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2nd UPDATE FROM THE COURTS – Maryland’s New Firearm Law
As promised in my last update regarding Maryland’s new firearm laws, portions of which went into effect on October 1st, there are additional updates. For some background, when new laws go into effect, there is often litigation regarding the constitutionality and/or interpretation of these laws in the court system. Many people have very strong feelings about guns one way or the other, so this area is ripe for legal challenges.
Since my last update, there has been an additional change – On October 2, 2023, the United States District Court for Maryland modified its September 29th order. On September 29, 2023, the court issued an injunction, prohibiting Maryland from enforcing several provisions of the new law, including the prohibition against carrying firearms in locations selling alcohol, private buildings, or property without the owner’s consent, and within 1,000 feet of a public demonstration. The provision of the law that prohibits a person from carrying a firearm in a private building or on private property without the owner’s consent may be enforced by Maryland since that provision was not part of the lawsuit challenging the law. Stay tuned for additional updates.
Morgan E. Leigh, Esq.
Markham Law Firm
Click Here to read more about Maryland’s New Firearm Law and previous updates. Call 240-396-4373 to schedule a consultation with Morgan E. Leigh, Esquire.
NEW: Maryland Divorce Laws as of October 1, 2023
On May 16, 2023, Governor Wes Moore signed new legislation into law which completely overhauls the Maryland divorce law scheme. This new legislation went into effect on October 1, 2023.
How does this new legislation affect you and your divorce?
Limited Divorce
The new legislation repeals limited divorce in its entirety. Limited divorce did not dissolve the marriage and could be more easily compared to a legal separation. It provided parties a basis to seek relief when they did not otherwise qualify for, or for some other reason could not request, an absolute divorce. This relief included child custody, child support, and alimony. However, you can no longer request a limited divorce in Maryland.
Absolute Divorce
The new legislation also revises how you can receive an absolute divorce under the law. When you file for a divorce, you must do so under certain statutory grounds. Prior to the new law, you could receive an absolute divorce in Maryland under the following grounds:
Adultery
Desertion
Conviction of a felony or misdemeanor with incarceration
12-month separation
Insanity
Cruelty of treatment or vicious conduct toward a spouse or minor child
Mutual consent
However, the new legislation has changed these grounds and now, you can request an absolute divorce under these new grounds:
6-month separation
Irreconcilable differences
Mutual consent
Why this change matters
While limited divorce was rarely used, it gave parties who could not end their marriage a way to still obtain necessary protection under the law. Parties may have been unable to end their marriage for many reasons, including religious restrictions and access to health care. Repealing limited divorce may have a negative impact on individuals in these, or related, circumstances.
However, the new legislation has rendered it easier to seek an absolute divorce in Maryland than it was before. Previously, the law only provided two ways to seek a divorce on no-fault grounds: 12-month separation (including separate homes) or mutual consent. A 12-month separation is often not economically feasible for many couples, because maintaining two separate households is costly, creates childcare issues, etc. To qualify for a divorce under mutual consent, parties are required to settle all outstanding issues related to the marriage, including property division, alimony, child support, and child custody, expressed in a signed, written agreement.
If you did not qualify for either of those grounds for divorce, you had to prove that your spouse committed some wrongdoing under one of the fault-based grounds. Proving fault-based grounds for divorce could be difficult, timely, expensive, and often heightened the conflict between the parties.
The new law makes divorce more attainable in multiple ways. First, it shortens the requisite period of separation to six months and removed the requirement that parties must live in separate homes. Rather, parties can now be separated but reside in the same household as long as they maintain separate lives and bedrooms. The law also repeals many of the fault-based grounds for divorce and added “irreconcilable differences” as a non-fault basis for divorce. While it is unclear how the courts will address “irreconcilable differences”, it is generally applied in situations where the marriage has broken down and the parties wish to seek a divorce without proving fault, separating for the requisite time frame, or coming to a mutual agreement on all related issues.
Pending Divorce Actions
If you have a divorce action currently pending in a Maryland court, this legislation will not affect your case. These changes only apply to filings initiated on or after October 1, 2023.
If you have further questions regarding Maryland’s new divorce laws, please contact Markham Law Firm at 240-396-4373 to setup a consultation.
