RECORDING ON CELL PHONE VIDEO IS OK, SPLIT DECISION ON AUDIO-UPDATED BLOG

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Maryland is a two party consent state for purposes of recording another person oral communications. That is, you are not permitted to record someone’s oral communications in Maryland without the other party’s consent.  However, there are important exceptions to the two party consent rule.

The first and most clear exception is that you can video record without violating Maryland’s consent laws.  As the Court of Special Appeals recently stated, “a video recording without audio recording or without oral communication is not prohibited under the wiretap statute.” Holmes v. State, 236 Md. App. 636, 654, 182 A. 3rd 341 (2018).  (There is a separate statute prohibiting surreptitiously recording in someone’s house.  Md. Crim. Law Section 3-903 – Camera surveillance.)  If you want to be on the safe side and you want to document an event turn on the video but not audio.

The question of whether you can record audio is less clear.  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). According to that case, 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.

However, the Holmes case has muddied the water.  In Holmes, the mother secretly recorded a conversation she had with her daughter regarding alleged abuse of the daughter by the mother’s boyfriend.  The court emphasized the secret nature of the recording several times in its opinion and never mentioned the Martin case.  The Court excluded the cell phone recording on the basis that the cell phone recording violated Maryland’s wiretap statute.

Practice pointer:  It is difficult to reconcile the two cases, from the same court (Court of Special Appeals) but different judges.  Clearly under both opinions one can videotape using the cell phone.  If audio is necessary, the cell phone should be visible so that the other side cannot claim it is a secret recording.  (The Court acknowledged that under the full logic of its opinion parents could not record audio of their child’s birthday parties, which may be why they emphasized several times the secret nature of the Holmes’ recording.)  Of course, if you can get the other side to consent—make sure it’s on tape, even in “the heat of the moment” –then the audio portion of the cell phone recording is also clearly acceptable.

 

 

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. 

ONE-YEAR SEPARATION WAITING PERIOD LIKELY TO END FOR MOST DIVORCES STARTING OCTOBER 1, 2018.

In 2015 the Maryland Legislature added a new ground for divorce—“Mutual Consent.” Fam. Law. Art. Sect. 7-103(a)(8).  http://mgaleg.maryland.gov/webmga/frmStatutesText.aspx?article=gfl&section=7-103&ext=html&session=2017RS&tab=subject5

Under that law, if a husband and wife (1) do not have minor children in common, (2) come to a written alimony and property settlement agreement (including retirement accounts), (3) do not seek to set the settlement agreement aside before the divorce hearing, and (4) both parties appear for the uncontested divorce hearing, then they can get divorced without having to wait for a one-year separation.  Indeed, they did not have to be separated at all.

That statute has worked so well that the Maryland legislature voted this session to expand it to divorcing couples with minor children. The bill awaits Gov. Hogan’s signature.  Unless he vetoes the bill by May 28, 2018 then it will become law effective October 1, 2018. http://mgaleg.maryland.gov/2018RS/bills/sb/sb0120T.pdf

The impact may be profound. No longer will couples have to worry about who is moving out so that the one-year separation clock starts ticking. Rather they can negotiate a full agreement, oftentimes using mediation or collaborative law, while still residing together.  Once the full agreement is in place they can promptly get divorced (after October 1, 2018) if all of the conditions are met.  Divorces based on one-year separation will be limited to those situations where the parties cannot agree to settlement terms and need a trial.  For the 95% of the divorce cases that settle, waiting for a year will be a thing of the past.

Bottom line is, if your one-year separation period ends after October 1, 2018, you may be better off waiting until October 1, 2018 to file for divorce and seeking an immediate divorce based on mutual consent. Of course, that assumes that the bill is not vetoed.

 

Divorce Mediation Can Be Helpful—American Psychological Association

The American Psychological Association has published an article that neatly sums up the benefits to the entire family if the parents can work out a separation agreement without going to trial.  http://www.apa.org/helpcenter/healthy-divorce.aspx.  It reminds us that divorce mediation can be “a good alternative to court proceedings” and that “research shows that mediation can be beneficial for emotional satisfaction, spousal relationships, and children’s needs.”  Those statements also apply to Collaborative Law.  Studies time and again show that how the parents get along post-separation and post-divorce are the best predictors of how the children will fare. If the parents can effectively co-parent then the children will usually adjust to the split. If the parents continue to fight then the children will remain (or become) torn which can having lasting, negative impacts on them.

The article also mentions the benefits of using psychologists during the divorce process.  Social workers are also beneficial. It is difficult but not impossible to find mental health professionals who will accept health insurance. I keep a list of psychologists and social workers that have experience in helping people with marriage and family issues. If you would like some referrals please let me know.

 

 

Protecting Your Retirement During Divorce

The following article, published in the investment newsletter “The Motley Fool” reminds us that protecting retirement savings during a divorce is important, and third-party mediation or collaborative law may be the best way to protect what was accumulated during your marriage. Remember, you’re better off owning your share of the retirement accounts than having to pay those funds to your lawyer for divorce litigation.

How to Protect Your Retirement Savings During Divorce

When your relationship fades, don’t let your savings go with it.

