Maryland Court of Appeals Reverses Itself and Recognizes De Facto Parents

In a major win for children and adults who helped raise children but did not adopt them, Maryland’s highest court reversed one of its worst decisions and recognized that “de facto parents” should have a rights to custody and visitation even though there is no biological connection between the adult and the child.  This is a huge victory not only for children who will no longer have the de facto parent ripped away from them, but also particularly for the grandparents, lesbian, gay, bi-sexual and transgender and straight adults who helped raised his/her partner’s children but never formally adopted them.

This issue arises particularly with same-sex divorces and separations when one partner either adopted or gave birth to a child but the child was raised jointly by the two partners.  In a horrendous decision in 2008, Janice M. v. Margaret K, 404 Md. 661,  a 6-1 majority of the Court of Appeals held that only the adoptive or biological parent had a right to custody of the child, even though her lesbian partner and child were bonded and the partner had helped to raise the child.  The non-adoptive, non-biological former partner became a “legal stranger” to the child upon divorce or dissolution of the relationship. The Court ruled that when the gay partners divorced the partner who did not adopt the child had to prove that the biological or adoptive parent was either unfit to parent or that “exceptional circumstances” existed—and that helping to raise a child as her own did not constitute “exceptional circumstances.”

In Conover, the parties were married after the child was born.  The defendant was artificially inseminated with sperm from an anonymous donor.  The plaintiff did not adopt the child nor was she listed on the birth certificate as a parent.

The couple jointly raised the child for the first year of his life.  After that year they separated but the parents worked out a visitation schedule.  However, ten months after the separation the defendant terminated her former partner’s access to the child.   All of the lower courts ruled against the Plaintiff saying in part that because Conover had no direct biological ties to the child, and had not formally adopted him, they were bound by Margaret K. and denied her visitation.

The Court of Appeals reversed and adopted the Wisconsin Supreme Court’s standards for identifying a de facto parent (In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wisc. 1995)). Under this test the Court of Appeals has adopted, a third-party seeking de facto parent status must prove when petitioning for access to a minor child:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;

(2) that the petitioner and the child lived together in the same household;

(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

While each of the factors must be established, the first factor is the gate keeper.  For example, a nanny may establish a very close relationship with the child, but the Court stated that it is unlikely that he or she will be able to establish that the parent consented to formation and establishment of a “parent-like relationship.” The July 2016 reversal of Janice M. is remarkable for several reasons. First, it is highly unusual for the Court of Appeals to reverse itself, particularly in such a short time. Second, current members of the Court reversed how they voted just a few years ago. Finally, the Court went out its way to praise the logic of the lone dissenter in the Janice M. case (Judge Irma Raker)-logic it had rejected just a few years before.

According to the FreeState Justice, the lawyers who brought the case for Michelle Conover (now Michael Conover, a transgender man), this case “impacts thousands of children in Maryland born into families headed by same sex couples.” Although the case has generated the most discussion in the LBGT community, it is equally applicable to the common situation of a step-parent helping to raise a child but not being able to adopt the child because the divorced biological parent will not consent. As the concurring opinion pointed out in Conover, this can lead to a situation where at least three adults have custodial and visitation rights to the child.

Although Conover now gives de facto parents the right to go to court to establish visitation, it does not mean they should run to the courthouse door.  Custody disputes are without doubt better resolved through mediation or collaborative law.

The case is Conover v. Conover, 450 Md. 51, 146 A.3d 433 (2016).  The decision is at http://www.mdcourts.gov/opinions/coa/2016/79a15.pdf.

I am among the first trained attorneys in Collaborative Law and still believe in its usefulness. However, its use peaked a few years ago and now it is used infrequently, and virtually only in divorce cases. Why? First and foremost, Collaborative Law got a bad reputation for being very expensive. In the early days most cases had two lawyers, two therapists, a financial neutral and others.  Cases would cost tens of thousands of dollars, not settle and the parties would have to hire new lawyers to litigate the case (the Collaborative Law attorneys could not further represent their collaborative law clients if the case proceeded to court because of the Collaborative Law recusal provisions.)  Furthermore, newly minted Collaborative Law attorneys saw every divorce case as a collaborative law case, when in most instances the issues could be settled more quickly and less expensively through mediation. So parties lost faith in recommendations for recommendations to resolve a case through collaborative law.

