MacGomery Law

Archive for the ‘Divorce’ Category

This story has been told by judges and family division masters in Montgomery County many times but it bears repeating. A couple stands before the judge in a highly disputed child custody case. The judge turns to the mother and says, “Ma’am, do you love your child?” To which she replies, “Of course I do!” He then turns to the father and asks the same question. “But of course I love my child.” The judge turns to them both and says sternly, “Well I do not. Why in the world you would want someone like me making decisions for you and your child is beyond me. Now go outside and try to work this out between you like adults and parents or else I am going to make a decision that I guarantee you neither will be happy with.”

Typically, no one is happy when the court has to decide who a child gets to live with and when the other parent can see the child and under what circumstances. It is almost always better for the parties to agree between them as to these matters rather than leaving it to the court. The system itself is set up to strongly encourage settlement between the parties. There are court facilitators available at no cost after the scheduling conference to try and assist the parties in coming to an agreement. The court often orders mediation as well to try and get the parties to agree. And the whole point of what’s known as collaborative law is to remove the court from the process and rely upon the parties to fashion their own parenting plan addressing custody and visitation.

I had a recent case in which both parties strongly felt that each should have custody of the minor child. They put all their eggs in one basket and relied on the findings of the court to make this terribly important decision that would affect their lives and that of their child for many years to come. Sadly, the court arrived at a solution that neither party was happy with – much like the story above. Each walked away blaming the system without stopping to consider that it was within their power to have fashioned an agreement of their own choosing. They may not have gotten all they wanted but much of what they would have gotten would have been better than what they ended up with.

Frequently clients ask if they can change their name back to their maiden name or even that of a previous marriage when they get divorced. The short answer is most likely yes. Under the Family Law article of the Maryland Code §7-105, if you are seeking a divorce you may change your name back to either your name given at birth or any previous former name as long as 1) the party took the name on in marriage and no longer wants to use it; 2) the party asks for the name change; and 3) the purpose of the name change is not for illegal, fraudulent or immoral purposes. This means that the name you are changing must have been taken on by the marriage you now seek to dissolve. Further, you (or your lawyer) must ask the court to change your name in your Complaint for Absolute Divorce – which is the document that initiates the divorce action. And finally, you must certify to the court, usually through your testimony, that your reason for changing your name is not for purposes of committing an illegal act, or fraud, or for immoral purposes. Although changing one’s name during a divorce is relatively uncomplicated, it is often one aspect of the divorce that carries a lot of emotional baggage.

For more information on changing your name at the time of your divorce, contact a qualified family law attorney. If you need help finding one, the local county bar association can assist you.

I’m sure it will come at some point. Listening to all of my esteemed colleagues, who have been practicing far longer than I have, moan and groan about the system and about judges in particular, makes me wonder when I will become equally jaded. Because to date, I have been remarkably surprised about how accommodating the court has been towards me and my clients. There have been times when my clients have been late for court, or unprepared, or disrespectful (despite my efforts to make sure they are not) and still the court affords them a level of dignity that perhaps some might not think they deserve. And certainly I have demonstrated my ignorance on more than one occasion before the court only to have most judges take the time to explain to me the error of my ways.
I think bottom line, if you are polite and respectful to the court, it returns the favor. It only stands to reason that that would be the case. I have only really had a problem with two judges. One who ruled against me because he was mad at my boss (only to be overturned on appeal) and one who I think made an error regarding evidence (see my earlier post). But in general, my experience has been a good one marked by respect and civility. Maybe things will change, maybe I’ll become more jaded and cynical at some point. But I am not there, yet…

Like most legal questions, the answer is generally it depends. My practice concentrates on two primary areas of law: family law (divorces, child custody) and personal injury law (automobile accidents, slip & falls). Settling the case means different things in each discipline but generally it refers to resolving the issue without have the court make the ultimate decision. The court may help along the way by steering the parties to mediation or other forms of alternative dispute resolution. But if the parties can reach an agreement without the judge having to issue a binding court order, then it is usually in their best interests to do so.

I settled several personal injury cases this week alone. In each situation the key to getting a fair offer is to work the case up as if you were prepared to go to trial. In doing so, you can be assured that the opposing party and/or their representative is well aware of that preparation and can make an honest representation to their client. I also take an extremely professional and courteous approach with the opposing attorney or adjuster because you are going to do business with these folks down the road again for sure. While I may not get the best deal in this case, I am laying the foundation for getting a better deal in the next because they know and can trust me.

But in the end, it has to make sense for the client. Take the time to educate them and really explain the tradeoffs in detail. They understand far more than many attorneys give them credit. And frankly, at this point it is not rocket science. Settling their case now might not get them all they want, but it does get them some or most of what they want sooner, with less emotional trauma, and in a more dignified setting. And they control the terms rather than being at the whim of the court. For many personal injury victims or family law disputes, this sense of control is a liberating experience that can work to resolve the case quicker, cheaper, and more efficiently.