices to make in separation and divorce disputes. Each choice relating to finances or children is "negative," meaning that whatever choices are made mean less money or less time with one's children for both parties. Sure, one party may come out with more money than the other, or one might have more custodial time with the children than the other, but no matter what, both parties end up with less of everything upon separation and divorce.

This may all be self-evident, but it's important to keep it in mind specifically when deciding whether or not to mediate or to litigate your divorce matter. Why? Because if parties negotiate in a thoughtful and careful manner the parties can craft a divorce separation and marital settlement agreement which best suits the family in its new form. There may be no net-positive choices to be made, but isn't it better to pick one's own poison?

Settlements which occur through attorney-led negotiations are often made in an environment of stress which is being purposefully and at times relentlessly inflicted by the opposing counsel. Settlements which occur "on the courtroom steps" (meaning, on the day one is scheduled to have a hearing in court) are akin to having a gun to one's head. That's a pretty grim way to make huge life-impacting decisions. By contrast, separation and marital settlement agreements made in mediation are made in an environment of thoughtful consideration and debate, and with a front row seat to the opposite party's reactions. There is almost always a "cooling off" attorney review period to allow a party to digest what he or she is agreeing to. I think mediation participants ultimately more thoroughly understand their agreement because they negotiated it themselves.

So pick your own poison- you'll be glad you did. Only the parties themselves can know what they can and can't emotionally and financially handle, and only they will be living the lives dictated by their separation and property settlement agreements.

Thanksgiving- One Divorced Family's Horn of Plenty to Share

2010-11-22T06:30:00.001-08:00

Thanksgiving is a one-day holiday? Not so. Although many retail employees work on the Friday following Thanksgiving, for many, many families the day after Thanksgiving is part of the Thanksgiving Holiday.

In my family, both my sister and I are divorced from our children's fathers. We coordinated our holiday schedules where possible, and our Thanksgiving holiday is always in sync. When Thanksgiving is "ours" we seem like any other non-divorced family. On the Thanksgivings where our children are celebrating with their dads we've created our own holiday that occurs on the Friday following- we call it "Faux Thanksgiving."

On Faux Thanksgiving years, Thanksgiving itself is a quiet day of leisurely cooking and preparations. Having the extra day to spend with my fiance alone without the kids is precious. Gone is the harried flurry of desparation to get everything done while still conducting business on Tuesday as part of the business week. Often times the kids home from college pop in late in the evening on Thanksgiving for a hello- but no pressure on them to please all the relatives in one day.

Of course I tivo or DVR the Thanksgiving Parade. Most teens miss the actual parade on Thanksgiving, having slept in at Dad's (or my son who goes out and has a traditional touch football game with his Dad and company). The cookers of Thanksgiving only get to hear it droning in the background and miss the great Broadway performances or only catch one giant balloon or so. So in my house, the "Faux Thanksgiving" parade begins at 1:00 p.m., the time our gathering begins. Excellent football games also dominate. So I might truthfully say that my "Faux Thanksgiving" is even thanksgiving-er than actual Thanksgiving.

My brother and sister-in-law have managed to stay together lord bless them. However, they still have two sides to their family. Our "Faux Thanksgiving" also allows my sister-in-law to enjoy her own family traditions on alternating years. Therefore Faux Thanksgiving might be a solution even for "in tact" families.

There is no need to "miss" important events in a family history due to divorce. We just need to adjust and then, sit back and enjoy while letting the divorce take a backseat to life. Creative solutions sure beat depressive contemplation over the negatives of divorce. A sense of humor helps. Nothing is funnier (to us!) than our "Faux Thanksgiving" videos, and in the final analysis, because of the novelty, we'll probably remember them more vividly than our "real" Thanksgiving holidays. I'm sure my family hasn't invented this idea, however, we do actively employ it, and I'm glad we do.

How Your Lawyer Can Help You Get Your Spouse to Mediation

2010-11-09T11:56:00.000-08:00

There are two situations when the right attorney can assist you and your spouse get to the mediation table. The first can happen when a spouse can't persuade his or her spouse to attend a mediation to address separation and divorce issues. The second is when there are sensitive issues requiring either immediate filing of a law suit in court or preparation for immediate filing if necessary.

Let's take the first situation first. You've asked your spouse to mediate. You've presented him or her with viable options and perhaps internet links or information. You get no response. Or maybe he or she simply says "I'll think about it" and does nothing. Maybe he or she "no shows" one of Nancy Caplan, Esquire's informative free monthly divorce seminars that he or she agreed to attend, and now you're there all alone.

It may be time to call an attorney for a consultation. At the consultation the attorney will ask about your case and normally he or she will set a retainer fee amount. It is at this point that you should ask your attorney whether he or she would be willing perhaps as part of the consultation costs, to simply write the other spouse a letter requesting mediation.

If you take this route you will probably get your spouse's attention pretty quickly. The first thing that will happen is that your spouse will start shopping for a lawyer and get a fast reality check on the costs of litigation. Just the retainer alone should feel like a big bucket of ice water. Suddenly the free monthly divorce mediation seminar may sound like a good idea to your spouse.

In the second situation, it may be smart to seek out legal representation before approaching mediation. Let's say that you and your spouse have separated but your spouse is being unreasonable in permitting your access to the children. Having an attorney prepare to file pleadings in court (with or without actually filing depending on the facts of your case) seeking access to the children while simultaneously having your lawyer request immediate mediation may be the way to get your spouse to the settlement table.

Either way you are showing your spouse that you "mean business" while simultaneously showing your preference for the peaceful approach to the issue. It is essentially a "good cop/bad cop" kind of psychological approach to persuade your spouse to do what is best for all of you- namely to mediate your family law issues. Hopefully even the limited attorney involvement will be enough to get your spouse to understand the financial and emotional consequences of choosing litigation or attorney-led negotiations.

So if your spouse is stubborn or doing some feet-dragging this doesn't mean your mediation options are closed. Find a way to make your mediation happen for the sake of your family's post-divorce health. Going to a lawyer doesn't mean you have to litigate or give up control over the negotiation. Your lawyer can help you get to mediation, and all you really have to do is ask him or her to provide you with this service.

When Should I Get a Separation Agreement?

2010-11-05T08:09:00.000-07:00

Oh no. It's finally happened. After years of struggling to keep it together, you and your spouse have decided to separate and probably (but perhaps not definitely) get divorced. So what now?

Usually at this moment, people are seized and even paralyzed with fear. Fear borne from uncertainty.

That's why folks should pursue a Separation Agreement as soon as they are able to do so. The reason for a Separation Agreement is to settle the issues that arise when you separate or divorce. Many of these issues are immediately pressing, such as who will leave the family home? How will the bills be paid? When will we each see the children? Do I need to see a lawyer? What about health insurance?

A Separation Agreement in Maryland is the legally binding contract between the parties which settles the issues relating to marital and non-marital property and support for spouses and children. Folks get a Separation Agreement instead of submitting their issues to a judge to decide at a trial.

