Question: When Can I Count on a Promise?

Answer:

In this context, I wanted to talk about agreements.  Specifically when families are about to become involved in or are actually in the middle of, divorce or custody litigation.

I don't know how many times I've had clients come to me saying, "Oh, this will be easy!  We've agreed on everything."  Famous last words, I always say.

Especially if they've been given what I like to say is a "wish list," by the other party and the other party has a lawyer.

First of all, if the opposing party has given you a long, long document that seems to cover everything, do not assume that you understand a word of it.  What you will do is look at the headings, read the first few sentences, or even most of the paragraphs --- on the issues most important to you.  But understanding a contract is as much about what is not there as about what is.  It is also about how the different sections apply to you today and in the future.  I never waste a client's money spending hours drafting my client's wishes into what looks like a contract when I know: (a) neither I nor the other side has all the necessary information to construct the contract; and (b) the other side will have their own ideas about what should or shouldn't be in there, and I'll almost certainly have to spend hours more revising, or even re-drafting.  I send a term letter making sure everything my client wants on the essential issues is there and that my client approves it before it goes out.

The other problem I've run into is the client who has an oral understanding (or thinks they do) with the other side.  Sometimes, they even have an unsigned document . . . for example, their wish list from a previous lawyer, or one of many wish lists given to them by the other side.  Make no mistake:  a contract must be fully executed in order to be valid.

You probably don't understand what "fully executed," means (even if you think you do), so call me today to get my help to understand whether or not you can count on what you think is a promise.

Question: Should I Try Mediation Before Going To Court?

Answer:

It depends. It depends a lot on expectations.  What do you expect it to accomplish for you?  It also depends on how it's done.  I am a firm believer in lawyer-assisted mediation.  A former boss put it this way:  in mediation, the agreement is the mediator's client.  When that is the case, the mediator won't tell either you or the other side what are your obligations or your rights.  He or she won't give you the range of legal options or possibilities; won't set out the pros and cons of different choices; won't explain where the landmines may be hiding.  Those things are the job of your lawyer, and that of the other side.  If you find a lawyer who never talks about mediation but wants to head straight for the courtroom, watch out.  You are about to lose a ton of money and probably get a less-than-ideal result.  On the other hand, if your lawyer wants to sit down at the table to negotiate before there is enough factual information for both you and the other side to make informed choices, beware of that too.

More often than not mediation is helpful in some way, at some point in your divorce or custody case.  But here is what it is not:

• It is not a way to force mean people to be kind to one another;
• It is not a solution for all divorce or custody cases - the fact is, some people won't listen to any kind of reason and the only way they know how to "negotiate" is by bullying the other side into doing what they want you to do. People like that need the court and a judge to tell them what to do or they won't do it. In fact, even then, they may not do it;
• It is not a substitute for the careful drafting of a valid, enforceable, written legal agreement, most often known as a Marital Settlement (or Parenting) Agreement;
• It is not a substitute for private consultation with an attorney acting as your advocate to help you to be fully informed of your options and choices in your divorce or custody case.

If you are interested in a consultation to find out if we can help you with either full-service or limited scope representation, call us or send us an email today.  Or visit our website at: www.marylandfamilylawfirm.com.

Question: If I Leave the Marital Home Can My Spouse Get a Divorce For Desertion

Answer:

One thing most people are confused about is the difference between claiming something is true, and proving something is true.

Anybody can say anything they want in legal papers, and in Maryland, as long as they state what they claim to be the facts supporting their claim, the court will accept their papers.  But that is just the beginning.

To actually get a divorce you have to prove that the facts you said were true, are true.

So what makes up a claim for desertion in Maryland?

Well, there are two parts:

A.  The ending of cohabitation; and
B.  The person who left must have actually intended to abandon the marriage.

Typically, if the spouse who leaves continues to contribute to the support of the home and family, it is harder for the person who stays in the home to succeed in a claim of abandonment or desertion.  Also, there are a number of ways to defend yourself against such a claim.

At trial, if you can prove those exceptions apply to you, your spouse may not succeed at getting much traction out of his or her claim of desertion.  Better still, you may be able to reach a comprehensive marital settlement agreement long before you go to trial and the whole thing will end up being irrelevant!

Either way, you need strong and capable legal counsel to advise you about what would be best in your situation.

Contact us today by phone, email or on the inquiry form at our website:  www.marylandfamilylawfirm.com.

Question: If I stay in the marital home during separation, how do I protect myself from false claims of domestic violence?

