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What You Need to Know About Possessing and Carrying a Firearm in the District of Columbia
The District of Columbia arguably has the most restrictive firearm laws in the country. DC gun offenses are prosecuted by the US Attorneys’ Office and the Office of the Attorney General. The fact that a person has a valid carry permit in another state will not prevent them from being arrested and prosecuted for carrying or traveling with a firearm in violation of DC laws.
Carry Permits
First and foremost, DC does not have carry permit reciprocity with any other state. This means that to carry a firearm outside of your home, place of business, or other land that you possess within DC, you must have a DC-issued carry permit. It is not enough to have a permit from VA, MD, PA, or any other state – it must a DC-issued permit. To apply for a DC carry permit, you must complete a firearms training course by an instructor certified by the MPD police Chief. The list of certified instructors can be found here: DC firearms instructors. Open carry is not permitted in DC – firearms must be carried concealed.
In order to obtain a DC-issued carry permit, you must also be eligible to possess a firearm in DC. Any of the following will disqualify you from obtaining a DC carry permit:
Conviction of certain weapons offenses, or a felony in DC or any other jurisdiction (which includes all crimes punishable by imprisonment for a term exceeding one year).
Being under indictment for a crime of violence or a weapons offense.
Being a fugitive from justice.
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.
Not appear to suffer from a physical defect which would make it unsafe to possess and use a firearm safely and responsibly.
Not have been found negligent in any firearm mishap causing death or injury to another human being.
Failure to abide by DC’s carry permit requirements will subject you to a felony conviction with a maximum penalty of 5 years in jail and/or a fine up to $12,500. A conviction of this nature will make you ineligible to possess a firearm in DC and many other states, depending on that state’s firearm laws.
Possessing a firearm in your home, place of business, or other land that you possess
Without a carry permit, a person may possess a firearm in their home, place of business, or other land that they possess. The “possessory” interest in the land referred to in DC Criminal Code § 22-4504 refers to more than the right to be physically present on the property. A person must have such an interest in the property that he or she has the authority to exclude others from the property. DC courts have previously found that the curtilage, or area surrounding one’s property, does not fall within the exception. While it is likely that this interpretation of the law would be unconstitutional post New York Rifle & Pistol Ass’n, Inc. v. Bruen, the case has not yet been directly overruled by DC courts. There is some authority from later cases that suggest the court would be open to arguments that a person possessed the firearm within the boundaries of their property, but the most direct reading of the law is that the exception does not apply outside of one’s physical home.
Registering firearms
All firearms must be registered, even if they are within the home. To register a new firearm, a person must complete the PD-219 form: “Application for Firearms Registration Certificate.” The form can be found here: PD-219. Failure to abide by DC’s registration requirements could subject you to criminal penalties for possession of an unregistered firearm in violation of DC Criminal Code § 7-2502.01. This is a misdemeanor with a maximum penalty of 1 year in jail for a first offense and up to 5 years in jail for a second or subsequent offense. A person must carry their registration certificate whenever they carry the registered firearm.
Persons with registered firearms in DC are responsible for notifying law enforcement and filing a police report immediately upon discovery of loss, theft, or destruction of a registration certificate or registered firearm.
Transporting a firearm
A person may transport a firearm through DC while traveling from one state to another under federal law so long as the firearm is stored in the trunk or a locked container within the passenger compartment of the vehicle. The firearm must be unloaded, magazines detached, and the ammunition must be stored separately from the firearm. Brief stops for food or gas are permitted.
If you are transporting a firearm within DC and do not have a carry permit, the following must be true:
The firearm is registered in DC.
The person must be able to lawfully possess the firearm in Point A and Point B
The firearm must be unloaded and neither the firearm not ammunition shall be readily accessible or directly accessible from the passenger compartment if traveling by vehicle.
If the vehicle does not have a separate compartment like a trunk, the firearm must be in a locked container, but NOT the glove compartment or console, and must be unloaded.
If transporting a firearm in a manner other than within a vehicle, it must be unloaded, inside a locked container, and separate from any ammunition.
This does not apply to someone who does not have a carry permit and is traveling either outside of DC to a location within DC or from one location in DC to another location in DC.
Where firearms may be carried with a carry permit
Even if you possess a DC-issued carry permit, there are many locations where you are not permitted to carry a firearm. The following list of prohibited places can be found in D.C. Human Health Care and Safety Code § 7-2509.7.
