You may think that these terms, “divorce mediation” and “legal advice” are diametrically opposed to one another, and, in their truest sense, they are.  A divorce mediator, who is meeting with a couple that is looking to separate is a neutral party and cannot, by definition, give legal advice that would provide a legal advantage to one party over the other.  The role of the mediator is to be a neutral, non-judgmental facilitator that assists the couple in obtaining an outcome that addresses their issues and interests. However, the divorce mediator may give legal information.  For example, he can explain that the Court may consider 12 factors to determine whether to award alimony and an additional two factors if one party wants the alimony to be indefinite.  But the divorce mediator cannot tell a party that he/she should ask for alimony because that crosses the line into legal advice.

Although a family law mediator does not have to be an attorney, a mediator who is a family law attorney is uniquely qualified because he or she will know what is acceptable to the Court considering the facts of your case.  Remember though an attorney-mediator cannot use his legal knowledge to assist on party one party at the detriment of the other.  He or she must remain neutral.

With these concepts in mind, there are times when one or both parties would benefit from independent legal advice.

For example, Matthew and Candice have been married for over 10 years and have two young children, ages 7 and 9.  Although the parties earn approximately the same amount of income outside the home, Candice, whose outside work schedule has always been flexible, has spent the majority of her married life working as a homemaker, as both Matthew and she agreed would be the case.  She has always been there to take the children to school, go on field trips, and be at home to make their snacks when they step off the bus each day.  Matthew’s name alone is on the deed and the mortgage of the parties’ family home.  Upon separation, Matthew feels he cannot afford to keep the family home and feels it is financially risky to allow Candice to live there and make the monthly mortgage payments.  Matthew says he is going to sell the house.  Candice prefers to stay in the family home with her children to provide some stability and continuity at a time when she anticipates that the children will feel insecurities about their parents’ separation.  Candice may feel powerless and she may think she has no say in what happens to the parties’ home or who lives in it.

In the above situation, a mediator must stay neutral in regards to the legal rights of each party individually.  Specifically, although the Courts might award “Use and Possession” of the family home to the mother and children for a few years, it is not the mediator’s role to suggest that the Court might do so.  Although this information would be useful to the “stay at home” parent, it would also show a preference to one party over the other and would be appropriate for a mediator to bring this information to light.  Such information would cross the line into the arena of legal advice.  The mediator might give information that each party has rights in the home and perhaps even mention that there is legal doctrine of “use and possession,” but not opine on how Candice might fare.  This is a perfect example of when a mediator would stress the importance of each party seeking private counsel.  This information would come to light and enable the parties to make more informed decisions and compromises where necessary in mediation.

Although a good family law mediator will stay neutral while directing the process for the parties, he or she will also know when it is appropriate to direct the parties to individual counsel so that they can seek legal advice, and when it is appropriate, give neutral legal information.

Many clients come to me simply to ask basic questions.

One of the most common situations is that, over time, for one reason or another, the parties have become distant and they both know the day will come when they separate and eventually divorce.  Right now, the parties are still living under the same roof.  They are living in separate bedrooms and have come to some mutual agreements regarding money, privacy and their day to day existence.  Each finds that is more convenient to live temporarily in the marital home in separate bedrooms but at some point one or both are ready to move on and want to live in a home separate from their spouse. 

Many clients are not sure of how to take a big step, such as one party moving out of the family home, even if their children are grown and living on their own.  Is there a way to begin the process without exploding the land minds that they have so delicately avoided in recent years?  The answer is yes.

Divorce mediation or collaborative law offer the best way to amicably achieve a separation.  The advantage and spirit of divorce mediation and collaborative law are that they promote creativity, enabling both parties to create an agreement that is custom designed for them, while still providing a legal basis of protection. 

Some couples have spent years carefully fostering their separation in such a way that they have remained friends and even allies, not wanting either party to financially suffer due to the choices either has made during their marriage.  Each party wants to support the other so that each can leave the marriage as whole as possible, with an optimistic future and a relationship with their ex-spouse that can be depended upon for years to come.  Other couples only want to have a "business type" relationship after their separation.  But both situations share a common element–the parties want to get through the separation with a minimum of animosity and legal fees. 

Divorce mediation clients come to the office usually after they have done all they can together to lay out the terms of the separation.  Sometimes that is very little, sometimes the parties have worked out everything but a few issues.  Collaborative law clients usually have either more complicated cases or one (or both) parties want greater lawyer participation than in mediation, so in collaborative cases usually less is worked out before the start of the negotiations.  But in each case, the parties recognize that there are at least a few touchy subjects that have the potential of taking this delicately and considerately managed relationship and tipping the scales so that all they see is a nasty battle filled with discontent and bitterness. Couples in these circumstances may not be able to see outside the box that is their lives. That is where the expertise of an attorney who specializes in mediation and collaborative law comes in. 