Answer:

Let's start with this:  if you are a victim of domestic violence, you should be contacting law enforcement immediately, not reading this blog.  

At Maryland Family Law Firm, L.L.C., we know that family violence is a crime.  We also know that, too often, the laws designed to protect true victims are used as leverage by one party or the other in separation and divorce.  We have represented real victims of domestic violence who were told by certain victim advocates to lie in court and say they were injured when that was not true.  We have seen too many instances where the real victims were denied an order of protection, and we have seen too many manipulative litigants who know how to work the system and were given an order of protection.

So how do you protect yourself?  Here are the top five tips, mostly designed for husbands and fathers, but they really apply to the partner who is physically bigger and stronger, no matter your gender:

Tip No. 1:  DO NOT ENGAGE!

Tip No. 2:  If your spouse insists on an argument, clasp your hands firmly behind your back and move toward the nearest exit.

Tip No. 3:  If your spouse continues to approach you physically, under no circumstances should you raise your arms toward him/her off --- head for the door and use it. If there has been no physical contact, see a lawyer immediately.  If there has been unwanted physical contact and you were injured  or if you seriously believed you were in danger of imminent bodily harm, go straight to the police, then find a lawyer.

Tip No. 4:  DO NOT provoke a fight.  In Maryland, and in most states, courts can issue joint orders of protection if they find that a couple is equally at fault in a violent situation.  (See Tip No. 1).

Tip No. 5:  Whatever you do, if the situation at home is unbearable and you are concerned that your spouse may try to manufacture a situation where there is a physical altercation, you should talk to a lawyer immediately and get advice about your situation.

You can call us, email us, or send an inquiry, all at our website: www.marylandfamilylawfirm.com.

Question: If I don't move out of the house when my spouse tells me he or she wants a divorce, what should I do or not do?

Answer: 

It depends. Seriously.  It does.

If this question applies to you, the best thing you can do is call us today or visit our website to find out exactly how you should face this problem.  But we can offer some very specific information that should apply to most folks (this is not true if there is violence in your home --- in that case, seek law enforcement assistance immediately, don't sit at the computer reading blogs):

1. Do everything possible to reduce conflict for your children, but balance that with good legal advice before you act;
2. Try to set up and maintain a separate space in the home that will not induce further conflict, but that is safe for you;
   
   
   
3. Most important of all communicate transactionally with your spouse.  If possible, ask politely that your communications be reduced to writing so that no one is confused about questions or answers;
4. Keep copies of all of these communications.  If your spouse refuses to do this, make sure your contact with him or her is professional, on-the-level, and avoids discussion of feelings as much as possible.  This isn't to say you shouldn't try to work on communications if your spouse wants to do so, but the place for that, at this stage, is in the marriage counselor's office, not the house;
5. Protect yourself from false allegations of domestic violence.  ABSOLUTELY do not engage in arguments or fights, verbal or otherwise, with your spouse.  This is especially true if you have children in the home.  Be the grownup, even if you are the only one in the house doing so.  For more information on specific ways to do this, look for the next post.

Question: My spouse wants a divorce and told me I have to leave our home. Do I?

Answer:  It depends.  

People hate when lawyers give them that answer, but it's about the only single answer from a lawyer that applies to most legal questions.  Why?  Because what seems to you like a simple question, isn't and because every legal question depends on the facts beneath it, and those facts are always unique to each case.  For an answer to your situation, call us today or visit our website: www.marylandfamilylawfirm.com.

Let's unpack this commonly asked question (b.t.w.  ---  This is a multi-part post):

1. My spouse wants a divorce;
2. My spouse told me I have to leave the home.  Do I have to leave the home?
3. (This is often followed by: "He/she said he/she won't file for desertion if I do.")

Number 1:  

"My spouse wants a divorce."  What questions lurk behind this statement?  To start with, why does your spouse want a divorce?  If it's just because you don't get along, he/she can't make you leave.  If it's because one of you committed adultery, he/she can't make you leave.  If it's solely because he/she is an alcoholic/drug-addict, he/she can't make you leave (and you can't necessarily make him/her leave either).

You will want to talk to a lawyer to get an answer that applies to your situation, but if you have children, be especially careful.  It isn't divorce or separation that hurts kids, it's being around or involved in conflict between parents.

If you stay, you will want to answer the question, "How will my staying affect the kids?"  And if the answer is, badly, even then, you may not want to move out.  But especially in this situation, you need to consult with a lawyer.  But do that before you make the decision, not after you've moved out.

