Motions to Seal and Expungement of Criminal Records in the District of Columbia

The District of Columbia recently passed the Second Chance Amendment Act of 2022 to fix the District’s complex, confusing, and draconian laws dealing with the sealing and expungement of criminal records. The effective date of the new law [D.C. Law 24-284] has been delayed to January 1, 2026, but it will have a drastic impact on sealing and expungement of criminal records in the District.

What is a motion to seal versus an expungement?

While both sealing and expungement involve limiting public access to criminal records, they have a different effect. Sealing a criminal record means that the record is not completely erased, but it is hidden from public view and access. When a criminal record is sealed, it is typically inaccessible to the general public, including potential employers, landlords, and the general public. However, certain government agencies and law enforcement may still be able to access sealed records in specific situations.

Expungement goes a step further than sealing a criminal record. When a record is expunged, the record itself is erased or destroyed, and the effect is usually as if the criminal offense never occurred. Expungements typically result in complete removal of the criminal record from public databases and it is usually more restrictive than sealing. There may be differences in the effect of an expungement, depending upon whether the record expunged was a conviction versus a non-conviction or arrest.

The District’s current law does not expunge criminal records – they are “sealed.” The new law permits expungement of some records and expands what records are eligible for sealing.

What cases are eligible to be sealed or expunged?

Current Law

             Under the current law, there are two grounds for sealing a criminal record:

1. Actual innocence; and

2. In the interests of Justice

 Actual innocence:

A person may file a motion to seal criminal records under the current law on the basis of actual innocence if he or she can show that the offense that they were arrested for did not occur, or that they are not the person who committed the offense. This form of record sealing provides more protection than the interests of justice – if granted, the person moving for record sealing (the “movant”) is restored to the status they held prior to their arrest. It is best to file this type of request within 4 years of the arrest, because after 4 years, the burden on the movant changes from preponderance of the evidence to clear and convincing evidence.

In the Interests of Justice:

If a person is not eligible to seal their criminal record under the actual innocence standard, they may be eligible to seal their record in the interests of justice. There is a minimum of a two-year waiting period before a person may file a motion to seal criminal records in the interests of justice. A lawyer may be able to assist with an earlier filing of such a motion if the government agrees. Individuals who wish to seal their record, but have records that contain disqualifying misdemeanor arrests, disqualifying misdemeanor convictions, or felony convictions, must wait longer to file a motion to seal. A record sealed in the interests of justice must be disclosed in certain circumstances, such as jury service or an application for employment/licensure with certain entities and government organizations.

 New Law

 Automatic expungement of criminal records:

The new law requires the automatic expungement of criminal records for citations, arrests, charges, or convictions, for criminal offenses that are subsequently decriminalized, legalized, or held unconstitutional in most circumstances. The expungement must occur within 90 days after termination of the case, or by January 1, 2026, whichever is later.

 Expungement of criminal records by motion:

With respect to motions to expunge records based on actual innocence, the new law is similar in many ways to the current law but differs in several important aspects. First, there is no longer a different burden if the motion is filed after 4 years: the movant must show by a preponderance of the evidence that the offense did not occur or was not committed by the movant, regardless of when the motion for expungement is filed. Second, it requires an order dismissing, granting or denying the motion to be issued no later than 180 days after the motion is filed, unless there is good cause for delay. If a motion is denied, then the person may move for relief again after a one-year waiting period. The effect of an expungement is to restore the movant to the position they held prior to their arrest.

 Automatic sealing of criminal records:

The new law requires automatic sealing of criminal records for certain citations, arrests, or charges where the prosecution was terminated or that did not result in a conviction. These records must be sealed within 90 days of the termination of the case. Automatic sealing will also be ordered for citations, arrests, charges, and convictions for misdemeanors if at least 10 years has elapsed since completion of the sentence. There are limitations on the types of crimes that are eligible for automatic sealing – certain crimes are not eligible for automatic sealing.

