Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!

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Thursday, April 27, 2017

The Shock of Divorce and Making Child Custody Decisions in Mediation

During separation and divorce, child custody and visitation negotiations are very, very painful. Except in exceptional circumstances, separation and divorce require that the parties share custodial time the Children, including for vacations and holidays.  Don't underestimate the shock that comes from the reality that a parent will not get to parent the Children all 365 days each year.  The reality that a parent may not see their Children every Thanksgiving, Christmas, Easter or even on their birthdays can cause rage and despair.  The idea that the Children may take vacations without a parent is likely a foreign concept.  Until now.

A person is vulnerable to clouded decision-making during such trauma. It is challenging to make decisions that meet the Children's best interests when the decision-makers are in the middle of an emotional and sometimes a financial emergency.   The process of child custody, child support, and/or divorce mediation is intended to de-escalate the fury and sadness, in stark contrast to adversarial attorney-led negotiations,    More importantly, the calmer, non-adversarial environment of family law mediation, may help people think more clearly resulting in sound choices for the Children.  Those choices and results will have an impact on the parents and the Children for the rest of their lives. Making important decisions when a person is traumatized is hard. Making important decisions when a person is traumatized while being subjected to the other party's adversarial attorney required zealous advocacy makes it harder.

With parents at their most vulnerable, most states, including Maryland, have figured out that in most cases, handling child custody decisions with the help of a mediator is more likely to produce a thoughtful and logical schedule. The courts often require mediation for child custody disputes. When parties negotiate face to face, they get a better "feel" for when to compromise and when to hold firm.  The parties know each other.  Adversarial attorneys often say things or write things that parties would never dare say or write to each other. Especially when it comes to negotiating a Marital Settlement Agreement custody provision, mediation is a far more appropriate forum to create a plan that both parties can live with and which reflects the best interests of the Children.  People who are in shock or at their must vulnerable will not think more clearly under the attack of the adversarial attorney. If you are looking for reason, look to mediation to make child custody decisions during the shock of separation and divorce.

Still not sure? Since the Maryland court system often requires the parties attempt a custody settlement in mediation, you are not wasting your time and you're not taking a risk; Mediation is non-binding until the parties' agreements are turned into a signed written agreement.  There is no excuse not to try to achieve peace or at least a truce through mediation.  You owe it to yourself to not take a bad time and make it worse.  Bend, don't break.  Mediate.

Mediation with Nancy S. Caplan Mediation Divorce & Legal Services is accessible and affordable. Business and evening hours are also available each week.   Make your own life a little bit less hard. Mediate.


Child Custody - Location Location Location

Is there any subject more difficult than Child Custody in a divorce?  Whether you are getting divorced in Maryland or elsewhere, the focus of Child Custody is the best interest of the Child.  After 11 years of separation and divorce mediation practice in Maryland, I've mediated hundreds of case where Child custody was in dispute. If I had to choose the best predictor of successful post-divorce custody sharing it would be the parties' geographic proximity to each other.  The closer the better within reason, of course. 

Even where the parties have torn their co-parenting relationships to tatters, the logistical simplicity of living close to each other goes a long way to reduce potential conflicts. A pair of forgotten boots creates less conflict when the boots are only 10 minutes away.  

When co-parents live close to each other, they are each close to the Child's school and activities. They both live close to their Child's classmates.  More importantly, the most important person to your Child lives close to your Child - his or her other parent! 

Parents who try Child Custody nesting learn faster than others how difficult it can be to have your clothing, personal items, etc., located in two different homes. (In nesting the Child stays in one home and the parents rotate into a different residence when the other parent has custodial time with the Child in the home.  Most often nesting is done in the early stages of separation.)  Your Child will have the same issues living in two different homes.   "Where's my favorite shirt" on picture day or "I forgot a part of my school project at Mom's" is most easily resolved when you live close to each other.