(a) No person holding a license shall carry a pistol in the following locations or under the following circumstances:
(1) A building or office occupied by the District of Columbia, its agencies, or instrumentalities;
(2) The building and grounds, including any adjacent parking lot, of a childcare facility, preschool, public or private elementary or secondary school; or a public or private college or university;
(3) A hospital, or an office where medical or mental health services are the primary services provided;
(4) A penal institution, secure juvenile residential facility, or halfway house;
(5) A polling place while voting is occurring;
(6) A public transportation vehicle, including the Metrorail transit system and its stations;
(7) Any premises, or portion thereof, where alcohol is served, or sold and consumed on the premises, pursuant to a license issued under Title 25; provided, that this prohibition shall not apply to premises operating under a temporary license issued pursuant to § 25-115, a C/R, D/R, C/H, D/H or caterer license issued pursuant to § 25-113, or premises with small-sample tasting permits issued pursuant to § 25-118, unless otherwise prohibited pursuant to subsection (b)(3) of this section;
(8) A stadium or arena;
(9) A gathering or special event open to the public; provided, that no licensee shall be criminally prosecuted unless:
(A) The organizer or the District has provided notice prohibiting the carrying of pistols in advance of the gathering or special event and by posted signage at the gathering or special event; or
(B) The licensee has been ordered by a law enforcement officer to leave the area of the gathering or special event and the licensee has not complied with the order;
(10) The public memorials on the National Mall and along the Tidal Basin, and any area where firearms are prohibited under federal law or by a federal agency or entity, including U.S. Capitol buildings and grounds;
(11) The White House Complex and its grounds up to and including to the curb of the adjacent sidewalks touching the roadways of the area bounded by Constitution Avenue, N.W., 15th Street, N.W., H Street, N.W., and 17th Street, N.W.;
(12) The U.S. Naval Observatory and its fence line, including the area from the perimeter of its fence up to and including to the curb of the adjacent sidewalks touching the roadway of Observatory Circle, from Calvert Street, N.W., to Massachusetts Avenue, N.W., and around Observatory Circle to the far corner of Observatory Lane;
(13)(A) When a dignitary or high-ranking official of the United States or a state, local, or foreign government is moving under the protection of the MPD, the U.S. Secret Service, the U.S. Capitol Police, or other law enforcement agency assisting or working in concert with MPD, within an area designated by the Chief, the Chief of the U.S. Secret Service, or the Chief of the U.S. Capitol Police, or a designee of any of the foregoing, that does not include any point at a distance greater than 1,000 feet from the moving dignitary or high-ranking official; provided, that no licensee shall be criminally prosecuted unless:
(i) The law enforcement agency provides notice of the designated area by the presence of signs, law enforcement vehicles or officers acting as a perimeter, or other means to make the designated area of protection obvious;
(ii) The District or federal government has provided notice prohibiting the carrying of pistols along a designated route or in a designated area in advance of the event, if possible, and by posted signage along a route or in a designated area; or
(iii) The licensee has been ordered by a law enforcement officer to leave the designated area and the licensee has not complied with the order
(B) For the purposes of this paragraph, the term “moving” shall include any planned or unplanned stops, including temporary stops, in locations open to the public.
(14) When demonstration in a public place is occurring, within an area designated by the Chief or his or her designee, or other law enforcement agency, that does not include any point at a distance greater than 1,000 feet from the demonstration; provided, that no licensee shall be criminally prosecuted unless:
(A) The law enforcement agency provides notice of the designated area by the presence of signs, law enforcement vehicles or officers acting as a perimeter, or other means to make the designated area of the demonstration obvious;
(B) The District or federal government has provided notice prohibiting the carrying of pistols along or within a demonstration route or designated area in advance of the event, if possible, and by posted signage along a demonstration route or designated area; or
(C) The licensee has been ordered by a law enforcement officer to leave the designated area and the licensee has not complied with the order; or
(15) Any prohibited location or circumstance that the Chief determines by rule; provided, that for spontaneous circumstances, no criminal penalty shall apply unless the licensee has notice of the prohibition and has failed to comply.
(b) Except to the extent of any inconsistency with 18 U.S.C. §§ 926B and 926C, the carrying of a concealed pistol:
(1) On private residential property shall be presumed to be prohibited unless otherwise authorized by the property owner or person in control of the premises and communicated personally to the licensee in advance of entry onto the residential property;
(2) In a church, synagogue, mosque, or other place where people regularly assemble for religious worship shall be presumed to be prohibited unless the property is posted with conspicuous signage allowing the carrying of a concealed pistol, or the owner or authorized agent communicates allowance personally to the licensee in advance of entry onto the property; provided, that such places may not authorize the carrying of a concealed pistol where services are conducted in locations listed in subsection (a) of this section; and
(3) On private property that is not a residence shall be presumed to be permitted unless the property is posted with conspicuous signage prohibiting the carrying of a concealed pistol, or the owner or authorized agent communicates such prohibition personally to the licensee.
