How Do I get a Carry Permit in DC?

The District of Colombia continues to have strict firearm laws, so it is imperative that you are properly licensed and any firearm(s) is/are properly registered. Possessing a firearm in D.C. without a Concealed Carry Pistol License (CCPL) is a felony and carries a maximum penalty of up to 5 years in jail and/or a fine of up to $12,500. D.C. does not have reciprocity with any state, so a permit from another state will not suffice.

Who is eligible to obtain a carry license in DC?

Any person who meets the following criteria is eligible to obtain a Concealed Carry Pistol License (CCPL) in the District of Colombia:

1.  Be 21 years of age or older. (Applicants between the age of 18 and 21 may qualify to register a long gun[1] if they have a notarized statement from their parent or guardian stating that the parent or guardian assumes civil liability for all damages resulting from the applicant’s use of the firearm. This special registration, however, will expire on the applicant’s 21st birthday.)

2. Not stand convicted of certain weapons offenses, or a felony in this or any other jurisdiction (which includes all crimes punishable by imprisonment for a term exceeding one year).

3. Not be under indictment for a crime of violence or a weapons offense.

4. Within the previous five years:

   • Not stand convicted: (1) of a narcotics or dangerous drug offense; (2) under D.C. Official Code § 22-404 (assaults and threats) or § 22-407 (threats to do bodily harm), or a violation of a similar statute in another jurisdiction; (3) of two or more violations of driving under the influence of alcohol or drugs; (4) of an intrafamily offense punishable as a misdemeanor; (5) of a misdemeanor involving certain firearms violations. (6) Stalking; or (7) violation of an Extreme Risk Protection Order.

   • Not have been acquitted of any criminal charge by reason of insanity or adjudicated a chronic alcoholic by any court.

   • Not have been voluntarily or involuntarily committed to any mental hospital or institution.

   • Not have a history of violent behavior.

   • Not have been the respondent in an intrafamily proceeding in which a civil protection order or a foreign protection order was issued against the applicant.

5. Not appear to suffer from a physical defect which would make it unsafe to possess and use a firearm safely and responsibly.

6. Not have been found negligent in any firearm mishap causing death or injury to another human being.

7. Not otherwise be ineligible to possess a firearm under D.C. Official Code § 22-4503.

What do I have to do before I apply?

All applicants for a Concealed Carry Pistol License (CCPL) must complete the required training before a permit will be issued. An applicant may, however, apply for preliminary approval prior to completing the training. The training requirements can be found here.

CCPL applicants must complete at least 16 hours of firearm training from an MPD-certified firearm training instructor, as well as two hours of range training from an MPD-certified instructor. The training must cover the following topics:

(a) Firearm safety, including firearm safety in the home, a discussion of prevention of access by minors, locking and storing of firearms, and use of safety devices such as secure lock boxes;

(b) Firearm nomenclature;

(c) The basic principles of marksmanship;

(d) The care, cleaning, maintenance, loading, unloading, and storage of pistols;

(e) Situational awareness, conflict management, and use of deadly force;

(f) Selection of pistols and ammunition for defensive purposes; and

(g) All applicable District and federal firearms laws

Where Do I Apply?

All Concealed Carry Pistol License (CCPL) applications are reviewed and issued by the District of Colombia Metropolitan Police Department (MPD). The application can be found on the mpdc.dc.gov website, or here.  Once the application and action items are completed, they must be brought to the Firearms Registration Section in person at 300 Indiana Ave. NW, Room 3077, Washington, DC 20001 during normal business hours. Call the Firearms Registration Branch at 202-727-4275 to schedule an appointment.

What Information Do I Need?

In order to successfully complete the application for a CCPL, the applicant must provide a Statement of Eligibility, information regarding their firearms training background, and the applicant’s authorization to disclose mental health records.  

How Long Does It Take to get a Carry Permit in DC?

Applications will typically be approved or denied within 90 days of submission. This period may take longer if MPD deems a more extensive background check necessary.

What are the Steps for Appealing the Denial of my Carry Permit?

 If your application for a CCPL is denied, an appeal process is available, but you need to act quickly. The Concealed Pistol Licensing Review Board has the authority to review appeals of application denials. First, all applicants must file their appeal within fifteen days of the Chief’s official denial notice. The appeal requires four documents to be submitted to the Review Board via email: (1) a copy of the firearms registration certificate or approved Form PD219 Application; (2) a copy of the Police Chief’s final action being appealed (i.e. the denial document); (3) a detailed description of why the Chief’s denial of the application was in error, including the current relief sought; and (4) proper authorization for representation, if an attorney is hired to assist with the appeal.