The State of Maryland has some confusing laws in separation and divorce matters. In particular, folks don't understand when to get a Separation Agreement given the one-year separation period (for voluntary separation and other causes of action, although there are other time periods for other causes of action). Must you wait the one-year period before getting a Separation Agreement? No. You may have to wait to get the divorce, but you don't have to wait to settle the issues. After all, how else will the parties know how the bills will be paid and how the children will be shared?

Most people start out with an informal, verbal agreement on some of these issues. But in this situation, it is impossible not to feel insecure with informal commitments.

When I conduct separation and divorce mediation, we set an agenda. The most pressing issues are at the top of the "to do" list. These often include who shall leave the home, child custody and bill payment (including the rent or mortgage and of course all of the basics like food, gas, clothing). The next step is to flush out the bigger issues relating to what will happen to the family home and the parties' bank accounts and retirement funds.

Obtaining a Separation Agreement will be a giant step to calming the fears of the unknown. Only when the unknown is settled can folks really "move on". The greater the fear, the more urgent the need for a formal agreement.

Naturally I would suggest that mediation is the place to begin the process of getting to settlement and a Separation Agreement. In mediation, you control the process- setting the date and time and length of the appointment, thereby controlling your work and child schedules and the rate of outflow of mediation fees. So what first, mediation or attorney consultation? That depends. Usually attending at least one (1) session of mediation gives the parties some idea of what the other person is seeking and makes for a more meaningful attorney consultation. Imagine having an expensive 2-hour attorney consultation about alimony only to find out in the first session of mediation that your spouse doesn't seek alimony.

I know that after the decision is made to separate, fear and paralysis are difficult foes. Conquer fear and paralysis by addressing settlement by getting a Separation Agreement. If you choose mediation to get it done, you are choosing the least stressful alternative.

Launching A Child of Divorce

2010-08-23T07:50:00.000-07:00

The pain of contentious divorce or post-divorce disputes is a pain that keeps on giving, and young adult children are not exempt from the negative effects. Consider the young adult child who is going off to college for the first time. The packing list? Clothes, bedding, desk lamp, the burden of worry for the parents left behind in a state of fear, anger and agitation due to the vicious back-and-forth of the adversarial process and the uncertainty of outcome guaranteed by the judicial system process.

The good news is that the college-bound child probably has enough distraction to put it on the proverbial back-burner for a semester…that is…until Thanksgiving. Thanksgiving then becomes a dreaded event instead of a joyous homecoming. It is the pain that keeps on giving, because the chances of the judicial process having been completed in those two months is near nil. Even the phone calls home or the normal requests for spending money become an exercise in revisited pain, worry and guilt.

Do you think you can “hide” the turmoil from the child? I haven’t taken any polls but I venture to guess that the number of children oblivious to parental turmoil/financial hardship is pretty close to none. Home is the place to vent. It’s hard to hide the bad mood from an ordinary “hard day” so imagine hiding a dark mood caused by a scorch-the-earth ex who is bankrupting his or her ex for blood sport. And so, as the son or daughter watches his or her friends’ parents hold on to one another as they tearfully launch their 18-year old off to college, yours is stoically saying goodbye either to only one parent (“please Mom, let Dad take me, I can’t take the stress of the two of you in the same room”); or perhaps both parents are present asserting his or her parental territory, guaranteeing the child’s elevated stress level on an already nervous day, that was supposed to be joyful even if coupled with normal trepidation.

And so, when divorce or post-divorce disputes are handled contentiously, with an aim to destroy the other out of spite, (which goal, if achieved, will not provide the imagined victory lap one might imagine in fantasy), the children suffer, suffer and keep on suffering. No matter the age of the child, or the stage of life, or the joyous life event, whether it is a bat mitzvah or a college launch, the ambiance of hatred permeates. A parent can “suck it up” for the day, put on a false smile, a “how do you do” for the enemy-ex, but no one is fooling the adult child. That child is far too wise to the destructive force of parents who seek to continue to wage war instead of signing the treaty and living by it.

Mediation is the path to the treaty. Litigation is the sour stomach that travels with your young adult to his or her new destination. One thing is for sure: the memory of the launch will be forever tainted by the environment of hate caused by parents who chose war over peace, and the missile launcher may be sorry for the unintended casualties which are his or her beloved children. What else could they reasonably expect?

Child Support Duty to 18-Year-Old Not Graduated From High School

2010-05-18T12:48:00.000-07:00

In 2002, Maryland lawmakers revised the law extending the “age of majority” as it relates to child support, from 18 years old, to 18 years old and graduated from high school, but in any event, no longer than age 19. [i] Thus age 19, for child support purposes, is the outer limit of the “age of majority.” [ii]

What this means is that a child support payor-parent, must continue to support a child turning 18 up until the child graduates from high school, but not longer than that child’s 19th birthday. By way of example, if the child was born in November 1991, and was held back in a “pre-first” or similar program, then that child would have turned 18 in November of his or her senior year of high school. That child would be entitled to be supported through graduation from high school, or until age 18 and 7 months. By contrast, the child born in January 1991 who might have been held back in school for some reason would turn 19 in January of his or her senior year but child support would end there. The child support payee-parent would then be on his or her own to support the child without receiving continued child support from the child support payor-parent. Therefore practically speaking, parties currently negotiating separation or parenting agreements might contractually agree to extend the duration of child support if that situation is foreseeable in their families.

However what about the majority of child support provisions drafted before 2002 which reflect the 18 year old age of majority? Does this mean that those child support payee-parent and his or her now or soon to be 18 year old high school seniors are out-of-luck?

“No” says the Maryland Court of Special Appeals in Bornemann v. Bornemann..[iii] The Bornemann Court found unequivocally that the change of age of majority is to be applied retrospectively to child support orders entered into prior to the 2002.[iv] The Court also reasoned that amounts of future child support are not free from modification and therefore the parties’ contract relating to child support is never free from modification.[v] If one wonders why parties are not free to contract as they please relating to child support, the Bornemann Court explains that a parent may not waive a child’s support[vi], and that: “Child support payments vest on the due date of each payment. Rights concerning future child support liabilities, including termination of support, therefore , do not vest until the due date, and are subject to the continuing jurisdiction of the courts.” [vii]

Therefore parties having a pre-2002 child support agreement, where there are no material changes in income or expenses might want to avoid the cost, time and aggravation to fight against an extension of the duration of child support until the child turns 18 and is graduated from high school, but no longer than age 19. As stated in Bornemann: “The 2002 amendments…are effectively a self-executing material change of circumstances.”[viii] The party who does defend against this cause, may find him or herself paying attorneys’ fees and court costs for both parties for launching this non-defense.

So what does this mean as a practical matter? It means that a child support payee-parent living with a pre-2002 Amendment child support order must file an action in court to seek to modify the pre-2002 Amendment child support order. There is no “automatic” extension. It is up to the party seeking to modify a prior court order to re-open their case to revise the child support order, and as in every modification of child support must prove that there has been “a material change of circumstances,” but in this case, the “self-executing” material change is the 2002 Amendment. Thus it would seem that to get an extension of the existing child support obligation nothing more need be proven to the court.

