What Are the Unspoken Terms and Conditions of a Marriage

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What if you were asked to enter into a business deal with another person on the condition that you agree to terms and agreements you have never seen, negotiated nor discussed.

Yet many people marry without a prenuptial agreement. And each assumes the other is a mind reader and assumes they agree to certain unwritten terms and conditions.

First in the absence of a prenup, you are by default agreeing to a complex and intricate set of laws in your State Code. These laws control how your property will be divided in the event of a divorce.

Then there are the unwritten terms and conditions which each of you thinks the other has agreed to although you haven’t mentioned or discussed them.

Divorce attorney, Larry Frolick describes the unspoken terms and conditions that Mary and Joe think they have in their marriage contract. Perhaps not surprisingly, their terms and conditions are different.

Joe’s Unspoken Terms and Conditions:

I chose to marry you, Mary, because you’re calmer and more deliberate than my mother

– so don’t you dare ever do anything that reminds me of her

– especially when I go fishing every spring like my dad

– and don’t freak out like she did, about leaving her alone on weekends.

Mary’s Unspoken Terms and Conditions

I’ll love you (and will sleep with you and nobody else).

I’ll, listen to your problems and try to help (as long as they are not too overwhelming and especially if they don’t remind me of my alcoholic father’s problems).

I’ll keep you company on most weekends

– unless the business I intend to start in 36 months takes off and gets me out of town, and

–unless my sisters call for a family emergency that will take precedence over any situation here, except your heart attack or other life threatening disease

I’ll continue to work at my (boring) job to pay for our (first) house

– but only for two years

– I expect (based on what you bragged about when we were drinking orange juice and champagne with the Fergusons), that you will start earning $100,000 by then

Then we will move to a house

– at least as good as my parents’ and

– in a comparable neighborhood

And have a baby

– who had better not remind me, as she grows up, of your mother

– whom you’d better stop defending pretty quickly

Our baby will be like me

– but will not be forced into things by her family, like having to escape because they are so demanding and unreasonable.

Side Deals.

Not to mention the unspoken side deals with third parties:

This marriage doesn’t mean, Mom, that I won’t come home every Thanksgiving for the rest of my life

– and sleep in my room and

– overlook Dad’s fooling around with Mrs. Carter in our little family game we know so well

I’ll continue to be your little girl/boy.

Conclusion

It isn’t easy, but if you can get your unwritten terms and conditions out of your head and into your mouth and discuss them with your spouse, it may avoid a call to the divorce lawyer.

 

/by James J. Gross

A Latin Slogan to Help You Through Your Divorce

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We lawyers have an inside joke:  “Criminal lawyers see bad people on their best behavior. Divorce lawyers see good people on their worst behavior.”

Many divorce clients say to me “I’ve never been through this before.  I don’t know what to do.”

I assure them I have been through it many times. I will be their guide through the jungle of laws, rules, and cases of divorce.

I tell them I have never lost a client yet and it may get worse before it gets better, but it will get better.

Then I give them the Latin slogan of the great explorer, Sir Frances Drake: Per Aspera Ad Astra. It means “Through adversity to the stars.”

/by James J. Gross

Is divorce work depressing?

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People ask if I find divorce work depressing.

Actually, I find divorce cases extremely interesting.

I see them as jigsaw puzzles where the pieces must fit together perfectly to satisfy the husband, wife, children, opposing counsel, judge, and in some newsworthy cases, the press.

Each new case makes my heart race as I gather and organize the facts.

When the case comes in, I shout like Sherlock Holmes, “The Game is Afoot”.

That was carved into the mantel around the fireplace in the student lounge of my law school.

My business card says, “Counselor and Attorney at Law”.

I am the Attorney at Law when litigation is called for. But I also get paid for my advice as a Counselor at Law.

I like the understatement of Sherlock’s card which read:

Sherlock Holmes
221B Baker Street, London
Private Investigator
Consultant to Scotland Yard

/by James J. Gross

The 85% Rule

If the other side is offering 85% of what you want, take it.

One thing we’ve learned after years of trying cases is that the ball takes funny bounces.

There is no such thing as a slam dunk case.

We’ve won cases we should have lost and lost cases we should have won.

There is an old curse that goes, “May your case be decided by a piece of paper that flies through an open window at the courthouse during your trial.”

Here’s another one, “May you have a case in which you know you are right.”

So be careful, and remember, “A man, or a woman, who stands on principle sometimes loses their cents.”

A good settlement is one in which each side gives up 60%.

/by James J. Gross

Tips to Settle Your Divorce Case

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My client asks me to explain to the other side how he came up with that offer of alimony, taxes, or property division.

We think that if we talk and talk and talk, the other side will eventually get it.

IF only we can explain it to them, they will slap their palm to their forehead and say “Oh, now I understand.”

But it doesn’t work that way.

The way to a settlement is to find out what the other side wants and needs.

And you do that by asking questions and listening to the answers.

/by James J. Gross

Keeping My Crash Settlement?

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Kathy, a divorce client in Maryland, writes, “I just got a settlement from a car accident I had in 2020. It’s all non-marital isn’t it because it was for my personal injury?”

