You’ve Decided to Mediate Your Divorce. Should You Bring a Lawyer?

Deborah ReiserDeborah Reiser

You’ve decided to mediate your divorce case. You wisely decided to avoid the expense, acrimony, and uncertainty of a contested court proceeding in favor of a negotiated resolution with the assistance of a neutral third party. You’ve selected a mediator, and now are faced with the choice of whether you should go to mediation with or without your lawyer.

There are pros and cons to both approaches, and the decision deserves thoughtful consideration.

When You May Not Want an Attorney

Obviously, mediating without two additional lawyers present is, at first, less expensive. The math is easy — you are paying two fewer professionals for the real time of mediation. If you and your spouse are able to communicate civilly, if the issues are not mired in complexity, if positions are not hardened in concrete, and if both sides recognize the wisdom of compromise — then, by all means, consider meeting with the mediator alone.

When You Should Consider Bringing an Attorney

On the other hand, what if one spouse holds all the advantages, financially and otherwise?

  • What if one spouse is unable to appreciate the value of achieving a resolution even if imperfect?
  • What if the complexities of resolution are outside your comfort zone?
  • What if there are issues which require specific expertise, such as identifying and valuing business interests? Or dividing retirements and pensions?

Having your lawyer present in real time can make the difference between success and disaster.

Remember: The mediator is a neutral. S/he cannot offer legal advice to either party; rather, the mediator’s job is to get the parties to agreement. There may well be issues where you need actual advice about the wisdom of your position, about the risks and exposure you face with different choices, or about whether your negotiating strategy is even prudent or smart.

As a neutral, a mediator should not say to you “You would be unwise to do this, this is a mistake for you.” If your lawyer is present, you can address strengths and advantages, pitfalls and risks in real time. Otherwise, stopping the mediation to consult with your lawyer and then re-grouping not only slows progress; actually, the fits and starts can easily cost more money over the long run.

Similarly, suppose you reach a tentative agreement in mediation. The mediator should advise you to consult with your own attorney before signing what will be a binding contract. Suppose further that on consultation with your lawyer you become aware of a major issue you failed to address, or worse, resolved in a manner that can actually cause you harm. Then you have to return to the negotiating table. You’ve lost time, money and quite possibly have created a more intransigent bargaining position on the other side.

At the very least, you should consult with your own lawyer In advance of mediation in order to become educated as to your rights and obligations under the divorce law, to think through your goals and areas of potential compromise, and to “game-plan” your negotiating strategy. Discuss with your lawyer whether to have him/her accompany you to the actual mediation. Then, and only then, decide what course is best for you.

What You Need to Know About Maryland’s Revised Child Support Guidelines

Maryland’s Child Support Guidelines, which are used by the Courts to establish and set child support in most cases in Maryland, had not been substantively adjusted in 10 years. The new law, which updates the prior Maryland Child Support Guidelines statute, is effective for all cases filed after October 1, 2020.

There are two noteworthy updates to the Maryland Child Support Guidelines statute – one, intended to address the “cliff effect” (i.e. a substantial decrease in child support) that occurs once the non-custodial parent reaches “shared physical custody”, which was formerly 128 overnights per year or more (or 35% of the overnights or more). The other – extending the presumptive application of the Guidelines to families earning up to $30,000 per month, thus doubling the former threshold.

1. Increasing the Threshold for Application of Guidelines

Prior to October 1, 2020, the Courts, unless they found sufficient reason(s) to deviate therefrom, were required to apply the result of the Maryland Child Support Guidelines calculator in all cases in which the combined adjusted actual income of the family was $15,000 per month (or $180,000 per year) or less. Now, the Maryland Child Support Guidelines calculator result is the presumptively correct amount for all families earning a combined adjusted actual income of $30,000 per month (or $360,000 per year).

This should provide more prompt and predictable results for families earning between $180,000-$360,000 per year. Above $30,000 per month or $360,000 per year, the Court has discretion in determining the level of child support.