(c) Whenever a licensee carries a concealed pistol and approaches any prohibited location, or is subject to any prohibited circumstance, under subsection (a) or (b) of this section, the licensee shall:
(1) If the licensee is in a vehicle or if a vehicle is readily available, immediately secure the pistol in the manner prescribed in § 22-4504.02(b); or
(2) If the licensee does not have a vehicle available, immediately leave the prohibited location or circumstance
(d) A licensee shall not be in violation of this section:
(1) While he or she is traveling along a public sidewalk that touches the perimeter of any of the premises where the carrying of a concealed pistol is prohibited under subsection (a) and subsection (b) of this section, except for the areas designated in subsection (a)(11) and (a)(12), or along a public street, roadway, or highway if the concealed pistol is carried on his or her person in accordance with this unit, or is being transported by the licensee in accordance with § 22-4504.02; or
(2) While driving a vehicle into and immediately parking at any location listed in subsection (a)(2) of this section for the purpose of picking up or dropping off a student or a child; provided, that the licensee shall secure the concealed pistol in accordance with § 22-4504.02(b), before leaving the parked vehicle.
(e) A licensee shall not carry a pistol openly or otherwise in a manner that is not concealed.
(f) In addition to any other penalty provided by law, any person who violates this section shall be subject to revocation of his or her license.
(g) For the purposes of this section, the term:
(1) “Demonstration” means one or more persons demonstrating, picketing, speechmaking, marching, holding a vigil, or engaging in any other similar conduct that involves the communication or expression of views or grievances and that has the effect, intent, or propensity to attract a crowd or onlookers. The term “demonstration” does not include the casual use of property by visitors or tourists that does not have the effect, intent, or propensity to attract a crowd or onlookers.
(2) “Public place” means a place to which the general public has access and a right to occupy for business, entertainment, or other lawful purpose. The term “public place” is not limited to a place devoted solely to the uses of the public, and includes:
(A) The front or immediate area or parking lot of a store, restaurant, tavern, shopping center, or other place of business;
(B) A public building, including its grounds and curtilage;
(C) A public parking lot;
(D) A public street, sidewalk, or right-of-way;
(E) A public park; and
(F) Other public grounds.
(3) “Public transportation vehicle” means any publicly owned or operated commercial vehicle, including any DC Circulator bus, DC Streetcar, MetroAccess vehicle, Metrobus, or Metrorail train.
(4) “Residence” means a building wholly or partly used or intended to be used for living and sleeping by human occupants, together with any fences, walls, sheds, garages, or other accessory buildings appurtenant to the building, and the area of land surrounding the building and actually or by legal construction forming one enclosure in which such a building is located, but does not include adjacent common areas or commercial property contained in any part of the building.
Safe storage of firearms
It is highly recommended that a person store any firearm in their possession unloaded and either disassembled or secured by a trigger lock, gun safe, locked bos, or other secure device. It is unlawful for any person to store or keep any loaded firearm on any premises under their control if they knew or reasonably should know that a minor under 18 is likely to gain access to the firearm without the permission of the parent or guardian of the minor unless such person:
Keeps the firearm in a securely locked box, secured container, or in a location which a reasonable person would believe to be secure; or
Carries the firearm on his person or within such close proximity that he can readily retrieve and use it as if he carried it on his person.
If the firearm is stored at a place of business, it shall be stored in a gun safe, locked box, or other secure device affixed to the property.
Failure to comply with DC’s firearm storage laws is a criminal offense punishable by up to 180 days in jail and/or a fine up to $1,000. If the minor’s access to the firearm causes injury or death to themselves or another, the penalty jumps up to 5 years and/or a $5,000 fine. If the minor obtains the firearm due to an unlawful entry or burglary of any premises, there is no criminal liability.
Miscellaneous laws
Neither firearms nor ammunition may be loaned, borrowed, given, or rented from another person.
No firearm or ammunition may be pawned within the District of Columbia.
High capacity feeding devices that carry more than 10 rounds are illegal and carry a penalty of up to 3 years in jail. This includes a magazine, belt, drum, feed strip, or similar device that can be readily restored or converted to accept more than 10 rounds of ammunition.
It is unlawful to possess ammunition without a valid registration certificate for a firearm. Violation of this law carries a maximum penalty of up to one year in jail.
It is unlawful to possess one or more “restricted pistol bullets”, defined as”
A projectile or projectile core which may be used in a pistol and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium;
A full jacketed projectile larger than .22 caliber designed and intended for use in a pistol and whose jacket has a weight of more than 25% of the total weight of the projectile; or
Ammunition for a .50 BMG rifle.
If you, a friend, or a loved one are charged with a criminal offense in the District of Columbia, or would just like advice on DC gun laws, you need an experienced criminal defense gun lawyer with special training and knowledge in this area of the law. Contact our office at 240-396-4373.
What is Collaborative Law?
When you think of a divorce or custody case, you probably think of a contentious courtroom drama. However, there is a lesser-known, family-centric process to resolve divorce and/or custody. This process is known as Collaborative Law.
What Is Collaborative Law?