Sealing criminal records by motion:

As with the current law, a motion may be filed to seal criminal records prior to the 10-year waiting period for automatic sealing in many circumstances and in circumstances where automatic sealing is not an option. The waiting period is still 5 years from the completion of the movant’s sentence for most misdemeanors, but the waiting period has been reduced from 10 years to 8 years for certain felonies. There is no automatic expungement of felonies under the either the new law or current law.

Do I need a lawyer to seal or expunge my criminal record?

While having a lawyer is not required, having an experienced lawyer can increase the likelihood that relief is granted, because the lawyer can ensure that the appropriate evidence is presented and the proper legal standard are followed.  Contact us at 240-396-4373 to schedule a consultation. 

When a Reduction to the Former Spouse’s Payment is Required by the Plan

Certain plans, such as the Interamerican Development Bank and the International Monetary Fund limit the amount of the participant’s pension that can be given to a former spouse or otherwise reduced. Other reductions might come from providing a survivor benefit to a former or current spouse.

Specifically, a participant must receive at least 50% of their unreduced pension benefit upon retirement with these two plans. Since both of these plans require a reduction to provide a survivor benefit, this means that a participant cannot give a former spouse both 50% of the pension benefit and ANY survivor benefit.

This requires a certain amount of math to figure out what can be provided to the former spouse and still provide the participant their minimum required benefit. This is not something attorneys can do for their clients, unfortunately. However, a willing participant could work with the HR department to run various scenarios for the parties to discuss.

In a negotiation or trial on the matter, obtaining this information requires some advance planning to avoid delays. If you’re dealing with one of these or a similar plan, call us at 240-396-4373 to discuss any questions you may have.

Maryland Child Abduction Prevention Act (Effective October 1, 2023)

On May 16, 2023, the Governor of Maryland approved the enactment of the Maryland Child Abduction Prevention Act. The Act is consistent with the Uniform Child Abduction Prevention Act (“UCAPA”), which has been adopted in its entirety or with modest amendments in fifteen states, including two surrounding jurisdictions (the District of Columbia and Pennsylvania). The Act will take effect in Maryland on October 1, 2023. It will appear in the Maryland Annotated Code, Family Law Article, Title 9.7 (new).

Maryland’s UCAPA addresses important facets of assessing and preventing the risk of international and domestic child abductions. Abduction is defined as the wrongful removal or wrongful retention of a child. The Act establishes a comprehensive framework to impose abduction prevention measures at any time before or after a child custody determination if the court finds a credible risk of child abduction.

Child abduction prevention has been an important topic, particularly with the increasingly transient nature of families. Many family law practitioners routinely advise their clients about the risk of child abduction and the preventive measures custodians can take. Separating families often memorialize preventative measures in their written settlement agreements. Maryland’s UCAPA allows judges to be proactive rather than reactive by providing a mechanism for swift court intervention to minimize the risk of child abduction.

Maryland’s UCAPA provides helpful guidance on how and what to address largely non-routine issues. Attorneys and litigants will have guidance on what the court will consider so that evidence can be streamlined and presented in a useful way. Judges will review objective facts and apply the risk factor guidance (based on years of research) set forth in UCAPA. The Act’s factors-based analysis is fair in its approach to both foreign and non-foreign parties. Courts will retain discretion in what remedies to impose depending on the facts of the case.

Importantly, Maryland’s UCAPA addresses both domestic and international child abductions. The Act permits a Maryland court to address a petition if it has custody jurisdiction or, if there is no custody jurisdiction in Maryland, under the temporary, emergency jurisdiction provision codified in the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).

Bringing awareness to the risk of child abduction and available remedies is essential in preventing child abductions. Adopting the Maryland Child Abduction Prevention Act will bring desired clarity to the court process and to litigants with genuine concerns about international and domestic child abduction.

To schedule a consultation or learn more about your interstate or international custody matter, call our office at 240-396-4373 or click here to contact us.

______________________________________________________________________

Blog Author, Leah Ramirez, who handles international and interstate family law matters, submitted letters in support of the passage of UCAPA in Maryland during the legislative process.

