“Just found out divorce mediation is Tuesday afternoon!!!

Help! I’m nervous

What do I do?!

What do I say?

How do I dress?

How do I act?

What questions should/shouldn’t I ask?

Give me all tips/advice you all have please! ”

— Nicole’s post on Facebook

Advice for Handling Divorce Mediation

Nicole:

Everybody is nervous in a divorce. In fact I’d be nervous if you weren’t nervous. But here’s a tip that will help you calm down and give you more confidence during the mediation.

Write the main categories to be decided down the left side of a piece of paper. These will be your rows. The main categories are child custody, child visitation, child support, alimony, property division, and legal fees. You can expand on this by adding subcategories.

For example, under visitation, you might have subcategories of weekly schedule, holidays and summer vacations. Under property division, you would have the big ones, like house and pensions, as well as bank accounts, automobiles, and furniture.

Next, make three columns labeled best, middle, and showstopper. Fill out your objective in each row and column. This will make you think about what you really want, what you can live with or without, and what will make you walk out of the room if you don’t get. It also help you know what to say.

It doesn’t matter so much how you dress but I would suggest business or business casual will make you feel comfortable. Act firmly but politely. Remember you are there to problem solve, not to blame or assess fault. You can ask any question you want. Let the mediator take the lead.

You don’t have to reach an agreement if you don’t think it is fair. But as the mediator will probably tell you, you will save a lot of time and money if you do.

 

“I’ve never been divorced before,”said the thin man sitting across the desk from me. His dark narrow eyes darted back and forth as he nervously sipped the bottled water my receptionist had given him.  He sank into one of the two wing-back chairs in my office. “I don’t know anything about it.  I have a million questions.”

In my line of work as a divorce lawyer I meet all kinds of people. I tried to put the thin man at ease. I put my fingers together in a church steeple, closed my eyes halfway, and leaned back in my burgundy leather office chair in my best Perry Mason imitation. “Well I’ve been divorced twice, so ask me your questions.”  I then proceeded to give him the following answers to his questions one by one.

Question 1.  I had an affair.  Am I going to lose everything in the divorce? 

Adultery gives your spouse grounds for divorce, not the right to 100% of the house, cars, 401(K), and everything else.  Jointly owned properties are divided equally.  The judge can make a marital award to make sure the division is fair.  In determining the marital award, the judge considers several factors.  One of these is who was at fault in the termination of the marriage.  The judge can also make adjustments for any marital funds you have spent on the affair.

Question 2.  Will the court take the children away from me because I cheated?

Adultery may make you a bad spouse but it does not necessarily make you a bad parent.  In Davis v. Davis, 280 Md 119, 372 A.2d 231 (1977), the Maryland Court of Appeals said

Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the children’s welfare.

The court looks at what is in the best interests of the children, not what is in the best interests of the parents.

Question 3.  Can My Spouse Get a Divorced if I Don’t Agree?

While it takes two people to get married, it only takes one to get divorced.   If you don’t want a divorce, you can slow down the process, but a spouse determined to get a divorce can get one.

Question 4. Do I Have to Have a Lawyer to File for Divorce?

It is not a requirement that you hire a lawyer for your divorce.  The Maryland courts have published divorce forms on the Internet and there is a self-help desk at the Montgomery County, Maryland, Courthouse.  We have do-it-yourself divorce help on this website and we have published self-help divorce books.  However, divorce cases can get complicated quickly.  If your case involves child custody, alimony, real estate, retirement funds or other assets, we recommend you hire a lawyer.

Question 5.  Does the Mother Always Win Custody?

In the old days many judges followed the Tender Years Doctrine which presumed that mothers were the better care taker for young children.  Today, however, the standard is best interests of the children.  Many jurisdictions, like The District of Columbia presume that joint custody is in the best interests of the children.

Question 6.  Can a Husband Get Alimony?

Today, there are many cases where the wife makes more money than the husband.  In those cases, husbands are entitled to the same rights as wives including the right seek alimony.

Question 7.  How Much Is All This Going to Cost?

In most cases of a long marriage, the judges in Maryland, Virginia and DC will divide marital assets equally, but they are not required to.  If you make a lot more than your spouse, or your spouse is ill or requires some training to get back in the workforce, you will probably have to pay alimony.  The judge decides the duration and amount.   Once custody and alimony are determined, you can use online calculators to determine child support.  You may have to pay all or a portion of your spouse’s attorney fees as well as your own.