Division of Retirement Assets in a Divorce: Ask for What You Want - Be Precise
Growing up, many people hear, “You can’t get something if you don’t ask for it,” to learn to be more assertive rather than just accepting what life gives them. The same can be said for the division of retirement assets in a divorce. Each state has statutes and rules that may be the default for the division, and each plan may have further default rules for the division of such assets. But that’s exactly what those rules and statutes are – defaults in case the parties do not agree to something else.
Why is it Important to Know the Default Rules?
Sometimes, the default rules might be exactly what the party wants to happen. In this case, asking for something else does not make much sense. To know this, one must know the default rules. If your attorney is unfamiliar with them, it may be time to hire an expert to consult on the matter to ensure you’re doing the right thing.
What’s a situation in which the default rule might be what the parties want to do? Let’s say the parties agree that alimony shall be paid from a pension that’s already being paid out. Alimony payments typically do not get adjusted with cost-of-living adjustments. Most pension plans have a default rule that if the payment amount to the alternate payee (former spouse) is described as a dollar amount per month, then no cost-of-living adjustments will be applied, and the alternate payee will continue to be paid that dollar amount until the plan participant’s death (or the QDRO is vacated). In this case, the default rule is likely what the parties wish to occur.
If pension division language is described as a percent of the monthly payments or by a marital share formula/fraction, many plans have default rules that cost-of-living adjustments will also be divided in such fashion. How does this impact the alimony situation? If the parties intend that the alternate payee receive $2,000 per month, without the cost-of-living adjustments, but decide to phrase it as X% of the participant’s pension payment per month, then pension plan may interpret that to include the cost-of-living adjustments.
While cost of living adjustments are not much each year, over the lifetime of a pension, it can amount to hundreds or thousands of dollars a year, which does make a difference.
While this is undoubtedly an area where parties with more sophistication can try to use the default rules to their benefit, it’s better to keep transparency and negotiate in the open. Does the alternate payee want cost of living adjustments? Ask for them. Does the alternate payee want a survivor benefit? Ask for it. Does the pension plan participant want the alternate payee to pay for the survivor benefit? Ask for it.
What are the Consequences of Vague Language in a QDRO?
As a person preparing QDROs for pro se parties and attorneys alike, one of the hardest things we have to tell clients is that even though they have an agreement or went to court and have a judgment of divorce, they aren’t done figuring out the division of marital assets because some aspects of the retirement division are not described.
Why is this so hard? Because typically, by the time someone gets their QDRO drafted, they think they are at the end of the divorce road and can limit their contact with their former spouse. It can be emotionally rough on those parties when we tell them to go back to the negotiating table to figure out a few more things.
How can people be sure to address all issues in advance? Ideally, reach out to the retirement plan during negotiation or before trial, and be sure to know all elements of the plan that can be divided in the divorce. Then, ask for the division scheme your client wants.
What if you can’t reach the plan in time before the agreement needs to be signed or the trial in the matter?
Here’s a list of the most common terms that should be addressed in a QDRO for a defined contribution plan (401k, 403b, 457b, TSP plans, etc.):
Plan Name
Transfer amount
Valuation date
Market/investment experience
Payment of the Plan Administrator’s fee to review and implement the QDRO
And here’s a list of the most common terms that should be addressed in a QDRO for a defined contribution plan (pension, annuity type):
Standard pension
Pre-retirement survivor benefit
Post-retirement survivor benefit
Refund of contributions
Cost of living adjustments
Early retirement subsidies
Disability benefits
Shared or Separate Interest division
Note that these are only the most common terms for each list above and do not apply to all plans. It is best practice to get the information specific to the plans involved in your case and work directly with the plan. Most notably, some plans do not even accept QDROs or do not allow survivor benefits to a former spouse, so especially in those circumstances, it is important for your client’s future planning to make an effort to deal with the case-specific information. If you need assistance dividing retirement assets in your case, you call us at 240-396-4373 or email us at qdro@markhamlegal.com to see how we can work with you to serve your clients best.
What You Need to Know About Maryland’s New Firearm Laws Effective October 1, 2023
UPDATE FROM THE COURTS – Maryland’s New Firearm Law
On September 29th, the United States Federal District Court for the District of Maryland issued an injunction, temporarily prohibiting Maryland from enforcing certain provisions of Senate Bill 1, which went into effect on Sunday, October 1st. The lawsuit against Senate Bill 1 requesting preliminary injunctions was granted in part and denied in part. A copy of the order is below this blog update.