2. Addressing the “Cliff Effect” in Shared Custody Situations

Under the former Maryland Child Support Guidelines, a family transitioned from using the “sole custody” calculation method to the “shared custody” calculation method once the non-custodial parent had the child or children in his or her care 35% or more overnights per year. That transition produced a “cliff effect” – a large drop in child support for the custodial parent once the 35% threshold was met. Not only was the “cliff effect” hard to understand for parents and courts alike – it also led to custody and access disputes motivated, in part, to manipulate child support.

The new Maryland Child Support Guidelines define shared custody as the non-custodial parent having the children for at least 25% of the overnights or more, with incremental adjustments in child support when a parent has between 25% and 50% overnights, to lessen the impact of the former “cliff effect” at 35% overnights. This means non-custodial parents who have their child or children 25% of the overnights or more should see their child support obligations decrease under the new guidelines from what they would have been under the former guidelines.

As to how a non-custodial parent who has their child 25% or more of the overnights will see their child support obligations decrease, take as an example a family where both parents of one child earn adjusted actual incomes of $12,000 per month ($24,000 combined). If Parent A has the child 75% of the overnights and Parent B has the child 25% of the overnights, under the former guidelines, Parent B would pay child support of $1,554 per month, but under the new guidelines, Parent B pays child support of $1,330 per month. If in that situation Parent A has the child 66% of the overnights and Parent B has the child 34% of the overnights, under the former guidelines, Parent B would pay child support of $1,554 per month, but under the new guidelines, Parent B pays child support of $746 per month.

For cases filed after October 1, 2020, the new child support guidelines will be used to establish initial child support orders, both pendente lite (pending trial) and permanently, as well as to establish the level of child support in cases involving modifications of existing child support orders.

Existing child support orders can be modified based only on a material change of circumstances. Courts have found a material change of circumstances in numerous instances, including but not limited to loss of a job, medical issues, retirement, education issues, changes in the needs of the child, etc. However, the adoption of the new child support guidelines is not, in and of itself, a material change of circumstances for purposes of modification of child support.

If you have minor children, adult destitute or adult disabled children, you should consult a family law attorney about how the new guidelines may affect your child support obligation or award.

Why You and Your Divorce Attorney Should Develop a Personal Relationship

Chris RobertsChris Roberts, Principal

I’ve always enjoyed the movie Jerry Maguire. Jerry is a sports agent representing Rod Tidwell, a bombastic, energetic, life-loving NFL wide receiver. Part of the appeal of the movie is the relationship between Rod and Jerry. Rod leaves no doubt about his professional goals (SHOW ME THE MONEY JERRY!!!!), but he has to navigate personal and professional challenges to make them happen. Rod is Jerry’s client, but his relationship with Jerry seems more than that. Throughout the film, Rod must rely on his relationship with Jerry to lead him to the promised land.

I’m not here to tell you that all of our clients are going to cry, yell at, and hug their divorce attorney, nor am I suggesting your attorney should model him or herself after Jerry Maguire. In many ways, however, a successful attorney-client relationship may look more like Rod and Jerry’s than many of your other professional relationships. Here’s how.

You need a personal relationship with your attorney

Speaking for myself and I am sure many others in my profession, we do this work because we actually want to help people. Yes, we are professionals, and we focus intensely on protecting the things our clients value most. But our jobs also often requires us to know the most intimate details of our client’s lives, facts that they may not share with anyone one else, ever.

Our clients come to trust and rely on us, not only to keep their confidence, but also to help manage the most difficult and valuable parts of their lives. A relationship like this doesn’t come into existence overnight, and it requires a personal investment, from the attorney and the client. The relationship takes time to build, through meetings, phone calls, emails, Zoom chats, court hearings, and more. Regardless of how you build it, a successful relationship requires effort, time, mutual understanding, and respect.

Trust and honesty are critical to a successful attorney-client relationship

Divorces are usually among the most difficult experiences of a person’s life, and they can sometimes take months or longer to complete. There is often a high degree of conflict, there are frequently multiple and simultaneous dispute resolution processes at work, and there are always unwanted or unexpected developments.