This all may sound like a huge "duh", of course it's easier to live close to each other.  Most people get it.   What people who are getting separated and divorced don't realize is the opposite- how truly difficult life becomes when you live too far apart from each other.  The well of disputes that arise from inconvenient logistics is endless.  Boots, favorite shirts, school projects are just one aspect.  The back and forth on weekends and holidays, traffic issues, being on time for school or work, being able to attend short events in the middle of work day, the list goes on and on.  The complexity increases when a parent's employment is anything more than a short commute. 

So how far is too far?  It depends on the physical custody/visitation schedule. Suffice it to say, less than 15 minutes is ideal.  Up to 30 minutes is tolerable.  After that, logistics impacts each party's regular access to a Child in many cases.  After 30 minutes, dropping in on soccer practice or popping in for the Child's Halloween parade at school is less likely.  

Regardless how the parties feel about each other, most parents realize that a parent's absence from events where most parents attend is not ideal for their Child.  They know it is ideal for a Child to feel as if both parents are engaged and involved in their lives and activities. 

When you are in the midst of the trauma that a separation and divorce cause it may be hard to see the benefit of anything other than distance from your spouse.  But distance from your co-parent is a self-inflicted wound, including the Child's negative reactions to the logistics problem. 

Attending mediation to discuss physical custody as a family is a sensible choice to explore the future living arrangements and locations of each party's home.  If the family home is to be sold, this controlled, mediated discussion is even more urgent because both parties will be relocating at a time where communication between the parties may be at an all-time low.  Using attorneys to discuss where everyone wants to live is very cost-ineffective and attorney-led discussions are intentionally adversarial.  In mediation the parties can freely discuss the options, and better yet, each party gets a close-up view of the other party's relocation ideas. If one parent knows for sure where he or she will "land" after the home is sold, the other party may act accordingly.   Discussing residential options and school district choices before permanent relocation often avoids school district conflicts. 



Planning your post separation and divorce relocation together in mediation is a controlled way to avoid co-parenting conflict in the future, and it is likely that each party will be anxious to end the conflict and move forward to a less stressful stage of life.  Bend, don't break. Mediate to a brighter resolution of your conflicts with Nancy Caplan Divorce Mediation and Legal Services. 

For more information please  visit my website at www.divorcemediationmaryland.com



Thursday, October 1, 2015

Mutual Consent Divorce in Maryland- No Waiting Required (for Some).

There's been a change in Maryland law relating to divorce and separation. How does the process work?

If:

1.) The couple has no minor children; and
2.) The couple negotiated and signed a binding Property Settlement Agreement; and
3.) Neither party seeks to modify or challenge some or all of the Property Settlement Agreement; and
4.) Both parties attend the final divorce hearing;

Then:  You may file for divorce without having  to be physically separated in two separate residences for the one-year waiting period.

Mutual Consent Divorce is now part of the laws of Maryland. Beginning today, October 1, 2015, for the qualifying couples, the year of separation limbo is a thing of the past.


Many of my mediating couples come to me soon after making their decision to divorce or separate, anxious to promptly address the unknowns of the future, to “settle” the issues in the hopes of actually settling their very unsettled lives.  

If you are a couple who does not qualify, here's a news flash: There was never a required 1 year separation period to negotiate and sign a settlement.  Never.  The required 1 year separation period for those who do not qualify for Mutual Consent Divorce in Maryland pertains only to filing for the actual divorce.  Therefore if you don't qualify, that
doesn't mean you have to miss the true positive impact of this change in this new Mutual Consent law- that a prompt settlement is less costly both financially and emotionally.

The  1 year separation period had (and has for those who don't qualify for Mutual Consent Divorce) the unfortunate consequence of dragging out the negotiations increasing costs and conflict, by providing 12 months of opportunity for additional conflicts to aggravate the negotiations (think dating and social media as just one example) and aggravation means financial costs increase.  The Mutual Consent grounds for divorce in Maryland, carrying the promise of a fast divorce provides the parties with greater settlement incentive. Almost every divorcing person wants to reach “the other side” as soon as possible.   From a mediator’s perspective, increasing the incentive to settle is a positive development for the parties involved.   