What do you need to know about the judge’s order?
This ruling is a temporary court order pending the resolution of the lawsuit – Maryland can appeal the ruling. The order prevents Maryland from enforcing the prohibition against carrying firearms in locations selling alcohol, private buildings or property without the owner’s consent, and within 1,000 feet of a public demonstration. There are sure to be updates so stay tuned.
What You Need to Know About Maryland’s New Firearm Laws Effective October 1, 2023
Maryland’s new firearm laws that just went into effect on October 1st make big changes to the current legal landscape. The biggest changes in the law deal with the requirement that handguns must now be carried concealed, limiting the locations where carry permit holders may possess firearms, and imposing restrictions on how firearms are stored. The legislation adds a slew of new definitions and provides for criminal penalties for violations of the new laws. As with any major change in the law, there will no doubt be litigation on the constitutionality and interpretation of these statutes. Stay tuned for updates on the enforcement and interpretation of these laws.
Summary of changes:
Retired law enforcement officers with permits issued pursuant to the Law Enforcement Officers’ Safety Act must now carry their firearms concealed from view.
Wear and Carry permit holders must now carry their firearms concealed from view.
A person may not wear, carry, or transport a firearm in an “area for children or vulnerable individuals.”
“[A]n area for children for vulnerable individuals” is defined as:
A preschool or kindergarten facility or the grounds of the facility;
A private primary or secondary school or the grounds of the school; or
A health care facility, as defined in § 15-10B-01(G)(1), (2), (3), and (4) of the insurance article.
A person may not wear, carry, or transport a firearm in a “government or public infrastructure area.”
A “government or public infrastructure area” is defined as:
A building or any part of a building owned or leased by a unit of state or local government;
A building of a public or private institution of higher education, as defined in § 10-101 of the education article;
A location that is currently being used as a polling place in accordance with Title 10 of the election law article or for canvassing ballots in accordance with Title 11 of the election law article; or
An electric plant or electric storage facility, as defined in § 1-101 of the public utilities article;
A gas plane, as defined in § 1-101 of the public utilities article; or
A nuclear power plant facility
A person may not wear, carry, or transport a firearm in a “special purpose area.”
A “special purpose area” is defined as:
A location licensed to sell or dispense alcohol or cannabis for on-site consumption;
A stadium;
A museum;
A location being used for (i) an organized sporting or athletic activity; (ii) A live theater performance; (iii) a musical concert or performance for which members of the audience are required to pay or possess a ticket to be admitted, or an amusement park; (iv) a fair or carnival; (v) a racetrack; or (vi) a video lottery facility as defined in § 9-1A-01 of the State Government Article.
A person does not violate the law concerning concealed carry where there is a momentary and inadvertent exposure of a handgun, or the momentary and inadvertent exposure of the imprint or outline of a handgun.
A person wearing carrying or transporting a firearm may not enter or trespass in the dwelling of another unless the owner or the owner’s agent has given express permission, either to the person or the public generally, to wear, carry, or transport a firearm inside the dwelling.
The maximum penalties for violation of the law are up to 1 year in jail and a fine of up to $1000.
A person may not leave a loaded firearm in a place where they knew or should have known that an unsupervised child under 16 years old has access to the firearm.
The maximum penalty for a violation of this provision (Jaelynn’s Law) is a fine of up to $1,000.
A second or subsequent violation of this provision renders a person ineligible to possess a firearm just as if they had been convicted of a felony.
A first violation of this provision renders a person ineligible to possess a firearm if the violation involving a loaded handgun resulted in a minor causing the death or serious bodily injury to the minor or another person.
A first violation of this provision renders a person ineligible to possess a firearm for five years following the date of the conviction.
What is the “Marital Share” of a retirement account?
While seemingly a simple question, this is quite loaded and entirely depends on the jurisdiction of the divorce.
When did the marriage start?