In Maryland, Collaborative Law attorneys have done a lot of work to reform the collaborative law process, to make it quicker, cheaper and simpler. Collaborative Law 2.0.   Collaborative law has gone from being over-utilized to under-utilized. While it should still be the exception rather than the rule, It deserves a second look.

With that in mind, I commend you to the Maryland Collaborative Practice Council’s information.  Its mission is to “support Collaborative Practice Groups, advocate statewide on legislative, executive, and judicial initiatives, and to advance the use of the Collaborative Process as a method of dispute resolution.”

They offer the following information on collaborative practice:

 

How Collaborative Practice Can Help

You can choose to battle in court, or you can resolve your disputes respectfully to the benefit of all. Whether you are facing a separation and divorce, a disagreement over an estate, or any other type of dispute where there is a need or a desire to have a relationship beyond the conflict, Collaborative Practice is a viable and valuable option. Click here to learn whether Collaborative is right for you.

About Collaborative Practice

Collaborative Practice is a process of resolving disputes where participants work with a team of professionals to craft their own agreements. Clients work together in a respectful way, recognizing the importance of minimizing conflict for the interest of their children and others concerned about the family. Decisions are made by the participants without the involvement of a judge or other decision maker.

Collaborative Law, Collaborative Practice, Collaborative Process, and Collaborative Divorce are terms often used interchangeably. While “Collaborative Divorce” refers to resolution of particular types of disputes (divorce and domestic partnerships), the other terms can also apply to disputes involving employment law, probate law, construction law, real property law, and other civil law areas where the participants are likely to have continuing relationships after the current conflict has been resolved.

Typically clients and professionals meet together to plan for information gathering, make interim arrangements, and discuss issues. A team is assembled based on the participants’ needs and can include attorneys, divorce coaches and child specialists (both roles are filled by mental health specialists), financial experts, and other professionals as needed. Information gathered is shared with both clients and team members in order to clarify each participant’s interests and stimulate ideas for possible solutions. All communications made during the Collaborative Process remain confidential and will not be used as evidence if the case later goes to court.

A settlement which meets the approval of both clients can then be fashioned. This method of negotiating divorce is designed to reduce conflict and allow the participants the possibility of a civil and cordial relationship in the future. If the parties share children, the goal also includes creating an effective parenting plan which can guide the co-parenting relationship in healthy ways now and in the future.

Collaborative Practice embodies one important principle: all clients and collaborative professionals agree at the outset that the parties will negotiate the terms of their settlement directly; they will not be contested in court. If the parties cannot reach agreement, the attorneys and other professionals must withdraw, and the attorneys will assist the participants in finding new attorneys to help them settle the case through the traditional court system. Even in these cases some groundwork will have been laid for a more effective way of clients working together in the future.

In summary, Collaborative Practice is about working together to resolve differences in a constructive fashion. It is about rising above our differences to find resolutions that are reasonable and equitable, satisfy all parties, and prevent the lasting acrimony so often associated with litigation.

The MCPC is an organization of lawyers, licensed mental health clinicians, experts in financial analysis and planning, and other professionals dedicated to resolving conflict through collaborative means and devoted to helping our clients reach amicable settlements of disputes through creative problem solving and compromise.