Therefore whether you do qualify for the Mutual Consent Divorce in Maryland, or you don't qualify for the Mutual Consent Divorce in Maryland, the emotional and financial benefit to promptly facing the issues, settling the issues, reconstructing lives sooner rather than later, is a worthy goal.   


Tuesday, April 14, 2015

Step-Parent Boundaries- One Size Does Not Fit All

The evil step-parent or your child's new best adult pal?  Which option would you choose for your child? Neither one may be desirable, however, I think most parents would choose the latter in favor of the evil thing.

Nevertheless, the over-stepping step-parent can become the proverbial stone in the shoe over time and cause great conflict on an ongoing and perpetual basis.

So what is "over-stepping?"  That answer is in the eyes of the beholding parent.  While there is no formula for evaluation of "over-stepping" I can offer a way to evaluate how to avoid conflict which negatively affects your child/children.  Consider this approach:

1. WHAT DOES YOUR CO-PARENT SAY IS BOTHERING HIM/HER ABOUT THE STEP PARENT?  If you don't have these specifics, its time for mediation or family counseling.  Allowing the cold war to fester is a recipe for conflict.

2.  MAKE A LIST OF THE STEP PARENT ISSUES.  For example, is it ok to:
Coach a step-child's game? Once?  Every Season?
Attend Parent-Teacher Conferences? What does the teacher say?
Have Unilateral discussions with other key Adults who are involved in the child's life?
Volunteer in the Step Child's Classroom?
Attend Field Trips?
Attend Back to School night?
Buy expensive gifts/clothes/gadgets for the step-child?  What about expensive activities like football games?
Telephone the step-child for conversational purposes on an ongoing basis?
Plan birthday parties?
Post Social Media about "our" child?
Orchestrate school projects?
Takethe Child for haircuts? Ear-piercing? Tatoos?

3.  DETERMINE WHICH PARENT WILL MEET THESE NEEDS IN THE FUTURE

Don't "course correct" in the middle of a championship (or non-championship) hockey season.

If you believe that your child is unharmed by the conflict and hostilty then by all means, do nothing (said the Mediator sarcastically.)  But, if you want to reduce conflict, doesn't Step 1 go a long way for putting YOU in control of reducing conflict?

In other words, if a parent feels the step-parent's role should not include step-parent's attendance on field trips, don't do it.  Find other ways to have step-parent/step-child bonding; like movie time and board games or family vacations.  I say "don't do it", NOT because it is wrong, or bad or negative.  I say "don't do it" because "other parent" is upset.   What is more important to the child?  Having step-parent at the pumpkin farm field trip or avoiding conflict between the child's parents?  Which would a child choose, NOT what would you choose is the real question.

That's why "fairness" or good intentions might not always matter.   That's why "right and wrong" are irrelevant.  That's why "best interest of the child" is the universal concept in family law matters. From a mediator's viewpoint, extra conflict for a child of divorce is always negative.

Of course all families are different and the circumstances in which the step-parent came to be the step-parent may be relevant.  Did Parent marry Step-Parent after an affair that contributed to the end the marriage?  Or is a Step-Parent bringing additional children into the family and merely attempting to create some sort of "equality" for the step-children?  For example, if new step-parent has seasons' tickets to the Ravens' games, would the parent want the step-parent to exclude his or her Child from that event because it aroused jealousy in the parent?  I didn't claim there was an easy answer, except that  the decision should be jointly made and sometimes explanations provided.  "So what should I do if I have an extra ticket and I'm taking my kids? Exclude your child and take one of my children's friends?"  Sometimes such a conversation might provide perspective for the  upset parent.

The answer is easy and hard. I think the answer is conflict avoidance and harmony among the adults who are the role models of the child.  Determine the child's bests interests, but if you do so, place appropriate weight on the weight of an ongoing parental conflict upon the the child.   To me that weight is very, very heavy.



Mediating Alimony in Divorce - Coming to an Agreement

To mediate an Alimony matter incident to a separation or divorce in Maryland, I take a multiple step approach.

Step 1- Have the parties come to their own agreements relating to Alimony?  Do their agreements address the monthly sum (usually yes) and the duration for the Alimony (usually not.)

