Mediation is a process – a voluntary, non-adversarial, process involving a trained, impartial third party (mediator). The parties, not the mediator, make the agreement. The mediator has no power to render a decision or to force the parties to accept a settlement. Because the voluntary settlement that the parties reach is designed by the parties themselves, it is more likely to be carried out without the need for external enforcement or further litigation.
Frequently Asked Questions
Jacobson Family Law
No, there is no requirement that an attorney represent you if you choose mediation. However, it is strongly advisable to have your own attorney because a mediator cannot give you specific legal advice. Your attorney’s job is to protect your best interests via the legal advice provided so that you can make your own educated, fully-informed decisions.
There are numerous advantages of mediation, including:
- You are in control of the outcome.
- No settlement can be imposed upon you (as happens in litigation).
- Mediation is private and confidential.
- Mediation is less time consuming than litigation.
- You have the services of an experienced person who can aid your negotiations, and assist in achieving a quick settlement.
- Mediation is less expensive than litigation.
- You may be able to explore alternative solutions that you may not have considered or are not possible or available through the courts.
- Mediation can help maintain or re-establish a positive relationship between the parties once the dispute is resolved. This is especially crucial if the parties are going to continue a co-parenting relationship.
- If the Mediation is unsuccessful you have neither prejudiced or sacrificed any legal rights nor delayed significantly any ultimate settlement by the legal process.
Commonly, mediations are broken down into five stages:
Yes, lawyers may attend mediation so that you can ask them for legal advice during the mediation. This can often times streamline the process for parties so they do not have to schedule follow-up sessions after they go back to speak with their attorneys.
However, there is no requirement that lawyers attend mediation. You will have an opportunity to have your attorney review any agreement reached in mediation before it is signed and becomes binding.
Most mediation sessions last between 1-2 hours. A “typical” mediation between parties averages 2-8 hours of mediation (broken into 2-4 separate sessions). Once an agreement is reached, the mediator will then draft the Settlement Agreement, which may also take between 2-8 hours, depending on the complexity of the terms. Therefore, parties should expect to pay for 4-16 hours for the mediator. Note: every matter is different and could take more or less time than the “typical” mediation.
Most mediators charge by the hour. Therefore, the cost will range depending on the complexity of your particular case and how you able to reach an agreement.
Yes, if you and your spouse reach an agreement in mediation, you will still have to go to Court to finalize the divorce process during an uncontested divorce hearing.
Is mediation only for people who get along reasonably well? What if my spouse and I cannot stand to be in the same room together?
No, mediation is not only for people who get along well. Mediation can be safely conducted with the parties either in separate rooms, via video conferencing or by phone (also known as online mediation), if necessary, in order to be productive. Mediated negotiations often reduce and de-escalate conflict between the parties.
Yes, mediation can address all issues arising in a separation or divorce including: child custody, child support, spousal support (alimony), and property division. For unmarried couples, mediation is often used to address child custody, custodial access and child support.
If an agreement cannot be reached on all issues, mediation can assist parties in narrowing the issues in dispute.
Yes, the courts often Court Order parties to attend mediation if there is a dispute concerning child custody or access. Additionally, if parties agree, they can be Court Ordered to attend mediation to resolve financial and property division issues.
Most family law and divorce mediations require preparation of income, expense, asset and debt information, including but not limited to tax returns, pay stubs and statements from accounts.
Collaborative Divorce is a process for separating or divorcing that allows parties to justly and equitably resolve their differences and avoids the necessity of going to court.
Collaborative Divorce is designed to resolve the issues in a family breakup using cooperative strategies rather than conflict and litigation. The process is open and mutually respectful. There must be full disclosure and good faith. If needed, jointly selected experts such as child specialist and financial planners are enlisted to assist in finding solutions which focus on the needs of the children and the financial well-being of all involved.
Yes. You will need to be represented by an attorney and an attorney will also represent your spouse. The parties are direct participants in the outcome, with legal advice and support from their attorneys to assist them.
Under the Collaborative Divorce process, both parties and their attorneys agree to promote an atmosphere of honesty, cooperation, integrity and professionalism.