When Collaborative Practice May be Appropriate

Collaborative Practice may be appropriate to resolve:

  • A divorcing couple’s disputes concerning custody, property, and finances
  • Disputes among siblings about elder care decisions or an inheritance
  • Labor and management disputes
  • Disputes among family members about family business succession or trust matters
  • Landlords and tenant disputes
  • Disputes between neighbors

These and other kinds of conflicts involving the need for a continuing relationship beyond the dispute, can be dealt with by adversarial legal battles, or they can be handled respectfully and privately in a collaborative setting. Collaborative Practice represents an opportunity for disputants to resolve their differences without ceding control to a judge or other third party. Collaborative Practice recognizes that it is the clients, with the help, support and advice of their working team of professionals within the structure of the Collaborative Process, who are best equipped to determine what is important to each of them and to resolve their own disagreements.

Lorriane C. Ladish Posted in the Huffington Post the Following 10 Tips for Successful Co-Parenting.  Although this list is geared towards mothers, I think it is useful for either mothers or fathers:

1.Practice empathy
Co-parenting your kids with your ex is no easy feat. Practicing empathy, trying to put yourself in both your kids’ and their dad’s shoes will help you successfully navigate this situation. When your kids miss dad, allow them to voice their feelings. When dealing with dad, take into account that he loves the little ones too, and act accordingly. Treat him the way you would like him to treat you.

2.Be open and flexible with schedules
Kids suffer when their parents argue about visitation schedules in front of them. Even if you have a court-ordered parenting calendar, if dad wants to take the kids to a ball game or watch a soccer match on TV on one of your days, put the kids first. Will they enjoy it? Then, let them go! One day, when they grow up, they will thank you for allowing them this freedom.

3. Pick your battles
It’s important to have common ground rules and values for the kids in both households. But it also stands to reason that each parent will deal with certain situations differently. Don’t expect dad to do everything exactly the same way you do it. Even if you were still married you’d have different parenting styles. And that’s ok. Kids thrive on those differences.

4. Communicate directly with dad
You’ve probably heard this one before, but do your best not to use the kids as go-betweens. Not only may they get the message wrong, they will also witness any negative feelings either parent expresses when delivering or receiving it. If your kids give you a message from their other parent, don’t blow up in front of them. Wait until you’re alone to give him a call and address the issue as calmly but firmly as possible.

5.Remember he is your ex but also your co-parent
You’re divorced for a reason. If he didn’t change his ways when you were a couple, he’s most likely not going to do it now. Do what you can with what you’ve got, and make the best of your relationship as co-parents. Allow him to rebuild his life however he sees fit, as long as it’s not harmful for the kids. Counseling is a good investment to improve communication between you. The kids will be the winners.

6. Make exchanges short and sweet
No matter where or when you exchange the kids, keep these moments short and sweet. Do your best not to cry or hang on to the little ones when they go off with dad. Especially don’t drag it on giving your ex endless instructions. Say your goodbyes with a smile, so the children won’t feel guilty about leaving you by yourself.

7. Respect their time with dad
If your kids only see dad during the weekends, don’t put a damper on their time together by calling them too often. Especially, don’t call when you know they may be having dinner or if it’s past their bedtime. If you miss them, call a friend to commiserate. Think of how you would feel if your ex insisted on calling your home at odd hours and made the kids feel bad about him.

8. Share photos, grades, accomplishments

When your kids get their grades or are having a special moment their dad is missing, take a picture and email it or text it to him. Tell them that you are doing it, so they know you are including their father in the parts of daily life that he may not be privy to. Ask him to do the same for you, but don’t nag him if he doesn’t. Remember, it’s all about the kids in the end.

9.Encourage your kids to communicate with dad
Make sure they call, email or write to him on a regular basis. Remind them of his birthday and other special occasions such as Father’s day. Help them make or choose a gift and mail it or give it to him in person. Kids are happiest when they feel free to express their feelings of love towards both parents even when they are no longer a family unit living under the same roof.

10. Enjoy your time off
One of the perks of being a single mom is that you will inevitably have time just for you. Take advantage of the days your kids are with dad to socialize, sign up to a drawing class, get a massage, or simply to watch movies, read books in bed or sleep in. Recharge your batteries so that when the kids come back they will find you at your best!