The link to the legislation can be found here: https://mgaleg.maryland.gov/mgawebsite/legislation/details/hb0267?ys=2023rs

Cost of Living Adjustments and Military Pensions

Earlier this year the Appellate Court of Maryland (formerly the Court of Special Appeals of Maryland) heard the case Martinez v. Lopez, No. 835-2021 (April 7, 2023). The issues addressed pertained entirely to an award to the Wife of the Husband’s military pension benefits. While some of the holdings are reiterations from other cases, others are new and help clarify how to treat these pensions.

1. The 10/10 Rule is only a limitation for the former spouse to receive benefits directly from DFAS. What is the 10/10 rule? The parties must be married for 10 years, during which the member serves 10 years in the military, qualifying for retirement credit. In this case, the parties were married for a little over 5 years, so this requirement has not been met. It is important to remember that this limit does not impact state law and the divisibility of marital property. It only prohibits the former spouse from receiving the benefits directly from DFAS – meaning that the member must pay the former spouse directly each month for the spouse to receive the benefit.

2. An award of a Survivor Benefit to the former spouse is entirely within the Court’s discretion in Maryland. Check your state’s laws to see if the survivor benefit is treated as a part of the pension or as a separate asset. If your state treats it as a separate asset, be sure to discuss it separately in any agreement and request it separately in any pleading.

3. The adjustment of a direct payment of retirement benefits for tax purposes is within the court’s discretion. When the member receives their military pension payment, it is taxable income to the member. A payment after that made directly to the former spouse from the member would necessarily be made post-tax. A party can request that the direct payment amount be adjusted since the member is paying the income tax for the former spouse in this scenario. However, this case confirms that such an adjustment is at the discretion of the court to award.

4. Cost-of-Living Adjustments are automatically applied in payments to a former spouse when the payment comes from DFAS. It is not necessarily the case in direct payments. The Court discusses a Department of Defense Financial Management Regulation that states in a case where the National Defense Authorization Act for Fiscal year 2017 is applicable (i.e.: divorce of most military members occurring after December 23, 2016), COLAs will be applied to the benefit paid to the former spouse, regardless of what is stated in the court order. However, if benefits are being paid directly from the service member to the former spouse, the court has discretion whether to award COLAs on such payment amount and, if so, how they would be measured. In Maryland, the person seeking the marital property is burdened to evidence its value. According to Martinez v. Lopez, such analysis is important when seeking COLAs on a direct payment of these pension benefits.

Additionally, the court was asked whether it is within the trial court’s discretion to make one party solely responsible for the costs to prepare a domestic relations order to divide the retirement asset. It was determined the issue in this matter was moot, so it was not addressed. However, this author hopes there will be an answer one day.

Please call us at 240-396-4373 or click here to contact us if you have a divorce matter involving a military pension.

Retirement Accounts as a Source of Support Payments – Tax Considerations

We’ve all had cases where one party owes child support or alimony arrears but does not have the cash in the bank to make the lump sum payment nor the income available to make substantial payments toward those arrears.

Defined contribution plans, such as 401k, 403b, etc. that ERISA governs can be used as a source to pay these arrears in a lump sum. The retirement plan must receive a QDRO stating the amount to be paid and the purpose of the payment.

The QDRO needs to state the purpose of the payment because it will impact who is responsible for the tax payment on the funds. Specifically, if the payment is to pay child support arrears, the account holder will be responsible for the tax on the funds. This is because child support is usually paid with after-tax funds earned through normal employment income. Therefore, the account holder will maintain the responsibility of paying the tax on the funds if they are paid via QDRO.

With respect to alimony arrears, the agreement or judgment of divorce is an essential document. Before the 2017 change to the tax laws, tax payment on alimony could be shifted to the alimony recipient or remain with the payor. The QDRO would have to state the tax responsibility for any agreement entered into prior to 2017 concerning alimony arrears to ensure the tax responsibility remained the same. Currently, the law states that the payor is responsible for the tax on alimony. However, the tax law is scheduled to sunset in 2025, so the ability to shift the tax will return unless Congress decides to extend the life of this law.

Any QDRO preparer, and attorney negotiating this issue, will need to pay attention to the date the agreement is made to properly allocate the tax on alimony arrears paid from a retirement account.

