Divorce Is Just the Beginning, Not the End

The Challenge of Conflicts within Families Conflicts within families are often deeply personal and emotional due to the shared history of those involved. These disputes can range from minor misunderstandings to significant disagreements that threaten the stability and harmony of the family. Going to court can often make matters worse by creating financial stress and fractured relationships. The less formal mediation process provides a calmer alternative that can lead to a positive result. What is Mediation? Mediation is a voluntary, private process where a neutral third party, called a mediator, helps people talk through their issues to find a mutually acceptable solution. Unlike going to court, mediation focuses on collaboration, cooperation, and keeping relationships intact by addressing everyone's needs and interests. The mediator does not impose a decision but helps guide the conversation to promote understanding and agreement. The Mediation Process A standard mediation process involves several steps: Initial Meeting : The mediator meets with the parties to explain the process, establish ground rules, and ensure all participants are willing to engage in the process. Statement of Issues : Each party presents its understanding of the issues at hand, allowing the mediator to understand the conflict's context and underlying concerns. Negotiation and Agreemen t : Through a guided process, the parties work towards a mutually acceptable agreement. The mediator drafts the final resolution, which can be formalized as a legally binding document. The timeframe to reach an agreement depends on the extent and complexity of the conflict but usually involves more than one session. Benefits of Mediation in Intra-Family Disputes Confidentiality : Unlike court proceedings, which are often public, mediation sessions are private, ensuring that sensitive family matters remain within the family. This privacy lets everyone talk openly without worrying about being judged or exposed. Financial Considerations : Legal battles can be lengthy and expensive, draining family resources and causing financial strain. Mediation, on the other hand, usually involves fewer sessions and lower costs. Preserving Relationships: Mediation focuses on cooperative problem-solving and communication, which can help preserve and even improve relationships. By addressing the root problems and promoting understanding, mediation can create a more peaceful and respectful family atmosphere. Common Uses of Intra-Family Mediation Intra-family mediation can address various types of conflicts, including: Divorce and Separation : Mediation helps couples navigate the complexities of divorce or separation, including property division, child custody, and support arrangements. Inheritance Disputes : Mediation can assist in reaching agreements that honor the wishes of the deceased while addressing the concerns of surviving family members. Caregiving Responsibilities : Mediation provides a platform for family members to discuss and agree on caregiving responsibilities and financial contributions for elderly or disabled family members. Guardianship: Mediation helps families resolve disagreements about guardianship arrangements for minors or incapacitated adults, ensuring decisions are made in the best interests of the individual. Business Succession : In cases where family businesses are involved, mediation can facilitate discussions on succession planning, roles, and responsibilities. When Mediation May Not Be Appropriate While mediation offers many benefits, it is not suitable for all situations. Mediation is unlikely to be effective in cases involving: Domestic Violence : When there is a history of domestic abuse, the power imbalance between the parties may hinder open and fair communication. Severe Mental Health Issues : If one or more parties suffer from severe mental health conditions that impair their ability to participate meaningfully in the process, mediation may not be effective. Lack of Willingness : Mediation requires active participation and a willingness to listen, and negotiate. If either party is unwilling to engage in the process, mediation will be more frustrating than helpful. Working with an Experienced Mediator Mediation provides a respectful and constructive approach to resolving intra-family disputes. As an alternative to litigation, it offers the benefits of confidentiality and cost-effectiveness while helping to preserve family relationships. If mediation seems like a beneficial process for your situation, we encourage you to consider working with our experienced legal team at the Law Offices of Robert L. Baum.

The family law landscape in Maryland has undergone groundbreaking changes that come into effect on October 1, 2023. Read on to get the full scoop.

Maryland is a two-party consent state for purposes of recording another person's 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 knives 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 another 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 another 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 with 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.

A common misperception is the couples in Maryland must wait one year of separation to obtain a no-fault divorce. That is not the case. Indeed, Maryland has become one of the most liberal divorce states. In 2015 the Maryland Legislature added a new ground for divorce—“Mutual Consent.” Fam. Law. Art. Sect. 7-103(a)(8).Under that law, as initially enacted,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 worked so well that the Maryland legislature expanded it to divorcing couples with minor children. They also took away the requirement that both parties appear at the divorce hearing (but, as with all divorces, the party requesting the divorce must appear). The current statute provides for divorce based on mutual consent if: the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to: alimony; the distribution of property, including the relief provided in §§ 8-205 and 8-208 of this article; and the care, custody, access, and support of minor or dependent children; The parties attach to the settlement agreement a completed child support guidelines worksheet if the settlement agreement provides for the payment of child support; Neither party files a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules; and After reviewing the settlement agreement, the court is satisfied that any terms of the agreement relating to minor or dependent children are in the best interests of those children. The impact has been 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 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.

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. https://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 have 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.

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.

Maryland Court of Appeals Reverses Itself and Recognizes De Facto Parents

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:

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: