Child Custody and Relocation: What You Should Know Before Packing Your Bags

Are you thinking about moving, but worried how this might affect your custody agreement? 

For many parents, relocating to a new place presents new and exciting opportunities. Whether it would allow you to seek a better job, or the move would put you closer to extended family, your reasons for moving may be completely valid. However, when this move would create a conflict with your custody arrangement, there are important factors you must first consider. 

1. First things first – are you planning to move across the street or across the country? There is a big difference between moving somewhere in driving range versus somewhere that requires a plane ride to get there. This is because regardless of whether your custody arrangement was established through a separation agreement or by a custody order from the court, you must follow its terms. 

2. Modifying your agreement – But what happens if you want to move to a different state, or maybe even to a different country? When relocation would absolutely make your current agreement or order impossible to follow, you will have to have the arrangement modified. While this can be done through a consent agreement with the other parent, you may have to seek a court order regarding custody. 

3. In analyzing a relocation request, a court will consider many things, including whether the relocation establishes a material change in circumstances to trigger modification of custody, and whether relocation is in the best interest of the child. Courts use this high standard as a way to avoid unnecessary disruption for the child. As part of the best interest analysis, courts will generally consider the following: 

   • What are the reasons for the move? Are you moving to pursue an advanced degree or for employment reasons?

     • Do you have a plan for where you wish to move? Have you looked into neighborhoods, or schools for your child? 

     • If you are the relocating parent, are you able to meet your child’s needs on a day to day basis? 

     • What is your relationship with your child? And how does that compare to their relationship with the other parent?

     • How old is your child? 

     • Will relocation enhance the general quality of life for both you and your child? 

It is important to note however that while a court may find that relocating your child is not in their best interest, they cannot restrict you from moving alone. Rather, the court can amend the custody order so that your child remains in-state with the non-relocating parent.  If you have questions, we can help. Call our office at 240-396-4373.

COVID and the Modification of Child Support

Lost Your Job? Modifying Child Support May Help to Lessen the Blow

 As if dealing with the stress of a global pandemic wasn’t enough, people are now forced to face the unfortunate financial consequences of COVID-19. For many this means unemployment (including furlough, permanent lays offs, or underemployment) and if you are also a parent paying child support, this could mean significant challenges in meeting your monthly obligation. That being said, a modification in your child support order might be your next step. Here is what you should know. 

1)    A modification of child support may be appropriate if circumstances have changed substantially since the last order was entered.  Losing a job is a common reason for a reduction in child support, but other reasons could include a reduction in hours or pay rate. Given the uncertainty surrounding when this virus will end, courts may also consider factors which they normally would not. 

2)    A modification of child support is only valid through a court order or formal agreement.  For these reasons, you should never unilaterally lower or stop paying your obligations. 

3)    Child support payments can be deducted automatically from your unemployment benefits. If you cannot find another job, you may want to consider filing for unemployment as a way to ensure you do not default on your payments. 

 4)    If you cannot pay your child support, you should either immediately consult with an attorney and/or immediately file a pro se motion to modify. If you do not, a court can find that you are in arrears of payment and accordingly order you to pay anything owed pursuant to the last order.   Even with court closures, you can still file a motion which will toll the accrual of your arrears.

If you have questions,, we are open and available to help!

Retirement Implications of the CARES Act

On March 27, 2020 the CARES Act was signed into law. The major headlines of the law are the small business loans, checks to income-qualifying individuals, and student loan payment implications. However, the headlines are omitting another major section of the CARES Act – the section that loosens access to funds in retirement plans for qualifying individuals, so that funds in retirement plans can be used to help pay for expenses during this time. Note, the loosened restrictions for access to retirement funds is for 2020 only.

Who is Eligible to Take Advantage of the Loosened Restrictions?

Before getting into the details of how the access to funds in retirement plans have been expanded, who is eligible to take advantage of this temporary change? A ‘qualifying individual’ is someone who is, or whose spouse or dependent is, diagnosed with COVID-19, or who experiences financial hardships due to furlough, quarantine, layoff, hours reduction, inability to work due to lack of childcare or business closing, or any other factors as determined by the Secretary of the Treasury as the situation changes. 

Ok, so a person is eligible, how do they use take advantage of being eligible? Retirement plan administrators/sponsors are not required to verify a plan participant’s claim of eligibility – the plan administrator/sponsor can rely on the plan participant’s certification of eligibility. 

What Exactly Could People Be Eligible For? 

1. Higher Loan Limit. The loan limit for all qualified plans is now $100,000 or 100% of the participant’s vested balance, whichever is lower. This is increased from $50,000 or 50% of the participant’s vested balance. This total loan balance is to include any loans currently outstanding by a plan participant. Payments otherwise due between March 27, 2020 through December 31, 2020 will be delayed for one year, and no interest shall accrue during the delay period. 

2. Tax-Free* and Penalty-Free Coronavirus-related Distribution. Individuals can take a Coronavirus-related distribution of up to $100,000 in 2020. The distribution will not be subject to the 10% early withdrawal fee. The distribution will be included in the recipient’s taxable income across three years, unless the recipient prefers to have it all taxed in a single year. *However, if the recipient repays the distribution or any amount thereof, within three years of receiving the distribution the amount repaid will be treated as a rollover to an eligible retirement account and will not be taxed. As a practical matter, for people repaying the distribution in a year other than the year in which it is received (2020), the person will have to amend the tax returns for that year to change the tax treatment of the distribution.

3. No Required Minimum Distributions in 2020. Persons with a certain 457(b), or an IRA, 403(a), or a 403(b) from which they are required to take a minimum distribution each year are not required to take such a distribution this year. The purpose of this is to help people preserve their investments and leave their funds in the retirement account if they do not need to take the distribution. There is no guidance for persons who have already taken their required minimum distributions before this law was passed, so as of now, required minimum distributions that have already been taken cannot be re-deposited or otherwise ‘undone.’ 

If a party to a divorce is adversely impacted by COVID-19, or is otherwise in need of funds during this crisis, these options may be worth exploring. Consult with a financial planner or tax advisor before making any important financial decisions like these!

Divorce and Custody Agreements: How to Navigate the Coronavirus Quarantine

            How do you successfully co-parent when you are also forced to quarantine? The spread of COVID-19 has divorced parents asking a lot of questions about how to stay safe and practice “social distancing” while also following their custody agreements. Here are some good tips.     

Stick to the agreement

While this may not be easy, try to follow the terms of the agreement as much as possible. These are stressful and changing times for everyone, which is why maintaining some form of stability can benefit both you and your children.  

Prepare for flexibility 

 With schools closed and activities cancelled, there may be certain aspects to your agreement that actually require change. That being said, both parents should be prepared to be flexible. Communication is essential. 

For example, if pick-up and drop-off typically takes place at your child’s school, you may want to establish an alternative location or agree to some other form of exchange. Regardless, remember that this must be a mutually agreed upon decision that works for all parties involved. 

Be safe

Given the contagious nature of the virus, it is important to avoid social contact if someone in your family presents with symptoms. This may cause disruption to your agreement, however, ensuring that the rest of your family is safe should remain a top priority. Fortunately, there are no shortage of virtual hangout applications that allow you to remain in isolation while also getting facetime in with your kids! 

Don’t forget the priorities 

Remember, it should always be about what is in the best interest of your children. 

What is a Power of Attorney? What is an Advanced Healthcare Directive?

A Power of Attorney and Advanced Healthcare Directive are legal forms that give authority to another person to act on your behalf in certain circumstances. 

Power of Attorney

A Power of Attorney deals with your assets and debts, to include your home, cash accounts, retirement interests, car, personal property, and insurance. The Power of Attorney lets you delegate authority to make decisions regarding these assets to another person, either in all circumstances or in limited circumstances. For example, you might be closing on a house, but have pre-planned and paid for travel. You could delegate your authority to sign the closing documents, sign for the mortgage, transfer funds from your bank account, etc. so that closing on the home can continue while you are away. The Power of Attorney could be revoked or could automatically terminate once closing was complete. 