So if the child support is $2,000.00/per month continuing until the child’s 18th birthday, and that child is in high school for another 6 months after turning 18, and the child support payee-parent is seeking the same $2,000.00/month for those 6 months, then he or she must file for modification in the Courts and nothing more need be proven. If the child support payor-parent seeks to defend against that extension of the same monthly child support amount, all other financial issues being the same, that parent runs the risk of paying the counsel fees for both parties if the defense is deemed to be unjustifiable.

This is different if one party seeks also to change the amount of child support he or she receives or pays (as the case may be,) then the modification of child support involves more than a simple extension of child support from the pre-2002 child support order through the child’s senior year (but no longer than age 19.) If seeking the modification of the amount of existing child support, the modifying party must prove a material change of circumstances warranting the change of the amount of child support. This involves proving income and expenses and is more complex than the “self-executing” material change of circumstances extending the duration of child support payments arising from the change in the law.

In conclusion if: 1.) A pre-2002 child support order terminating at age 18 exists, and 2.) If the child’s 18th birthday falls prior to graduation from high school, and 3.) If no modification of the sum of the child support is sought, then there should be little to fight about. The Maryland Legislature and the Maryland Courts have spoken. If modification of the sum of the child support is sought, upwards or downwards, by either party, the modifying party will have the burden of proving the material change of circumstances, and financial disclosures must be made to determine the income and expenses which permit the calculation of child support under the Maryland Child Support Guidelines.

[i] See 2002 Amendment to Md. Code, art. 1, §24
[ii] Absent special circumstances, for example, having an adult disabled child.
[iii] 931 A.2nd 1154, 175 Md. App. 716 (2007).
[iv] 931 A.2nd at 1158.
[v] Id. at 1161.
[vi] Id. at 1163 citing Stambaugh v. Child Support Enforcement Admin., 323 Md. 106, 591 A.2nd 501 (1991).
[vii] Id. at 1162.
[viii] Id. at 1164.

Child Custody Litigation - How Winners Become Losers

2010-04-22T12:43:00.000-07:00

To "win" a child custody litigation case is usually a dubious achievement. From the moment the winner parent is hugging his or her successful trial attorney with gratitude, the "loser" is making plans for future litigation. And that's the good news. The bad news may be that the child's "losing" parent may simply give up on parenting.

The parent who "loses" lives with a fire in his or her belly. Often the bitterness of the dispute (which is ongoing and indefinite in the mind of the loser despite the conclusion of the trial) bleeds into the child's life through verbal and non-verbal communications to the child. The losing parent may constantly remind the child that the "winner-parent" has committed the unspeakable crime of taking him or her away from the losing parent. The losing parent is often gathering funds to launch a re-match in court.

In some cases the losing parent simply gives up. He or she accepts a job out-of-state or remarries and has other children and focuses on them. The losing parent stops emotionally and financially investing in a child. The losing parent feels as if the law has decided that one parent is more "parent" than the other.

It's easy to see empathize with the losing parent- is there anything more primal than a parent-child bond? What if the child innocently expressed a preference for the parent he or she felt "sorry for" or with whom he or she is used to seeing more often? These things often occur in child custody litigation and they leave palpable scars.

This is why in child custody matters in Maryland, the courts order mediation. Litigation breeds future litigation. The litigation controls the parties. In mediation, everyone compromises to a joint result. When both parents make the hard choices for themselves and for the child, they are voluntarily relinquishing the child some of the time. That feels a lot different than being ordered to relinquish their child. Mediation diffuses the anger, sweeps it aside, and in its place is the sad resignation that the separation or divorce of the parents requires that these choices be made. There is sadness, but less anger and thoughts of revenge. Mediation puts the parents in control of their own children, which is the only natural decision-making process. It is the only process available where the past is put to rest and the future is constructively planned.

Mediation makes sense in most disputes, but in child custody matters, mediation can positively change the entire landscape of life for parents and children. Parents owe it to their children and to themselves to resolve their differences themselves. Mediate- don't litigate.

Foreclosure Mediation Is Coming to Maryland- Use It!

2010-04-19T13:37:00.001-07:00

With the disappointment of the Obama administration's loan modification program designed to help homeowner's facing tough economic times, Maryland's proposed Foreclosure Mediation program is a welcome tool. There's only one catch- the homeowner must use it!

Yes, frightened homeowners, you have to play to win. At a time where folks feel overwhelmed with debt and joblessness, the temptation to get back into bed and pull the covers over one's head is great. With creditors ringing phones off the hook and stuffing mail boxes with ominous threats and notices, a mortgage-holder's foreclosure notice might get placed into the "Do Not Open Until Lottery is Won" pile.

Starting this summer, real relief may be on its way. Modeled after successful programs in Philadelphia and Nevada, it looks like homeowners will have two opportunities to negotiate with a lender to change the terms of a loan to allow families to stay in their homes or to take a hit less harsh than foreclosure. The first opportunity is the loan modification request. The second and better opportunity is during this new foreclosure mediation.

The practice will go something like this: The homeowner stops paying the mortgage because there's no money. The lender then seeks to file a foreclosure action in court. However, 45 days prior to filing in court the lender is requiredto send the homeowner an application for loan modification or mitigation. If the mail isn't opened, it doesn't get seen.

Now, the homeowner may look at the loan modification application think: "I'll never qualify" and give up and throw it in the recycle bin. Perhaps the homeowner has already gone on the loan modification merry-go-round with the lender who has rejected a prior request or offered an inadequate modification. But don't throw it away- apply!

Why? First of all, the lender now needs to work faster and are forced to respond. It's about time that the lenders have the burden of acting! They need to act upon the loan modification application at least 30 days before the foreclosure sale. Let's assume the homeowner is disapproved. What next? Along with the affidavit from the lender outlining their rejection will come a "Request for Mediation" form. The homeowner will have 15 days to file a Request for Mediation. The Request for Mediation must be filed in two places: In the Circuit Court where the foreclosure action is filed (along with a $50 filing fee) and with the lender's lawyer (the lawyer who filed the foreclosure action in court). The homeowner should remember to keep a copy for him or herself and hang onto it.

Upon filing the Request for Mediation, the foreclosure action is "stayed." That means nothing will happen with the foreclosure action until the mediation is over. The Office of Administrative Hearings will have 60 more days to schedule the mediation. The case will be mediated probably before an Administrative Law Judge-Mediator.

If the Philly or Nevada programs are any indication for how this program will turn out, the news is pretty good. About a third of the homeowners are working it out and staying in their homes. With more than 40,000 foreclosures in Maryland in 2009, and a greater number than that expected in 2010, that's a lot of families who will remain in their homes.

So what could make a lender who has already denied a homeowner a laon modification reconsider at mediation? Like most disputes the mediator's method to settlement is to identify shared interests of the parties, and in foreclosure mediation, many homeowners want their homes and the lenders want to avoid the adminstrative nightmare of owning a bunch of empty homes.