If so, it is not the mediator's role to upset the parties' agreements.  That said, the mediator should explore the facts surrounding the parties' agreement for several reasons.  For instance, when was the agreement was made?  Did the parties have a full understanding of their own needs at the time of the discussion?  Was a parties' agreement made at a time when there was an imbalance of power?  If the parties have been living according to the Alimony agreement, has either party has incurred debt during that time frame? Have financial circumstances of the parties changed since they made their agreement?  Have the parties considered the tax implications of Alimony? In general, cash Alimony is deductible by the payor and included in the gross income of the payee for tax purposes.

Step 2-  Analyzing the need for Alimony by one party and the ability to pay Alimony by the other.

It is important to accurately quantify the amount of "need" of the proposed Alimony recipient.  Care must be taken to review past expenses to accurately tally all current needs.  If the residence costs are expected to change (or any other major expenses) then an educated assessment of the new residential costs is a must-do.  The same analysis must be done for the prospective payor of future Alimony.  Once the parties have quantified their respective "need" for Alimony and the "ability to pay" Alimony there should be a range in which to work the negotiations.

Step 3- Alimony- for how long?

There needs to be a practical discussion relating to how long the Alimony will be paid.  If the underlying purpose of Alimony has a "goal" the end-date is explored from this practical analysis.  Are you trying to keep a child in a particular school district until graduation? Or does the Alimony recipient need to educationally rehabilitate his or her skills, and if so, what is the timetable? Do we need to discuss the anticipated retirement date of the payor?  In the case of an anticipated retirement date, what will happen if the payor does not in fact retire?

Step 4- Determining the Circumstances that will Terminate Alimony.

Alimony always ends upon death of one of the parties, and almost always ends upon the recipient's remarriage.   Sometimes the parties make an agreement to terminate the Alimony if the recipient is cohabiting with a third party in a "marriage-like" relationship.

Step 5-  Obtaining Legal Advice on the issue of Alimony.

There are formulas, which are not the law  in the State of Maryland, but which may be helpful in narrowing the negotiations relating to Alimony.   Sometimes a mediator will utilize these formulas to see if the agreed-upon range of Alimony negotiated falls within the parameters being discussed.  However, the best way to understand how the judges in the county in which the case might be tried might rule.  The only way to get that answer is to speak to your consulting attorneys.   I often recommend that in between mediation negotiation sessions when Alimony is at issue.   Having those two opinions from two lawyers is another tool to help narrow the issue, used in mediation.  Consulting an attorney in between mediation session for such a critical issue makes good sense where there is an impasse.   In addition, consulting an attorney at this juncture helps the parties come to an agreement which will not derail the negotiations at the attorney review phase of the mediation agreement.



Monday, January 12, 2015

Getting A Dog- Veto Power


Getting a dog is a decision that will impact the whole family.  To many people, like those who grew up with an ever-present dog member, getting a dog may seem like a no-brainer.  What’s a home without a dog, he or she may wonder?  But the true no-brainer is that the choice to get a doggie family member, needs to be an enthusiastic mutual choice.  Each spouse must have absolute veto power.

Dogs, and the time, attention and expense they require have a huge influence on the family dynamic and lifestyle.  Being tethered to one’s home (or conversely the expenses of the dog-walker and/or kennel) may lead to substantial lifestyle changes.  Add in a dash of destruction (i.e. the soiled carpet, the holes dug in the back-yard, the chewed up pair of shoes) and you’ve got the makings of a catalyst for a serious and on-going, couple dispute. 

A mutual desire for a dog may or may not be enough to overcome the negative aspects of canine ownership.  Sometimes the mutual desire arises from the loneliness of the marriage and simply provides a temporary distraction from brewing discord.  In such cases, dogs may be invited into the marital bed, or otherwise suck up what is perhaps an already low-level of interpersonal nurturing between the spouses.  Even the most dog-desiring couple may end up putting vet expenses on a credit card to their marital detriment.  Suddenly the dog may be the last nail in the coffin of a marriage that was merely weathering an emotional or financial storm.