The Collaborative Law process is a multidisciplinary approach that utilizes professionals in relevant areas such as law, accounting/finance, and psychology/social work to consult with clients on various objectives and outcomes. The Collaborative process is party-focused with professionals offering advice and the parties making the decision. This process is intended to help alleviate any anger and resentment between parties and facilitate a positive, healthy relationship following the divorce. The professionals and parties work collaboratively to achieve the goals of the family.
How Does Collaborative Law Work?
Many think of the first step in divorce or custody as filing and serving “papers,” aka initiating a lawsuit against your spouse/partner. In Collaborative Law, your case is kept out of the courtroom. Rather, the first step in Collaborative Law is to establish your goals and interests with your attorney. These goals and interests will guide the process and ultimately help you reach a resolution in line with those goals and interests. In the beginning, you and your attorney will determine which professionals can assist with your matter, including, if applicable, a parent coach and a financial neutral. A parent coach is a mental health professional who will help you execute a parenting plan that is in the best interests of your child(ren) and your family. A financial neutral is a certified financial professional that aids you in reaching an agreement on the division of your assets and property. The process develops through a series of meetings with the coaches, your attorney, and the team. Team meetings consist of all professionals and parties and is a forum designed to facilitate transparency between the parties and promote open discussion on issues and options with professional guidance. The process ultimately concludes with the execution of a global agreement made for and by you.
Why Choose Collaborative Law
The family court system is designed to be adversarial. As such, divorce/custody litigation is painful, destructive, and costly to families. Collaborative Law circumvents the adversarial process and helps families remain whole and resolve their divorce/custody matter with their interests at the forefront. By working with professionals in various disciplines, you are well-equipped with the resources and information to make the best decision for your family. Unlike in Collaborative Law, in litigation, a judge, who has limited information on you and your family, would make those decisions for you.
Our attorneys are trained and experienced in Collaborative Law, so if you are interested in engaging this process, please contact us at 240-396-4373 and we are ready to assist you.
QDRO Corner: Clever Work-Arounds for Common Plan Prohibitions
It’s a common situation, the parties finally reach an agreement after painstaking negotiations, and rather than have someone change their mind, the parties sign the agreement before checking the rules of the retirement plan. They then hire an attorney to draft the QDRO. The QDRO attorney then has to tell the parties that they’ve agreed to something the retirement plan cannot accommodate and they have to go back to the negotiation table with their divorce counsel. Speaking from experience, this is pretty bad news to have to tell parties.
Pension Plans and the Cost for Survivor Benefits.
Many pension plans, like FERS and CSRS for federal government civilian employees, allow for the cost of the survivor benefit to be shifted. Meaning, that the retirement order can state that one party or the other will fully bear the burden of any reduction incurred for the future survivor benefit. Other plans, such as the military retired pay, Maryland State Retirement and Pension System, and most international organization retirement systems, do not allow for such shifting and instead require that the reduction be taken “off the top” or before the benefit payment is divided between the parties.
The common issue we see is that parties have agreed to shift the cost of the survivor benefit for a plan that does not accept that language in their retirement orders. For many agreements, this cost in particular is a large point of contention and is only awarded to the former spouse on the condition that the former spouse would pay that cost. So what now?
In cases where a reliable estimate can be obtained or prepared the best case is to simply change the phrasing. Instead of using a formula in the retirement order in which the plan has to fill in the information, do it based off of the estimate and reduce the former spouse’s share to a percent of the whole. To best protect each parties’ interests, include a clause that says once the participant begins to receive benefits the parties will revisit the calculation to ensure the proper amount is awarded to the former spouse. This way the retirement order is in place as of the divorce, and the former spouse is already receiving a reduced benefit to account for the survivor benefit from the start of the benefit payments. If the estimate done during the divorce is too different from the actual payments, the parties can have an amended retirement order prepared and submitted.
If no reliable estimate can be prepared, the parties can still agree as they would, to the formula amount awarded to the former spouse, but that once the benefit payments begin, the former spouse will reimburse the participant on a regular schedule for the cost of the survivor benefit, upon proof being shown of the cost, until an amended QDRO can be effectuated.
Neither of these are as simple as having the plan shift the cost themselves, but they are good back-up solutions to an otherwise potentially deal-breaking situation.
Defined Contribution Accounts and Earnings, Gains, and Losses
Parties can agree that a transfer out of a 401k-type account include earnings, gains, and losses thereon from a certain date through the date of transfer. This allows the transfer amount to go up and down with the market investments of the account until they are transferred to the former spouse. Recently, some financial institutions have stopped allowing for this calculation, instead requiring that the transfer amount be described as occurring on the date of transfer.
This can result in wildly different outcomes. For example, imagine a transfer amount was $50,000 with earnings, gains, and losses as of the date of divorce and the transfer actually happens 6 months thereafter. During those 6 months, the market crashes and suddenly that $50,000 is equivalent to $20,000 after the earnings, gains, and losses are applied. The parties clearly intended that the former spouse should receive $20,000 in such a circumstance. If this plan prohibition was in place, however, then the former spouse would receive $50,000, and the participant would have a substantially smaller balance remaining in their account than the parties intended. So, what now?