The Collaborative Divorce process is designed to empower the clients to create agreements that address their unique circumstances and concerns. The objective is to produce results that are more productive than those received from a court in the adversarial process. The goal is to enable parties to reach a fair and reasonable settlement that addresses and meets the needs of both parties. Collaborative Divorce requires each party and each attorney to take a reasoned position on all issues. Where such positions differ, all participants use their best efforts to create proposals that meet the fundamental needs of both parties and, if necessary, to compromise to reach a settlement of all issues.
Collaborative divorce is not for everyone. However, it is a good option for those:
- Couples who are seeking to restructure their families in a way that protects their children, offering their children the best chance to experience the benefits of BOTH parents in an environment of mutual respect and support.
- Couples looking for better communication between them and an opportunity to effectively co-parent.
- Looking for a civil, rational result
- That want an agreement that gives BOTH spouses as much as possible without hurting the other
- Seeking protection from the emotional and psychological damage to children and to each other often caused by contentious and protracted litigation
There are many benefits of collaborative divorce. Here are some examples:
- Informal setting
- Information exchange is free, open, informal, and honest
- Saves time
- Saves money
- You can decide now how to handle post-settlement disputes
- You negotiate a result that works for you and your family
- Use of professionals, such as child specialists, financial analysts and attorneys, to assist in supporting you through the collaborative divorce process
The cost of collaborative divorce varies from case to case. The greatest cost difference between a collaborative divorce and a divorce in court is that the collaborative process facilitates communication between the parties to minimize conflict and produce a forward-looking, durable agreement that meets the needs of all parties. In court, decisions are made by a single judge which often leaves one party or both feeling that they were not heard and dissatisfied with the outcome. As a result, couples who resort to court tend to return to court repeatedly, seeking to obtain “better” outcomes at greater emotional and financial cost.
Both parties and their respective collaborative divorce attorneys sign a contract that states they are committed to using cooperative techniques instead of combative tactics to negotiate the various divorce issues. The contract is called a “participation agreement”.
Another difference is that in Collaborative Law, the parties are always represented by their collaborative divorce attorneys and therefore, always have the benefit of legal counsel and having a zealous advocate. In mediation, often the parties are not represented by lawyers and are negotiating without the benefit of legal counsel or representation.
Collaborative Divorce is an ongoing process, while mediation is often a one or two day event.
Collaborative Divorce requires that the parties exchange all necessary and relevant information during the process. Mediation, on the other hand, has no specific vehicle for discovery. Therefore, mediation can suffer from either not providing the parties with enough information to make informed decisions as to the settlement, or coming after too much discovery has taken place through litigation.
If in the unlikely event that parties are unable to reach an agreement in the collaborative divorce process, each of the parties will be required to hire new attorneys for litigation in court.
Schedule an appointment with Jacobson Family Law and an attorney will discuss in further detail whether the Collaborative Divorce process may be appropriate for your case and answer any specific questions that you may have. This will give you the opportunity and information to decide whether the Collaborative Divorce process is right for you.
A Marital Separation Agreement, or property settlement agreement, is a binding contract between a married couple that resolves all issues arising from their marital relationship including, custody, child support, alimony/spousal support, and division of marital property. A marital separation agreement may be signed before or after you have filed for divorce – even while you and your spouse are still living together.
A Marital Separation Agreement spells out your rights and obligations as well as those of your spouse. Additionally, a Marital Separation Agreement can be used as evidence to the court as to your date of separation or your mutual consent to end the marriage. An Marital Separation Agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written detailed agreement, rather than rely on verbal understandings.
If you have a Marital Separation Agreement, you will have to file a copy with the court in order to obtain an absolute divorce. You will include a copy with the complaint and ask that the court merge, but not incorporate, the terms of the Agreement into the final Judgment of Absolute Divorce. Once the Marital Separation Agreement is incorporated into the Judgment of Absolute Divorce, it becomes a court order and is enforceable by the court’s contempt powers. If the separation agreement is not incorporated into the Judgment of Absolute Divorce, and your spouse violates the terms of the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree.