The one thing most jurisdictions seem to agree on is that the marital share starts to accrue on the date of marriage. So what is the date of marriage? For some couples, it is simply the wedding date. What about for couples who were in a domestic partnership first, and then married? That’s a question specific to the jurisdiction. Some automatically merge the time of the domestic partnership with the marriage which would make the marriage start at the beginning of the domestic partnership. Some jurisdictions terminate the domestic partnership at the start of the marriage, meaning there are two distinct relationship types this couple has entered into, but that the marriage is second and not “backdated” to the beginning of the domestic partnership.
Another circumstance that might not have a clear date on which the marriage began is a common law marriage. While the parties might agree that all of the legal elements have been satisfied to create a common law marriage, they might disagree on when all those elements were satisfied.
When is the termination date for the accrual of marital assets?
Jurisdictions differ as to when they terminate the accrual of marital assets. As an example, Maryland terminates the accrual of marital assets as of the date of divorce unless good cause is shown otherwise or another date is agreed to by the parties. Across the river, Virginia terminates the accrual of marital assets as of the date of separation unless good cause is shown otherwise or another date is agreed to by the parties. Parties can separate months or years before the divorce becomes final, so depending on where the divorce occurs will dictate whether the retirement contributions being made during the separation period are marital or separate.
What about the interest accrued on my pre-marital retirement balance?
Many times parties are working for an employer before the marriage and continue that employment during the marriage. For some, the pre-marital retirement balance is substantial. Therefore, the interest earned thereon throughout the marriage could also be substantial. If that account were separate and not touched during the marriage, it is typically clear that the pre-marital account and all interest thereon, would be separate property. The issue is not as clear when the account becomes co-mingled during the marriage.
One question is who would be responsible for tracing out the interest earned on the pre-marital balance? Typically, the party making the claim that the funds are non-marital has such burden. They could hire an expert to do that tracing. It all depends on the exact circumstances of the case and is a conversation that should be had with one’s attorney. An estimate or approximation could be used in lieu of a full tracing, if the party does not want to hire an expert to trace every penny.
Another question is how has the market performed since the marriage, and is it worth it to do the tracing? If it was a shorter marriage during a volatile period or downturn in the market, perhaps asking for the market experience on the pre-marital balance is actually a detriment to the account holder. Again, some jurisdictions require the tracing of the investment experience, so for some parties it may not be an option whether the tracing should happen. However, in jurisdictions where the law is not clear these are issues worth consideration before making claims.
What if a loan is outstanding against the retirement account?
If a loan is taken out against the retirement account, it is typically viewed as an asset of the account and may or may not be included in the account’s “total balance” as reported on the account statement. So, that means when determining the “marital share” the parties must determine whether the outstanding loan balance will be included or excluded. Some jurisdictions have laws and cases to handle this situation. Others do not. In jurisdictions that do not have laws and cases on point, some of the considerations include why was the loan taken out? If it was used solely by the party who owns the account, perhaps it makes sense that the other party’s share is not impacted by the outstanding loan balance. If, however, it was used for joint, marital purposes, perhaps the other party’s share should be impacted by such loan. For jurisdictions without laws or cases on the issue it is quite case and fact specific and can be a point of contention in negotiations.
How does all this relate to my QDRO?
Many times, retirement plan administrators suggest dividing the “marital share” of the retirement account, and parties will agree or be court ordered to divide the “marital share” of retirement interests. To be sure, the proper amount of funds is being transferred to the former spouse, it is important to properly define the “marital share.” This can be done by providing a formula or doing out the math to determine a specific dollar amount or percent of the account to be transferred. Some plan administrators may allow a formula, others may not. Markham Law Firm can help figure out how the information can be phrased to the plan administrator, and if in a jurisdiction where we do not practice, can work with your local counsel to prepare an acceptable QDRO that complies with your state’s definition of “marital share.”
Have additional questions, or want us to help with your QDRO? Contact us at qdro@markhamlegal.com or 240-396-4373.
Can My Child Testify in My Custody Case?
In both Maryland and the District of Columbia, the Court looks at several factors to determine a custody arrangement in the best interests of the child. In both jurisdictions, the child’s preference is a factor, which is most relevant when the child is old enough and mature enough to state a thoughtful preference. There is no specific age at which a judge will consider a child’s preference; it is handled on a case-by-case basis.
Does this mean children testify in custody cases?