The twists and turns that occur don’t have to be disastrous for the outcome of a person’s divorce, but they will undoubtedly require trust and teamwork to overcome. The client should expect his or her attorney to be up front and honest about unwanted or unexpected developments, mistakes, delays, or bad results. These things happen in life in the best circumstances, and they happen in divorces too. It is critical to identify issues as they arise, communicate them openly and directly, and come up with a plan.

Good attorneys excel in these moments and clients should trust and rely on them to help move things forward in a constructive and positive manner.

Allow your attorney to help you define and pursue your goals

A divorce shouldn’t define you, but it is a milestone, and hopefully one that allows you to redefine your life direction and goals so that you can become the best possible version of you.

In order to move constructively through the divorce process and confidently on to a better life, it is essential to develop your life goals and objectives for the mid- and long-term. Without this direction, it is all too easy to become stuck in the morass of the divorce process, and to forget that divorce should be an event that you put in your rearview mirror as soon as possible. Maintaining focus on your goals will allow you to make the compromises in your divorce that are necessary to end that chapter of your life and move forward to the life that awaits.

Spend some time early in the divorce process discussing your goals with your attorney, and identify the key components you believe are necessary to accomplish your goals. Once you’ve done this, don’t allow yourself to lose track of your goals. Revisit them, and talk with your lawyer to assess your progress, and whether your goals remain viable and attainable. Don’t be afraid to adapt and adjust your goals as you go.

If you have developed the sort of attorney-client relationship I’ve suggested, you will find that your lawyer will be a valuable resource in helping you stay on the path to the life you want to live.

Not All Dollars Are Equal: Which Assets Are Most Valuable in Divorce?

AvatarErik Arena, Principal

One thing is usually certain in the aftermath of a divorce: You’ll experience a reduction in net worth and in standard of living. This is unavoidable as one household becomes two.

But just because it will happen doesn’t mean you can’t take steps to lessen the blow. By choosing wisely and unemotionally when dividing the marital assets with your spouse, you can minimize the reduction in your net worth post-divorce.

Not all Dollars Should be Valued Equally in Divorce

Although all asset transfers between spouses (incident to divorce) are tax-free events, some of those assets may later be subject to sizeable income and/or capital gains taxes that must be paid entirely by the receiving spouse, significantly diminishing their net value. It is imperative that these consequences be known and understood by you and your attorney so that you don’t end up with less than your fair share of the net assets.

Which Assets and/or Dollars are Most Valuable?

Value means many different things to many different people. When dividing assets between spouses, it is important to keep in mind the classes of assets identified below, which vary in net present value. If you and your spouse are trading assets from different classes, adjustments may need to be made to ensure you are not losing fair value.

  1. Cash is king! It is both liquid and not subject to any further taxes. It doesn’t get any better than that!
  • Cash, funds in checking and savings accounts, and the money market portion of any investment accounts.
  • Home sale proceeds. If the family home is sold as part of the divorce, those proceeds are also liquid and not subject to further tax (as any capital gains due will be paid at the time of sale, after application of your combined spousal $500,000 capital gains exclusion).

2. Other assets not subject to any further tax. Generally speaking, the replacement cost for these items exceed their private re-sale value. Retaining those items as part of your divorce will mean less dollars spent by you post-divorce to get yourself situated.

  • Furniture and home furnishings.
  • Automobiles.

