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.

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.

Most mornings before the courthouse opened, all the lawyers and judges could be found at the Silver Spoon Diner.  Although they would soon be battling it out, there was a convivial atmosphere in the diner, among the clink of dishes and the babble of discourse.

Judge Cullen sat across the booth from attorney Clark.  Clark took some papers out of his briefcase.  “What would you do in this case?” Clark asked the judge.  “I’ve got paystubs that say the husband pays $300 a month for health insurance and a year end statement that says he paid $5,000.  Which one should I use for the child support guidelines?  Should I just use the one most favorable to my client?  Or prepare two guidelines and let the court decide?”

Judge Cullen blew on his coffee to cool it, then opined “Get the facts first.”

“What do you mean?” asked Clark, taking a bite out of his blueberry muffin.

“Does the husband have an attorney?” Judge Cullen inquired.

“Yes,” answered Clark.

“Then call the attorney and ask why there is a discrepancy in the health insurance premiums on the pay statements.”

Clark reached for his cell phone inside his suit jacket which was on a hook attached to the booth.  He dialed the number and had a brief convesation over the din of the diner.

“Well?” said the judge.

“He says the husband took her off his health insurance after the first few months of the year so the premiums went down.”

“Mystery solved,” said the judge, handing the bill for his coffee to Clark.

 

 

 

by Michael F. Callahan

In Virginia, you need a material change in circumstances to obtain a change in child support.  A material change means one that is 1) relevant to child support and, 2) of sufficient magnitude to justify a change in support.

In a modification case, the court applies the child support guidelines to the new facts.  In an administrative review of child support, support may be modified if the new determination changes support by 10% or more and at least $25.00.

There is no such minimum change rule in court cases, but the process requires time, effort and money, so minor increases or decreases are probably not worth pursuing

by Michael F. Callahan

For services in the determination, collection and administration of child support, you can contact the Division of Child Support Enforcement (DCSE) in the Virginia Department of Social services.  The DCSE has broad authority to determine and to modify child support but cannot modify a court determination of support.

by Michael F. Callahan

Child support can be modified in Virginia post-judgment if there has been a material change in circumstance since entry of the order setting child support.  Section 20-108 of the Code of Virginia provides that the court may modify child support or custody as the changed circumstances of the parents and the benefit of the children may require.

The Court can act upon the petition of a parent, a probation officer or the Department of Social Services, setting forth the reasons for the relief sought.  The court can also act on its own initiative but this is something we have never seen.  Support can be retroactively modified only from the date that notice of the pending petition requesting modification has been given to the other party.

by Michael F. Callahan

The Office of Child Support Enforcement (OCSE), telephone 800-332-6347, provides various services to child support claimants.  It’s free after a nominal registration fee and can be effective in straightforward cases, especially if the child support payor is earning wages or salary from a Maryland based employer.   If your case is more complicated and time-consuming, well, OCSE has a big caseload and it may be a while before they get to it.

 

 

by Michael F. Callahan

The parties to a marital settlement agreement can preclude later changes by the court  for most provisions.  For example, they can agree on non-modifiable alimony, and then no court can modify it at any time for any reason in the future.

However, the same cannot be said for parties child support.  No matter what the parties say in their agreement, child support is always modifiable by the court.

If your spouse agrees to no child support in return for transfer of the house, and you transfer the house, can child support later be claimed?  Yes, child support is not the parent’s claim to waive.  It belongs to the children.   Similarly, an agreement that a certain child related-expense will not be covered, like orthodontic services, is not enforceable.

by Michael F. Callahan

You need solid information upon which to base a claim for modification of child support.  So when we represent payees we generally include a requirement to exchange tax returns or annual income documents like W-2’s and 1099’s annually or bi-annually.

If you are being paid child support, and don’t know whether the payer’s income has increased, it’s sometimes risky to proceed on mere suspicion rather than solid information.

And if  your income has decreased that may not help because the child support payee’s income does not change support amount much at most income levels under the guidelines adopted in 2010 by Maryland.

If, on the other hand, you are paying child support, and the payee’s income increases, and therefore you think the payee does not “need” all of the originally ordered support, you may not be successful in reducing child support under the revised guidelines.

by Michael F. Callahan

You can modify child support after divorce in Maryland if there has been a material change in circumstance since entry of the Order setting child support.  The applicable MD statute is Section 12-104 of the Family Law Article which provides

Modification of child support

(a) The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.

Modification not retroactive

(b) The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.

Material means 1) relevant to child support and 2) of sufficient magnitude to justify a change.  There is no bright-line cut-off stating any required minimum change in support.   Obviously, the process requires time, effort and money, so minor increases or decreases may not be worth pursuing.