 

As you would expect, communication is a key theme to the process of successful co-parenting.  Co-parents need to communicate effectively and empathetically with each other, and each should encourage their child/children to communicate well with the other parent.  Mediation and collaborative law can lay the groundwork for successful communication for co-parents post-divorce.  On the other hand, litigation tends to further polarize the parents.  A few judges take the position that if the parents have to have a trial to resolve custody issues then it shows that they can’t communicate and therefore shouldn’t have joint legal custody. But a 2016 case from Maryland’s top court says that even if the parents can’t communicate that joint legal custody, with one parent having tie-breaking authority, is appropriate. Santo v. Santo, 141 Md. 74, 448 A.3d 74 (2016). 

If communication is a problem then I highly recommend retaining a parent-coordinator.  This will be discussed in a future blog, but essentially a parent coordinator helps the parents communicate more effectively and with less hostility.  Oftentimes the parents will communicate more civilly merely because the parent coordinator insists on being copied on every e-mail between them. While I offer parent coordination services, I am not a therapist. I will help the parties resolve issues but find it most effective to have decision-making authority in some areas so that decisions get made and everyone can move on. Therapist parent coordinators oftentimes do not want or have decision-making authority. They prefer to have the parties resolve the issues themselves, although it will usually take longer. If you would like the names of therapist parent-coordinators please contact my office.

A recent article in the Washington Post highlights how courts are trending to awarding fathers more time with their young children, even when the child is an infant.  Titled “What’s more important than breast-feeding a baby? Giving a father time with his child” http://wapo.st/2gm0Xkq?tid=ss_mail&utm_term=.64728a23e3c5 the article discusses how a local court rejected a mother’s claim that the father should not have overnight visits because she could not pump enough milk for the father to feed the infant during that time. Despite the mom’s insistence that the child should only be fed breast milk, the Court ruled—by two different women judges– that the child should also be fed formula so that the infant could spend overnights with the father.  Bottom line: at least after the child was six month’s old, the child’s time with the father was more important than the mother’s desire that the child only be fed breast milk.

When I started in family law, the Montgomery County Circuit Court handed out a packet stating that the customary access schedule for fathers was every-other-weekend and maybe a mid-week dinner or overnight—after the child was at least three years old. Overnight visits for newborns to at least three years was unheard of.  Even the American Bar Association published a book of access schedules, that did not recommend overnights for infants.

In a trial I had about ten years ago, the judge found that both parents were fit parents to have custody, and so he explicitly stated that he was ordering the “usual” custody schedule of every other weekend and weekday overnight to the father. Today, it is unlikely that the judge would rule that way.  It is common for courts to award father’s equal custody of the children, or at least close to equal custody of the children. Why? To a large extent, judges are more accepting that fathers are equally qualified to raise children and that the children deserve to have both children equally in their lives.

Of course, and I can’t say it enough, studies show that the best predictor for how children will fare after a divorce is how well the parents co-parent. Fighting over a night here or there is not good for the children or the parents.   If the children are caught in the middle for years of post-divorce strife then they are less likely to do well.  Related to that is that parents who successfully resolve custody issues through mediation or collaborative law have a much greater likelihood of the agreement being followed and the strife lessened.

I recently had lunch with a friend who commented that he had several friends who wouldn’t talk to each other because of the election results. Some even changed their Thanksgiving plans because they didn’t want to have to share a meal around partisan recriminations.  He then told me that he had a friend who was going to work for the Vice-President elect, as if to inquire whether it was OK to keep that person as a friend.

I related to my colleague the story of how I met my friend Ed.  One day at college one of my roommates came in and said, “Bob, I’d like you to meet Ed. He’s a really nice guy as long as you don’t speak to him about abortion.”  Ed and I spent the next five hours, until 3 a.m. debating the issue.  We’ve been best friends ever since.

