Nancy S. Caplan, Esquire

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


Tuesday, April 17, 2012

Mediation in Maryland

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

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

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

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

Mediation in Maryland with Nancy Caplan, Esquire. Sign up for our free monthly seminar and learn what Mediation in Maryland is all about.

Monday, April 16, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Differences of Law in Same Sex Divorce in Maryland

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

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

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

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

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

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

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

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

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

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