My Response

Kathy, I’m afraid not.

In Dearing v. Dearing, 292 Md. 115 (1981), the Maryland Court of Appeals (now Supremember Court of Maryland) established the “analytic approach.” Courts must allocate the award component by component rather than all or nothing.

Personal injury awards in divorce must be broken down with each element classified based on what it replaces or compensates. Income that would have been marital property is marital. Pain and suffering compensate the individual spouse personally. Therefore, it is not a substitute for any marital asset.

In Maryland, personal injury awards are part marital and partially non-marital property. It depends on what the damages compensate for.

Not marital property (exempt from equitable distribution):

  • Pain and suffering
  • Disability/disfigurement
  • Loss of consortium (the injured spouse’s personal claim)

Marital property (subject to equitable distribution):

  • Lost wages or earning capacity (income that would have been marital)
  • Medical expenses paid with marital funds
  • Loss of services to the marital unit

Deering remains the controlling Maryland authority on personal Injury awards in divorce. It also reflects Maryland’s broader equitable distribution philosophy. Courts look through the label to the economic substance of an asset.

Litigation note

Unallocated lump-sum settlements create the biggest headaches under Deering. The burden of tracing falls on the spouse claiming non-marital character.

Practical note

If the award is a lump sum with no itemization, courts will apportion it. Settlement agreements and jury verdicts that break out damages by category are much easier to handle in divorce proceedings. If you’re dealing with an unallocated settlement, expect a fight over what portion represents wage replacement vs. pain and suffering.

/by James J. Gross

Impasse, the Iran Conflict and Your Divorce

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The English language adopted it to mean deadlock, draw, stalemate, or dead end. Imagine what happens when an irresistible force, say Superman, meets an immovable object, like the Incredible Hulk.

Impasse means a situation of no progress.  It is a standstill where the parties involved can’t reach an agreement or find a way forward.

Impasse in Divorce

Frequently it arises in divorce cases when spouses can’t agree on child custody, property division, or spousal and child support.

There are several ways to break an impasse:

  • Agree to settlement and compromise.
  • Have a trial and let the Judge decide.
  • Split the difference.
  • Flip a coin.
  • Trade for something you really want.
  • Mediation.
  • Collaborative law.
  • Arbitration.
  • Hire an expert and accept their recommendation.

Among the advantages of breaking the impasse are cost, control, certainty of result, time, and an end to anxiety. And settlement of an impasse is, unlike a Court Order, unappealable.

Impasse and Child Custody

When an impasse involves children, the stakes are usually higher and the emotions run hotter.  Children are priceless.

Mom says she wants dad to have every other weekend during the school year, and dad says he will not settle for less than 50/50.

But do they know that custody only counts nights not days?  And do they understand the difference between legal custody and residential custody?

Has anybody asked them why they want what they want?  Or can their objectives be met in any other way?

So, I ask the parties to put pictures of the children on the table between us. Whenever the dialogue escalates, I draw their attention to the photos and remind them why we are negotiating.

Getting to a Solution

In many cases, while the parties are talking a solution falls out of the sky that no one thought of before but is acceptable to both parties.

Let us hope the US and Iran find a way to break their impasse.

/by James J. Gross

How to Structure Your Thoughts Into Paragraphs           

First  we showed you how to think like a lawyer and put the purpose of your correspondence in the first sentence.

Then we gave you an example of how to do it.

Now we are moving into the substance of the letter

We told you how to use transition words and phrases to make your paragraphs hang together and your letter flow from paragraph to paragraph to keep the reader’s attention.

One Idea Per Paragraph

Give each paragraph the job of carrying only one idea.

Put that idea in the first sentence of the paragraph.

Use additional sentences to describe, support, or limit, the first sentence.

TIP: If you have an exam, if you have to extract the meaning of a book in a hurry, try reading only the first sentences of each paragraph.

/by James J. Gross

Hanging Together

In order to tell a story, you have to string your paragraphs together like pearls on a necklace.

The thread that holds them together is made up of transition phrases.

Here are some examples:

  • As a result
  • Thereafter
  • Therefor
  • In consideration of the foregoing
  • Notwithstanding the foregoing
  • As you can see from what I said before
  • Firstly, secondly
  • The premises considered

Well, you get the idea.

“We must all hang together, or assuredly we shall all hang separately.” – Benjamin Franklin

/by James J. Gross

Next Step: How to Write a Letter

Firstly, we showed you how to think like a lawyer.

Then we gave you the magic first sentence to make clear to you and the reader the purpose of your correspondence.

Then we gave you an example of how to do it.

Now let’s talk about the content of the letter.

I’ve written books, newsletters, blog articles, copy, radio newscasts, tv shows, and short stories plays, and legal documents.

I remember once I wrote a major ruling for the FCC with 50 paragraphs.

My boss read it and said, “This is good, James.”

“But it doesn’t hang together”.

“You have 50 separate stories here.  And they are not connected.”

“I want you to tell the reader one story with a beginning, middle, and end.”

“So that by the end he is nodding his head in agreement.”

“Your writing has to flow from one paragraph to the next.”

/by James J. Gross