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.

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).

Written by Betsy Ross, LICSW:

Divorcing and divorced parents who work toward improving their relationship, can become free from the past faster and create a more stable, productive and enjoyable home life in which to raise healthier and happier children.

Parents who are unable to stop fighting either openly (through yelling, door slamming, name calling, etc) or ‘under wraps’ (with passive aggressive behaviors such as repeatedly arriving late, breaking agreements, ‘forgetting’ promises, etc.) contribute to making everyday life stressful, unhealthy, and chaotic. Frequent fighting, tension, and conflict is bad for everyone, especially for kids.

It Always Takes Two to Fight

One simply cannot fight the good fight alone. Surprisingly enough, whether stated (“I’ll never cooperate with you”) or implied, continued fighting involves an unconscious agreement between BOTH parents to stay deeply connected and involved with each other. Conflict can keep couples in the familiar territory of the old (and dysfunctional) ways rather than advance into the frightening land of the new and the unknown.

It Only Takes One to Change the Relationship

While indeed difficult to accomplish, by outright refusing to fight and standing strong in the conviction to be and act differently (even when feeling provoked or baited by the others terrible words or behaviors) one parent can single-handedly bring about slow and steady change. When both co-parents commit to this process, the benefits of better relating: Decreased stress, improved mental and physical health, and a brighter outlook toward the future, can be more quickly achieved and enjoyed by all.

Good Help Is Available

Moving beyond the old dysfunctional ways of relating to create a new, stable and more peaceful environment takes determination, hard work, and the development of new skills. It demands a willingness to look within to examine one’s own behavior and motivation, and the courage to take responsibility for increased self-control and decreased retribution-seeking behaviors in the future. Luckily, these days there are a variety of experienced and supportive divorce/mental health specialists available to provide guidance and assistance in this endeavor. Divorce and co-parent coaching utilizes proven tools and techniques, tailor made to meet the needs of each family, couple, or individual seeking these.

You, too, can take part in creating a brighter future for your children and enable them to develop themselves in a more healthful and happy environment during and post-divorce. Building a better co-parenting relationship will provide endless payoffs for you and for your children to learn, grow, and thrive in. It is among the greatest gifts you can give to your family and to yourself, both during and after your divorce.

Mediation: Can Everybody Win?

by William H. Donahue, Jr., Esq., APM

In conflicts ranging from military battles to corporate wars to divorce, there’s usually a winner and a loser. In fact, we are conditioned to believe from an early age that when we come into conflict, there must be a victor who defeats another. So what do mediators mean when they say everybody wins in mediation? Is there such a thing as a win/win solution?

Creating Value
Most conflicts do have a win/win solution, but finding it often takes a lot of hard work, creativity and imagination. And most importantly, it takes a willingness to change the way you define winning. Let me give you an example in the divorce context. I worked with a couple recently that had been married for 27 years. I’ll call them Joan and Jerry. They had two grown children who were both out of college. Jerry earned over $100,000 a year as an accountant. Joan earned $45,000 as a teacher. The big issue they needed to resolve was alimony. Joan felt she was entitled to $2,000 per month alimony. Jerry felt she wasn’t going to starve on $45,000 per year so he shouldn’t have to pay alimony at all. Besides, he argued, the divorce was Joan’s decision.

If you look at this conflict the way Joan and Jerry did when they started mediation, there are very limited solutions. Joan will feel she won only if she gets the $2,000 per month. Jerry will feel he won only if he pays nothing. In litigation, they would settle the issue by both of them negotiating down, through their lawyers, to an alimony figure that made them both feel as if they lost. Jerry would be paying too much. Joan wouldn’t be getting enough.

But suppose they looked at the issue differently. What if they were able to redefine the goals they were negotiating? In mediation, I would ask them both about other things that were important to them. Relationships with their children would be an area we would discuss. How do each of them want to be seen by their children? What kind of role models do they want to be? I would ask them about the relationship they want to have with each other after the divorce. Is it important to them that they end the marriage with respect for each other, that they be able, to some extent, to put anger and bitterness behind them? I would also talk to them about their financial goals and needs in the future. How and where did they each hope to live, and what would it take to make them both feel secure.

You might be asking, what’s the point of all this? Jerry still has to decide if he’s going to pay alimony without being forced to by a judge, and if so, how much? That’s the decision he has to make, but the reason behind these questions is to help Jerry and Joan both think beyond the issue at hand about what in their lives is important to them, has value to them, and that they want to hold onto after the divorce. In the process, they may find or create value where they didn’t see it before. In fact, that’s just what happened. The couple came to realize that several of the things we talked about were of great value to them. Despite his present anger, Jerry didn?t want to start a new life filled with anger and knowing that Joan resented or even hated him for using alimony as a way to punish her.

If coming out of his divorce with a sense of self respect and the knowledge that Joan respected him was important to him, what kind of solution to the alimony issue would best enable him to get what he valued? After further discussions, and each of them consulting with their attorneys, they settled on a figure reasonably close to Joan’s original request. But they both felt they had won. Joan won because she would have the alimony she needed to live comfortably and with a minimum of disruption to her life. And Jerry won because he had changed what it meant to him to win. His decision to pay alimony was consistent with the way he wanted to feel about himself, with the kind of person he thought himself to be and wanted Joan and his children to think him to be.

But wait, you may be saying. Isn’t the result the same? In settlement terms, the answer is yes. Most of my mediation clients reach solutions that are similar to ones they would reach in litigation or that a judge would decide, but the result is not the same and the difference is how each of them feels about the settlement. And that makes all the difference in the world. If you don’t think the difference is important, think about this statistic. Nearly 40% of people who get divorced through litigation end up back in court after the divorce because of a dispute they can’t work out. Only 4% of people who mediate their divorces end up back in court. Through mediation, both parties in a divorce feel they won something of value to them. This makes them less likely to harbor resentment that could lead to more conflicts down the road.

In Maryland, when the Circuit Court determines child support, depending on the total combined gross income of both parents, it uses an algebraic formula commonly referred to as “child support guidelines.”  The formula considers the number of children, the income of each parent, and the percentage of time the children are in each parent’s care and other expenses paid by each parent, such as work-related child care and health insurance.  The following blog, written by Barney Connaughton, Esq., family law attorney and mediator discusses alternatives to Child Support Guidelines and how it relates to mediation.

 IS THERE ANY ALTERNATIVE TO GUIDELINE CHILD SUPPORT?”

Couples can reach agreement to a support amount that is greater or less than the guideline amount.  For the Court to accept such an agreement the couple is required to acknowledge their right to have support set by guideline, that their agreement is in the best interest of the children and will allow each parent to adequately meet the needs of the children.  If child support is set in a sum less than the guideline amount, the receiving parent can later petition the Court to have the amount increased to the guideline level which the Court will do given the mandate to order support consistent with the state guidelines.

Mediation gives the couple flexibility regarding the setting of child support. They may choose to stick to a guideline level of support, or they may look at the needs of each household and come up with a level of support that focuses more on how each of their needs can be best met. Guideline child support provides the Court with a quick mechanism to set support. Unfortunately, this level of support may either be unrealistic to the parent obligated to pay or insufficient for the supported parent to meet the needs of the children. Looking at all the circumstances of the couple, rather than just the inputs that the guideline calculations call for, can aid in making a support decision that is best for the whole family.