The short answer is generally, no, a child will not take the witness stand during a custody trial. Judges, practitioners, and experts generally agree that bringing the child into the middle of the conflict between the parties can emotionally impact the child. Further, children are susceptible to coaching and undue influence.
What are other ways to show a child’s preference in a custody case?
There are other ways to introduce evidence of the child’s preference:
In camera interview: a judge may, in his or her discretion, decide to interview the child in private, upon either party’s request or the request of an attorney who has been appointed for the child. The interview will usually occur once, at the time of the trial, and can be recorded. If it is not recorded, the judge will place a summary on the record. The interview is therefore not confidential.
Custody Evaluation: an expert professional may conduct an investigation which can include interviewing the child, interviewing both parties, observing the child with each party, speaking with collateral witnesses, and reviewing documents such as medical/school records and party communications. After the investigation, the evaluator may submit a report to the court and may testify at the custody trial regarding his or her recommendation.
Child Advocate Attorney: A child advocate attorney advocates for the child’s wishes. A child advocate attorney treats the child in the same way they would treat an adult client, which means they must follow the client’s instructions. This form of representation is only appropriate for older children who are deemed to have considered judgment.
Best Interest Attorney/Guardian Ad Litem: A Best Interest Attorney (Maryland) or Guardian Ad Litem (D.C.) represents the child’s best interests. They are required to tell the court if the child has stated a preference, but ultimately can make recommendations in the child’s best interests which may be different than the child’s wishes.
Child Privilege Attorney: A child privilege attorney (“CPA”) has the limited function of determining whether a child’s confidential or privileged communications with his or her mental health professional should be waived. There exists a strong preference for preserving confidentiality. However, if privilege is waived, the privileged information may be made available to the court through records or permitting a mental health professional to testify. A child’s parent cannot waive the child’s privilege on the child’s behalf.
If you have any questions about introducing your child’s preference in a custody case, please contact Markham Law Firm at 240-396-4373 to setup a consultation.
What is a “pre-retirement lump sum” benefit, and can I get one in my divorce?
A pre-retirement lump sum benefit is available from most pension plans. Outside the divorce context, it is paid to a designated beneficiary or current spouse in the event that the pension plan participant dies before they retire and begin to receive benefits from the pension plan. Whether the pre-retirement lump sum benefit (outside the divorce context) can be paid to a designated beneficiary or must be paid to a current spouse is determined by plan rules and federal law. In the divorce context, most plans allow for a Qualified Domestic Relations Order (QDRO) or other, similar order, to supersede the beneficiary designation or plan rules requiring the payment to a current spouse, to allow for a payment to a former spouse.
How is the amount of the pre-retirement lump sum benefit determined?
While the participant is employed, they may be making contributions to the pension plan. In addition, the employer is likely making contributions to the pension plan on the participant’s behalf. These two amounts, as well as interest earned thereon, are usually combined to make up the pre-retirement lump-sum benefit amount.
How is the pre-retirement lump sum benefit treated in a divorce?
Most plans allow for a QDRO to specify whether all or a portion thereof should be paid to the former spouse (alternate payee) in the event that the participant dies prior to beginning their retirement benefit from the plan. Therefore, it is important that during the negotiation of any settlement agreement or argument in court that the former spouse (alternate payee) include a request for the portion of the pre-retirement lump sum benefit they desire.
How much of the pre-retirement lump sum benefit can I receive?
A former spouse (alternate payee) can receive up to 100% of the pre-retirement lump sum benefit. Typically, however, a former spouse (alternate payee) would receive 50% of the amount earned during the marriage. For example, if the participant was participating in this pension plan for half (50%) of the marriage, then the former spouse’s (alternate payee’s) benefit would be 50% of 50% of the benefit, or 25% of the total benefit. However, pension plans will typically accept any percentage or easily followed formula that the parties agree upon (or is awarded by the court).
How much of the pre-retirement lump sum can I preserve for a potential future spouse or other beneficiary?
A former spouse (alternate payee) can receive as little as 0% of the pre-retirement lump sum benefit. As stated above, a typical division would award the former spouse (alternate payee) 50% of the amount earned during the marriage. If this is the case, then any additional amount could be available for a potential future spouse or other beneficiary. Some plans may allow for only one person to receive this benefit, however. So, it is important to research whether this is a plan rule – if that is the case, then if the former spouse (alternate payee) receives any part of the pre-retirement lump sum benefit then the remainder would not be available for a potential future spouse or other beneficiary.
