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TABLE OF CONTENTS The Adversarial Approach Court Ordered Mediation Private Mediation A Temporary Separation Agreement Trial Separation Agreement Getting the Divorce Why Mediation How to get a copy of A Layperson's Guide to the Law of Divorce in Maryland The Adversarial Approach Most of us are very familiar with the more traditional manner in which couples become divorced. Each spouse hires a lawyer and the lawyers engage in settlement discussions. If these discussions fail then a lawsuit is filed which ultimately brings the couple into court for a decision by a judge about all of the various issued which must be resolved. This approach is quite adversarial. You probably have had friends or relatives who have been through the court process to become divorced. Mediation is an alternative approach in which the couple works with a mediator, who is highly skilled in mediation techniques, and knowledgable about the law, in order to resolve the same issues which separate lawyers would deal with in court. If you decide to pit yourself against your spouse in a win-lose divorce contest, you should know that:
Court Ordered Mediation In Maryland there are two types of mediation : court ordered mediation and voluntary, out of court mediation. Court ordered mediation occurs when a lawsuit has already been filed and there are issues of custody and visitation to resolve. A judge reviews the file and sees that one or both of these issues is in the case. The judge signs an Order requiring the couple to attend not more than two mediation sessions with a mediator approved by the court. The lawyers are not present at these sessions. The mediator is limited to working with the couple only on issues of custody and visitation. Any other issues in the case, and usually there are other issues, and not addressed. These issues are dealt with in court. The mediator is either an employee of the county in which the divorce has been filed or in private practice. If the mediator is an employee of the court, then the couple does not pay a fee to the mediator. If the mediator is in private practice, then the mediator's fees are paid by the couple. The order requiring mediation will probably specify how the responsibility for fees will be shared by the husband and wife. If the couple is successful in reaching agreement on the custody / visitation issues, the mediator will prepare a document which contains their agreements. This document is then signed by a judge and becomes an order of court. Those issues are then considered resolved and the other financial issues in the case are litigated, if the attorneys are not able to settle them. The other type, out of court mediation occurs when a couple wants to resolve all of the issues involved in their separation and divorce with a mediator and and avoid an avdersarial proceeding completely. These issues not only include custody and visitation matters, but all of the financial decisions as well. These include how their marital property will be divided, whether alimony will be paid, and if so, how much will be paid over what amount of time, how the couples debts and obligations will be handled in the future, and child support and tax matters arising from the separation and divorce. In short, the couple wants a complete and final resolution of all matters related to their separation and divorce without an adversarial confrontation. Return to the TABLE OF CONTENTS Private Mediation The first task which the couple has is to find a qualified mediator. In Maryland there is no licensing or certification of family mediators. Therefore, the couple must be guided by the reputation of any person they are contemplating using. Generally, mediators are either attorneys who also do mediation or mental health professionals (psychologists or social workers) who do mediation. The couple must ask themselves which kind of background makes sense to them as someone to work with as a mediator. Once that person has been selected an appointment is made for the first session. The first session is called an orientation session. It is the mediator's opportunity to educate the couple about mediation. The mediator describes the mediation process and may give the couple important legal information they should have prior to actual negotiating sessions. As with Court ordered mediation, no attorneys are present in the mediating sessions. At the orientation session, the mediator will also give the couple various forms to review. Typically there is a mediation agreement, which is the couple's agreement with the mediator. It sets forth the mediator's fees and generally creates the guidelines for the mediation sessions which are to follow. The mediator will also give the couple financial forms which need to be filled out. These forms will be classified into two catagories. One asks the couple to list all of their assets, liablities and incomes. The other asks the couple to project into the future when they are separated and to do an anticipated monthly budget for each of them. These forms are crutial to the future mediation sessions when the negotiations actually take place. After the orientation session, there are typically 2 to 4 negotiating sessions. It is during these sessions that the couple and the mediator try to reach acceptable agreements in all of the areas of concern. Each session will last from 1 to 2 hours. Usually, the order in which the subjects are discussed is : division of marital property, alimony, child custody, child