Nancy S. Caplan, Esquire

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


Tuesday, November 30, 2010

Mediation- Picking Your Own Poison

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.

Monday, November 22, 2010

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

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.

Tuesday, November 9, 2010

How Your Lawyer Can Help You Get Your Spouse to Mediation

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.

Friday, November 5, 2010

When Should I Get a Separation Agreement?

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.