3. Assets subject to capital gain but not income taxes. These assets will fluctuate in value and will be subject to capital gain taxes if you need to sell them to generate cash. The order of priority in each case will vary depending upon the tax basis of each asset or holding:

  • Stock and/or mutual fund holdings in investment accounts. These may also throw off interest and/or dividends, which, in some cases, is taxable income to you.
  • The family home. Depending upon the home’s tax basis, you may face a hefty capital gains bill if you assume ownership and then sell it later. Further, at the time of that sale, you’ll only be able to use your own $250,000 capital gains exclusion, as opposed to the combined $500,000 exclusion for spouses.
  • Other real property not used as primary residence. Any capital gains problem is compounded with these properties because there is no applicable capital gains exclusion.
  • Stock options
  • Vested restricted stock
  • Some artwork

4. Assets subject to income tax at the time of exercise or withdrawal. These assets will also fluctuate in value. However, when it comes time to withdraw from them, you’ll be taxed on those withdrawals and/or distributions at your ordinary income tax rate in the year in which you take the distributions. Accordingly, the present value of retirement assets, when compared to cash assets, must be adjusted for both present value (as cash is available to you now, whereas retirement, if drawn early, is subject to an additional 10% penalty tax) and after-tax value.

  • Most employer sponsored retirement plans (note: IMF and World Bank pensions are not taxable)
  • IRAs
  • Certain pension plans
  • Retirement annuities

Each divorce is different and there can be legitimate reasons why assets are divided a certain way. The information above is intended to inform and educate you, so you can use that knowledge to move forward in a strategic fashion.

Are You a Millennial Thinking about Marriage? Here’s What You Should Know about Divorce

Liz EstephanLiz Estephan, Attorney

Millennials are causing a 24% rate in decline in the divorce rate, according to Business Insider.

There are a few reasons for this statistic like waiting longer to get married, establishing careers, and paying off student loan debt. But if you are a millennial and have decided to get married or are thinking about marriage, here’s what you should know about divorce.

Accounts and Assets

If you and your soon-to-be spouse decide not to have any joint accounts, this does not mean that you do not have an interest in his or her account.

Once you are married, at least in the District of Columbia and Maryland, typically any income to either you or your soon-to-be-spouse is considered marital property. You and your spouse should have frank conversations about your financials and disclose any and all accounts to each other.

Upon divorce, marital assets and accounts are equitably divided.  If you do not know your spouse’s accounts and assets and your spouse is not forthright when you are navigating a divorce, you may have to spend more money in discovery to determine all of your spouse’s accounts and assets.

Real Property

Are you and your soon-to-be spouse thinking about buying property in Maryland or the District of Columbia? Perhaps you had better wait until you are married.

When you are married and buy property in either of these two jurisdictions, there is a presumption that you and your soon-to-be spouse will be tenants by the entirety rather than joint tenants or tenants in common. Tenants by the entirety means that each spouse has an undivided interest in the real property and there is a right of survivorship (if one of you were to pass, the survivor would assume ownership of your home). Maryland has a presumption that real property owned by a married couple is held as tenants by entirety.

If you purchase property before you are married, you could either be tenants in common or joint tenants.

Tenants in common means that you and your soon-to-be spouse have an undivided interest in the property, you are joint owner, but you each own a specific share of the property, your shares do not necessarily have to be equal. Tenants in common do not have a right of survivorship. This could become an issue if your soon-to-be spouse has children from a previous relationship or marriage as the children could inherit your soon-to-be spouse’s interest in the property, not you.

Joint tenants means that you and your soon-to-be spouse have an undivided interest in the real property with rights of survivorship. You and your spouse must intend to create a joint tenancy and the deed should reflect a joint tenancy. Maryland has a presumption against joint tenancy.

Non-marital Property

Do you have a trust, inheritance or real property that you received prior to marriage? This type of property is typically considered non-marital property. For example, if you thinking about using an inheritance to put towards a down payment on a home with your soon-to-be spouse, do not lose track of any of the documentation showing where the money originated.

If you divorce, you want to prove to your spouse and potentially a court, that you have a greater interest in the property because of your non-marital contribution. If you have significant premarital assets, you should consider a prenuptial agreement.

Getting Divorced? Get off Social Media!

Erin KopelmanErin Kopelman, Principal

“Privacy is dead, and social media holds the smoking gun.” – Pete Cashmore, CEO of Mashable

Eighty-one percent of lawyers find social media networking evidence worth presenting in court, and 66% of divorce cases use Facebook as a principal source of evidence, according to a recent law review article. These are striking numbers worth paying attention to if you’re considering divorce.