This gives some hope to a lot of homeowners, especially those who still have jobs and income. If some amount is being paid on the mortgage, that may be better for lenders than the alternative. For many homeowners, the mediation may provide the opportunity to negotiate other more favorable outcomes better than foreclosure, like short sales (selling the home for the amount of the mortgage or at a lesser agreed-upon price.) Mediation may simultaneously help homeowners as well as force lenders to make better overall business decisions. The result for everyone? A mediated road to faster economic recovery. Don't pass up this opportunity to see how mediation is changing the way Maryland and the country constructively resolves disputes.

But you have to open your mail. You have to apply for the loan modification even if you think it's fruitless. You have to look for the lender's approval or affidavit denying your loan modification in your mail. Then you have to timely file it, with the foreclosure lawyer and the Court, pay your filing fee. At last the homeowner may have an option that produces more positive results. Don't miss your chance.

Separation & Divorce Mediation in the "Great Recession"

2010-03-29T08:17:00.000-07:00

A whopping number of formerly financially solvent people are feeling more than a pinch from the economic downturn in this country. It has been dubbed the "Great Recession" in the news. We all know that Wall Street has rebounded from its lowest point. Unfortunately, both the jobs market and housing market lag far behind that rebound. This means that many people remain negatively affected by ripple-effect of the Wall Street crash of 2008.

As a result, many people are paralyzed in their troubled marriages. "Upside down" on mortgages (meaning more is owed on the mortgage than the house is worth) or having a spouse out-of-work can indefinitely stall plans to separate or divorce. This can create a treacherous emotional dynamic for a family.

Separation and divorce mediation is an excellent place to gain control of all of these issues. Separation and divorce mediation is typically far less expensive than attorney-led negotiations. With the guidance of the mediation professional, families can begin to construct a plan of action to diffuse the anger and frustration and settle pressing issues. Challenging times call for creative solutions. In separation and divorce mediation, creative solutions are generated which may be unavailable in Court. When parties make decisions together, each party is more willing to try to make that solution work. This feels far better than being "ordered" to do something by a judge, or having your spouse's attorney bully you into an Agreement. The very act of attorney-bullying can make an otherwise acceptable solution feel like the wrong solution. At that point resentment builds. Separation or divorce mediation, led by a neutral, settlement-minded divorce professional may guide you to the right solution in a way that sits comfortably with each party.

Don't be paralyzed due to the Great Recession. Life still must go on. Get "unstuck" with the help of a separation and divorce mediation professional, and move on to the "Great Recovery." Beginning with separation and divorce mediation is a positive, healthy first step to resolve issues arising from this overwhelming life change. Still not convinced? Attend a no cost separation and divorce Mediation Seminar and Q & A with Nancy Caplan, Attorney-Mediator. Reserve your space today at http://www.divorcemediationmaryland.com/. Get started rebuilding your family in its new form and resurrecting your individual lives.

"Legal Separation" in Maryland

2010-03-26T08:23:00.000-07:00

Many people contact me, a divorce mediation attorney, looking for services that will help them obtain a "Legal Separation" in Maryland.

What people usually mean by the term “Legal Separation” is that they are seeking a “Marital Settlement Agreement” recognized by the Maryland Courts. You may hear that term used interchangeably with “Separation Agreement” or “Property Settlement Agreement” or “Voluntary Separation Agreement” or some combination of those terms. The purpose of the Agreement is to settle all questions relating to what happens when parties decide to separate and/or plan to divorce in Maryland. Questions which are addressed by an Agreement include child custody, child visitation, child support, alimony, other spousal support, health insurance, division of household property, automobiles, bank accounts, debts, pensions, retirement accounts, tax filings, tax dependency exemptions, etc.

In Maryland, once a couple is married, they remain married until they are "absolutely" divorced. A married person in Maryland is never "free" to remarry or have a sexual relationship with a third party even after signing an Agreement. The implications or non-implications of committing adultery in Maryland are variable. The term “Legal Separation” in Maryland most closely relates to a Court-decreed “Limited Divorce.” A Limited Divorce may arise where the parties have immediate issues but are unable to come to an agreement privately and do not have “grounds” for a final “Absolute Divorce” (often meaning that the separation time period has not elapsed.) However, people proceed through trial to recieve a decree of Limited Divorce basically have a costly court-ordered equivalent of a private separation and/or property settlement agreement.

Therefore, whether through a costly trial leading to a “Limited Divorce” or through a cost-effective mediated negotiation of a Separation and Marital Settlement Agreement, the goal is the same-resolution of the issues. Property and debts will be divided, child custody, child support, alimony, an etc. all will be decided. A formal Agreement is a legal determination of rights and obligations arising from the dissolution of a marriage, not a “Legal Separation.”

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This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

Separation or Divorce in Maryland- Five Reasons to Mediate

2010-03-22T08:00:00.000-07:00

If your family is facing the challenge of separation or divorce in Maryland, be pro-active in your search for the right professional services to guide you through this difficult process.

Separation and divorce mediation offers you the opportunity to negotiate on a level playing field, at greatly reduced costs and conflict, quicker resolution, and an agreement process that you control.

1. Neutrality:
The separation and divorce mediation professional is a neutral third party trained in dispute resolution, experienced in guiding both parties through a process of listening, identifying issues, exploring options and coming to a mutually agreeable solution. There are no ‘sides’ here, the mediator works for both of you; our sole objective is to help both parties find their solution. For the fearful and the fragile the neutral mediator provides a comfortable and balanced negotiation environment.

2. Cost Effective/Efficient:
Battling attorneys chalk up enormous legal fees which devour financial resources. Separation and divorce mediation achieves your goals at a fraction of the cost of negotiating through adversarial attorneys. The separation and divorce mediation process is smoother and faster than the traditional attorney-driven divorce process.

3. Non-Confrontational:
Traditional attorney-driven divorce negotiations and litigation are often conducted in an ugly environment of threats and confrontation. Does this help anyone? Not you and certainly not your children. In contrast, separation and divorce mediators focus on problem-solving, not fighting. Separation and divorce mediators are trained to diffuse the anger at each step of this traumatic process. Why escalate the existing fear and anger in these matters? Negotiating a separation or property settlement agreement is an important step in your new life, with far-reaching consequences for you and your children. You need to keep a rational head. That’s what separation and divorce mediators do, at a lower cost – emotionally and financially.

4. Guide/Liaison:
Your separation and divorce mediation professional can guide you to other professionals who may prove helpful during this process. These include real estate agents, appraisers, divorce financial planners and mediation-friendly lawyers who will review the neutrally drafted Separation / Marital Property Settlement Agreement.

5. Efficiency/Control:
The separation and divorce mediation process is significantly smoother and faster than the traditional divorce process. There are no endless court battles, no imposed directives. YOU control the decisions affecting your family, money and life; you never give up control to strangers or find yourself at the mercy of a judge or other outsider. If your separation and divorce mediation professional is also an attorney, that attorney-mediator, having the best grasp on the issues involved, is able to draft a Separation / Marital Property Settlement Agreement that both parties find acceptable. The separation and divorce mediation is finished only when both of you are completely comfortable with your agreement.