The times between my college experience and this recent lunch are quite different, and not for the better.  People have become less willing to listen to other points of view.  I grew up in a family where we were taught to seek out other points of view, not to flee from them. My grandfather was as staunch a Republican as you’d ever find.  He never voted for Franklin Roosevelt because he thought he as a socialist.  Yet each morning he would go to the local newspaper vendor and buy all of the newspapers, including the communist “Daily Worker” paper, so that he could become familiar with opposing points of view.

My grandfather’s example is more relevant now than ever before.  We should embrace people of different opinions, not shun them. We should be eager to listen to their point of view-but they should be equally willing to listen to ours.

When I mediate I give each party “Ground Rules for Mediation” so that we can have productive, respectful, positive meetings.  As we gather for Thanksgiving, Christmas and other holiday meals, think about these four Rules, which may make the day more civil and enlightening.

Ground Rules for Mediation

  1. We agree to take turns speaking and not interrupt the other person when he/she is talking.
  2. We agree not to demean, belittle, blame, attack or engage in“put downs” of one another. We will try to keep a respectful tone during our discussions.
  3. We agree to speak in terms of our own needs/thoughts and not assume what is in the heart and mind of the other person.  We will speak in terms of “I” as in “I believe,” “I want”, “I feel” not in terms of “You” as in “you believe”, “you want,” “you feel” [Many studies have shown that  “you” is a very powerful attack word.  It is to be avoided in contentious discussions.]
  4. We agree to listen respectfully to what the other person says and ask questions to be sure we understand what the other has said.
  5. We acknowledge that we have a lot of feelings about the issues under consideration and we agree to try to discuss those issues in a rational manner.
  6. We acknowledge that the point of our discussion is to listen and learn and that we may never convince the other side that we are right and they are wrong. But we will respect each other more, not less, after our discussion and everyone will leave with a better understanding of the other’s point of view.

These rules can apply to mediation as well as conversation around the your holiday table.  Happy Holidays to All.

We are sometimes asked whether Maryland is a community property state. It is not.  Only Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin are.  Maryland is an equitable property state.

In equitable property states such as Maryland, property acquired during the marriage belongs to the spouse in whose name the property is titled–but that does not mean he/she gets to keep it in a divorce. In the event of a divorce, the Maryland Court uses a three part test to determine whether to equitably divide the value of the separately titled property.

  • First the Court will determine ownership of the property.
  • Then it will determine if it is marital property, regardless of how titled.  Property acquired during the marriage (up until the date of divorce) is marital property unless it is gifted to one party or the parties agree it will be separate property.
  • As the final step, the Court will make whatever monetary award, including in some cases transferring ownership, it deems appropriate. There are 11 separate factors the Court considers in deciding what award, if any, to make.

A note about debt: In community property states, debt acquired during the marriage is also community property, so each party is equally liable for all of the debt.  In Maryland the Court cannot divide debt except for debt used to acquire tangible property.  However, it can take debt into consideration when making a marital award.

Maryland is a two party consent state for purposes of recording another person. That is, you are not permitted to record someone in Maryland without the other party’s consent.  However, there is a little known, huge exception to that rule—recordings made on cell phones.

At a recent divorce trial I successfully argued that the cell phone videos my client took of his wife yelling and throwing knifes at him were admissible.  The other side’s divorce attorney argued that because his client did not consent to the recording my client violated the Maryland Wiretap Act, Cts. & Jud. Proc. § 10-401 et seq. (2006), that the recordings were inadmissible and that my client should be criminally prosecuted.  He said two other judges had accepted his argument and excluded cell phone recordings from being used as evidence—but the other lawyers did not know about the case I found that contradicted that position.