A Real World Issue

Your social media posts can and will be used against you.

Just imagine you are on a dating website before you separated from your spouse. Or, in a moment of anger or frustration you post about your divorce and/or your spouse. How might this affect what a judge decides about the custody of your children or your finances?

Now imagine that you claim because of a back injury you cannot work and need alimony, but there are pictures up on the internet of you dancing on a bar, horseback riding, or doing a cartwheel. What might that do to your alimony claim?

Obtaining Social Media Evidence is Easier Than You Think

A person can usually download the profile and postings of others with whom they are “friends” on the site. If your spouse has “un-friended” you, you can ask someone else to secure your spouse’s social media.

Some people going through divorce “un-friend” their spouse and their spouse’s friends and family on their social media, feeling a false sense of security that their spouse is not going to see their profile and posts. Not only does this hurt their relationship with these people, but if someone sees something on your profile that they find interesting, you’d be surprised how quickly it makes its way back to your spouse.

Be aware you can also ask for enforceable discovery requests for the other side to download and produce their social media account profiles and postings. And, your spouse can also subpoena your social media profiles, accounts and postings directly from the provider. 

If you’re posting on social media, you must assume that whatever you post will be seen by your spouse, and if you don’t settle, a judge. If you are considering a divorce, immediately consult a lawyer and stop posting social media. There are rules about the destruction of evidence, which may include social media. When meeting with a lawyer provide them full disclosure about what there is online about you. 

And, going forward, the best way to protect yourself is to not post.  

My soon-to-be Ex and I are Friendly: Do I Really Need a Divorce Lawyer?

AvatarCasey Florance, Principal

With the proliferation of online resources, and the ongoing pandemic, it is both more tempting and more possible than ever to craft your own Settlement Agreement from the comfort of your living room.

Online “forms” abound, and services like Legal Zoom can help you feel like the “do-it-yourself” (DIY) agreement is tailored to your particular situation. As a result, divorce lawyers frequently get asked: Do I really need a lawyer?

Although it is hard to advise people how to avoid needing my services, I typically tell potential clients that the answer really depends on the circumstances of their case and level of complexity of their custody and/or financial situation, as well as the dynamic between them and their soon-to-be Ex. There are a lot of resources and dispute resolution processes available to the self-represented person (read: divorcing person who does not have an attorney), but there are also many pitfalls.

Regardless of the chosen path and circumstances of the case, however, one thing I always tell anyone who will listen is this: you absolutely must meet with an attorney to review any Settlement Agreement BEFORE you sign it. Here’s why.

  1. It is important to be certain that the language of your Agreement actually sets forth the terms you have agreed upon.

    Just because you and your spouse/co-parent are comfortable negotiating directly and coming to agreed-upon resolutions for the issues arising out of your relationship, does not mean you are comfortable translating those agreed-upon concepts into written agreement terms.

    If your goal is to avoid Court and costly litigation while making your own decisions about your family, then your DIY Settlement Agreement will not serve its intended purpose if you have to spend money later litigating over what your agreement was supposed to say, or worse, seeking the Court’s interpretation of your agreement because you two have a dispute about what your agreement means. It is also important for you to understand your agreement so you know what you need to do once it is signed in order to comply with it moving forward.

  2. You don’t know what you don’t know.

    Many online tools for drafting DIY Settlement Agreements contain a series of options you self-select based on the categories listed. But more often than not, there are details about your custodial situation — or your finances, assets or debts — that are not represented in these pre-drafted menus. Or the options do not adequately capture your specific situation.

    The danger here is that once you sign an Agreement, you may have waived rights you didn’t even realize you had. Furthermore, by neglecting to include entire topic areas in your Agreement, you may have accidentally waived your ability to later address those topics.

  3. There is very likely “boiler plate” language embedded in the form agreement that makes certain provisions unable to be modified for any reason.