If the account funding the transfer is no longer the person’s active retirement account, as in there are no contributions, withdrawals, or active investment scheme changes happening in the account the solution is to simply reduce the former spouse’s share to a percent and describe the transfer amount as the percent as of the date of transfer. From the example above, if the $50,000 with gains and losses the former spouse was supposed to receive would be 50% of the account, then after the market crashes and the entire account balance is $40,000, the former spouse would still receive 50% of the account, but it would be $20,000.
What if the account is receiving mandatory employer contributions? The parties may want to get a financial professional involved, but they could estimate where the account balance should be at the time, they anticipate the transfer to be made based off of expected employer contributions during that time. With the estimated contributions and market fluctuations thereon added, the parties could come up with a percent of the account for the former spouse’s share, with a continency to prepare an amended QDRO if something wild happens in the meantime.
Keeping with the same figures, if the former spouse should receive 50% or $50,000, that means the account has $100,000 at the time of the valuation. If the parties anticipate that the employer contributes $20,000, the former spouse should receive $50,000 or 41% of the account. Market changes will impact the transfer amount here, same as above.
If you run into a similar situation and need help finding a creative solution contact us at 240-396-4373 and we can discuss your case and if we can help.
Second Parent Adoptions in Maryland after Assisted Reproduction
An increasing number of people are relying on the use of Assisted Reproductive Technology to build their families. For some families, including many LGBTQ+ families, a sperm donor may be used with one party's egg, resulting in one parent who is biologically related to the child, while the other parent is not. While Maryland may recognize both parties as parents to the child, it is still important for the non-biological parent in such a scenario to utilize the formal adoption process to ensure greater protection of their parental rights.
Maryland courts regularly grant "second parent adoptions" in a variety of scenarios. However, in certain situations, the law allows for a more simplified process for "second parents" to finalize the formal adoption of their child when the parties are married at the time of conception or birth, or when the parties use Assisted Reproduction to conceive their child.
This simplified approach under Maryland law applies to:
an individual who is the spouse of the prospective adoptee’s mother at the time of the prospective adoptee’s conception or birth; or
an individual who, together with the prospective adoptee’s mother, consented to the conception of the prospective adoptee by means of assisted reproduction with the shared express intent of being parents of the prospective adoptee.
In such a case, the petitioner must file:
a copy of the petitioner and prospective adoptee's mother's marriage certificate (if the parties were married at the time of the child's conception/birth); or
evidence of the parties' shared express intent to become parents of the child by means of assisted reproduction. This includes a copy of any written agreement consenting to the conception of the prospective adoptee by means of assisted reproduction (for example, contracts entered into by the parties with cryobanks and/or fertility clinics).
Additionally, in either scenario, the petitioner must file:
a copy of the prospective adoptee's birth certificate; and
a statement explaining the circumstances of the prospective adoptee's conception in detail sufficient to identify any individual who may be entitled to notice or whose consent may be required.
Under this process, the court may not require an investigation or hearing on the adoption petition except for good cause. In most of these cases, the court will be able to make the necessary findings required by the law based upon the filings and documents alone. Therefore, the adoption can be granted more quickly and often without any required appearance in court.
Jane Rodgers handles a variety of adoptions including second parent adoptions. Jane has worked with many LGBTQ+ families in finalizing their second parent adoptions with the court. Contact our office at 240-396-4373 to schedule a consultation.
Unconventional QDRO Uses: Can a QDRO Require that a Participant Receive Payments By a Specific Date?
When dealing with the division of pension interests one of the first questions to ask is should the division be done as a shared or separate interest. In short, the separate interest division gives the former spouse/alternate payee authority in when they will begin to receive pension benefits, with little to no restrictions based on the Participant’s decisions, and is paid over the former spouse/alternate payee’s lifetime. With a shared interest division, the former spouse/alternate payee will only receive benefits if, as, and when the Participant does, and requires a survivor benefit to continue to receive benefits if they outlive the Participant.
In a shared interest division, which may be the only kind of division available the former spouse/alternate payee usually wants some kind of guarantee or at the very least notice of when the Participant will begin to receive their benefits. This desire is completely logical – for retirement income planning it’s important to know when income from each source will be received.
So many people ask, can we include in the QDRO that the participant will retire and begin to receive pension benefits on or before a certain date, and the answer is no, we cannot. A QDRO is instructions from the Court to the retirement plan for how to divide the plan benefits once they are being paid, in accordance with the plan’s existing payment rules. Under no circumstances does the retirement plan (divorce or otherwise) have the authority to require the participant to retire and begin to receive benefits. Therefore, the QDRO cannot create that authority.