If you need a QDRO prepared for the payment of support arrears, please contact our office at 240-396-4373 to discuss what your specific case might need.

Dissipation of Marital Assets in D.C. and Maryland

Dissipation of Marital Assets occurs when, during divorce proceedings or separation, one spouse intentionally spends marital funds or assets for purposes unrelated to the marriage so that the other spouse receives less in the property award of the final divorce.

Dissipation of Marital Assets in D.C.

 The D.C. Court of Appeals defines dissipation of marital assets under D.C. Code § 16-910(b) as “the disposition of marital property by a spouse in a manner intended to ‘circumvent the equitable distribution of the marital estate.’” Herron v. Johnson, 714 A.2d 783, 785 (D.C. 1998). The Court sets forth a test wherein the accusing party can show dissipation through evidence “that the spouse used marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage was undergoing an irreconcilable breakdown.” Once this test is satisfied, the court must distribute the property in question, regardless of whether it still even exists. The burden shifts to the accused party, who must then demonstrate why the evidence presented does not constitute dissipation. This test does not require the moving party to demonstrate their spouse dissipated marital assets on purpose. Lastly, expending marital funds on living expenses and attorney’s fees is not considered dissipation.

 Dissipation of Marital Assets in Maryland

             The Maryland Court of Appeals determined that dissipation occurs when one party “[spends] or otherwise deplete[s] marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of the divorce.” Omayaka v. Omayaka, 417 Md. 643, 653 (2011). The Maryland test requires the showing of intent which D.C. does not require. But, just like in D.C., when property is found to be dissipated, the Court should value it “with the other existing marital property.” Sharp v. Sharp, 58 Md. App. 386, 399 (1984). And, just like in D.C., spending marital funds on living expenses or attorney’s fees does not constitute dissipation of marital assets. Allison v. Allison, 160 Md. App. 331, 339-40 (2004).

 If you believe your spouse is dissipating marital property, please click here to contact the Markham Law Firm team for help or call us at 240-396-4373.

What is the “maximum” survivor benefit?

Each retirement plan has its own rules and terminology. It’s important to know what each word means to each plan. For example, the word “maximum” means the most or the highest amount allowable. So an award of the “maximum” survivor benefit should be clear – the largest survivor benefit allowable under the plan.

Is this what the parties or the court mean to award the former spouse? For example, under the military pension plan, the “maximum” survivor benefit provides up to 55% of the service member’s monthly benefit. The former spouse cannot receive more than 55% of the service member’s monthly benefit during the service member’s lifetime, so in this case, the former spouse would be receiving a windfall should they outlive the service member.

Other institutions in the DC area, such as the World Bank, have a pension plan that includes a 50% survivor benefit at no cost to the employee. However, the employee can purchase a larger survivor benefit, up to 100% of the entire pension benefit. What does “maximum” mean in that case? Is it the largest possible survivor benefit that comes at no cost to the parties, or the largest possible survivor benefit regardless of the cost? Again, the consideration of a windfall to the former spouse upon the employee’s death is an issue.

Knowing how the plan defines terms is key to ensuring the retirement order is drafted and interpreted as the parties intend. Alternatively, if obtaining such information is not possible, being more descriptive in the settlement agreement language will also reach the same goal. Click here to contact our office or call us at 240-396-4373 if you need assistance in reviewing plan documents to figure out their terms.

Demystifying Cryptocurrency

What is Cryptocurrency?

Cryptocurrency (“Crypto”) is a form of digital currency. Unlike the U.S. Dollar, Crypto is decentralized, meaning there is no central authority or government that issues it and regulates its value. Instead, transactions are recorded and secured by a public ledger called Blockchain. The most common cryptocurrencies are Bitcoin and Ethereum. Crypto is purely intangible and is stored on digital wallets. It is used to purchase goods and services like other currencies, or it can be held as an investment.

How to identify ownership

If you suspect your spouse owns Crypto, here are some of the ways to identify if they have ownership:  

• Bank and credit card statements: Look for transactions with a cryptocurrency exchange, i.e. Coinbase, Binance, etc. and large withdrawals and deposits of money.