Don't take the chance that you will "lose" important issues in court. Don’t waste your money fighting, use it to help rebuild your life. Begin the process with a separation and divorce mediation professional that will set you on the logical, practical, reasonable, fair and efficient path to resolution - your divorce mediation lawyer in Maryland. http://www.nancycaplanmediation.com/.

This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

The "Extended-Blended" Families: Child-centric Post-divorce Parenting in 2010

2010-02-02T11:57:00.000-08:00

After a separation and divorce followed by a remarriage and blending of families, your children's new blended family can resemble an old-fashioned extended family. I've dubbed such successful post-divorce families as the "the Extended-Blendeds." An Extended-Blended family may wind up with 6 kids or more and those 6 kids might also have other step-siblings, prospective step-siblings, each child's own parents, and their new spouses or significant others.

If the adults are remarried or in new relationships, hopefully a lot of the emotional trauma has subsided. If it hasn't, like or not, life is forging ahead and relationships are formed and forming. Obviously issues and tensions remain. That's why parents who figure out how to put their children first are the bravest and most heroic. A lot of lip-service is paid to "the children's best interest." Living "the best interests of the children" is a lot harder. Forging a new, friendly working relationship co-parents and step-parents to successfully form an Extended-Blended family may be both the most difficult and the most rewarding act of post-divorce parenting. Few are up for the challenge, but those who successfully take it on may be rewarded with children who closely resemble happy, less conflicted children of intact families.

In many cases, remarriage or cohabitation with significant others helps to stabilize some of the financial issues. That is one good reason to support that for your ex-spouse. Financial stability for your children's other parent is good for the children. Remarriage or cohabitation may help divorce-traumatized parents emotionally recover. Also good for children. So yes, you may hate your ex, or hate his/her new significant other, but do you hate them more than you love your children? It is the strength of your love for your children which should guide your behavior. If your hate guides you, how do the children fare? How brave are you for your children? Would you throw yourself in front of a bus for them? Most would say "yes" but many would balk at the idea of treating their ex and ex's new mate like relatives of an extended family. But they should.

After a divorce, the stale, bad joke "you can pick your nose but you can't pick your family" includes your former spouse and his/her new family. This challenge may be no different than the challenge of embracing new in-laws after marriage. Yes, the same issues may devastate a family in either situation. A great challenge. But in either case, remember, one can only control one's own behavior, so naturally this is the only place to start this child-centric rebuilding process. It is up to you- the brave, heroic parent. Is that you?

It's up to you to stop the "tit for tat." It's up to you control your actions and stop reacting. Live by the Golden Rule- Do unto others as you would have them do unto you. It's called "golden" for a reason. It's a valuable rule- valuable to the emotional health of your children. Stop permitting the bad behavior of your former spouse and/or his/her new mate or family to serve as your role model. Be your own role model, and be one for your children. If your ex and his/her family never positively responds your child will know which parent was the hero through it all.

Of course heroes do the impossible. In this scenario it might mean driving your child to a step-sibling's birthday party and sending your child with a thoughtful gift. If you telephone your child's other home and the new step-parent answers, make pleasant small talk before asking to speak to your child. Openly greeting your Extended-Blendeds at child-centered events with the same polite smile you'd reserve for any other important adult in your child's life is a great rule. A comment like "hey was our kid great in that game or what?" directed to your child's other parent and step-parent will reinforce that the child is the important center of this family. Small talk, kid talk, and more small talk. A nice question or comment directed at the new step-sibling like "Did you have an exciting birthday party?" is another strategy. You will be rewarded by your child's comfort at being able to freely, without guilt or awkwardness, embrace the child's entire Extended-Blended. Just as we can't adore each and every one of our relatives, this situation is no different.

This may all seem "weird" and uncomfortable at first. In fact, the better everyone gets along, i.e. former in-laws talking to new spouses, etc., the weirder everyone on the outside looking in will think it is. Why? Because people are rarely mature enough, or mindful of their children's feelings to put their own old hurt behind them for the benefit of the children, and the family as a whole.

That's right. Not only do children get to experience the normalcy of not having to tense-up at the very idea of their parents inhabiting the same room, but the ex-spouses who live with a peaceful and permanent truce will learn what a relief it is not to have that ugly guest - "Mr. Animosity" at every single supposed-to-be joyful family event for the rest of your joint lives. Every engagement party, rehearsal dinner and wedding. Every graduation. Every communion or bar mitzvah. The birth of each grandchild. Every dance recital or sporting event. That's when relatives congregate. We all have relatives that we don't adore. But when all of those relatives love your children, can you create a polite environment for them? No relative is more disliked than Mr. Animosity. That's the guest that doesn't belong. Mr. Animosity is a joy-wrecker. His presence is always conspicuous. People stare. He creates negativity before, during and after every event. Party hosts shiver in fear of seating placements. In fact, Mr. Animosity ruins a good time for everyone. Not just a good time, but many times, once-in-a-lifetime-events.

So yes- be "weird." Forcefully mend the fences even if you didn't break them. Conduct yourself in a manner which allows your children to relax in the family situation in which they are forced to exist. It may be your ex's "fault" or choice that such a situation exists, nonetheless, it was not your children's fault or choice. Your failure to put your children ahead of your own leftover hurt feelings is your fault. It does take time to heal, but the grace period doesn't last forever.

There are families where the former wife attends the school plays of the child of the new wife, a child from the new wife's prior marriage. Weird? Yes. Weird-bad? Absolutely not. The former wife has a strong interest in new wife's good relationship with former wife's children. The former wife's relationship with new wife allows for cooperation during snow days or sick days and other swaps of the children time. Who wouldn't want to understand and know all of the adults and children who are involved with your children on an intimate level ? Why behave in a way that makes your children's "other family" virtual strangers to you? Doesn't this make your own children have lives which are a virtual secret to you?

Are you saying to yourself, "oh I would just be rejected- this is crazy." How do you know unless you change the behavior of the only person over whom you have control? Yourself. Try it today. Exchange a friendly greeting with an ex, a new spouse, or the new spouse's child. Does your ex and the new spouse have a new baby? A half-sibling to your child? Send a gift and a warm note. Never forget to have your child buy or make a card/gift for Mother's/Father's Days. Go out on limb. If you get a cool reception, don't relent. Kill them with friendliness. Why? Because in the end, it will make all of your lives easier. You may even re-kindle happy past relationships with in-laws, gain adoration for other people's children, and the shocked admiration of the public looking into your lives thinking "how weird" and "wow, that's really mature of them, so good for the children." And, just imagine, how much nicer every birthday party, graduation, wedding, bar mitzvah, school play, etc. will be without Mr. Animosity's presence.

In 2010 blended families are here to stay. Creating an Extended-Blended is up to the heroic parents. Extended-Blendeds are a part of the interesting fabric that is your children's lives. Be brave and do all that you can do to make the new family extension feel more like aunts, uncles and cousins and less like mortal enemies. You may be rewarded with post-divorce, emotionally-healed children because you had their true best interests in mind and in practice.