As a divorce mediator, this warning may come too late to my readers (at least for this relationship, but there are likely to be other relationships in your futures.)  I can only offer this warning from my collective experiences about divorce.  I have seen far too many dog-interference issues aggravate marital problems.  Thus I have one piece of advice:  If there is a doubt, DON’T.  A spouse should have veto power about the choice, even as the other spouse swears that he or she will be the sole care provider for the pet.  Perhaps I should modify that advice- If there is a doubt, and you care about preserving your spouse/in-tact family- DON’T.   Even if becoming single sounds appealing to you, will you be able to care for the dog you love in terms of time, expense and other practicalities such as whether a rental will accept pets? Do you wish to limit your choice of future dates/spouse to those accepting of pets? Suddenly you may be worried about your prospective date's children's allergies!  If separation and divorce are your secret or not so secret goals, what is the harm in waiting until that monumental life-change actually happens before you make your doggie dream come true? Is your dog dream more weighty then dreams of accord with your romantic partner?  Life is full of trade-offs.

The idea that a reluctant dog-acquiring spouse will “fall in love” with the new critter is a roll of the dice. Having a puppy means entering the puppy stage of house-breaking, a time when many puppies are destructively chewing, whining at night, and this creates a whole slew of new family chores which means that the hardest part of having a dog happens immediately on the heels of the reluctance.  How is this a healthy formula for marital success? 

Even among a couple of dog-lovers, timing is critical.  Sometimes dog-lovers suffer extra stress from the lack of time he or she may have to attend to the dog which truth drives a dog-lover to deny him or herself of the pleasure based on practicality and not based on desire.  From my experience as a divorce mediator I observe that getting a dog has a disproportionate impact when a couple has small children, because like it or not statistically speaking, this is one of the most vulnerable and expensive (in terms of child care or the sacrifice of an income) times of a marriage.  It is also the time when love and nurture is diverted from spouses to the children, only to be further diluted by puppy needs.  On the other end of parenthood is the couple (or one of them) who was looking forward to post-college freedom to travel, only to acquire a sudden replacement doggie-child to fill the empty nest and quash those long awaited dreams.

Sad but true, pets often are a huge unexpected expense.  Whether we are talking about building fences, routine vet care and vet meds, replacing puppy-ruined carpets, kennels or dog-walkers, or animal illness costs, the true cost of owning a pet is probably a subject pet-lovers try not to think about.  Take it from a mediator who happens to have a old, beloved diabetic dog whose monthly costs equal a modest car payment. However, when the choice is heartworm prevention medication or funding a school lunch account or field trip, well...you can imagine the agony. 

I’m often asked to comment about the prevalence of animal “custody battles” in divorce negotiations.  Many times such disputes arise where the couple has been childless and the couple has jointly and emotionally invested in the animal.  Often in these cases the couple starts off with a joint sharing of time and expense, but usually that is merely a weaning process for the person who will eventually move out of the pet’s life or become a fringe player.   Far more often is the circumstance where one party insists on the other spouse “taking” the dog so that dog-resentful spouse can finally wash his or her hands of the obligation.  How many stories must I hear where one spouse surprised not only the children but the other spouse with this wonderful gift, only to have the reluctant spouse be the sole party-pooper?  When the party-pooper is also expected to be the doggie caregiver, think muddy paws, cold temperatures and busy mornings and tell me how that's going to wear on the marriage?

So when is a good time to get a dog during a marriage? The short answer is when you both enthusiastically agree, and both have time, energy and money to devote to the dog resources you will need to fit your other lifestyle choices.  The time not to get a dog during the marriage?  When there is reluctance from a spouse; when financial resources are scarce or variable; where travel and life away from home is common; or when children are young, expensive and needy of emotional devotion.  

Do you think a dog is unlikely to be a negative tipping point during a stressful time in a marriage?  Think again.  Please. A dog is never more expensive then when it is the catalyst for a divorce. 