So the next question that we’re asked is could that language be included in a settlement agreement, or can it be asked of the judge in a trial? This answer completely depends on state law, so it’s best to consult with a local family law attorney for specifics.
Is the former spouse/alternate payee then left to the whim of the participant in a shared interest division?
Unfortunately for the former spouse/alternate payee that answer is yes. The most helpful provision in an agreement that we’ve seen, which can be put in the QDRO is that the participant waives privacy with respect to their pension benefits so that the former spouse/alternate payee can receive information from the pension plan as to when the participant may be retiring and the amount of the participant’s benefit.
This does not mean that the pension plan will take the initiative to reach out to the former spouse/alternate payee to notify them that the participant has filed to begin receiving benefits. Rather, it means that the former spouse/alternate payee may reach out to the pension plan to see if the participant has filed to begin benefit payments. If so, the pension plan would also have benefit payment estimates prepared that they could share with the former spouse/alternate payee. The pension plan will not likely run additional estimates at the request of the former spouse/alternate payee if they were not already prepared for the participant. This waiver of privacy is simply access to existing information.
Are there any exceptions to this?
In a presentation from an attorney in California, we heard of a law in California that could require the participant to begin making direct payments to their former spouse if the participant were of retirement age but continued to work. The presenter explained this came from a case where an employee continued to work out of spite, hoping to work until their death so their former spouse would not receive a penny of their pension. The court allegedly required the employee to begin making payments to the former spouse from his salary until he began to receive benefit payments from his pension. The presenter also stated that a few other Western states were considering similar laws. (DISCLAIMER: this information is included to show the differences between states across the nation. Attorneys at Markham Law Firm are not licensed to practice in California. We are relying on the information presented by the California attorney as of 2022, and California’s laws may have changed since then. It is important to consult with an attorney in each state in which your divorce may occur so you can choose the state that makes the most sense for your circumstance.)
It seems unlikely any such ruling would occur in Maryland or the District of Columbia any time soon.
November is National Adoption Month!
Many families are created through adoption, and there are different ways to adopt a child. The focus of National Adoption Month is to spread awareness about the adoption of children and teens in the foster care system with the goal of finding them safe, supportive, and loving forever families. There are many reasons why people may choose to adopt a child. It is also possible to adopt an adult.
In Maryland, there are three main types of adoption:
Public Agency Adoptions are adoptions involving the placement of children through the department of social services. These adoptions may involve children who have been placed in the foster care system due to parental abuse, neglect, or abandonment, or in cases where a child has lost their parents due to other circumstances.
Private Agency Adoptions involve the use of a private agency to match a child who is available for adoption with a family who is seeking to adopt. Private Agency Adoptions can involve children from within the same state as the prospective adoptive parent(s), from a different state, or from another country (through International Adoption).
Independent Adoptions are adoptions through private parties. Most commonly, independent adoptions involve family members, stepparents, or second/co-parents. In Maryland, there is also a statute that provides for a simplified adoption process when a person is seeking to adopt a child conceived through Assisted Reproductive Technology with the prospective adoptee’s mother while married or with the shared express intent of being parents of the child.
Adoptions Generally:
All adoptions require consent of the natural parents to the adoption when such parents can be found, except in cases where a court has terminated parental rights (such as in a case of abuse, neglect, or abandonment).
In cases involving an agency, the agency often is granted guardianship with the right to consent to adoption.
In adoptions involving a child over the age of 10, the child must also consent to the adoption.
In cases involving the use of Assisted Reproductive Technology, it may be the case that one of the biological parents was a donor who has waived parental rights. In such a case, the other biological parent may consent to the adoption by the second/stepparent without termination of their own parental rights.
In most adoptions, there are requirements for investigation into the prospective adoptive parent(s) including home studies, post-placement visits, medical examinations, and criminal background checks. In certain cases, the Court will also appoint an attorney on behalf of the prospective adoptee.
Jane Rodgers handles Adoption matters in Maryland and the District of Columbia. If you are interested in pursuing Adoption, contact our office at 240-396-4373 for more information.
Certain Tax Considerations in Transferring Retirement Interests
Transferring retirement interests pursuant to a divorce can allow the parties to shift the tax burden of some payments from retirement funds from one party to the other. Whether this is something the parties want to do or is reasonable in their specific case is a matter for their individual attorney to analyze.
Payments from a Pension Plan
Payments from a pension plan can typically be divided at the gross or net levels. While some plans have a different definition for “gross” or “net”, for purposes here “gross” means the largest, unreduced payment from the plan, prior to any deductions, and “net” means the smallest, most reduced payment from the plan, after all deductions.
If divided at the gross level, that means each person will pay tax on the funds they receive. This division type is most common because it is as if each party earned their share of the pension, and are paying taxes based on their own income level.