A contested divorce is where the parties are not in agreement with at least one issue such as: the divorce itself, the property division, child custody, alimony, etc. and where the parties allow the court to decide for them. Uncontested divorces fall into two categories – (1) Consent Divorces – the parties agree on all major issues; and (2) Default causes – where one party fails to appear in court to contest the divorce or any issue in it, either because he or she do not to oppose it, or because he or she cannot be located. By entering into a Marital Separation Agreement you make your divorce an uncontested divorce.
A separation agreement is a legal contract that will bind you through many years to come and will determine your rights, obligations, and responsibilities from your marriage. You and your spouse can amend the agreement if you both consent to the changes. In some specific circumstances, your separation agreement can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children including custody, custodial access and child support.
If the courts are convinced that both spouses entered into the Marital Separation Agreement without fraud or coercion, the court do not typically review the terms of the agreement to determine its fairness. They do, however, review the terms of the agreement that affect any minor children to confirm that the terms of the agreement are in their best interest.
In Maryland, which is an “equitable distribution state”, the court will divide all marital property in an equitable fashion unless otherwise agreed upon by the divorcing spouses.
What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” Therefore, a fair division of marital property does not necessarily mean 50/50.
When required to make the final equitable division of marital property, the court must consider the following factors:
- The contribution, monetary and non-monetary, of each party to the well-being of the family.
- The value of all property interests of each party.
- The economic circumstances of each party at the time the award is to be made.
- The circumstances that contributed to the estrangement of the parties.
- The duration of the marriage.
- The age of each party.
- The physical and mental condition of each party.
- How and when specific marital property was acquired.
- Any award of alimony or award of use and possession of personal or real property made by the court.
- Any other factor the court considers necessary or appropriate to arrive at equitable distribution.
Marital property is defined as any property acquired by either spouse during the term of the marriage, regardless of how that property is titled. Some property, such as gifts from third parties, inheritance, and property specifically addressed in an agreement, are excluded from a marital property division. It is possible that a piece of property is partially marital and non-marital.
Every couple’s situation is different; however, there are some standard provisions that need to be addressed within a Marital Separation Agreement. Those include:
- Clear alimony provisions
- Custody issues/Child Support
- Property Division
- Allocation of Retirement Assets
- Procedure for Post Divorce Litigation
Yes, your Marital Separation Agreement should be in writing in order for it to be binding. You will have to submit your written Marital Separation Agreement to the court in order to obtain your Absolute Divorce in Maryland.
Once the Marital Separation Agreement is incorporated into a Judgment of Absolute Divorce, it becomes a court order and is enforceable by the court’s contempt powers. Therefore, if one spouse breaches the Marital Separation Agreement, you can file a contempt action to enforce the terms or attend mediation to attempt to resolve the issue.
Yes, you and your spouse can modify the terms of your Marital Separation Agreement by entering into Amendment to your Marital Separation Agreement.
Prenup + Postnup Agreements
The main difference between a prenup and a postnup is the timing of when the agreement is signed. As the names suggest, a prenuptial agreement is signed before a couple gets married and a postnuptial agreement is signed after a couple is already married.
Prenups and postnups are contracts between couples that outline how they will divide assets in the event of a divorce. A prenup can also protect the income or assets you earn during the marriage. Without a prenup, you may be required to pay alimony in the event of a divorce. However, a prenup, you can predetermine a specific alimony amount or even eliminate it altogether.
The one thing that cannot be handled by a prenup (or a postnup) is anything dealing with the couple’s existing or future children. Prenup provisions of this nature are generally found to be unenforceable.
Prenups aren’t for everyone. You may not need one if you are a young couple getting married for the first time and bringing few or no assets to the marriage unless either of you is expecting to receive a large inheritance or will be the recipient of a large family trust.
On the other hand, prenups are essential for couples entering the marriage with significant assets of their own or a large estate. In this case, a prenuptial agreement can help protect each spouse’s premarital assets.
If you have a significant estate and children from a previous relationship to whom you want to leave a portion, or all, of the estate, it is critical that you have a prenuptial agreement. If you do not sign a prenuptial agreement that spells out these details, your new spouse will automatically receive a portion of your estate upon death.