• Cryptocurrency exchange apps or digital wallet apps

• Tax Records: Form 8949 (Capital Gains/Losses), 1099 MISC. Importantly, check the first page of the Form 1040 Income Tax Return to see if the cryptocurrency box is checked.

• Wallets: Familiarize yourself on physical digital asset wallets and be on the lookout for any such devices.

Why it’s important:

Cryptocurrency is an asset that may have significant value. If it was acquired during the marriage, then it will be likely considered marital property and will divided like other assets. Understanding crypto can be daunting, but if you suspect that your spouse owns crypto, consult with an attorney on how to navigate locating and valuing these assets. Call our office at 240-396-4373 or click here to learn more.

Pension Benefits are for the Plan Participant and Designated Beneficiaries Only

The Employee Retirement Income Security Act (“ERISA”) provides in Section 1056(d) that any pension plan qualified under ERISA must include a rule that benefits provided under the plan cannot be assigned or alienated, except by Qualified Domestic Relations Order (“QDRO”). As this is a federal law, it preempts any state law to the contrary.

The reason is in the title of the Act – it is designed to protect the retirement income of employees and, by extension, their beneficiaries. In Boggs v. Boggs, 520 US 833 (1997), the United States Supreme Court made this clear. In Boggs, the wife died, leaving her community property interest in her husband’s pension to their sons in her will. The husband remarried, and the survivor benefit was paid to the second wife upon his death. The sons sued to claim they should receive the survivor benefit payments that would have been paid to their mother, the deceased's first wife, since it was given to them in a testamentary transfer.

The court found that the testamentary transfer of the first wife to her sons was a prohibited assignment of the first wife’s benefit. The Court clarified that ERISA prohibits a beneficiary’s testamentary transfer of undistributed pension benefits to another person.

What does this mean in a divorce case? If the case deals with a shared-interest division of an ERISA-governed pension plan and the alternate payee dies first, the alternate payee’s benefit cannot be paid to any third party. It must revert to the participant.

This is only with respect to shared interest divisions of ERISA-governed pension plans. The rules differ when dealing with a non-ERISA governed plan or a separate interest division. If you have a pension plan that you want assistance in handling, or have other retirement issues, please click here to contact our office or call us at 240-396-4373.

Firm Updates

Markham Law Firm is pleased to announce that Jillian S. Morris will be expanding her practice to include parent coordination. Ms. Morris, a Principal at the firm, has recently completed her parent coordination training and is eager to serve clients in this new role.

Ms. Morris has exclusively practiced Family Law in Maryland and Washington, D.C. for the past 15 years. Her practice focuses on all aspects of divorce, including child custody, child support, alimony, and property division. Ms. Morris also has extensive experience in domestic violence matters.  Ms. Morris is trained as a mediator and in Collaborative Law. She is a member of the DC Academy of Collaborative Professionals (DCACP). She currently serves as a facilitator and mediator at the Circuit Court for Montgomery County. She is also eligible to serve as a Child Privilege Attorney and Best Interest Attorney in Montgomery County and Guardian Ad Litem in the District of Columbia, and she has been appointed to do so on many occasions.

After law school Ms. Morris gained invaluable experience when she served as a law clerk to the Honorable Fern Flanagan Saddler at the Superior Court of the District of Columbia for two years while Judge Saddler sat on the domestic relations and domestic violence dockets.

Ms. Morris was selected to SuperLawyers Maryland 2023 and had repeatedly been selected for inclusion as a "Rising Star" by Maryland SuperLawyers Magazine and DC SuperLawyers Magazine. Ms. Morris is listed in Best Lawyers for 2021 and 2022 in “Ones to Watch”.  Ms. Morris has  received a Martindale-Hubbell Peer Review Rating of AV Preeminent® in the field of Family Law.

In her new role as a parent coordinator, Ms. Morris will bring together her experience as a litigator, mediator, and mother to work with divorced parents to help them problem solve, communicate effectively, and coparent. 

To schedule a consultation or learn more, call our office at 240-396-4373 or click here to contact us.