If divided at the net level, then the participant is paying taxes at their income level for the entire benefit, and the payment made to the alternate payee/former spouse is free and clear of any tax implications. This type of division is exceedingly rare. While the participant is responsible for all of the taxes, the alternate payee/former spouse’s share is reduced also by any other deductions the participant may elect, such as a survivor benefit cost for a future spouse, or health insurance or life insurance premiums. Typically this type of division is used when both parties are retired and the income amounts are already known and they prefer to divide their retirement income based on the figures they know. The alternative is that the income to the alternate payee/former spouse may be different than intended based on the alternate payee/former spouse’s tax bracket.
Transfers from a Defined Contribution Account (Traditional accounts only)
When transferring from one retirement account to another, so long as the receiving account is eligible (check with the financial institution to see if the account is eligible to receive the funds) there will be no tax payment triggered by the transfer. However, the tax must still be paid on the funds at some time, so under this scheme, the tax will be paid by the person receiving the funds, but at the time the person takes the funds out of their retirement account. Typically, this is when the receiving party is retired and using their retirement accounts for income.
A retirement transfer may also take place to access funds when no other more-liquid funds are accessible. In this case, if the alternate payee/former spouse has a lower tax bracket, it may make financial sense to transfer the funds out of the retirement account and have the alternate payee/former spouse take the funds as cash. In this scenario, the alternate payee/former spouse would pay tax on the transferred funds immediately (and reconcile it when filing their taxes for that year). When a transfer is done for this purpose it may be ‘grossed up’ to account for the tax payment, meaning the tax payment is effectively shifted from the alternate payee/former spouse to the participant. This is most likely when the transfer is coming from retirement for a non-retirement asset, such as a home interest buy-out.
Why Transfer Instead of Withdrawal?
In the last scenario, the retirement funds in exchange for the home interest, it seems somewhat illogical to add the step of transferring the funds to the alternate payee/former spouse to take as cash rather than having the participant take the funds out as a withdrawal. For parties that are not yet at retirement age, there is the early withdrawal penalty to consider. If the participant is not of age and withdrawal the funds directly, the early withdrawal penalty is applied. However, the early withdrawal penalty is avoided if the alternate payee/former spouse receives the funds as cash through a QDRO transfer. Note, this is applicable for 401k and other similar type of accounts that are governed by ERISA. It is not the case for non-qualified plans or IRAs.
Disclaimer: This firm focuses on the practice of family law and the information provided herein related to tax considerations is legal information and is not tax advice. You may want to consult with a tax professional for any specific questions related to your case and circumstances.
Further, not all plan types follow the rules described above. The plans described and rules referenced herein are for the majority of plans. You should review the rules for the plan in your case carefully to determine how it interacts with the tax laws.
Contact our office at 240-396-4373 for QDRO related assistance.
In a Retirement Transfer, Who Handles What?
Different people or organizations cover many steps in a retirement transfer.
As you will read below, the parties are responsible for most steps. However, that responsibility can be delegated to the party’s attorney or the retirement order drafting attorney if they choose. The most important part of each of these steps is making sure it is clear who is taking the responsibility. While the blame belongs to both parties to follow through on getting the retirement order drafted and submitted (if not agreed otherwise), which one, in particular, must be proactive to start the process and make sure to see it through to completion?
It is best practice to state the responsibility clearly in any settlement agreement or have the judge designate one party to be responsible for the retirement order process in an order.
So, how does it happen, and who is responsible for each step?
Figure out the division of the retirement asset. The parties are responsible for this or for taking the matter to court and requiring the Court to order a division.
Have the Retirement Order prepared. The parties are responsible for hiring an attorney to prepare the retirement order and providing all necessary information. Such information includes the document that explains the asset division, a statement from the account that will be divided, and sometimes a letter or additional information from the account being divided. In best practices, the order is prepared while the parties negotiate their agreement or immediately following the divorce. All information the drafting attorney needs would be gathered in discovery or informal document exchange. The parties should agree on which is responsible for hiring the attorney or if it will be a neutral/joint representation.
Paying for the Retirement Order to be prepared. The parties are responsible for determining how the drafting attorney will be paid.
Signing the Retirement Order. The parties are responsible for signing the retirement order, or they may have their counsel sign on their behalf if appropriate in their jurisdiction.
Submitting the retirement order to the Court. The judge must sign the retirement order. The parties or their counsel are responsible for submitting the order to the Court.
Obtain Certified Copies from the Court and mail them to the Plan. Plans require that certified copies, or true test copies, be submitted. These special copies come with a seal from the Clerk of the Court to certify that the order is a true representation of the order the Court has entered. The parties are responsible for determining who will be responsible for this step. It could be a party, their counsel, or the attorney who drafted the QDRO.
Respond to the Plan’s questions. The parties are responsible for answering any questions posed by the Plan in a timely manner. This may include but is not limited to, the person receiving the funds being responsible for filling out forms to notify the plan of where they would like their funds sent.