    In Maryland, there are often sections of a Settlement Agreement that are unable to be modified by a Court once the agreement is signed by both parties. For example, it is typical for agreements to state that the division of assets cannot be modified by the Court at any point in the future.

    It is also not unusual for time-bound alimony payments to be non-modifiable. As a result, it is extremely important to understand which provisions of your Settlement Agreement are able to be modified in the future, and which ones are not. Failure to understand your agreement – when you had the opportunity to review and understand it before signing it – is an unlikely basis for undoing your Agreement later if you are unhappy with it. And signing an Agreement which says that certain provisions are not able to be changed by the Court may leave you with little recourse.

  4. Ensure that the Agreement meets your goals.

    If you have attended mediation with a third-party neutral and the mediator drafted your Agreement, it remains important to have it reviewed by your own attorney before you sign it. You will want to ensure that the agreement meets your individual goals. Just as important, you want to make sure you actually understand each and every provision of your agreement. Many people don’t realize that a mediator does not represent either party’s interests and cannot provide legal advice; rather the mediator’s goal is to facilitate a resolution.

I recommend anyone going through a divorce to have an attorney guiding them through the process, explaining rights and obligations, strategizing to reach goals, and advocating for their interests. For many people, this option is not feasible for a variety of reasons. When that’s the case, it is nevertheless imperative to meet with an attorney to review your draft Settlement Agreement before you sign it.

Are You a Stay-at-Home Parent?

In a Divorce, You Should Consider These Five Tips

AvatarDonna E. Van Scoy, Principal

In the event of a divorce, the stay-at-home parent often feels the negative impact of the decision of who stays with the kids.

Marriage is hard and requires continued work to be successful. Even with hard work and commitment, not every marriage succeeds. According to Earth & World, 46% of marriages in the United States fail. If you are going to be the stay-at-home parent who becomes the financially dependent spouse, consider the following tips to protect your future (and your children’s future).

  1. Manage the family money/assets or at the very least be fully aware of the family money/assets. Communicate regularly about the finances and assets (monthly or quarterly is best).
  2. Where possible be sure all assets are joint assets with both names appearing on accounts, titles, and deeds.
    1. Find a vehicle to establish a retirement account for yourself.
    2. If your family works with a financial planner, establish at the beginning that all communication are to be sent to both you and your spouse and that you both will be involved in any meetings (including phone calls/texts).
  3. Read and fully understand your state and federal tax returns before they are submitted. If you have questions, make sure they are answered.
  4. If you have a profession, take the steps to remain relevant in your field.
  5. Maintain or create contacts outside of your spouse. Be aware of your spouse’s work world and participate where appropriate.

Being an active spouse in the financial part of your marriage helps to ensure you have the necessary knowledge to assist your attorney, allows you to contribute to settlement discussions, and ensures your ability to move forward in the event of a divorce.

Litigation vs. Negotiation – Which Path Is the Right One for You?

Chris RobertsChris Roberts, Principal

Most of us have seen one of those dramatic courtroom movies that glamourize the court process – perhaps Tom Cruise’s fiery cross-examination of Jack Nicholson in A Few Good Men, or Gregory Peck’s moving closing argument in To Kill a Mockingbird

But litigation, the contested court process by which parties resolve their differences, is nothing like the process we see in our favorite legal thrillers. It is a long, slow, and expensive process. Many people consider it the most painful, difficult process of their lives.

What does the process entail?

Unless the parties can resolve the disputed issues in advance of trial, litigation usually culminates in a bench trial, where a single judge considers the evidence and arguments presented, and issues a ruling. 

The process typically begins with a scheduling hearing, where the case is scheduled in calendar-like fashion, including deadlines for the completion of the discovery process, perhaps a date by which the parties must participate in mediation or another alternative dispute resolution process, and a trial date.

Depending on the jurisdiction, the process can take a year or longer. And it is invasive. Discovery alone can include dozens of document requests, written questions that must be answered under oath, and potentially depositions of the parties, which in Maryland can last as long as seven hours straight.

