“My wife says I never listen to her…or something like that.”

– Glenn Davis

Which strategies do people and their lawyers employ during divorces? There are only two social strategies that human beings use, according to Herb Guggenheim writing for CapitalM, the local Mensa newsletter. Those strategies are:

1. Reciprocal Altruism.

This approach is based on the idea that if you do kind things for other people, they will do kind things for you. It is the psychological equivalent of the Golden Rule, that is do unto others that which you would have them do unto you. It is the American cliche, “You pat my back and I’ll pat yours.” It is the French saying, “You send the elevator up to me and I’ll send it back down to you.”

2. I’m Only in It for Myself.

These people see the world as a hostile place. It is dog eat dog. Only the strong survive. These social Darwinist believe that while the inferior, weak people are busy being nice to each other, they will swoop down and take what they want, when they want, no matter what the consequences may be.

If both parties use Reciprocal Altruism, the divorce can be settled rather handily. If both are using I’m Only in It for Myself, then it seems they are destined to have a long and costly litigation. What happens if they are each using a different strategy? It seems to me, the I’m Only in It for Myself strategist will walk all over the Reciprocal Altruism strategist and end up with the better part of the marital estate. Guggenheim says, that while he can sleep better at night as a Reciprocal Altruist, it is his observation that people who take what they want seldom suffer for it.

Perhaps the best strategy is a blend of both. Focus on what you want and ask for it. Be polite but firm in the asking — an iron fist in a velvet glove. Like the Eagle on the Quarter, hold out the olive branch in one hand (settlement) and the arrows in the other (litigation). Then your spouse can decide which strategy it is going to be.

TGC Attorney, Nelson Garcia, appeared on WUSA TV Channel 9 News yesterday to discuss the Christie Brinkley vs. Peter Cook divorce case with Derrick McGinty. “Being a bad spouse,” Nelson said, “doesn’t necessarily make you a bad father. The judge has to consider parenting skills, not marital misconduct, in determining what’s in the best interests of the children.”

Sometimes a divorce client of mine will tell me her husband is “not emotionally available.” I always nod my head like I understand, but to tell you the truth I have no idea what those words mean.

I know what emotion is. I know the difference between Spock and McCoy on Start Trek. Spock is a Vulcan ruled by logic with no emotions at all. McCoy is the ship doctor who is caring and compassionate. Captain Kirk embodies the best of both.

I know what it means to be available or not. But put those words together and I, like most males, am dumbfounded. We have a hard time getting our brains around the concept. I kid my wife sometimes that women should come with a translation book.

I happened to mention this at the old boy’s club, which in my case is the gym where I play racketball. All the guys there agreed they had been told they were emotionally unavailable by a woman at some point in their lives, but no one knew what it meant.

Except David. David is in sales and marketing and has taken a lot of seminars. Therefore he is wise in the ways of the world. To our surprise, David said, “Oh, I know what it means.” A hush fell over the court as we listened intently.

“Every morning when I wake up I say the same thing to my wife. I go through a litany. I have it memorized. It goes like this.”

“Oh, darling, you are so beautiful. You are the most beautiful woman in the world. I am so lucky you married me. You look so good today. I’m not sure I’m going to let you go to work. Someone might try to steal you away from me.”

I blinked. I blinked again. “That’s it? That’s all there is to it?”

“Try it,” he said. “I guarantee you will never be called emotionally unavailable again.”

We used to only have fault grounds for divorce like adultery, desertion and cruelty. Maryland and Virginia have added no fault grounds based on a period of physical separation. DC has done away with fault grounds and gone all the way to no fault grounds.

Maryland has the longest waiting period for a no fault divorce. It is one year if you both agree and two years if one of you does not agree.

Virginia is six months if there are no children and a full agreement, otherwise one year.

D.C. is six months if you both agree, and one year if one of you disagrees.

Here is a chart showing the waiting requirements in all the states. Interestingly, there is no correlation between waiting period and number of divorces. DC still has the lowest divorce rate at 1.7 per thousand people.

It all started over dinner at the Isla Del Sol yachting club in St. Petersburg, Florida, according to John Barry at TampaBay.Com. Bob Luzenberg was having dinner with his second wife. Marlene Forand was their waiter. Bob came back a few nights later without the wife, said he was soon to be divorced. He told her he was an inventor with patents. Marlene was a licensed practical nurse, but she said if he could make something, she could market it. Bob Luzenberg and Marlene Forand got married in 1984.

Their businesses together prospered, but their marriage did not. Their divorce started in 1995. They’re still fighting over the money in court. They’ve run through 10 judges and 16 lawyers and their courthouse files fill 13 volumes.

The Florida divorce judge ordered Bob to pay Marlene a lump sum of $240,000, permanent alimony of $6,000 a month, medical insurance of $500 a month, 29 percent of Bob’s interest in a company called World Drink USA, and half of Bob’s interest in seven other companies, half interest in all of Bob’s patents, and all of Marlene’s attorney’s fees.

But Bob moved to Alabama, and when Marlene finally got him to pay over $200,000 in 2003, she netted only $80,000 after attorney fees. She has now fired her attorneys and is representing herself.

As Marlene has discovered the hard way, getting a judgment is not the same as getting the cash. You become a judgment creditor and can use the tools of the court to collect your judgment like attachment of assets and garnishment of wages. But if your spouse is unemployed or without assets, he is said to be judgment proof and you can’t collect. I wish I had a nickel for every noncollectable judgment in my file cabinet.

