Nancy S. Caplan, Esquire

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


Thursday, December 9, 2010

Child Custody and Mediation in Maryland

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.

Monday, December 6, 2010

How Do You Choose A Maryland Divorce Mediator?

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.

Friday, December 3, 2010

I Want A Separation Agreement

“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.

Wednesday, December 1, 2010

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

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.