This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

Do You Think You Deserve or Want Sole Custody? Read This...

2010-01-26T11:39:00.000-08:00

The knee-jerk reaction of the primary caretaker of the children in a divorce settlement negotiation is often to maintain that role at any cost. In other words, the pre-divorce primary caretaker of the children seeks sole legal and/or physical custody of the children. Often this causes the other parent to greatly fear being marginalized in the children's lives at a time when the children need both parents more than ever before. The sudden near-disappearance of one loving parent cannot be in the children's best interests. Often the other parent feels penalized for having single-handedly supported the family while the other parent was a stay-at-home parent for the benefit of the children. It hardly seems fair. Unfairness causes anger and resentment.

The argument usually goes something like this: "What does he/she know about raising the kids? He/she doesn't even know the names of the kids' teachers, doctors, coaches, etc." As a mediator I may ask (where the other parent seeks joint custody of course) "Do you think he/she can learn those things? How did you learn about parenting before you had children?"

What are the real costs in the situation where the non-primary caretaker parent "gives up" the fight and agrees to be regimented to an "alternating weekend plus 1 mid-week dinner parent?" They may include a diminished child-parent relationship for the parent who will just be the "visiting parent"; or suddenly that parent stops having any disciplinary role (since he/she only gets the children's leisure time requiring less discipline) and is often accused of being the "fun one" the "Disney-Dad/Mom" or the opposite effect- that parent feels stripped of parental rights and goes off, gets remarried and "replaces" his/her lost children with new ones. Rarely do sole-custody-insisting parents think of that. Suddenly the other spouse has new financial and emotional obligations. Think about the effect on the children's emotions, not to mention inheritance and/or shared life insurance policy proceeds. If there is a "de-bonding" effect caused by the grief of the virtual loss of children in his/her daily life, there is less emotional investment and therefore less financial investment- think of voluntary contributions to college, life insurance policies, or extras not affordable by the one parent and not required under child support.

The primary caretaker in the throws of a divorce may not visualize what the future will look like. Naturally in such an overwhelming life-change its hard to see past the present. Not only will he/she be a caretaker, he/she will be running and juggling the home- i.e. paying bills, mowing the lawn, especially where divorce causes a downturn in financial status and the gardner/the housekeeper/the handyman is off the payroll as a luxury. Single parenting isn't easy, and where the other parent was "forced out" will the resentment lead to an attitude of "well, well, well, not doing so well on your own are you?" or some other deep-seated half-wish to see that primary caretaker actually fail (because might total failure, i.e. a suddenly troubled child run to live with the other parent making his/her dream come true?).

Other costs to the sole custodial parent? A likely lower earning potential? What kind of employee will you be when only you are responsible for child care on sick days, snow days, school holidays, days off for the end of the marking period....etc., etc.? Sometimes a short-sighted sole custodian can't see past his/her greater child support check to the years when that support ends, still leaving the sole custodial parent with the need to support him/herself, but perhaps the inability.

But maybe, just maybe, sole custodial parent will meet someone and get remarried and gain financial footing by the joining of households. Except, ask yourself this: How much more difficult will it be to date, to have a social life? Do you think child support covers babysitting for dating? If so, you should read that statute again. Even if you can afford the baby-sitter (i.e. grandma), what freedom would you have to stay overnight with your new lover? Or will you simply experience your dating successes and failures in front of the children, i.e. integrating the new lover with the children because there is no other real relationship alternative? Is this in the children's best interests? How do children impact future relationships? What happens to the new bond of child-boyfriend/girlfriend when a relationship fails? Or should I say another relationship fails? How might this impact your children's ability to bond in adult romantic relationships? Ask a psychologist or read a book and you'll find out.

Here's one you might not have thought about. What if your "edge" in forcing your soon-to-be-ex to agree to your sole physical custody is that your kids' other parent had an affair? Whether or not that actually impacts custody awards is not the issue. Sometimes the cheater feels so guilty and is driven to give in on the issue of custody even where he/she desperately wants it.

Oh yes, the bloom of formerly-forbidden romance is often doused by the snotty noses and whining voices that only a parent can love or tolerate. Yes, I know. I just implied how bad it was to integrate new lover into the children's lives and now I'm contradicting myself. But, but, but.....If guilty-non-primary-caretaker-cheater-spouse really desires joint physical custody? Might you also negotiate greater child support? Or no pre-divorce introduction (or a specified time period perhaps reached in consultation with a pediatric psychologist) and/or no overnights with paramour and the children as part of the divorce deal? Watch how fast the paramour who remains on the outskirts takes offense and leaves. That's right. Paramour was dreaming "if only we could be together all would be perfect!" And yet, reality often plays out differently if you have the courage to let it. That's not a guarantee, obviously. However, considering the poor statistics the formerly-married-person & paramour relationships, better to force its ending sooner rather than later???? If the paramour-turned-legit-lover rises to the challenge and hangs in there, at the very least, your children have a better chance of remaining the top priority at the insistence of the new shared primary caretaker.

When allowed to take on the new and perhaps novel role as part-time primary caretaker, the joint custodial parent often reacts in favor of the children when the former-paramour-turned-legit-boyfriend/girlfriend challenges the children's priority. The bonding and protective instincts of a primary caretaker should never be under-estimated. If only you let it. If only you can put aside the knee-jerk reaction to the divorce and allow him/her to do so- yes for his/her benefit, but also for your own benefit, and most of all, to the great benefit of children who need two emotionally/financially invested parents.

I often joke (to friends, not mediation participants who may fail to see the humor) "Hey, what better punishment is there then forcing the other child-needs-ignorant-parent to share in the joy of laundry/grocery shopping/sick kids in the middle of the night/vomit/dirty toilets/whining/midday emergencies/forgotten homework/meal preparation/I can't sleep/I forgot I need snacks for twenty tomorrow/etc., duty?" The truth is that those obligations are doubled-edged. Yes, a pain, but yes, they are bonding events. But my goodness, it's not easy is it? At least realistically consider all the consequences before you decide how yours and your children's best interests are truly best served.

This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

Why Divorce Mediation is a Fraction of the Cost of Lawyer-Led Negotiations & Litigation

2010-01-19T03:55:00.001-08:00

Litigation is the most costly of all process choices for separation and divorce when the parties are represented by attorneys. In litigation, your separation and divorce issues are examined and decided in a court of law by a judge. In fact, it is so expensive that it is all but out of the reach of typical divorcing couples. To meander this system, papers are researched, prepared, reviewed and filed. There are multiple trips to the courthouse, for motions (i.e. to seek more disclosure from a party or to complain of late disclosure), multiple hearings (i.e. a temporary order to determine things like custody pending the final trial), and multiple settlement and administrative phone calls, and meetings (i.e. the court scheduling conference, the court settlement conference.) When both parties are led by attorneys through the court system, two attorneys are paid from the single pot of assets (i.e. the equity in a home, your savings, etc.) and/or the incomes of a single family to assist the parties through every step. There are also extensive costs: multiple appraisals (disputes on values of assets), child experts (for hotly contested custody cases, including perhaps hiring yet another attorney to represent the children). And these are just the financial costs. The emotional costs to families would take another 100 blog entries and then some.