Do I need a lawyer for an appeal?

While an attorney is not required to assist in submitting an appeal, they are highly beneficial to the process and can increase the likelihood that the appeal is successful.

Do I have to register my firearms?

The District of Columbia requires that firearms be registered through MPD. This does not apply to someone who is simply traveling through the District and has the firearm(s) stored in a locked container in their vehicle and is compliant with federal interstate transport laws. You can find a guide on firearm registration on the mpdc.dc.gov website or by clicking here.

Have additional questions regarding carry permits in DC? 

Contact us at 240-396-4373 or click here to schedule a consultation. 

What do I need to know about peace orders in Maryland?

What is a peace order?

A peace order is a court order issued to protect a Petitioner (the victim) from the abusive or harassing behavior of another (the Respondent) by prohibiting the Respondent from committing certain acts, including contacting the Petitioner directly or through a third party.  A Petitioner can get a peace order if they can show that within 30 days prior to filing the petition, the Respondent committed one or more of the following acts, and there is a substantial likelihood that the Respondent will commit another prohibited act in the future:

(i) An act that causes serious bodily harm

(ii) An act that places the petitioner or the petitioner’s employee in fear of imminent serious bodily harm

(iii) Assault in any degree

(iv) False imprisonment

(v) Harassment

(vi) Stalking under 

(vii) Trespass

(viii) Malicious destruction of property

(ix) Misuse of telephone facilities and equipment

(x) Misuse of electronic communication or interactive computer service

(xi) Revenge porn

(xii) Visual surveillance

What is the difference between a peace order and a protective order?

A protective order is reserved for individuals who have a familial relationship, a sexual relationship, live in the same household, or have a child in common.  A peace order is available to individuals outside of those categories. A peace order lasts for up to six months, while a protective order is in effect for one year.

How do I get a peace order?

 To obtain a peace order, you must file a Petition for Peace Order with the court within 30 days of the abusive/harassing conduct. During business hours, the Petition can be filed with the clerk at the nearest District Court, and a judge can issue a temporary peace order that lasts up to 7 days. During non-business hours, the Petition can be filed with a Commissioner who can enter an Interim Peace Order that will last for up to 3 days. A final peace order hearing is typically held 7 days after the entry of the temporary peace order. The final peace order hearing is where the judge will look at the evidence to determine whether the Petitioner should be granted relief. The Petitioner has the burden of showing clear and convincing evidence that the Respondent committed a prohibited act. If the Petitioner meets their burden, the court will issue the appropriate relief, such as ordering the Respondent to refrain from contacting the Petitioner.

What happens after a peace order is issued?

 Once a peace order is issued and served on the Respondent, the Respondent must refrain from contacting the petitioner. A final peace order last for up to six months. A final peace order may include the following relief: (i) refraining from committing or threatening to commit an abusive act against the petitioner; (ii) Order the respondent to refrain from contacting, attempting to contact, or harassing the petitioner; (iii) Order the respondent to refrain from entering the home, workplace, or school of the petitioner. Md. Courts and Judicial Proceedings Code Ann. § 3-1505.

The Respondent or the Petitioner may file an appeal within 30 days of the judge’s ruling in District Court.

Will the peace order remain on my record?

Since a peace order is a civil matter, it will not go on your criminal record. However, it will appear on a public database of the Maryland Court system. Under some circumstances, you may be eligible to shield the peace order.  A shielding will be granted if the peace order was dismissed or if the Respondent consented to the peace order, and the court finds that (1) the order was denied or dismissed, (2) there is no final peace order against the party, (3) there are no ongoing criminal charges arising from the alleged act, (4) the party has not been found guilty of any crime relating to the alleged act, and (5) the petitioner has not filed any other ongoing orders against the party.

What happens if a peace order is violated?

 Violation of a peace order is a criminal offense punishable by up to 90 days in jail and/or a fine of up to $1,000. Violations of peace orders are prosecuted by the Office of the State’s Attorney for the county where the violation occurred.

Can I remove a peace order from my record?

In many circumstances, Respondents may limit access to peace order records by filing a motion to shield the peace order with the court that issued the order. The Respondent must appear at a hearing before a shielding can be ordered. Once a peace order is shielded, it is no longer viewable by the public.

Do I need a lawyer?

 While you are not required to have a lawyer, having a lawyer can be advantageous. A lawyer can explain the process from start to finish and set expectations. A lawyer can help organize evidence in the most efficient way possible and negotiate with the opposing party. A lawyer can assist in obtaining the forms of relief that you are seeking, as well as defend against a peace order, depending upon what side you are on. Having a knowledgeable lawyer can reduce your stress and help you understand the process from start to finish. 