To be valid and enforceable, pre & postnuptial agreements must, at a minimum, meet the following basic requirements:
Written – Oral Prenuptial and postnuptial agreements will not be considered valid. They must be in writing.
Voluntary – Both parties to a prenuptial or postnuptial agreement must have signed the agreement voluntarily and intentionally. Any indication that one party coerced or threatened the other into signing will make a prenuptial or postnuptial agreement null and void.
Disclosure – Prenuptial and postnuptial agreements must include full and fair disclosure of assets in order to be considered a valid and enforceable agreement. At the time each party enters into the agreement, they must each make a full and fair disclosure to the other of his or her assets, liabilities, and income. This is a critical because prenuptial and postnuptial agreements are designed to spell out how assets, liabilities, and financial support would be handled if the marriage was to end. If the information that one party relied on was not accurate or complete, the agreement will not be enforceable.
Fair – Prenuptial and postnuptial agreements must not be unconscionable. If the family court finds that the prenuptial or postnuptial agreement is extremely one-sided or benefits one spouse grossly over the other, it will be seen as unconscionable and thus unenforceable.
Validly executed – Generally speaking, to make a postnuptial agreement valid, both parties’ signatures need to be notarized. Some state laws may impose additional requirements, such as a requirement that the parties’ signatures be witnessed.
As long as you and your spouse agree, you prenuptial or postnuptial agreement can be changed. You may also need to modify your agreement if your financial circumstances change or if you and your spouse have children together. To make changes to your prenuptial or postnuptial agreement, you willl need to add a revision to the agreement, which is called an amendment. The amendment is usually an additional page, or pages, attached at the end of the agreement. The amendment modifies the parts of the agreement you and your partner want updated. The amendment is typically written by a lawyer because of its legal nature. You’ll have to have the entire agreement signed and notarized to make the changes valid.
No. While a prenuptial or postnuptial agreement is designed to determine an outcome in the event of divorce or death, some issues cannot be predetermined. A prenuptial agreement cannot contract for the custody of children, especially if they have not yet been born. It is also impossible for a prenup to prearrange how much a parent will pay for child support.
Yes. Prenuptial agreements usually address alimony and property division. There are some states that do not allow the parties to waive alimony in a prenuptial agreement; however, Maryland is not one of those states. A prenup that includes a waiver of alimony is likely to be closely scrutinized by the court if challenged.
Yes. Gay and lesbian couples in Maryland have the same right as anyone else to enter into prenuptial or postnuptial agreements. Jacobson Family Law works with many LGBT couples looking to enter into prenuptial or postnuptial agreements.
A lawyer can only represent one spouse in the negotiation of a prenuptial or postnuptial agreement. Therefore, it is necessary for you to have independent counsel to review the prenuptial agreement to ensure your rights are protected.
Absolutely. They can do so with the guidance of independent counsel or the use of a neutral mediator in premarital mediation. Premarital mediation can be used to assist the couple in reaching agreements regarding saving and spending styles, the expectation for financial support upon divorce, and property division in the event of divorce or death.
A Will (also known as a Last Will and Testament) is a legal document that outlines how you want to distribute your assets upon your death.
In Maryland, the administrator of a person’s estate is called the Personal Representative. They may also be known as the executor or executrix.
A guardian is the person appointed to physically care for minor children in the event of a person’s death.
A trustee is a person appointed to manage money or assets on behalf of the beneficiaries of a trust.
Any asset that is not jointly titled and does not have a specific beneficiary designation.
A trust that is created at the time of a person’s death within a person’s Will. Typically, this is for the benefit of children if they are younger than a specified age.
A trust that is created and funded during a person’s life that can be amended or revoked.
A trust that is created and funded during a person’s life that cannot be amended or revoked without the permission of the beneficiary.
An individual who receives property left to them by the deceased.
The legal process that determines whether a person’s will is valid. The process in Maryland typically takes a minimum of six months and has some administrative fees associated that must be paid.
A legal document that designates someone to act on your behalf in the event you are unable to do so.
A legal document that designates someone to make medical decisions on your behalf in the event you are unable to do so.
A legal document that provides directions for life-saving treatments you may or may not want under different circumstances.