Can a Court award the pre-retirement lump sum benefit?
If the participant’s interest in the pension was earned during the marriage and the regular pension retirement benefit is divisible by the court, then it is likely that the pre-retirement lump-sum benefit is also divisible by the Court. However, it is important to consult with an attorney licensed in your state and experienced in family law to be sure for your specific case.
What happens to these contributions by the participant and the employer if the participant does not die before beginning to receive retirement benefits from the pension plan?
In such an event, the contributions from the participant and employer, and any interest earned thereon, are paid out over time as a part of the regular pension payments. In the event that the participant dies after beginning to receive retirement benefits but before all contributions are paid out, the contributions will be used to fund part of the post-retirement survivor annuity. If no one is designated to receive a post-retirement survivor annuity, the contributions will be paid out in lump sum to the designated beneficiary.
What’s the difference between a “former spouse” and “alternate payee”?
These are both terms of art that tend to be used loosely. However, they both mean the former spouse of a pension plan participant who is entitled to receive a share of the participant’s interest in the pension plan. The reason for the two terms is that “alternate payee” is preferred for plans that are governed by the Employee Retirement Income Security Act (ERISA), as amended and “former spouse” if preferred for plans that are not governed by ERISA.
Disclaimer: Each pension plan is different and may accumulate the pre-retirement lump sum benefit differently or may treat its division differently in a divorce. It is important to research the pension plan in your case to make sure that 1) the pre-retirement lump sum benefit exists as a benefit option; 2) that the pre-retirement lump sum benefit can be divided in a divorce; and 3) what language the plan needs to properly make the division, if allowed. The information provided here is based on Markham Law Firm’s experience in dealing with pension plans and the majority of plans encountered. If you have a pension in your case and you want help to determine the benefits available and division types allowed by the plan, give us a call at 240-396-4373 or email us at: qdro@markhamlegal.com.
In addition, each state has its own laws regarding the division of property. It is important to consult with an attorney licensed in your state regarding the division of property and how pensions and their benefits are treated in your state.
What Happens to My License After Being Arrested for a DUI in Maryland?
In Maryland, getting arrested for driving under the influence can come with a lot of stressors about the unknown. After a DUI arrest, a licensee must take steps to avoid a license suspension. An attorney can ensure that you have taken the right steps and advise you throughout the process to minimize your anxiety about what is to come.
“I’ve Been Arrested for Drunk Driving” … What Should I Do Now?
Read your paperwork! After a DUI arrest, a variety of documents are provided to the licensee upon their release from jail. These are important documents and should be reviewed and kept in a safe place. When arrested for a DUI, the arresting officer is likely to seize your driver’s license unless you have an out of state driver’s license. An officer will then provide you with a DR-15A form - this form acts as both the Order of Suspension, as well as a temporary license. The officer then submits a copy of the DR-15A form to the Motor Vehicle Administration (MVA) to notify the MVA that a licensee has been arrested on DUI-related charges. Even if you have an out of state driver’s license, your privilege to drive in Maryland will be suspended unless you request an administrative hearing or install Interlock in your vehicle.
Within 10 days of the arrest, but NO LATER THAN 30 days following a DUI arrest, the licensee or the licensee’s lawyer should request an MVA hearing. Since the temporary license is only valid for 45 days, If the hearing is not requested within 10 days of issuance of the DR-15A form, your license will be suspended until the hearing if the hearing cannot be held within the 45 day period. The DR-15A form provides you with important information on how to request the hearing, such as where to send requests, and costs per request ($150 payable to the Maryland State Treasurer).
Should I always request an MVA hearing?
While the general rule is that a licensee arrested for DUI should request an MVA hearing, there are some circumstances where it may not make sense. For example, a person who refused a breath test or blew a 0.15 or above is not eligible for a license modification. In these circumstances, it is usually better to install the ignition interlock device on your vehicle, because an Administrative Law Judge (ALJ) does not have authority to modify a suspension in these circumstances. It is always best to speak with a lawyer first because there may have a defense available. In addition, if the licensee is a mechanic or must drive multiple vehicles for work, an ALJ could grant a multi-vehicle exception to the Interlock requirement.