Click here or call us at 240-396-4373 to schedule a consultation with one of our attorneys.

Want to learn about peace orders in Maryland? Attorney Morgan E. Leigh shares information about the peace order process in Maryland.

Posthumous QDRO – Is it Allowed?

The scenario is easy to picture, parties are divorced and a QDRO is needed to divide the participant’s account. They don’t do the QDRO right away, and the alternate payee thinks about their benefit upon hearing the news that the participant died. Can they still get that benefit, or are they out of luck?

The answer hinges on two major case-specific facts, what retirement plan should have been divided, and where did the divorce happen?

The retirement plan in question is important because the first question to ask is whether the plan is governed by the Employee Retirement Income Security Act (“ERISA”). If it is not, then they can more easily make up their own rules, and the attorney’s considerations are focused more on their state court’s willingness to accept a posthumous QDRO and the plan’s willingness to accept it. These will vary enormously in their procedures, so it is best to assume that each plan is different and to do fresh research any time this might come up.

The jurisdiction of the divorce is important because ERISA is a federal law. The circuits are clashing as to whether they will enforce posthumous QDROs and if so, for how long after the participants death. The circuit positions are described below. There are a few circuits that have not yet weighed in on the issue, attorneys practicing in those areas will have to check and see if their state has any precedent.

Minority Opinion

The First and Fourth Circuits are in the minority by rejecting posthumous QDROs. Their argument is based on the plan’s future stability and need to know the benefits payable with respect to each participant as of the date of the participant’s death. Posthumous QDROs may require a plan to pay benefit greater than those actuarily available to the participant and the participant’s survivors, which would be a violation of ERISA and threaten the viability of the plan in the long term.

The First Circuit’s opinion on the issue is per curiam, and it simply refused to enforce a posthumous QDRO due to its rejection by the plan. The First Circuit specifically states that the decision does not determine the question if it would enforce an otherwise proper posthumous QDRO. Garcia-Tatupu v. Bell, 747 Fed. Appx. 873 (2019), affirming lower court decision Garcia-Tatupu v. Bell, 296 F. Supp. 3d, 407 (D. Mass, 2017).

The Fourth Circuit’s opinion is specifically about survivor benefits for a pension plan, noting that surviving spouse benefits vest in the participant’s surviving spouse on the date of the participant’s retirement. Part of this is for plan administration, in that the plan must calculate the participant’s payment on an actuarial basis, therefore it needs to know the identity and life expectancy of the surviving spouse when they begin to make payments. Hopkins v AT&T Global Info. Solutions Co., 105 F.3d 153 (1997). While the benefit in question is the surviving spouse benefit, this is what is described as the “post-retirement survivor benefit” in most divorces, and in plans governed by ERISA may be transferred to the former spouse (from a future surviving spouse) via a QDRO.

Majority Opinion

The Second, Third, Fifth, Ninth, and Tenth Circuits allow for posthumous QDROs, arguing largely that it will not be rejected simply because of the time it was issued, although there is some difference within the circuits there. Specifically, some of these circuits take a view that within the eighteen-month period prescribed by ERISA to review a QDRO and segregate the alternate payee’s benefit any QDRO is timely. Patton v. Denver Post Corp., 326 F.3d 1148, 1151 (2003). Patton states that this is because ERISA clearly allows for revised QDROs to be submitted within the eighteen-month period, so too can new Orders be accepted because payments during the period can be retroactive.

In this Tenth Circuit opinion, Patton also makes clear that no notice to the Plan would be required prior to the participant’s death – whether by notice of divorce, marriage, or otherwise.

Alternatively, they state that because a QDRO is the key to enforcing an otherwise valid interest in a retirement plan, “there is no conceptual reason why a QDRO must be obtained before the plan participant’s benefits become payable on account of his retirement or death.” Trs. of the Dirs. Guild of America-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421 (2000).

Circuits yet to opine on the issue: Six, Seven, Eleven, and Twelve

The cases discussed herein are largely with respect to pension plans and survivor benefits. The reason for this is simple – when the retirement asset at issue is a defined contribution plan (ie: 401k, 403b, TSP, etc.) the plan will make a payment to the beneficiary upon receiving notice of the participant’s death. At such time, the plan has no additional funds available to pay to an alternate payee should the plan receive a QDRO after such payment is made. Therefore, any enforcement action by the alternate payee would more properly be directed at the beneficiary rather than the plan.

Note: some cases cited may not be published opinions but are provided for information and research purposes.

If you need a QDRO prepared or have questions about specific to this QDRO topic, please contact our office at 240-396-4373 to discuss what your specific case might need.

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.