The secret to success in my client’s case was Martin v. State, 218 Md.App. 1, 96 A. 3d.765 (2014), cert. denied 440 Md. 463(2014), cert denied 135 S. Ct. 2068 (2015) in which the Court of Special Appeals held that cell phone recordings are not covered under the state wiretap statute. Recording someone speaking is generally an “interception” for wiretap act purposes.  However, the Maryland Wiretap statute only prohibits interceptions if they occur through the use of any “electronic, mechanical or other device.” CJP §§ 10-401(10) and 10-402(a). The Act specifically excludes “telephone” from the definition of an “electronic, mechanical or other device.” Therefore, by using his cell phone to record the incidents, my client was within his rights, the evidence was admitted and he got the divorce he wanted, on the terms he wanted  without having to pay any alimony, divide his pension, or pay her attorney’s fees.

Practice Pointer: Under the current state of the law, you may record someone without their permission if you do it on your cell phone.  This would appear to be an unintended outcome of the Act, but as of the date of this writing it appears to be the status of the law.

This blog is the opinion of the author and does not constitute legal advice.  It should not be relied upon for any purpose; it is presented solely as a discussion point with an attorney of your choosing.  It does not in any way create an attorney-client relationship between the author and the reader.  

A common misconception is that alimony will automatically end when the person paying the alimony retires.  Unless the settlement agreement specifically provides for alimony termination upon retirement, recent cases in hold that alimony will continue, although perhaps at a reduced amount.

In two Maryland cases, Ridgeway v. Ridgeway, 171 Md. App. 373; 910 A.2d 503 (2006)  and Stewart v. Stewart, No. 2601, opinion filed Sept. 2015 (Md. App. Sept. 2013 term (unreported)), the trial and appellate courts reduced but did not terminate alimony after the former spouse/former wage earner (the “payor”) retired. In Ridgeway, after retirement the alimony recipient continued working and had a greater income than the payor after he retired.  Furthermore, at the time of the settlement the parties had equally divided the marital assets such as the equity in the marital home and marital portions of the retirement accounts (e.g. 401(k), IRA, TSP, pensions) so that the alimony recipient and payor had an equal amount of marital assets at the time of divorce.

So why did the courts reduce but not terminate alimony?  In those cases, the Courts looked at the expenses of the recipient as the determining factor.  Although the payor’s income went down the recipient’s expenses did not.  Therefore the Courts ordered the payor to continue alimony payments equal to the difference between amount the recipient received from the pension payment and what she would have received from the alimony award.

It is important to note that in both cases the payor stopped paying alimony when he retired, incorrectly expecting that his alimony payment would terminate. In Ridgeway, the Court specifically rejected the payor’s argument that “the retirement payment replaces the alimony payment, warranting termination of alimony.” In both cases, the payor was found in contempt and had to pay the recipient’s attorneys fees and alimony arrears.

Ominously for those with existing settlement agreements, the Courts hold that unless the agreement specifically provided for termination of alimony upon retirement, then there is no right to re-open that issue later. Rather, the presumption was that indefinite alimony meant indefinite alimony, and only the amount, not duration, would be modified.

Pointers:

  1. If you are mediating a marital settlement agreement and want alimony to terminate upon retirement of the payor, then the Agreement must explicitly say that.
  2. If you do not have an alimony termination clause in your mediated settlement agreement and want to seek modification of an alimony award, file early (when you have a date certain for retirement) but plan on paying the full amount of the alimony until the Court has decided.
  3. If you stop paying alimony before the Court modifies it you may be found in contempt and have to pay the other side’s attorney’s fees.

 Litigation should be the last, not the first dispute resolution process that clients should use. I came upon the following blog, which I thought was applicable to many cases where the lawyer has steered the client to litigation to the client’s regret.  To many “old school” lawyers, litigation is the first recourse for obtaining a divorce. The author explains below what a spouse can and should do if you have regrets about the path your divorce is taking.

By Andrea Vacca

If you’re in the middle of a litigated divorce and are unhappy with the way things are going, you can change course.