What is an MVA Hearing and What Does it Entail?
An MVA hearing on an Order of Suspension for a DUI is administrative hearing that occurs through the Office of Administrative Hearings (OAH) to determine whether the suspension will be modified. The hearing is conducted in front of Administrative Law Judge and has no bearing on any criminal proceedings associated with the arrest. Even if no criminal charges are being brought against you, the MVA hearing will take place. At the hearing, an attorney can be helpful if a licensee has a defense or wants to request modification of the suspension to permit the licensee to drive to/from work or school. The Judge will listen to the case presented and witnesses may be presented.
A modified suspension essentially allows the licensee to drive only for specific purposes, such as driving to work, school, or certain substance abuse treatment programs. A restricted license may be granted only if you agreed to submit to a chemical test to determine your blood alcohol content (BAC) at the time of driving under the influence. Only those whose BAC results are between .08 and .14 are eligible for a restricted license. Refusals and BAC’s over 0.14 must either accept the suspension or install the ignition interlock device.
How long will my license be suspended?
For refusing to submit to a breath test, the suspension if for 270 days for a first offense and two (2) years for a second or subsequent offense. For a BAC between 0.08 – 0.14, the suspension shall be 180 days for a first or subsequent offense. For BAC’s of 0.15 or more, the suspension shall be for 180 days for a first offense and 270 days for a second or subsequent offense.
What if I do not request an MVA hearing?
In lieu of requesting an MVA hearing, individuals who were arrested for a DUI may elect to participate in Maryland’s Ignition Interlock Program. If eligible, the MVA will issue a licensee an Interlock-restricted license. This means that the licensee may only drive vehicles equipped with an Interlock device unless an exception has been granted for work vehicles only. The ignition interlock requires a driver to blow into a device to determine the estimated BAC of the driver. If the BAC registers more than 0.025, the vehicle will not start.
Individuals who opt into the ignition interlock program must participate for a specified amount of time, depending on what their BAC was at the time of arrest. If you blew between a .08 and a .15, you are required to participate for a minimum of 180 days. If your BAC was above a .15, you must participate for a minimum of 1 year. If you refused a test at the time of arrest, you must participate for a minimum of 1 year. The length of participation may be extended for violations of the program.
Getting arrested for a DUI can be very stressful and affect a licensee’s ability to drive – it is very important to talk to a lawyer to protect your rights and advise you on the best way to proceed. Contact our office at 240-396-4373 or click here to learn more.
Can I request the opposing party pay for my attorney’s fees?
In Maryland and the District of Columbia, each party generally pays for their own costs of litigation. However, you may still be entitled to request an award of attorney’s fees under certain circumstances. Attorney’s fees may be awarded pendente lite (during the pendency of the litigation) or at the conclusion of the case.
Can I request the opposing party pay for my attorney’s fees in Maryland?
In Maryland, the Court may award attorney’s fees in family law cases if there is an applicable statute. In making this determination, the Court will consider each party’s financial resources and needs, as well as whether there was substantial justification for bringing, maintaining or defending the proceeding. MD Code, Fam. Law §§ 7-107, 8-214, 11-110, & 12-103. Ultimately, you must prove that you have a financial need for an award of attorney’s fees, that you were substantially justified in your position during litigation, and that the other party has the financial ability to contribute to your attorney’s fees.
Can I request the opposing party pay for my attorney’s fees in D.C?
In D.C., the Court has discretion in awarding attorney’s fees under several principles:
Suit Money: The Court may award attorney’s fees as “suit money” in cases involving divorce, child support, or alimony. The party requesting suit money must make an initial showing that suit money is necessary “to litigate the divorce action on a level playing field with the other spouse.” McClintic v. McClintic, 39 A.3d 1274, 1276 (D.C. 2012). Suit money is meant to level the burden between the parties, especially where one party has greater economic resources. Once the initial showing of need is made, the Court must determine whether the litigation is burdensome to the party seeking the suit money.
Necessaries Doctrine: The necessaries doctrine authorizes the Court to award attorney’s fees and other costs to a prevailing party in a custody case when that party was forced to incur attorney’s fees to protect the interests of the children. Specifically, fees may be awarded where one party is seeking to preserve a custody arrangement (formal or informal) against the other party’s attempts to disrupt it, for example, by withholding the children.
