Settling your divorce case out of court is almost always better than a divorce trial.  But so many people don’t know how to use principled negotiation techniques to reach a 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.

Divorce lawyer Kline liked to be in his office early in the morning before the phones started ringing, clients started filling the waiting room, and the other lawyers started asking him questions.

He turned on the Nespresso machine, poured some flavored creamer into his coffee mug, and punched up the next email that looked interesting. This one was from a father whom Kline had represented in a divorce. The couple had a son together and their child custody battle was a bitter one.

The father was 15 minutes late to pick up the child and the mother had refused to allow the visitation.
“Can she just make up rules like that and change the custody agreement whenever she feels like it?” the father asked.

Kline sipped his hot coffee, watched the creamer swirl in it, and then pecked out this reply on his computer:

“Neither one of you can change the agreement without the consent of the other or a court order. However, there is an implied provision of good faith and fair dealing in every agreement, which means: (a) both of you should be willing to make some reasonable accommodation in scheduling the calls; and (b) both of you should strive to be on time for pickups and dropoffs.”

Kline hit the send button, took another sip of coffee, and scrolled down, searching for another problem in need of a solution.

The Maryland legislature added Mutual Consent as grounds for divorce for couples without minor children in 2015 to allow divorce without a waiting period if the parties had a written agreement.  Section 7-103 of the Family Law Article of the Maryland Code.

Now the legislature has added couples with minor children to the statute so long as (a) a Maryland Child Support Guidelines Worksheet is attached to the Agreement if the Agreement provides for child support, and (b) the court finds the sections of the Agreement with respect to the children are in the best interests of those children.

The law, if not vetoed by the Governor, will take effect October 1, 2018.

I used to argue like my son.  He knows he is right and you are wrong.  He won’t give up until he wins.

I hope he gets over it.  It took me plenty long enough.

I’ve told him about this poem from my childhood:

Convince a man against his will,

He’s of the same opinion still.

People think if they repeat something enough times or talk long enough, you will finally smack your palm against your forehead and say, “Oh, now I understand!”

What you miss when you do this are other ideas and ways of looking at things.  When you can hold your own point of view and respect and listen to another point of view, life is much richer and abundant.

One of my clients was having difficulties dealing with her controlling husband in a divorce.  He was  always dictating times and dates when my client could see or call their child.

Finally my client said “enough” and started pushing back.  She emailed her husband a clear and strong statement of how things were going to be from now on.  When he didn’t respond, she wrote him that she would take his silence as acquiescence.

I call this “What would Helga Do?”  Helga was another client.   She was from Germany.  She had her own business.  In her 70’s she became a ski instructor so she could ski for free.

Helga did not allow a speck of dust to settle in her office.  Her books were balanced to the penny every night.  If she hired you to repair something, you better do it right.

My wife worked for her.   Whenever we are having trouble with someone, like a repairman or other vendor, we say, “What would Helga do?”  She would not put up with bad behavior.

by James J. Gross

The email from the father read, “You handled my divorce 10 years ago.  My wife has custody of my 15 year old son who now wants to come live with me.  Can custody be changed after the divorce?”

“Yes,”  I replied.  “The easiest way to do it is to prepare an Amendment to the Separation Agreement and a Consent Order for the Court which incorporates the Amendment.”

“What is she doesn’t agree?”

“Then we can ask the Court to decide by filing a Motion to Modify Custody.  We will also ask the Court to recalculate child support based on the new custody arrangement.”

by James J. Gross

One thing I learned in cub scouts and boy scouts was always leave the woodpile a little higher.  Sometimes we camped out at campsites that had a woodpile.  If you used some of the wood for your fire, you were supposed to replace it and add a little more than you took for the next camper.  By extrapolation, it also meant leave your campsite cleaner than you found it.

I thought of this as I was picking up my teenage sons’ clothes off the floor of their rooms, turning off the lights they left on, and putting their dishes in the dishwasher.  No matter which one of them I ask, it is always the other one that did it.  My comeback to them is going to be – leave the woodpile a little higher.

As I start work this morning, my thoughts turn to the clients I’m helping as they struggle through their divorces.  It occurs to me that each of us, as we pass through life, whether helping others through our work or raising kids, can leave the woodpile a little higher.

 

by James J. Gross

You can get custody of minor children in a divorce but not a pet in Maryland, DC and Virginia and most other states.  The law views pets as personal property, with no more rights than a table, chair or lamp.

But if you live in Alaska, divorce court judges are now required to consider the well-being of the pet under a new law.  The court may award custody of a pet on the basis of what is best for the animal, not the human owners.

The law also allows judges to include pets in domestic violence protection orders.

by Michael F. Callahan

We warned in Changing Child Custody that it was hard to know in a close case whether a material change in circumstances would warrant a change in child custody until the judge decides.

In Changes in Circumstances Mean Changes in Custody we provided a list of changes compiled over the years that were “material” enough to result in a change in the custody agreement or order.  The list included “A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.”

A recent Virginia case, Friedichs v. Brown, highlights the problem.  Mr. Fredrichs argued  that the following changes in circumstances warranted a change in custody:

(1) the children’s development had evolved,

(2) the children had a closer relationship with him, and

(3) the mother was being uncooperative.

The circuit court ruled that these were not material changes, dismissed his complaint, and awarded the mother $43,462.20 for the attorney’s fees she incurred defending.  The Virginia Court of Appeals affirmed.

by Michael F, Callahan

My last post said sometimes you don’t know whether a change in circumstances is material until after trial when the judge rules.  Perhaps this will help.  Here is a partial list, compiled from our cases over the years, of changed circumstances that courts have found, or both parents conceded, were material:

  1. One parent wants to relocate with the child.
  2. One parent is relocating without the child so the current timesharing or visitation schedule will not work.
  3. The parents share physical custody equally, live in different school districts and the child is nearing kindergarten age.
  4. One parent’s mental health has deteriorated
  5. Remarriage of one parent if it affects child-rearing.
  6. Substantial change in employment location/hours of work.
  7. A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.

If one or more of these changes are present and the current custody arrangement is no longer in your child’s best interest, it is time to seek a change. Start by communicating this to the other parent and inviting feedback. If you don’t make progress with direct discussions, consider suggesting that you and your former spouse work with a mediator skilled in child custody matters. Custody disputes are well suited for resolution through mediation. Also, look at the dispute resolution procedures, if any, in your custody agreement. A good family lawyer experienced in custody matters will be helpful to you throughout this process and will be essential if you bring your custody matter to the court for resolution.