About the only situation where one spouse can force the other to leave the home is if there has been domestic violence.  That's it.

That brings up even more questions, that will be addressed in the next post.

Question: Can I get a legal separation in Maryland?

Answer:  

No.  Maryland does not have such a thing.  What we have is a law that says that agreements between husband and wife are enforceable the same way that a contract is enforceable.  One caution:  you shouldn't try to do this without a lawyer unless you and your spouse or the other parent of your child agree on absolutely everything.  Even then, it doesn't hurt to have an experienced Maryland divorce lawyer or custody lawyer look over your contract before you sign it to be sure the legalese means what you think it means.

The best way to manage your divorce is to work cooperatively with your spouse to get what we lawyers call a "comprehensive marital settlement agreement."  What that means is that you need an enforceable contract that covers all the issues that the court would otherwise have to decide for you if you went to court to fight about your divorce.

Even if you can't agree on everything, you can still enter into a contract that covers some of the things the court might have to decide for you.  And if you aren't married, but have children, you can enter into a Parenting Agreement that does for unmarried parents what a Separation Agreement does for divorcing couples.

Contact us today if you need legal help with either a separation agreement or a parenting agreement.

Children and Domestic Violence

This is the first in a series of posts about recent changes to the domestic violence laws in Maryland.  Each post is intended to present most complete picture possible of the law.  To make the reader think carefully and think better than he or she might have done before.

October 1, 2015 a law goes into effect that allegedly gives judges the right to impose enhanced penalties on families where it finds that domestic violence occurred.  Md. Code Ann., Fam. Law Art. 4-506(d)).  The problem is, there are no definitions whatsoever to tell the judges what the law means, a not uncommon problem with lawmaking.

There is little dispute about the fact that being in the same general vicinity as a couple in the middle of a violent argument is dangerous to children.  The government has a website dedicated to the facts and figures.

So when I heard that the legislature had enacted a law to address the problem, I was pretty excited. But my excitement was premature.  After spending two hours scouring the website of the Maryland legislature and my LEXIS subscription, I couldn't find single thing that contained the following words: "circumstances that constitute witnessing."  These are the magic words contained and defined in the statutes of other states that address the issue in their laws (Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Louisiana, Mississippi, Montana, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Puerto Rico, Utah, and Washington). Some even have statutes that make committing domestic violence in the presence of a child a separate criminal penalty (Delaware, Georgia, North Carolina, Oklahoma and Utah).

They say things like, "A felony offense of domestic violence that was committed in the physical presence or hearing of a child under the age of 16 who was, at the time of the offense, living within the residence. . ."  That's the criminal code in Alaska (Alaska Stat. sec. 12.55.155).

And, "The court may find a child to be in need of aid if it finds . . . that the child has been subjected to conduct or conditions . . . that have resulted in mental injury . . . or placed the child at substantial risk of mental injury," due to exposure to violence in the home (Alaska Stat. sec. 47.10.011).  This is the civil side of Alaska's criminal code, and the action and effect is clearly and unambiguously defined in both.

But not here.  Despite all the press about the new law, all it really does is . . . well, it is unclear exactly what it does.  Before you get all excited and think this is a benefit to abusers, consider this:  when a law is poorly defined, the person making the decision about how it applies has free rein to define it any way he or she wants to define it.  Leaving the important decision of "enhanced penalties," to whom?  The person with the best lawyer?  The person up for election for the first time? The person with the angry court monitor sitting in the back of the courtroom . . . the one who has a history of going to the press with court decisions with which he or she doesn't agree?

The harm imposed on children by exposure to family violence is a crime.  We need to enact laws that tell us exactly what it is and what should happen to help children who are the victims.

Family Violence Awareness Month and Maryland Law

October is "domestic" violence awareness month and we are celebrating it by providing you with a series of posts that will give you information -

• about what the existing laws mean and how they work;
• about new laws and what they will do; and
• a perspective from both sides of the "abuse" equation --- male and female, straight and gay, old and young, Maryland and other states.

At this firm we have a manifesto about family violence.  Here it is:

"Let there be no mistake, at Maryland Family Law Firm, L.L.C. we know that domestic violence is no joke.  We call it by its right name:  family violence.  Family violence knows no bias.  It is perpetrated by men and by women.  By rich and by poor.  By young and by old.  By parents and by children.  By straight and by gay.  By religious and by non-religious.  It is a truly equal opportunity problem.   We consider family violence to be a crime. Family violence is a crime that is all about the misuse of power to manipulate and control others, not about the use of physical force, although often, physical force is involved.  