Bad Faith: In exceptional circumstances, if one party has acted in bad faith during the litigation, unnecessarily resulting in additional attorney’s fees and costs, then the Court may award the opposing party attorney’s fees to compensate for the bad actor’s behavior.
If you have questions about litigation and attorney’s fees in your family law matter, please contact Markham Law Firm at 240-396-4373 for assistance.
Considerations in Dividing Defined Contribution Accounts
“Earnings, gains, and losses” and “market fluctuations” are two phrases used to describe the investment experience of the funds within a defined contribution account (401k, 403b, 457, TSP, etc.). In dividing a defined contribution account pursuant to a domestic relations order, the parties usually have the option of including earnings, gains, and losses on the amount to be transferred, or not. If these will be included, then the parties must select a valuation date from which to apply the earnings gains and losses.
What is the valuation date?
The date that the former spouse’s benefit will be valued. No contributions from any source (employee or employer) can affect the former spouse’s benefit after that date.
Why include earnings, gains, and loses on a transfer amount through a domestic relations order?
Division of the earnings, gains, and losses protects against surprises in the market.
Let’s say Spouse A is to receive 50% of Spouse B’s old 401k as of December 31, 2021, with earnings, gains, and losses applied thereon (Spouse B and the employer are no longer contributing to the 401k). At the time, $100,000 was in the account. Due to market fluctuations, at the time the account was to be divided, only $80,000 was in the account. Therefore, each party received $40,000 upon division.
Assume the same facts as above, but this time with no earnings, gains, and losses applied. Spouse A will receive $50,000 and Spouse B will retain $30,000.
Continue to assume the same facts, but this time due to market fluctuations only $40,000 remained in the account at the time it was to be divided. Without earnings, gains, and losses Spouse A would receive all $40,000 (even though Spouse A should have received $50,000) and the plan will consider its obligation satisfied. Spouse B would have $0 left in their retirement account and owe Spouse Ten Thousand Dollars.
Why would people not include the earnings, gains, and losses?
Sometimes the retirement account is the only cash source large enough to fund a buy-out of a non-liquid asset, such as the marital home. Both parties want the transfer to occur quickly, and they cooperate to minimize the time between the agreement being made and the transfer ultimately occurring. While the market can still have dramatic changes in short periods of time, the chances of dramatic changes are at least decreased the quicker the domestic relations order is created and processed.
Alternatively, the account-owning spouse may have a job that allows them to more quickly accrue retirement assets through things like employer matching contributions. Therefore, the account-owning spouse may want to ensure they are transferring a substantial amount of funds to their former spouse for their former spouse’s retirement savings ability.
How is the amount of earnings, gains, and losses determined?
In short, by a calculation by the plan administrator. The plan administrator will divide the transfer amount proportionally between all investments within the account as of the valuation date, and then trace those specific funds through to the date of transfer.
Most plan administrators require that this tracing be done proportionally through the account, as in, the domestic relations order generally cannot specify that the former spouse will receive a certain amount of each investment within the account. Some plans allow for this specification, but it is extremely rare so it should not be assumed as an option.
What if multiple accounts are being equalized?
The only earnings, gains, and losses that will be considered are the ones in the account being divided. So if each party has multiple retirement accounts, but it ends up that Spouse A needs to transfer $25,000 to Spouse B so the marital portion of their retirement accounts is equalized, if Spouse A makes a transfer out of one account, only that account’s market experience will impact the transfer amount. If Spouse B’s accounts have good investments, it will not decrease the amount being transferred to Spouse B from Spouse A. Similarly, if a different one of Spouse A’s accounts does poorly, it will not decrease the amount being transferred.
The best way to view the retirement accounts is that they are each completely separate from the other retirement accounts, even if they might be held by the same financial institution or earned from employment with the same employer.
If the parties invest their retirement account completely differently, such that one is very risky while the other is very conservative, it might be worth considering if multiple orders would better serve the parties’ intent in their agreement.
If you need a QDRO prepared or have questions about specific to this QDRO topic, please contact our office at 240-396-4373 or contact us via this form to discuss what your specific case might need.
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