If you come to divorce mediation or collaborative law, it's because there are tough issues that you could not solve yourselves.  It takes work,  and maybe some discomfort, to resolve these tough issues.  Eventually, they can't be avoided.  Divorce mediators, particularly divorce mediation attorneys, and collaborative lawyers help clients to maneuver through these tough topics enabling all parties come out the other side satisfied with their agreement.   Attorneys experienced in divorce mediation and collaborative law not only have the professional experience to see outside that box, but are not encumbered by the lens of emotional details that each party sees through.  The route that is followed can stay as cordial as the parties behave during the process.  Divorce mediation attorneys and trained collaborative lawyers know when to proceed on a given course and when to give a subject a rest.  Sometimes when there is a sticking point, if the facts are simply laid out and the parties are given some time to reflect, resolutions come about.  Other times the matters can be discussed separately with the parties or with an outside expert.  An attorney trained in divorce mediation or collaborative law has many tools in his/her toolbox to help the parties resolve the difficult issues. 

            So, when a spouse (or domestic partner) comes to me to ask about how to move on from the relationship, I tell them to work out what they can, and then come in for mediation or to meet collaboratively, even–or especially– if the parties are still living together.  There is no time that is too early or too late to begin to resolve separation and divorce issues with the help of a mediator or collaborative lawyer.

 I am seeing, and statistics support the fact, that divorces from long term marriages are becoming more common.  http://professional.wsj.com/article/TPTOTN000020120309e8380002t.htm. Think: Al and Tipper Gore ended their 40 year marriage (but have remained “best friends”)   http://professional.wsj.com/article/SB10001424052748703561604575282850694192336.html?KEYWORDS=divorce+++marriage+happiness&mg=reno64-wsj.  From my experience, divorce in long term marriages is usually less contentious, primarily because there are no custody issues, but that is not always the case. Sometimes the resentment that has built up over years comes out like a volcano when long married couples decide to separate.
 
Research about whether couples are happier after divorce or not is inconsistent. From my experience, and those of clients and friends, there is a period of unhappiness after divorce, but the satisfaction of a finding a new, loving relationship, after the “trial marriage” more than makes up for the pain of separation and divorce.  But of course, while looking for a better relationship there is always that question of “should I have tried harder to save my marriage?” For the children, studies seems to confirm that they do better if they go from a tense, stressful environment caused by marital discord to a situation where they can live with a more stable life.  “Divorce hard on parents, but better for kids” http://family.go.com/parenting/article-mm-77932-divorce-hard-on-parents–but-better-for-kids-t/2/

The prevailing assumption is that the statistics may be as high as 50% for a divorce rate (for first marriages). Before making the decision to get a divorce, one should learn as much as possible about the process and try to consider how it will affect your life. There will be both positive and negative effects, in most cases. The first question needs to be, is there hope for this relationship? If so, then perhaps marriage counseling should be the route to go.  Regardless of whether you try marriage counseling, it is a good idea at the early stages of the planning process to consult with a divorce attorney or divorce mediation attorney for advice about the options and ramifications.

To some, divorce may seem simple, like a remedy for a common problem. If you look at the news and pop culture magazines, you will see celebrities diving into and out of marriage like it means nothing. To the average person, however, entering into marriage is taken rather seriously, and exiting a marriage can be very painful. If you enter into the divorce process, there are two or three broad areas that you need to resolve.  Breaking away physically and emotionally is not the only thing that needs to happen for a divorce to go through. Some considerations that your divorce attorney and/or divorce mediation will help with prior to the final signing of the papers to dissolve the marriage will be:

1. Financial issues: Dividing assets and debts can be very problematic for some couples, especially when there is a disparity in relative contribution, or when one spouse makes a significantly higher salary than the other. A newish problem is dealing with property that is “underwater” (more is owed on the house than it is worth, so there is debt but no equity in the property.)  People can become very territorial when money is discussed, and plenty of danger lurks in the discussions, regardless of whether the couple has opted for the less litigious route of divorce mediation, collaborative law or chosen divorce litigation. In most states, the assets are divided equally, although Maryland and the District of Columbia are “equitable property states” meaning that property is supposed to be divided fairly but not necessarily equally. The reality is that in most circumstances there is an equal division, but particularly in divorce mediation it is surprising how often one party is willing to allow the other to have more property (i.e. “I only care about three pieces in the house, and I want to keep the house the way the children like it. So you can keep the rest and give me $xxxx to help me buy new furniture.)

2. Custody issues: Whenever children are involved in a divorce situation, the problems may escalate rapidly. Battling over custody and child support can be very serious. Divorce affects children, their family is changing in ways that they cannot understand, and in ways in which they may even (inaccurately) feel responsible. (See the list of books on my website that I recommend for both children and adults to help children and parents through the divorce process.) Divorce attorneys and divorce mediators usually recommend some kind of counseling for the children and parents to help ease the many significant transitions that will occur. Deciding who will maintain physical and legal custody can lead to a great deal of disagreement, even in the most amicable situations.

3. The lengthy process involved: Whether you opt to use a divorce attorney for divorce litigation, a collaborative divorce lawyer to resolve the issues through the collaborative law process,  or a divorce mediation specialist, once you decide to pursue a divorce then you should be prepared for the long haul. If there are no appeals, the divorce process will generally take about a year, but it inevitably will feel like an eternity. Even a small disagreement can hold up the process for months. Although you may be eager to be finished, making sure all details are handled properly is extremely important for the long term.