Sarah Szczypinski

(sarahszczypinski)

Sep 2, 2017 at 12:16PM

It’s a gut-wrenching experience, and that’s before the money issues. Approximately 1.2 million couples file for divorce each year, and the financial side of things can be just as upsetting as ending a relationship — especially when it comes to retirement. Keep these points in mind as you navigate your way back to single life.

Paying for dissolution

The average price of a divorce in 2016 was $15,000, but costs vary significantly depending upon the nature of your split — e.g., amicable or contested — and the size of your legal fees. You may not have the liquid funds to cover all the related expenses, and it can be tempting to cut your losses by tapping into retirement savings.

This is a no-no. Not only will you pay taxes on 401(k) and IRA withdrawals before ages 55 or 59 1/2, respectively, you’ll also incur a 10% penalty if a judge hasn’t yet ordered you to divide your assets.

If you can, it’s wise to talk to your ex about preserving your collective savings during the divorce process. While you might not be on the best terms, ending your relationship shouldn’t mean sacrificing your retirement security.

Dividing your assets

Before you can divide your retirement accounts, you must first locate and tally up how much money you have. Do this by collecting summary plan descriptions (SPDs) for employer-sponsored accounts, including 401(k)s and pensions. It’s also important to add traditional and Roth IRA balances, money markets, CDs, savings accounts, real estate, and any other financial assets into the equation.

Once you have the numbers in place, you can begin valuing each account for equitable division, which is more complicated than it seems. For example, suppose you have $20,000 in a 401(k) and $20,000 in a Roth IRA. Withdrawals from a 401(k) are taxed as ordinary income, meaning that you’d be left with $14,400 if you fall within the 28% tax bracket. On the other hand, Roth contributions are taxed up front, which means you wouldn’t pay taxes on withdrawals in retirement.

Often, spouses can’t agree on how to split the marital assets equally, and it’s a good idea to seek third-party mediation or legal advice to ensure that you get your fair share of the savings.

Avoiding losses

While it’s easy enough to split the balance of your checking account, retirement plans aren’t so easy to divide. In all cases, making changes to your retirement accounts in divorce requires filing the proper paperwork, and it’s imperative to work with an attorney who has experience dealing with marital assets. The No.1 risk of splitting up retirement accounts are taxes and fees, but there are ways to accomplish this without incurring losses.

First, the separation of assets must be clearly spelled out in your divorce decree. Next, you must divide your accounts based on type. For example, qualified plans like 401(k)s and 403(b)s, and pensions are split under a Qualified Domestic Relations Order (QDRO), which allows you to roll your assets into your own qualified plan, tax and penalty free. You can also roll 401(k) funds into a traditional or Roth IRA, but this move may not make sense unless you anticipate being in a higher tax bracket later in life, and would therefore benefit more from tax-free IRA withdrawals.

Traditional and Roth IRA assets are divided under the “incident to divorce” rules in the tax code, which means that they can be transferred and split between spouses without taxation within one year of the formal divorce date.

Qualifying for Social Security benefits

Another important thing to consider during your divorce is Social Security benefits, which comes down to timing. If your marriage lasted 10 years or longer, the Social Security Administration (SSA) allows you to claim benefits on your ex-spouse’s record, even if they eventually remarry.

You’ll need to reach age 62 before qualifying for monthly withdrawals, and you can begin receiving yours even if your ex is still working — as long as you’ve been divorced for at least two years. You’re also eligible to receive 100% of your ex’s benefits in the event of their death, even if they leave a widow or widower behind. Of course, you won’t qualify for benefits if you remarry yourself, but those rules change if your subsequent marriage ends, as well (more on that here).

These provisions can make all the difference in retired living, especially if you didn’t work during the course of your marriage. The average retired couple currently receives $2,260 in monthlySocial Security benefits, and you may receive half that amount, or more, depending on your ex’s income. While it may be painful, it’s also practical to hold off on divorce if your 10-year anniversary is approaching. The result could sustain you in your golden years.

Starting fresh

Recovering from divorce takes time and recalibration. After all, you may be losing half of your total savings. That said, it’s possible to catch up and establish your financial independence by:

  • Opening a bank account and credit line: If you don’t already have an individual bank account, open one that includes checking and savings, and consider applying for a new line of credit, as well. If your marriage was financially messy, the effects may have damaged your credit along the way, and now is the time to rebuild your individual creditworthiness. This can qualify you for lower interest rates, insurance premiums, credit card perks, and other benefits that can help you prioritize long-term savings.
  • Budgeting: Single life comes with new expenses, and you’ll probably need to budget for increases in housing, food, utilities, insurance, and other costs. Pay attention to your spending and bills in the months following your split, make cuts where you can, and use your income effectively. This strategy will help you avoid overspending and relying on credit to make ends meet.
  • Investing: Don’t let divorce sour you on retirement planning. Instead, take your financial half and work with an advisor to redefine your strategy. You may need to work a few extra years and make catch-up contributionsto recover from your split, and it’s important to understand these obstacles as soon as possible.

Divorce is all too common and painful, and you shouldn’t have to pay for it for the rest of your life. Take advantage of the provisions in place to lessen the financial heartache.

 

Domestic partners, grandparents score huge win in Maryland Court of Appeals

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.

Collaborative Practice

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.

Co-Parenting

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.

Custody Early Access

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.

SURVIVING-EVEN ENJOYING-POST ELECTION HOLIDAY GATHERINGS

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.

Maryland: An Equitable Property State

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.