A false internet rumor got started yesterday that Cindy McCain was having an affair with a Maryland divorce lawyer. Google Trends will tell you the keywords for the day that people are searching for and talking about on the Internet. A blogger named Corey Palmer may have put the hot key phrases “Cindy McCain” and “Maryland Divorce Lawyer” in a silly, made-up story to draw searchers to his blog, Corey’s Hijinks. In the article called “Cindy McCain’s Affair”, Palmer stated:

“Looks like some dirt has just some out of the woodwork — a Cindy McCain affair? It doesn’t take an Maryland divorce lawyer to know what is going to happen next if this is true. A Maryland divorce lawyer (why that state? I don’t know, first one I thought of LOL). There not even from that state are they?

C’mon….I don’t think there has been an affair of any kind. Sorry, Mr. Maryland divorce lawyer, nothing to see here. But what would have happened if there was? I think people like to start these stories of husbands and wives not getting along, cheating on each other and everything else.

It’s sad all the stories that come out at these times. And it is sad to be teasing any of the Maryland divorce lawyers into thinking that there is a marriage being split up! Leave these families alone!”

In spite of the fact that this was obviously a bogus story, other blogs picked it up as true, and it gained a momentum all its own.

We sometimes say the legal fees in a divorce are as much as a new car. But whether you buy a Volkswagon or a Mercedes depends on whether you and your spouse can cooperate or have to fight about who gets what.

As if that weren’t bad enough, along comes a troubled economy.

Slumping real estate prices are adding a new complication to dividing marital assets. The house is usually the largest asset in the divorce. Not so long ago, even couples in short marriages that bought a house together, could sell and divide hundreds of thousands of dollars in the affluent neighborhoods where we practice law.

Now, a sale can take months and people are delaying the sale of the marital residence for better times. Sometimes, they enter into joint ventures in their settlement agreements to own and manage the property after the divorce.

Read more about “Divorce a Luxury in a Bad Economy” by Susan Todd.

I particularly like Mistake #3 from Financial Planner Lee Slater’s article on Dr. Judith Gerhart’s blog yesterday, entitled, “Hiring a Combative Lawyer as Punishment”. Lee says,

“This is a very bad idea for two reasons. First, except in extremely egregious cases, divorce settlements are determined by equitable distribution laws and courts will not punish your ex-spouse financially for being a bad person. Second, your attorney assumes carte blanche to increase hours spent on your case. High divorce costs mean less money will be leftover for living. Treat divorce as a business arrangement and get your revenge by living well post-divorce.”

I keep trying to educate the world about this, but it is hard sailing against the wind. Combative lawyers continue to have lots of clients. But all that combative style is for client entertainment, and a costly detour from the straight path of resolving your legal case. Take it from me. What you really need is a lawyer that is a technician, someone who quietly gets the work done, meets deadlines and returns your calls.

By Jill H. Breslau

Janice and Margaret were in a committed same-sex relationship for 18 years. When they decided to end it, they were unable to come to an agreement about “their” daughter, Maya.

Both had been equally involved in her care as moms. But their status as parents was far from equal in the eyes of the law. Maya had been adopted from a country which does not permit same-sex couples to adopt but does allow single women to adopt. Therefore only Janice had legally adopted Maya.

After the break-up of the couple, Margaret wanted to maintain her relationship with Maya; but Janice resisted. After a trial, the court found that Margaret was entitled to visitation as a parent in fact, if not in law, and that it would be in the best interest of the child to permit visitation.

Court of Appeals

But the Maryland Court of Appeals reversed. Under Maryland law, said the court, there is no such thing as a “de facto parent”. Margaret was just a third party seeking visitation against a legal parent who did not want it. A legal parent possesses the constitutional rights to govern the care, custody and control of his or her child. A putative de facto parent who seeks visitation rights over the objection of a legal parent is a third party, and, as is required of other third parties w ho seek visitation rights, must demonstrate exceptional circumstances as a prerequisite to a court’s consideration of the best interests of the child. The court would only grant visitation to Margaret if Janice was unfit, or if sufficient “exceptional circumstances” existed that would justify awarding visitation.

If you think that all of this could be avoided simply by having both partners adopt the child, even that is not clear. Whether same-sex couples may adopt in Maryland remains unsettled. Once again we are struck by the difference in the real world and the legal world. This decision seems to be very technically and legally reasoned. But it lacks the feelings of real world experience of children and alternative families. The opinion cites the law correctly but what about the child’s best interest in losing access to one of her moms?

The Dissent

“One thing is clear: the Maryland legislature is silent when it comes to the question of visitation with children when a non-traditional family is involved,” said the dissenting judge.

He points to Wisconsin as having a test he finds appropriate:

1. the biological or adoptive parent must have consented to, and fostered, the petitioner’s formation of a parent-like relationship;
2. the petitioner and the child must have lived together in the same household;
3. the petitioner must have assumed the obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing to the child’s support, without expectation of financial compensation (a petitioner’s contribution to a child’s support need not be monetary); and
4. the petitioner must have been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

The dissent said, “A party who has demonstrated that he or she is a child’s de facto parent should be entitled to visitation rights if such a result is in the best interest of the child.”

Janice M. v. Margaret K., No. 122, Sept. Term, 2006 (Maryland Court of Appeals, May 19, 2008)