Tuesday, April 8, 2014

“Conscious Uncoupling”- Just a New Age Fancy Name for Good Old Mediation

Thank you Gwyneth.  Through your ingenious although somewhat elitist/pretentious announcement of separation, you have brought the idea of peaceful negotiations to the forefront of family law. Specifically “Conscious Uncoupling” refers to drawing upon “feminine energy” to engage in peacemaking, nurturing and healing to address the separation situation and to reject “masculine energy” which keeps us in “attack mode.”  What?  That sounds like a fancy way to describe separation, divorce and custody mediation.  It’s just mediation.  

It’s agreeing to make a positive decision to address a very bad/sad/mad situation.   To respond without undue reactivity.  To get what is fair without vengeance.

This probably sounds like a bunch of hooey to the angry and shocked spouse.  To the spouse whose life is being unraveled by the choice of the spouse who took vows to protect you, not throw you away!  To the spouse who suddenly realizes that he or she will only see about 50% of their children’s lives!  To the spouse who sees retirement suddenly as an unattainable goal! To a grown man or woman forced to live with a relative!  I could go on and on.  The exclamation marks are an understatement.

Remember the old adage (I’m paraphrasing): We are not judged by what happens to us, but by our response to what happens to us.  Easier said than done.

It is ridiculous to suggest that the fury this situation engenders is so easily pushed to the back burner.   A fancy, Hollywood divorce is not the typical situation, where lack of money is unlikely to be an obstacle to either party’s future.   Hollywood stars may be more accustomed to absences from their children.   These people are not most people.

So how does one get to mediation- to the place where settlement is the goal; where lawyers are used as advisors and not advocates, where the neutral mediator guides the couple to a fair, practical and final result?   Follow me down the AVENUE to recovery.

Accept your rage, fury, sadness, grief and fear; it won’t go away.
Vent it in the forum which will do the most good- friends, family, a therapist is best; and lots of it.
Eject the past- what choice is there? It’s gone.  Eject it.  Exorcise it. Evolve.  Lots of EEs.
Never involve your Children.  Never. You may fail sometimes but this should be your goal.
Unwind. Take baths, yoga classes, meditate.  Exercise. Borrow a beach house.  Eat Pray Love-Style.
Ego rebuilding.  Get fit; get a job; get out there and socialize.

It’s all been said before, but when one is in the horrible moment, clutching these trite "to do" lists soothe us and chants back at our inner, angry voices.  

This is the antidote to your poisonous situation. The antidote is not retaliation.   It is specifically the opposite.   Your emotions must be handled as a separate subject outside of your spouse, so that you can focus on the tedious and practical issues of scheduling children and dividing assets and debts.

The Mediator keeps you focused on those goals. The Mediator does it in far less time and for far less money.  The Mediator provides the process to move past your past and resolves your future.  It may not be a better future at this minute, but it’s not the now-painful past.   The Mediator guides you in that direction. Privately and confidentially.  The Mediator gauges the fairness of the negotiation.  The mediator looks for shared interests (i.e. the children, your joint credit, the success of the other for the purpose of a bright financial future for the children.)   The mediator helps redirect the conversation when the inevitable emotional bleeding leaks into the negotiation.

Calling it “feminine” vs. “masculine” energy sort of seems divisive to me as a mediator so I don’t like the description although I live the concept.  But yes, it’s a conscious decision to make a positive step towards moving forward and healing.  Intellectually, most of the involuntarily separating parties understand this.  They just need a little help.  So Gwyneth and Chris, thank you.  You are not too rich, or too famous to recognize that no good comes from a process which prolongs the pain of parting; which tears the children apart; which wallows in the ugliness of the what happened in the marriage; which costs too much time, money, energy, good will, and frankly takes a toll on your health.  
Conscious Uncoupling?  OK.  Call it what you like.  It’s the mediation process by any other name.   It’s a wise choice for almost everyone going through separation and divorce.


Choose an attorney and you are choosing an adversarial process.  Choose a mediator and you are choosing a settlement process.  Choose Nancy Caplan, Esquire at Maryland Divorce Mediation and Legal Services.