support and tax considerations. The mediator will try to have the couple reach tentative agreements on the subject under discussion befiore proceeding to the next topic. After all of the topics are discussed and negotiated, and there is a tentative agreement with regard to them, the mediator, if the mediator is an attorney, will prepare a draft Marital Settlement Agreement for the couple to review. The Marital Settlement Agreement becomes a binding contract once it is signed by the spouses and ultimately is converted into the judgement of divorce. The couple is encouraged not to sign the proposed Agreement until each of them has had it reviewed by their own counsel to insure that it is a fair and legally sufficient document and reflects agreements which are consistent with Maryland law. Once that occurs, the couple is confident that they have created a good settlement agreement and feels good about signing it. Return to the TABLE OF CONTENTS A Temporary Separation Agreement Sometimes a couple comes to a mediator having recently separated or are about to separate and they are not ready to negotiate a full, final and complete Marital Settlement Agreement. Emotions are running very high in the household and what the couple wants is a controlled and civil separation and an agreement that lasts for a limited period of time, say 4 to 6 months. They want to be sure that appropriate arrangements are in place regarding the children and that the bills will be paid. The spouse who will be leaving the marital home also want to be sure that he or she will not be sued for desertion or abandonment. In this situation, the mediator will offer the couple the opportunity to enter into a Temporary Agreement. Usually, this agreement is time limited; that is it expires after how ever many months the couple has agreed it will last, again usually 4-6 months. It is then anticipated that the couple will return to the mediator at some point in the future to complete their negotiations for a full and final settlement. A Temporary Agreement recognizes that a couple has separated for the purpose of ending the marriage relationship and begins the 1 year period running which is necessary to obtain a no-fault divorce. Return to the TABLE OF CONTENTS Trial Separation Agreement Another option which couples have is to enter into a Trial Separation Agreement. A trial separation agreement is usually limited to a relatively short period of time in the range of 60 to 90 days. It recognizes that husband and wife are living apart, but does not create a formal separation, and does not begin the 1 year clock running. The spouse who has left the marital home may return to the home at any time. The agreement provides that neither spouse will use the separation as a basis for a claim of disertion, abandonment, or constructive dissertion. It does contain agreements relating to how family expenses will be paid and how children will be provided and cared for. The primary purpose of a trial separation is to allow the spouses to live apart for a relatively short period of time in order to assess the marital situation in a less stressful environment. Return to the TABLE OF CONTENTS Getting the Divorce Most couples who mediate agree that the ground for divorce will be a one year voluntary separation. This allows the couple to go to court after the one year period is over and request a final divorce. The preceeding is typically held before a Master of the Court. A Master is a person appointed by the Court to take testimony and make recommendations to the Judges of the Court. In this situation, it is not necessary that both spouses attend the Master's hearing. The spouse who has filed the Complaint for Divorce must attend and bring a witness with him or her to collaborate certain very basic facts. These facts include that the plaintiff has been a resident of the State of Maryland for at least one year prior to the filing of the Complaint, that the witness knows that the Plaintiff and the Defendant did live together and hold themselves out as husband and wife and that the couple did separate by mutual and voluntary consent on a date at least one year prior and that to the best of the witnesses knowledge the couple has remained apart since that time. The hearing generally lasts about 15 minutes. Furthermore, it is usually possible to arrange for the hearing without an attorney. Anyone interested in doing this should inquire about the Pro Se project sponsored by local law schools at the County Courts Building in the county in which the couple or the Plaintiff in the case reside. Pro Se means that you are representing yourself in court. Return to the TABLE OF CONTENTS Why Mediation Since mediation is a no-fault process, most of the conflict will be diffused. The non-productive thinking associated with adversarial divorce (such as : "the more I hurt my ex-spouse the better off I'll be") is discouraged. The results, because they are achieved through self-participation, are more satisfying. This helps explain why mediated divorces are less likely to return to court. The time to reach a settlement is relatively short, often within a month or two, and is far less than the time required to reach a settlement through an adversarial process. The cost of mediation is significantly less than alternative methods. The needs of the family's children are specifically addressed. Through mediation, you and your family can best prepare for the future and do so in a manner that is both humane and responsible. Return to the TABLE OF CONTENTS |