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Maryland Mutual Consent Divorce Mediation Lawyer

UPDATE 2018

There has been a 2018 change to Mutual Consent filing grounds for absolute divorce in the State of Maryland.

Effective October 15, 2016 Maryland enacted the no-fault Mutual Consent grounds for Absolute Divorce.

The Requirements were as follows:

  1. the parties do not have any minor children in common; 
  2. the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to alimony and the distribution of property; 
  3. neither party files a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules; and 
  4. both parties appear before the court at the absolute divorce hearing. 

Since that time, there has been a legislative change to allow parents with minor children to file for Absolute Divorce based on Mutual Consent, and thereby avoid the 1 year physical separation period. In May 2018, the requirement that the parties have no minor children in common was changed and effective October 1, 2018, parents with minor children may file for Absolute Divorce on the grounds of Mutual Consent. Of course, both parties must agree and cooperate to do so. In addition, they must settle all of their custody, child support, alimony, and property issues and sign a Marital Settlement Agreement. To obtain a Marital Settlement Agreement in the most cost-effective and time-effective manner, many parties turn to the process of mediation, with an experienced Mediator.

The Judge in a Mutual Consent Divorce in Maryland retains the authority to incorporate or merge the Settlement Agreement into the Judgment of Absolute Divorce; thereby retaining the authority to modify (only the modifiable provisions) or enforce the terms of the Agreement and/or Judgment.

Mutual Consent Divorce Prior to the enactment of Mutual Consent Divorce in Maryland, filing for Absolute Divorce prior to the 12 month separation required fault grounds like Adultery, which grounds were often denied (or not answered on 5th Amendment privilege rights) the answering party and therefore created a contested case. Contested cases take many months to wind through the Court’s system, that often times the parties settled their case and moved forward with the absolute divorce on the less inflammatory 12-month separation grounds because the time period had already passed, all issues had been resolved except for the fault grounds.

The passage of the no-fault Mutual Consent Divorce law dovetails seamlessly with the mediation process. Many parties see the value of quickly putting the trauma of separation and divorce behind them and the most stress-free way to do that is to mediate and get a settlement agreement. Many couples are taking advantage of the new way to put obtain divorces in short order. Mediation for Mutual Consent Divorces in Maryland is a more progressive approach to conflict resolution in family law matters.

What does this look like as a practical matter? Parties with minor children always had the right to make their agreements for child custody, child support, alimony and division of property and debts and enter into a binding and enforceable Marital Settlement Agreement before they separated. However, knowing that divorce is a year away often encouraged inaction. In the many, many cases, the family Home must be sold in order to fund a two-residence lifestyle necessitated by the divorce. The added cost of an apartment while paying the mortgage on the family home was often too expensive and the parties are unable to separate to commence the separation. The desire to move forward with post-divorce life put the focus on making the physical separation of the parties happen at a time when there were other pressing financial considerations. Now many families reside together in the family home until it is sold without worrying about adding the months in might take to sell the family home to the onerous 1-year separation period. If they have already signed their Marital Settlement Agreement, then their rights and obligations have likely been decided, and the “unknown” is no longer a catalyst to continued arguing.

For many people, going through a divorce is the end-stage of marital strife. Many (but not all) couples have been living with marital discord for several months or years. Once the parties are physically separated, and each person is living as if they are unmarried, there is a very common urgency to seek out new experiences and relationships and the fact that the parties remain married during this period often increases conflict. Any process which mitigates conflict during the height of emotional turmoil seems more humane than the opposite. The 1-year separation requirement, especially after lengthy marital discord often results in entering the dating process as married people. This causes additional conflict between some parties if they are still legally married. This can also be hard on children who are old enough to understand that dating before divorce may feel improper. This can cause additional conflict between parents and children at a time when every member of the family is emotionally vulnerable.

Be aware that Maryland’s residency requirement still applies. Specifically, if the grounds for the divorce occurred outside of the State of Maryland (i.e. the separation or decision to get divorced), a party may not file for an absolute divorce unless one of the parties has resided in this State for at least 6 months before the complaint for absolute divorce is filed.

Mediation to obtain a Marital Settlement Agreement to facilitate a Mutual Consent Divorce in Maryland is a positive step forward in Maryland divorce law. Using the non-adversarial process of mediation to reach agreement on all issues of Alimony, division of property and allocation of debts may be the best way to take advantage of the new law. The conflict resolution spirit of mediation is the right first step to take to accomplish a Mutual Consent Divorce. To start your process, call Nancy Caplan, Esquire at Maryland Divorce Mediation & Legal Services.