Imagine a single hearing in court. You've met with your attorney to prepare for an hour; your attorney travels back and forth, and perhaps prepares papers or researches an issue (another hour), you wait for your turn (another hour) and then you have your hearing, you speak to your lawyer about the outcome and your lawyer probably has a separate conversation with the other lawyer all for at least an hour (and this is an extremely conservative estimate). One hearing has now cost both parties eight hours of attorney time, and at least $2,000.00 has been spent. We haven't even added in the parties' costs of being absent from work. Again this is conservative. And the worst part? Very little ground has been covered and the case is only inching towards conclusion. Mediation costs are a very small fraction of litigation costs. Parties can go a long way in four hours of mediation.

But what about attorney negotiations versus direct party-to-party negotiations in mediation? Most of the parties' issues revolve around topics within the parties' unique expertise. If you feel that you are unable to negotiate effectively for yourself then you may have no choice. However, that would mean you would have to educate your lawyer on how to negotiate the topics for which you are the expert (i.e. your child's life; how much your food, clothing, etc. costs may be.) You will direct your attorney to say what you want and need. So who is really the "expert" on what you want and need to live every day after the signed Agreement?

If you think that with guidance of a neutral third party (the Mediator) you can: Determine your children's overnight schedule, decide who makes the decisions about the children's health and educations and religious upbringing; Determine who should live in the family home or whether it should be sold; Determine how to divide your furniture and "stuff"'; Figure out your living expenses and needs, and; Determine what you own and what you owe; then you are equipped to have these negotiations with your spouse at a fraction of the cost of attorney-led negotiations.

Just imagine discussing your Christmas Eve/Day custody arrangement. Does one party traditionally go out-of-town? Who must do the driving? Will the first year (when the children and the parties are most unsettled) be different than subsequent years? Are we splitting Christmas Day and Christmas Eve? What time for the transitions? If one party has Christmas, does the opposite party get Thanksgiving that year or New Year's? Typically in an attorney-led negotiation, one party might tell his/her lawyer "I want Christmas every other year." This is often conveyed via phone call or letter outside of the clients' presence. Neither party is there to gauge the other party's response to the request. Often the request is met with hostility that is allowed to fester, as opposed to the topic discussed in mediation, where the hot-button issues are immediately hashed out. Here's an illustration of a mediated issue:

Spouse A says: "I want Christmas every other year."
Spouse B responds: "What? You've abandoned us and now you are taking my child away on Christmas? Why don't you just shoot me???"
Mediator: "What if Spouse B gets the first year?"
Spouse A: "Fine."
Spouse B: "Great! You plan to abandon the kids on Christmas! They cry every night, and ask me why you left!"
Mediator: "What if the first Christmas is split and then alternated with Spouse A getting the second Christmas?"
Spouse A: "Fine."
Spouse B: "Fine. So long as I get Christmas morning!"
Spouse A: "Fine."

The Mediator and the parties understand the true interpersonal dynamics going on here. Spouse B does not want this divorce. Spouse A does. Spouse A wants alternating Christmas, but hears and knows the emotional gauge of Spouse B, and probably feels compassion or fear that Spouse B's emotions may be hard to control, which is true. People with out of control emotions may non-rational choices. In this scenario, the "hurt" party is given 2 years of Christmases to adjust. Not only that, but Spouse B experiences that Spouse A has made multiple compromises on the issue, which makes Spouse B feel better. Spouse A still gets what Spouse A wants- alternating Christmas. This is a typical kind of emotionally intelligent compromise.

But imagine this same scenario in a lawyer-led negotiation. Let's assume that since Spouse A wants the divorce, it is Spouse A whose lawyer initiates with a letter:

"Dear Spouse B's Attorney:

....of course Spouse A seeks alternation of the major holidays. Please review this with your client with your response..."

Now Spouse B's attorney reads the letter (at the billable rate). Attorney for B now calls Spouse B to convey the offer (at the billable rate). Let's assume that many things in the offer may be acceptable. But then the Christmas issue sets Spouse B off!

Spouse B (in consultation with Spouse B's lawyer): "Will I get the first Christmas? The kids will want to see Spouse A on Christmas! That jerk could care less about seeing the kids! The way Spouse A is treating the children, who knows if they'll want to spend any Christmas with Spouse A! I want to see my children every Christmas, which is what would happen if Spouse A honored the marriage vows! Tell Spouse A this is the choice he/she made!"

Spouse B's Lawyer intervenes: "Well Spouse A would get every other Christmas in Court, I'm afraid. So you have to agree to this."

Spouse B is now infuriated by the injustice and says: "Well good, then forget the part about college or maintaining life insurance! I don't have to do that under the law do I?"

Spouse B's Lawyer: "Well no. But why not do so if you are going to anyway?"

Spouse B: "Forget that! I have to live without my kids on Christmas, so I'm not promising anything to make Spouse A feel more secure! If I want to contribute to college or keep life insurance, I will. I'm not promising anything. Spouse A is getting this separation, isn't that everything he/she wants and I have no say about that do I?"

How does Spouse B feel? Does Spouse B feel he/she can live with the resolution? No, the thought of paybacks and injustice permeates Spouse B's thinking. And Spouse B's emotional state deteriorates with each such blow. Yet when, in the same scenario in mediation, Spouse B knows that Spouse A has "heard" him/her directly, the result is an agreement that both parties feel they can live with. This doesn't mean the divorce is now "good." It just means that the parties have negotiated a highly charged emotional issue successfully- meaning the best result under the circumstances. They each feel the compromise and understand the emotional balance of it. This emotional balance is what keeps the mediation negotiation on a forward path. The emotional spite response is typical when information is conveyed in traditional litigation methods. It creates road blocks and obstacles. In my lawyer-led negotiations, the response might have been, for example:

"Dear Spouse A's attorney:

My client agrees to alternate Christmas so long as he/she has the first Christmas. However, there will be no written commitment to college and life insurance obligations, which of course Spouse B is not obligated to do under the law. "

"What???" Thinks Spouse A? Spouse B is not going to pay for college? Not keep life insurance? Since when? This is what Spouse A hears. Spouse A doesn't hear the reasoning or the thought process. Spouse A, formerly feeling contrite and perhaps generous has now changed gears to righteous indignation about Spouse B who seems to be backing out of long-established college funding issues. The negotiation has actually taken steps backwards. No wonder the negotiation takes longer, is more contentious and produces less satisfying results!

Of course, receiving legal advice is often necessary. An independent review of a final Agreement is definitely a must. However, a few well-placed legal consultations followed by knowledgeable direct negotiations, and a check of the final Agreement, still ends up as a fraction of the cost of using two attorneys to negotiate these items for you. The satisfaction between the parties is more than a plus. It's a plus, plus, plus. It sets the tone for continuing as a family, albeit in a different structure.