You might have started the divorce process with the goal of ending the marriage quickly and feeling as financially secure as possible at the end. You might have hired the first attorney who came highly recommended from a friend or relative who has been through their own divorce. And all seemed fine in the beginning. Your attorney said she understood that you didn’t want to make your divorce World War III. She understood that you wanted to remain friends for the sake of your children. But as soon as it became clear that you and your spouse saw things differently, and conflict arose, the battle was on. Your attorney told you the judge is likely to see it your way and may have even encouraged you to write down all the divisive and emotionally painful issues between you and your spouse that would help you score points in court. And of course, your spouse’s attorney told him or her the same thing.

Now, 6 months or 1 year later, you see how combative and unproductive the legal proceedings actually are, you’re feeling more anger toward your spouse than ever and you’re wondering, “How did I get here? This isn’t how I wanted my divorce to go.”

It’s not too late to change course. For parting spouses who find themselves in an unwanted battle, turning away from litigation and toward a less adversarial approach to their divorce is still possible.

Some recent experiences with couples who moved from traditional (and costly) litigation to mediation or collaborative law have provided me with insights that I would like to share with you, or anyone you might know who is going through a divorce:

  • If you don’t like the way things are going, explore a different approach: If you feel that the original process you chose for your divorce was a mistake, make a change as soon as possible. The longer a divorce continues in court, the more positional each side becomes. Things are said in court that cannot be “unsaid.” Emotional damage can be done in the process that could make it more difficult for you and your spouse to ever come to a resolution or to be cooperative when living your post-divorce lives.
  • Your divorce lawyer is unlikely to be supportive of you trying a different process: He may tell you that he does not believe your spouse is capable of being reasonable and you need the “protection” that a court can provide. What he may not tell you is that he doesn’t want to lose you as a client. This may be especially true if you still have a robust sum in your checking account. All attorneys hate to lose a client, but this is especially true when the client can afford to pay legal fees. If your attorney attempts to dissuade you from trying mediation or collaborative divorce, certainly listen to what he is saying, but remember that you are the one going through the divorce – not your attorney. The choice of process needs to be up to you and your spouse.
  • It takes two reasonable people to move away from litigation and toward a non-adversarial process: You may need to be the brave one who initiates a conversation with your spouse to find out if he or she is also unhappy with the litigation process. If you haven’t had a civil conversation with your spouse in months, this can feel pretty scary. In that case, you may need some outside advice about how to facilitate the conversation. There are excellent divorce coaches who can help you get clear about what isn’t working for you in the current process, what your true goals are for this divorce and how to explain all of this to your spouse in a way that feels safe.

MARYLAND ELIMINATES WAITING TIME FOR SOME UNCONTESTED DIVORCES; NO SEPARATION REQUIRED

 

The Maryland General Assembly approved, and the Governor is expected to sign, legislation which would eliminate the waiting period for an uncontested divorce from the current period of one (1) year.  The change will be effective October 1, 2015.

There are several important requirements to obtain a divorce under the new “mutual consent” law:

1)      The parties  cannot have any minor children in common;

2)      The parties must sign and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to alimony and property, including any transfer of ownership of any property and division of any retirement accounts;

3)      Neither party files a pleading to set aside the settlement agreement prior to the divorce hearing; and

4)      Both parties appear before the court at the time of the absolute divorce hearing.

This legislation continues the trend in the legislature, reducing the waiting period for a divorce where there is a written agreement.  There are several important differences from the current grounds for a no-fault divorce.

Current voluntary separation statute FL Art. 7-103 (a)(4) New Mutual Consent Statute FL Art. 7-103(a)(8)
Available if there are minor children in common? Yes No
Requires living separate and apart? Yes No
Requires written settlement agreement? No Yes
Requires both parties to appear for the divorce? No Yes
Waiting period Yes No

 

This law highlights the legislature’s favorable view of the parties settling their marital disputes out of court.  If the parties are unable to resolve all of the issues themselves, or want a professional to draft the agreement, then mediation is usually the most cost effective way to achieve that result.  Other options to mediation are collaborative law, direct negotiations between the couple and their lawyers, or one party hiring a lawyer to draft the agreement with the other party hiring a lawyer to review the agreement (one lawyer cannot represent both parties).