At trial, each party presents his or her evidence, including witness testimony and the introduction of documents. At the conclusion of the trial, the judge renders a ruling and, ultimately, a divorce decree.

So why would anyone subject themselves to this?

You might be thinking, “This process sounds terrible, why would anyone subject themselves to this?”

For one, it guarantees an end to the process. If your spouse or co-parent is unwilling to engage in an alternative process to resolve your issues, litigation might be your only option. The court process may be slow, but it moves predictably and inexorably to a final result, after which you can go on with your life.

In some cases, there are issues on which the parties truly cannot reach agreement. In the child custody realm, this could include child support, a parent’s relocation, mental health or substance abuse issues, or physical or psychological abuse of a child. In a financial context, there may be a dispute about alimony, a party’s actual income, the value of a party’s business, or whether a party’s trust interest or inheritance should be considered in the resolution of financial issues.

What are the alternatives?

Parties are always free to resolve their issues without resorting to a contested court process.

There are a number of alternative dispute resolution tools. Some of the more common approaches include:

  • A traditional negotiation involving attorneys, where parties develop settlement offers with the assistance of their counsel, who then negotiate on behalf of their clients to resolve the issues
  • Mediation, a voluntary process where the parties meet with each other and a neutral, third-party mediator, often with counsel present or advising them
  • Arbitration, in which a third-party decision-maker considers a presentation of evidence and argument from each party and renders a binding decision

All of these approaches are generally less expensive and quicker than the litigation process. And this is not an exhaustive list of the out-of-court approaches available to people to resolve their divorce or child custody issues.

Which process is right for me?

In almost all divorces, parties are well served in the early stages to consider an out-of-court process.

Which process will work best for you depends on a multitude of factors, including the dynamic between you and your spouse or co-parent, the substantive issues in the case, the financial issues and wherewithal of one or both parties, any external time pressures that might be involved, and the professionals assisting the parties.

Do I have to pick just one process?

No. Typically, it makes sense to stick to one out-of-court process at a time, and hopefully your first attempt at alternative dispute resolution does the trick. But if not, you can always move to another process, including litigation.

It is important to understand that you can continue in a non-litigation process at the same time a litigation is pending. In fact, courts encourage these continued efforts to resolve the issues out-of-court, even as the court process unfolds. Think of negotiation and litigation as running on parallel tracks. They are separate and distinct processes, but they are connected, and one process often can impact another, ideally in a way that benefits your position and hastens resolution.

Preparing to Appear Before a Court When You Are Remote

Liz EstephanLiz Estephan, Attorney

Appearing before a judge during COVID-19 when courts are taking certain precautions to avoid in-person hearings can be a source of additional stress and apprehension.

As a client or self-represented litigant, how do you prepare when you’re going to appear in court via telephone or video? The same way you would as if you were appearing in-person.

You should discuss with your attorney the specific hearing that you are attending remotely to determine your role and how much speaking you will do. For example, your attorney will do the majority of speaking during a scheduling hearing in the Circuit Court for Montgomery County. However, if you are attending an uncontested divorce hearing and you are the plaintiff, you will be required to answer certain questions.

Other items to consider include:

  • If you have questions, ask your attorney in advance because you are not going to be able to pick-up on bodily cues or whisper questions to your attorney during the hearing.
  • It’s very important that if you are going to appear via video with a judge or magistrate, dress professionally. Keep in mind that you may still need to stand when the judge enters and departs the courtroom, even remotely, this means wearing at a minimum, professional clothing.
  • If an attorney represents you, you should not chime into the conversation with counsel, the judge, or magistrate unprompted. Allow your attorney to answer questions on your behalf, as you would if you were physically in court.
  • If your attorney, the judge or magistrate asks you a specific question, you are free to respond.
  • Whether you are attending a hearing by telephone or video, make sure to be in a quiet place. If you are appearing by video, make sure there is nothing inappropriate or distracting in your background.

Remember, you should prepare to appear in court by telephone or video as you would if you were appearing in-person. A more informal environment does not mean your dress or decorum should be informal as well.