Yes, you must know if you are entitled to support, if you are entitled to stay in the family home, but once you know your rights and obligations, why can't you negotiate yourself? Alimony, a wild card in family law, starts with an analysis of what each party's expenses are, to determine needs and the ability to earn/pay of the parties. Should you pay your attorney (or his/her paralegal) to gather your expenses and do the math for you? Won't you have to educate your attorney/paralegal about those expenses to impart an true understanding of your credit card charges, etc.? Who has a better understanding of these facts, you and your spouse or your two attorneys? What about division of furniture, is legal advice necessary to achieve a fair result?

In short, using mediation, (even in conjunction with attorney consultations and Agreement review) is still a fraction of the cost of attorney-led negotiations leading to an Agreement. Stay tuned for another blog one of these days, explaining the frustration of having someone negotiate for you on topics for which you and your spouse are the experts- i.e. your children, your house, your finances.

Put that aside for this day, and think long and hard about what dividing a family in two is really all about. Emotions and a fairly simple financial division. A child support calculation. The issues are typically non-complex. There's frightfully little money to waste in separation and divorce matters- so don't waste it. Does that make sense? Mediate.

http://www.nancycaplanmediation.com/. A fraction of the cost for a better result.

This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

Mediation- Home Economics 101

2010-01-14T11:42:00.000-08:00

Mediation at its finest produces practical results. If needs are met, then fear is diminished. In this economy meeting needs isn't easy, and therefore fear runs wild. I tell mediation participants that most bad things stem from fear. http://www.nancycaplanmediation.com/ . Attorneys, by collective reputation, inspire bone-chilling fear in people. Therefore, the very whisper of attorney involvement ("I'm calling my lawyer!") causes immediate harm to the process, whether intended to do so or not. That is a known fear.

Divorce also produces fear of the unknown. In a great number of households, one spouse is historically the "bookkeeper." This puts the non-bookkeeper in the disadvantageous position of having to cope with, yuk, math, for heavens sake...Emotional upheavals and focus upon home economics do not go together. Unfortunately, gaining control over finances goes a long way to control over moving your life along.When I mediate between spouses, I force-feed monthly economic reality to and through both parties. That includes together calculating annual shortfall projections each may accumulate. As part of "to do" lists, I often have the "bookkeeper" party meet with the non-bookkeeper outside of mediation to teach their method. The idea is that the non-bookkeeper must gain control over this new role in life, and if their lucky, maintain open communication with the other for future troubleshooting. People in marital relationships must dis-entangle property, children and their respective roles in handling those things. It is often touching to see the flashes of nostalgia for these roles which are in flux. More than once I've seen a spouse continue to help manage finances, or the upkeep of the house, after the separation and/or divorce. However, for most, this is the exception. It is time to learn how to function financially, each on his or her own.

Of course an attorney may also properly counsel his/her client to understand his/her own new financial operating system - but at great cost to the family budget, and without the other party's direct input and training. The always-present benefit to my mediation process is that each party digests the financial realities faced by the other. It gives them a little compassion for one another - "same boat" and all that. I find that this is true across a broad economic spectrum...People live to the extent of their means and therefore after divorce most people are set back years and year from their financial goals, retirement goals.

This additional benefit- Home Economics 101: learning to budget, pay bills and how to understand your finances, is the course we'd have all benefitted from taking in senior year of high school. For many of us, we never learned it, and for some of us who understood it, the challenges of separation and divorce may have made it difficult to face it. So in mediation, we face it together. We learn it together to gain a good practical skill out of a bad situation. It makes good home economic sense. Mediate. http://www.nancycaplanmediation.com/

Divorce- Hard Choices- Who Should Make Them?

2010-01-12T04:57:00.000-08:00

There are no agreements made in a separation and divorce situation which are "good." Every agreement is necessarily a negative compromise- How much less money each spouse shall have; how much less time each spouse will have with the children; how much less retirement, and so on. Unfortunately, a single family divided in two equals hardship. No matter how reluctant (and enraged) a spouse may be by this family tragedy to engage in negotiation with the other, the question urgently looms: Who will make those hard choices? Does it feel different to make a voluntary choice to juggle your employment schedule to rush the kids from school to athletics, than to be ordered to do so? In general, does it ever feel good to be ordered to do anything? How much more painful is it, when the scheduling of your own children's lives is placed in the hands of a stranger? Make your own choices, tailored to the needs of your family. Take a bad situation and make it less painful. Who's going to make the decisions and choices for your family? A judge? Or you and your spouse under pressure on the courtroom steps with your respective attorneys as the meter is running at a collective family cost of $500+ per hour? In Mediation, you pick the time, the pace of negotiations and control the costs, in addition to making those hard choices yourselves. Those are the choices that you will each have to live with. Make them yourselves.

Separation, Divorce and the Economy

2009-01-16T11:00:00.000-08:00

My Signficant Other "suggested" that I start (this blog and) an advertising campaign having the theme "Divorce Shouldn't Cost You an Arm and a Leg" but I objected. I felt it was too basic- too "Hey you! Pssstt! Yeah, you! Come to mediation- it's cheap!"

He pointed out, "It's all about the economy!" And as he said this to me, the clouds darkened and thunder rumbled menacingly through flashes of lightening as organ music churned uneasily. It was creepy. I don't know how he does that.

Ah yes I pondered, "The Economy." Background drama omitted, but seriously folks, it is gloom and doom out there.

How CAN anyone get divorced in this economy? It isn't easy. It wasn't easy to make the decision to separate, but now....The Economy. We owe more on our houses than the equity we have! There's not enough income. There's credit card debts...car payments. What will happen to health insurance for all of us? How will our children stay in their schools? Can we keep our sanity while living in the same house? How do we keep our emotions in check? Where and How do we start?

http://www.nancycaplanmediation.com/. I'm calling this blog "Notes From a Mediator." I am an attorney-mediator. Since becoming a lawyer in 1987 I have lived a life, had a couple of kids and gotten divorced twice. In 2005, I "converted" to mediation as the preferred process for how to effectively manage separation and divorce and other family matters, including custody, grandparent disputes and all the most delicate situations. The answers to the questions posed above aren't truly answered through use of the court system. In the court system, life happens to you. In mediation, you plan what happens in your lives and the lives of your children. It's that basic. Having lawyer-driven negotiations may eventually lead to agreements, however, the adversarial tone and process only increase the barriers to settlement, including accumulating costly fees and escalating already damaged emotions. This is all so painful. Why not pick up the leftover pieces and go on as best as you can, as fairly as you can? http://www.nancycaplanmediation.com/

The Mediation process is devoted to the idea of a fair and practical settlement; To negotiation with diplomacy in good faith; To manage the naturally adversarial part of the traumatic event, never to intentionally inflame it. That's why I'm devoted to the process of mediation to resolve disputes in family matters.

When you search for a process to find the answers to those hard questions and The Economy and the breakdown of your family unit, look for a constructive, cost-efficient process. Look for Mediation. Divorce shouldn't have to cost you an arm and a leg.

http://www.nancycaplanmediation.com/