 *  *  * 

The thin man sighed and said, “Thank you.  It’s not what I wanted to hear but I feel better knowing than not knowing.  I want you to be my lawyer.  What’s the first step?”

“Sign my retainer agreement and pay my retainer,” I replied as I pushed the document across the desk and held out my Mont Blanc fountain pen.  “I’ll start working on your case immediately.

 

“Simplify.  Simplify.”  — Henry David Thoreau

Divorce negotiations can feel like Whack-A-Mole. There are so many issues. And they are interconnected so if you change one the others change. For example, if alimony goes up, child support goes down. One tool I have in my divorce toolbox is liquidated damages. That means reducing disputes to a dollar amount.

A Typical Scenario

Let’s say I represent a husband in a divorce. He moves out of the marital home into an apartment and the wife still lives there. She wants to know who is going to pay the bills until they reach an overall agreement or the divorce judge decides at trial. She worries he will cancel her health and auto insurance.

The husband has his own expenses to pay now and wants the wife to pay her own living expenses.

Each spouse is angry and feels the other is to blame for the separation.

Liquidated Damages Offer and Demand

After some back and forth with opposing counsel, I suggest we convert the various disputed issues into a single dollar amount.

I ask opposing counsel how much money the wife is requesting each month. This is the “demand” because it is the amount the wife is demanding the husband pay.

Then I ask my client how much he is willing and can afford to contribute to the wife’s expenses until we settle or go to trial. This amount is the “offer” or the amount he is offering to pay the wife to settle.

Ceiling and Floor

Now we have established a ceiling and a floor for settlement negotiations.

Next we try to negotiate a liquidated damages number somewhere between the offer and demand.

This simplifies the dispute and takes some of the emotion and blame out of negotiations. The parties are also able to bring more certainty and stability to the future and plan their budgets accordingly.

“I had an affair with a woman I work with a few years ago,” said the prospective divorce client in Attorney Hamilton Starke’s office.  “I think I should tell my wife about it.”

“No, no, no!’ exclaimed Starkes.  “Look, your guilt is making you want to confess.  But the more you explain, the more problems you will create.”

“But I thought Maryland was no-fault divorce?”

Grounds for Divorce

“No-fault applies to grounds for divorce.  Maryland has both fault and no-fault grounds for divorce,” Starkes explained.  “We started with only fault grounds which are desertion, adultery, imprisonment, and insanity. Then we added the no-fault grounds which are currently one-year separation and mutual consent.”

 Alimony

“In a contested divorce, even one brought on no-fault grounds, a judge must consider fault in determining the amount and duration of alimony,” Starkes continued.  “Or, as the law puts it, the circumstances that contributed to the estrangement of the parties.  That includes fault such as an affair.”

Property Distribution

“And that’s not the only trouble a confession will bring to your case,” Starkes said.  “Maryland law requires a three-step procedure for distributing property.  In Step One the judge identifies the marital property of the parties.  In Step Two the judge values the marital property.  In Step Three the judge adjusts the equities if necessary with a Monetary Award.

In determining a Monetary Award,” Starke explained, “the judge must consider several factors including the circumstances that contributed to the estrangement of the parties.  So here we are, back to fault again.”

Confession or Discretion

“So I should lie to her?” asked the prospect.  Is that what you’re saying?”

“No,”  Starkes said, “Always tell the truth.  You just don’t always have to be telling it.”

Are lottery winnings marital property?

Today’s scenario: A man who is legally separated from his wife wins the lottery. Does he have to share the winnings with his wife? The marital property law of your state holds the answer.

I’ve done the calculation and your chances of winning the lottery are identical whether you play or not.” — Fran Lebowitz

If you buy a ticket on Friday, you have a better chance of dying by Monday than winning the lottery.” –Anonymous

Do ya feel lucky, punk? Well do ya?” — Clint Eastwood in Dirty Harry.

All life is 6 to 5 against.” – Damon Runyon.

Jackpot or “Share”Pot?

Rich Zelasko of Detroit, Michigan, had been separated from his wife, Mary Beth Zelasko, for two years when he bought a ticket in the Mega Millions Lottery in 2013.

He won more than $30 million. Does he have to share it with his ex-wife? The divorce was final in 2018.

The Michigan appeals court says marriage isn’t over until it’s over. So Mary Beth Zelasko gets $15 million of the jackpot awarded by an arbitrator.

The husband’s attorney argued, “Rich was lucky, but it was his luck, not Mary’s, that produced the lottery proceeds.” But the arbitrator ruled that the ticket was marital property and the court upheld that decision.