Alternatively, you could use a Power of Attorney as a part of your long-term estate planning. A Power of Attorney form can become effectively immediately and not terminate, even if you become mentally incapacitated in the future. In this circumstance, the Power of Attorney is used to make sure you have someone of sound mind with authority to access your assets to make sure your bills continue to be paid, and that you have cash on hand to be able to purchase life necessities. 

The Power of Attorney also allows you to state who you wish shall serve as the guardian of your person or property, if that becomes necessary. 

 Advanced Healthcare Directive

 The Advanced Healthcare Directive is a form of long-term estate planning, as well as an unforeseen emergency tool. Anyone could encounter an unforeseen emergency, leaving them in the hospital without the ability to confer with doctors for their care or are simply aging and looking to round out their estate planning. 

 The Advanced Healthcare Directive is a set of instructions to another person with respect to the type of care you would like to receive in certain circumstances. In the event that you have a minor child, the Advanced Healthcare Directive also includes an option for you to designate who you would like to take care of the minor child in the event the parents are unable to do so. 

 If you do not have these documents currently in place, call 240-396-4373 to schedule your appointment.

Using Private Investigators in Your Legal Battles: Common Pitfalls and Best Practices

Are you curious about hiring a private investigator in your divorce case? 

Law firms often turn to the use of private investigators to find out additional information about opposing parties. While the practice is growing in trend, there are some common pitfalls you need to be sure to avoid. 

In Washington D.C., there are two rules of professional conduct that are relevant to attorneys to using private investigators in their cases. D.C. Rules of Professional Conduct 1.3 mandates that counsel should represent a client zealously and diligently. Rule 3.1 of the Code of Professional Conduct states that lawyers are required to inform themselves about the facts of their clients’ cases and determine that they can make good faith arguments in support of their clients’ positions. 

What are some common pitfalls when using private investigators? 

You should stay far away from lawyers and investigators who engage in pretexting. Pretexting is the practice of contacting witnesses either by phone, in-person, by e-mail, or through social media and misrepresenting your identity to get information. The temptation to engage in pretexting is high, as lawyers and investigators know that they are more likely to get people to talk to them if they conceal their true identity. While pretexting can be highly successful, it is a violation of DC Rules of Professional Conduct 4.1 and 8.4, as well as mail and wire fraud statutes, and the FTC Act. 

You should also be wary of investigators who engage in so-called, “dumpster diving.” While it may be tempting to think that anything put in a trash can is fair game, if the dumpster is located on private property (such as at an apartment complex), or if there are jurisdictional regulations prohibiting such acts, the lawyer or investigator can be liable for trespassing. 

So, what are the best practices? 

Any hired private investigator should be hired through legal counsel. An investigator’s work is generally going to be protected under work product doctrine if hired by counsel, otherwise, the investigator’s work will be open to discovery. An attorney can also set and document in writing clear rules and guidelines for the investigator’s conduct. 

Markham Law Firm has experience ethically using private investigators in family law litigation cases. To learn more about how Markham Law Firm can help you through your domestic dispute please call us at (240)-396-4373. Markham Law Firm is located in downtown Bethesda, MD.   

New Gender Designation Law

A new gender designation law is making its way into Maryland this October. House Bill 421 passed both the House and the Senate with a veto-proof majority and was enacted under Article II section 17(c) of the Maryland Constitution on May 25, 2019. The law will take effect on October 1, 2019.

Maryland residents who identify as non-binary will now have the option to designate their gender as X instead of the traditional M or F options through the Motor Vehicle Administration. Persons who identify as non-binary, unspecified, or “other” do not identify exclusively as male or female and often use they/them pronouns. The law allows applicants for licenses, state identification cards, and moped operator’s permits to indicate an “unspecified or other” gender with an X. Maryland joins California, Colorado, Maine, Minnesota, Oregon, and the District of Columbia in allowing designation for unspecified gender on licenses and state identification cards. 