Divorce is not quick, it is not easy and it is not cheap, at least for most people. Deciding to take this route in life means that many things will change, and being prepared for the changes can help make things easier for both spouses and any children involved. Get advice from a well recommended divorce attorney or divorce mediation specialist that you can trust to guide you through the steps of this difficult journey.

Although divorce may be the only reasonable option in some cases, it is still never easy. A Maryland divorce attorney and Maryland divorce mediator can help clients navigate this difficult process, making sure that every detail is attended to in a legal way, and, ideally, in a way that helps to prepare each spouse for a new life and new situation, both financially and emotionally.

Preparing for a divorce takes time. It should never be a process that happens impulsively. Finding a Maryland divorce attorney or Maryland divorce mediation specialist is an important first step. Meeting prospective attorneys is a smart move, finding the best fit for each situation is important. There is quite a bit of paperwork that needs to be prepared and processed, and the average person may struggle through the technicalities, or worse yet, make important mistakes that could have long range effects on their lives.

Determining the major issues that need to be handled by the Maryland divorce attorney (and/or Maryland divorce mediation specialist if you want to settle the case without a trial) is important. Are there children involved? Will there be a mutually agreeable custody arrangement? Do you own property with your spouse?  Will one spouse retain the marital home in a buyout or settlement? Are there any mutual (or individual) business interests that need to be considered? With so many factors to address, finding the right divorce attorney and divorce mediator is important. Different attorneys and mediators will have different specialties, and different styles, so it is important to find someone compatible with the case.

Divorce cases that are more amicable may be appropriate for less litigious handling, such as provided by a Maryland divorce mediation specialist, rather than an attorney. There are definite benefits to using a mediator, especially when it comes to cost and litigation, but it will only work in those situations in which the couple can come to a reasonable agreement about decisions. When children or property enter the situation, things can often become too difficult and may require more intervention than can be provided by a mediator. Although there are generally some basic formulas that are used to divide property and calculate child support, there are many cases that have some complications making it less straightforward and a possible issue that stands between the couple and their divorce mediation settlement.

Getting through a divorce mediation process or litigation requires far more than just signing on the dotted line. With so many life changing and critical decisions to be made about the future, deciding whether to use divorce mediation or a divorce attorney should be a decision that is made thoughtfully and carefully.

The husband and wife who split in a completely amicable fashion without any complications are rare.  The situation can become complicated when there is property involved or if the couple has children. There may be further issues if the divorcing couple is from a same sex marriage. 

Many people seek to avoid entering into full litigation, but any time you involve divorce lawyers in Maryland, or any other state, it can result in not only tremendous expense, but often it can be a long and drawn out battle, leading to bitterness and spiteful feelings. Those who choose to try to resolve the issues outside of the courtroom, either through divorce mediation or collaborative law (discussed in a later blog) typically do so in the hopes of making a difficult transition easier on all parties and family members.

Traditional divorce proceedings involve each of the spouses hiring their own Maryland divorce attorney and laying out a list of demands and conditions that must be satisfied before they can reach an agreement or settlement. Disputes are common, especially when it comes to the topics of children and property. Discovery, where you have to answer written questions, produce volumes of documents and testify under oath, is expensive and very time consuming. It can easily interfere with your work and family life.  Consultants may be hired, including psychologists, forensic accountants, financial professionals, or other types of experts, who all would contribute their opinions regarding the fairness and equity of the distribution of property and the custody issues pertaining to any minor children. Furthermore the court may appoint an attorney for the children, most commonly a child privilege attorney or best interest attorney (formerly known as a “guardian ad litem”).  All of these personnel cost money, sometimes a lot of money.

Maryland divorce mediation can help parties resolve their disputes more quickly, less expensively and more amicably than divorce litigation. It also keeps the decision-making in your hands, rather than giving the authority to make the most important decisions of your life to a judge who will never really know you or your family.

It is remarkable how even very difficult cases can be solved in divorce mediation. One beauty of mediation is that both parties come voluntarily, so they have already one agreement in hand—the desire to resolve all of the issues between themselves and not in court. It is the Maryland divorce mediator’s job to build on that one agreement until all of the issues are agreed upon. From the mediator’s perspective, it takes patience and creativity, but most importantly the ability to understand both sides and to help them to bridge their gaps. 

Once mediation is successful, it can have long term benefits. It allows the parties to resolve matters far more creatively than a court can or would. It helps to preserve a cordial rather than litigious relationship between the parties. It also keeps the door open for more civil resolution of later issues, particularly when circumstances change, such as the remarriage of one spouse, job loss, medical or educational issues for the children, or any number of unexpected reasons.

Cooperation, along with the right support and guidance from the Maryland divorce mediation specialist, can lead to a situation with a resolution seen as fair by both parties. Divorce mediation will enable both parties to move on with new lives, while continuing to care for the children in a cooperative and effective manner, without putting children in the middle or making additional problems for the former spouse. In these situations, Maryland divorce mediation can be highly successful and allow both parties to have the best outcome possible from a very difficult situation.