A Different Result in California

Denise Rossi won $1.3 million in the California Lottery.  She field for divorce 11 days later.  However, she did not disclose her winnings.  When it was discovered, the judge gave the entire amount to the husband.

Virginia Marital Property Law

In Virginia, marital property is determined at the date of separation. So Rich would not have had to share his winnings if he lived in Virginia.

Maryland and DC Marital Property Law

In Maryland and DC, marital property is determined on the date of trial and it includes property acquired during the marriage.  Under marital property law there, the judge can still adjust the division of property through a marital award after considering various factors set forth in the statutes.

That’s just what happened when Mr. Alton bought a DC lotto ticket and won over a million dollars while separated but not divorced.  The trial court gave the wife half, but the Maryland Court of Appeals reversed, saying:

Mr. Alston, using his own funds, purchased the ticket and won the Lotto. This event was not dependent in any way on the parties’ joint efforts or shared life, past or present. At the time, the marriage was, for all practical purposes, over.

Alston v. Alston, 331 Md. 496 (1993)

Alimony and Child Support

Lottery winnings are also considered to be income in all three jurisdictions and that can affect alimony and child support.

Life insurance to protect the alimony payment in a divorce

Recently I wrote regarding using life insurance to assure payment of child support.  Another scenario is life insurance to protect the alimony payment in a divorce – the spouse being the beneficiary of the policy.

This is a straight forward consideration flowing from payer/insured spouse to payee/beneficiary spouse.  The insured wants less coverage and less premium, the payee/beneficiary spouse wants more coverage.

Alimony Payer Benefit

Premiums on a policy of life insurance on the alimony payer benefit the alimony payee.  Payments to a third party on behalf of or for the benefit of a spouse or former spouse can qualify as alimony.  Paying insurance premiums can qualify if the payer spouse is not obligated to pay under the insurance contract – because in that situation he or she is not simply paying his or her own expense.

Generally, the owner of the policy is the person who is obligated to pay the premiums.  So in order for premiums on the life of the insured/alimony payer’s life paid by the insured/alimony payer to be deductible as alimony, the alimony payee must be the owner of the life insurance policy.

The parties’ Agreement should require the insured/alimony payer to pay the premiums on the payee’s behalf and the parties’ Agreement should state that such payments are alimony.

Survivor Annuity

Another situation where life insurance can be appropriate is to replace a survivor annuity if it is unavailable or available only on undesirable terms.  A traditional defined benefit pension pays a lifetime annuity to the retiree.

Federal law generally requires married persons to elect what is known as a joint and survivor annuity payment option, unless the employee’s spouse agrees otherwise in writing. In divorce, the parties can agree to a joint and survivor annuity or the court can order it.  Under this option, if the non-employee spouse survives the employee spouse, the pension payer continues the annuity payments at a reduced rate to the non-employee spouse for his or her life.

The initial payment (during the joint lives) under a single life annuity payment option is higher than the initial payment under the joint and survivor annuity option. Depending on the amount of that payment reduction, it may make financial sense to elect the single life annuity and buy life insurance on the employee’s life to protect the income stream for the non-employee in the event that he or she is the survivor.

The advice of an experienced life insurance professional can be very useful in doing this analysis. For further information see: https://www.consumersadvocate.org/life-insurance.

Can you be too rich for alimony in a divorce?

Can you be too rich to get alimony in a divorce? This is a great problem to have.

Alimony in Divorce – A South Carolina Case

In a 2017 case out of South Carolina, the court awarded $5,000 a month in permanent alimony to the wife in a 28-year marriage. The husband made over $400,000 a year and she made far less.

On appeal, the husband pointed out that the wife received $1.28 million in the divorce and could support herself without alimony.

The appeals court found “It would be inequitable to require the Wife to invade her only assets to support herself while Husband may save and continue to draw a substantial salary and dividends from his company.” The case is now on appeal to the South Carolina Supreme Court.

— Sweeney v. Sweeney, 420 S.C. 69, 75, 800 S.E.2d 148, 151 (Ct. App. 2017)

Alimony in Divorce – A Maryland Case

Divorce law is different in each state. The outcome might not have been the same in Maryland. In 1990, the Maryland Court of Special Appeals reviewed a case where the parties each had over $1 million in assets.

The trial judge denied alimony in the divorce. The judge found the parties to be self-supporting and therefore not entitled to alimony.