To change gender designation on a driver’s license, the Motor Vehicle Administration requires the change to be done in person and requires the applicant to bring either a court order, federal/state-issued identification, or birth certificate showing the requested gender designation. An applicant may also bring an authorized letter obtained from MVA’s Driver Wellness and Safety Division. This new law, however, prohibits the Motor Vehicle Administration from requiring proof of the applicant’s sex or denying an application because the sex selected by the applicant does not match the sex indicated on another document associated with the applicant. 

Following suit, Montgomery County Public Schools (MCPS) recently announced that students will be able to designate X as the gender option on school records. MCPS Superintendent Jack Smith wrote a letter to Maryland State Superintendent of Schools Karen Salmon stating that the school system receives numerous requests from students and parents seeking to indicate their gender as non-binary or unspecified each year. Arlington Public Schools and DC Public Schools are also allowing for a third non-binary gender option on school records. 

While the Motor Vehicle Administration changes will go into effect October 1, 2019, the MCPS policy change will not be fully implemented until the summer of 2020. However, the school system plans to handle requests to change gender designation on school records on a case-by-case basis until then. To note, the new October law does not cover birth certificates issued by the Division of Vital Records, and as of now there is no option to change your gender on your birth certificate to X.

Markham Law Firm has experience representing parties with relation to name changes and motions to seal so that their documentation matches their identities. To learn more about how Markham Law Firm can help you through the name change or record sealing process please call us at (240)-396-4373. Markham Law Firm is located in downtown Bethesda, MD.   

Best Lawyers in America Rankings!

We are honored to have been included again this year in "The Best Lawyers in America"© publication in the field of Family Law, for the Washington D.C. Area. Ms. Markham was ranked again as a “Best Lawyer” and the entire firm was ranked again in the category of Best Family Law Firm.

Ms. Markham was previously recognized by her peers for inclusion in "The Best Lawyers in America"© in 2018 and 2019. The entire firm was previously ranked in the category of Best Family Law Firm in 2019.  

Best Lawyers is a purely peer review publication. Thank you to our peers.

Samantha Kravitz Featured in DC Bar Magazine

Samantha Kravitz was featured in the January/February issue of DC Bar Magazine. Samantha joined the firm as Senior Counsel in December 2018 and will continue to focus her practice on family law in Maryland and Washington D.C.

Legislative Update: Permanent Protective Orders

During the 2018 Regular Session, the Maryland General Assembly passed a new bill that would expand the circumstances and streamline the process by which victims of domestic violence can obtain a permanent protective order. The bill was approved by Governor Larry Hogan on May 8, 2018 and has gone effect as of October 1, 2018.

Prior to the new bill (HB1303) being passed, getting a permanent protective order was a lengthy process. Before the bill, a victim had to:

1) obtain an interim or temporary protective order, 

2) satisfy the conditions that would allow the victim to obtain an original final protective order, and 

3) re-file for a second final protective order after the original final protective order expires. This second final protective order would be permanent, unless terminated by the victim. 

Under the new law, a victim can obtain a permanent protective order in a more streamlined process that decreases the amount of court visits and petitions a victim must file. The bill defines two circumstances in which a victim can get a permanent protective order without multiple protective order petitions.

In the first scenario, a victim can receive a permanent protective order from the court if 1) an interim, temporary, or final protective order has already been issued against their aggressor and 2) the aggressor was convicted of and has served at least 12 months of a five-year or longer sentence for the act of abuse that led to the issuance of the interim, temporary, or final protective order. This scenario allows the victim to bypass the prior process of petitioning for a second final protective order for the order to become permanent. 

In the second scenario, a victim can get a permanent protective order from the court if 1) during the term of an interim, temporary, or final protective order 2) the aggressor commits a new act of aggression against the victim, for which the aggressor is convicted of and has served at least 12 months of a five-year or longer sentence for that new act. 

The new bill makes it so that victims are not required to wait and see if an aggressor will attempt another act of violence against the victim after serving a period of imprisonment, rather the victim can take a proactive action for his or her own safety.