Unfortunately, family violence is a crime with baggage.  We believe that Maryland and every other state that has attempted to legislate the crime into submission has failed.  Largely because the crime of family violence was co-opted by well-meaning persons with vastly limited perceptions when the Federal Violence Against Women Act was originally passed.  Sadly, those limited perceptions have filtered into state lawmaking, diluting the effectiveness of the law to the actual victims of family violence and tragically, often turning it into a tool for the use of those who are guilty of it, no matter what their gender.

Our goal is to offer legal help to those caught in the web of family violence, male or female, alleged perpetrator or alleged victim or those who may be a little of both.  We know that most of the time, a family infected with family violence rarely has a white hat or a black hat.  We are here for all of you.  Call us today."

Let's All Sit In A Circle, Hold Hands, and Sing Kumbaya . . . What? Really? The Problem With Mediation, Collaboration and Parental Alienation

We lawyers (and judges too) do not like to admit that we cannot control human behavior.  It's a fact.  We adopt all kinds of crazy ideas to try to manage it, but most of us fail to recognize the basic idea that the law is designed for one thing, and only one thing, to regulate, but not control the way we humans treat each other.  Nowhere is this more true than in cases involving parental alienation or, to put it in a more politically-correct frame, "high-conflict" custody cases.

The recent Michigan case involving a judge who sent three children to juvenile detention for refusing to have lunch with their father is a case in point.  One commentator (by the way, a family law attorney in the jurisdiction where the case was heard) opined  that the local parent education class which consists of a single, hour-long session where parents are encouraged to be nice to each other might be more effective if parents only got to it sooner, or perhaps avoided court altogether.  

Nonsense.  

The fact is, there are simply no good solutions the law has to offer when alienation is occurring.  And it is occurring more and more often.  Not because of lawyers.  Not because of divorce.  And not because of family violence.  It is occurring because of plain, old-fashioned selfishness.  A parent who sees a child as his or her property will do whatever he or she needs to do to punish the other parent, including taking the child as an emotional, and often physical, hostage.  And the law is not equipped to handle these situations as long as the law is not willing to be the grownup.

I disagree with throwing kids in detention, but in the Michigan case it wouldn't have hurt to have thrown mom in jail.  In fact, when courts are willing to step up and make the hard choices, to call this kind of behavior by what it is --- child abuse --- and to hold alienating parents accountable by whatever means appears most likely to be effective --- jail, no-contact with the children (for the alienating party), or even termination of parental rights --- instead of sending them to parenting classes, mediation, therapy or kumbaya sessions with the non-alienating parent --- then, and only then, will this problem begin to subside.

The law cannot make folks be nice to each other.  What it can do is make a decision.  Say "No!" to this form of child abuse.

Wonder Years Kids and Our Legacy

When my first child was born, I was determined my children would never cry as infants, never want for any amount of love or affection, and believed absolutely that I could shield them from any and all suffering.  That's what I thought it meant to be a good parent.  I was wrong.

Most us from my own Wonder Years generation onward have subscribed to these ideas.  And as a consequence, our children and, to a degree, our grandchildren, have become among the most self-absorbed, lonely, unhappy people in history . . . next to us, that is.  We were among the least confident cohorts of parents in US history and now, our children are among the least resilient.

Unfortunately, our children are duplicating our mistakes, and I think it's time for us to direct them back to our own parents, the ones who told us, "Because I said so, that's why," and most important of all, the phrase we were so reluctant to use (at least, I was) --- "No."

With those principles came lessons we never knew we were learning.  If we were lucky, as I was, we had parents who made mistakes and owned up to them and apologized for them, without diminishing their authority as our parents.  We learned that we could suffer a little bit and not disappear, but instead, survive and even succeed.  We learned enough about the idea that we were not the center of the universe, that we at least had a working knowledge of what that concept meant, even if we haven't done particularly well at acting as if we understood it.

Experts are beginning to agree with this idea.  Dr. Brene Brown says it best in her "Parenting Manifesto," as featured in her blog and on Oprah's Super Soul Sunday:

The experts explain that being a "perfect" parent, does not mean hovering around your child, preventing all suffering and loss, as I once thought.  Instead, it means showing our kids how to recover from the inevitable mistakes we will all make as human beings.   There is no single time in life when we have a better opportunity to do this than during and after a divorce or separation.