The appeals court affirmed, noting that alimony is not intended to be a pension for life. The court stated the objective of alimony is to help a dependent spouse time to become self-supporting.

— Hull v. Hull, 83 Md. App. 218, 574 A.2d 20 (1990)

Temporary Alimony in a Divorce

In a 1994 case in Maryland, the Court of Special Appeals reviewed a case involving temporary alimony in a divorce. The test for temporary alimony is need and ability to pay. The husband appealed the trial court’s award of temporary alimony to his wife arguing that she didn’t need alimony because she had $160,000 in assets she could use.

The appeals court noted that the Hull case required an award of alimony to be based on a conclusion that a recipient spouse is not self-sufficient. However, the trial judge had considerable equitable discretion in reaching that conclusion.

The law does not require a spouse to liquidate assets in order to receive alimony. The trial court did not err in finding the wife was not self-sufficient despite her investment assets.

— Reuter v. Reuter, 102 Md.App. 2112 (1994)

In a divorce, what you call something can make all the difference in the world. It’s like the wall being discussed by the President. It turns out that the wall may not be a wall after all.

Our President says he will build a wall between Mexico and the U.S., or a fence or metal slats, or a barrier.  Maybe he just means a better security system. Maybe it’s just a symbol or metaphor for an anti-immigration philosophy.  Maybe it’s an imaginary wall.

The President is following the advice of Lewis Carol’s Humpty Dumpty.  “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

It reminds me of the Mark Twain story where Tom Sawyer and Huck Finn were digging a tunnel under a cabin wall to get inside.  Huck wanted to use the shovel that was leaning against the cabin but Tom insisted they use his Bowie knife like the Indians did.

After much digging and little progress, Tom turned to Huck and asked him to hand him the other Bowie knife.

“What other Bowie knife?” Huck asked.

“The one leaning up against the cabin,” Tom replied.

Words make all the difference in a divorce, too. Visitation is more palatable if it is called access or time-sharing or parenting time.  Alimony may be more agreeable if it is called transition payments.

 

 

Wrong Ways to Respond to a Divorce Settlement Offer

Settling your divorce case out of court is almost always better than a divorce trial.  Knowing how to respond to a divorce settlement offer is important.

Many people don’t know how to use principled negotiation techniques to reach a divorce settlement. Here are some examples of the wrong way to respond to an offer:

Give an Ultimatum.

I received a response to a divorce settlement offer last week that was dead on arrival.  It said its terms were “non-negotiable”.  I have never seen that work.  Instead it closes down the settlement discussions.  The same can be said for deadlines pulling the offer, like “You have one week to say yes to this counteroffer or it is revoked forever.”  A lawyer I know expressed a better attitude when he said, “Everything I’ve got is negotiable.”

Respond Indirectly.

If you receive an offer that numbers the issues, like (1) child custody, (2) child support, and so on, don’t start your response by telling me that your spouse won’t agree to a visitation schedule. Respond in the same order, using the same numbers, and propose a visitation schedule that you want.  Save the blame for court.

Throw Out Everything.

I have received more than one letter from opposing counsel that my client‘s offer is ridiculous or unreasonable or unacceptable.   What am I supposed to do with that?  It would be more helpful for them to say which items are unacceptable and propose a counteroffer.

Go Backwards.

The purpose of negotiation to is reduce difference between offer and counteroffer until you reach a settlement.  If you are increasing the difference, you are not going anywhere.  Once you have offered alimony of $2,000 a year, it will be impossible to get your spouse to accept $1,000 a month in the next round of negotiations.

The right way to respond to an offer of settlement is through principled negotiations.  That means you respond specifically and directly only to the items in dispute, state your objections clearly, and propose compromises.

Word of a case has reached us from India.  A woman there asked the Bombay High Court to increase her alimony award granted in a divorce.

The court rejected her request because it found that she was already wealthy and therefore not entitled to alimony.

The court said that a woman who is able to maintain her lifestyle despite the estrangement doesn’t need alimony.

We have a similar concept in Maryland, although stated in different words.  Alimony is not intended to be a pension for life.

The objective of alimony is to help a dependent spouse time to become self-supporting even if that results in a lower standard of living.  Holston v. Holston, 58 Md. App. 308, 473 A.2d 459 (1984).

Parties who each had over a million dollars in assets were already self-supporting and therefore not entitled to alimony.  Hull v. Hull, 83 Md. App. 218, 574 A.2d 20 (1990).