Figuring out where the funds should be sent. This is for the party receiving the funds. Perhaps it is worth a conversation with a financial planner to figure out what type of account should the funds be rolled into, or should some of the funds be taken as cash and the rest rolled over? This is not a decision that an attorney can make on the party’s behalf.
Transferring the funds. The plan administrator will notify the plan’s financial institution when the retirement order is approved and instruct them to transfer the funds. The financial institutions will then coordinate to transfer the funds to the receiving party’s account. This transaction may also involve the party’s financial advisor, depending on the type of account the funds are being transferred to. The attorneys do not have access to the accounts or the fund transfer. The parties have the most access to check up on the status of the transfer because they already have access to their own accounts. The financial institutions view attorneys as third parties and typically need the account holder’s social security number, date of birth, and address to get any information if they get any at all. Some institutions require that the account holder be on the phone to share the status of the transfer.
Depending on how quickly the financial institutions and courts are processing and how quickly the parties provide information to the drafting attorney, this process can be as quick as 2-3 months or can take much longer.
If you have additional questions regarding your retirement order, or need assistance contact our office at 240-396-4373.
Is My Spouse Entitled to Property I Acquired After the Date of Separation?
Going through a separation or divorce can be a challenging and emotionally charged time. Among the many concerns that arise during this process is the division of property and assets. One common question that arises is whether a spouse has any claim to property acquired after the separation has occurred.
What is considered marital property?
In Maryland and the District of Columbia, if property is acquired by one spouse after separation but before the divorce is finalized, it is still considered marital property. Campolattaro v. Campolattaro, 66 Md. App. 68, 81 (Md. Ct. Spec. App. 1986); Boyce v. Boyce, 541 A.2d 614, 616 (D.C. 1988); D.C. Code § 16-910(a). Marital property includes assets acquired during the marriage, while separate, premarital property typically includes assets acquired before the marriage, through inheritance, or as a gift.
What is equitable distribution?
Maryland and the District of Columbia follow the principle of equitable distribution, which means that marital property is subject to an equitable division between spouses by applying several factors. The factors include the circumstances surrounding the property's acquisition, both parties' monetary and non-monetary contributions, and the overall equitable distribution of assets. Separate, premarital property is generally retained by the individual who acquired it.
Do I need a written agreement to divide assets?
To avoid potential disputes and resolve the division of property, many couples choose to enter into a written separation and property settlement agreement. A written separation and property settlement agreement is a legally binding contract that establishes the terms of the division of assets. A signed separation agreement will stop the accumulation of marital assets after the separation but before the divorce is finalized and therefore will govern whether your spouse has an interest in property acquired after the date of the separation agreement.
If you need assistance with your separation and property settlement agreement, please contact Markham Law Firm at 240-396-4373 .
What is the Marital Share Formula and How Does It Work?
When dividing a pension many times the division is described as a formula, which is defined as, some percent times a fraction, in which the numerator of the fraction is the total number of months of creditable service in the retirement plan earned during the marriage and the denominator is the total number of months of creditable service in the retirement plan earned as of the date of retirement. Some jurisdictions call this the “coverture fraction.”
For those who are not currently using algebra terms in their daily language, the numerator is the top number in a fraction and the denominator is the bottom number in the fraction. When the numerator is divided into the denominator the result is a percent (or quotient for those being technical, but for the purposes of the marital share fraction, it’s a percent).
And, for those that need a numerical example, let’s say a person works 120 months at a job earning credit in the retirement system, and during that time, they were married to their spouse for 60 months. The fraction would be 60 / 120 = 50%. Therefore, 50% of the pension is marital, and 50% is non-marital. In a divorce circumstance, typically only the marital portion is being divided, so the participant would retain their 50% non-marital portion for themselves, and the 50% marital portion would be available to divide with the former spouse.
What about the common scenario where the person who has the pension is still working for that employer, earning new credit in the retirement system after the marriage, how does this formula account for that?
The way the court order is drafted is by using the definition of the fraction underlined in the first paragraph. This language allows the retirement plan to be responsible for doing the math when the participant retires. While the numerator can be determined as of the date of marriage, the denominator won’t be. Therefore, the retirement plan will use the instructions in the QDRO when the participant retires, when the information is known.
Going back to the 60 / 120 scenario. Let’s say the participant continues to work for this employer another 120 months after the divorce. Now the fraction is 60 / 240, or 25% is marital. The definition of the fraction being provided to the retirement plan is what allows for the plan to properly account for the former spouse’s share as of the date of retirement, which usually is not known as of the divorce.
But wait, that math seems to highly benefit the participant. Why would a former spouse agree to this?
The marital share fraction, once reduced to a percent is multiplied by the total benefit earned by the participant. The total benefit earned by the participant is typically calculated using some combination of the length of the employment and the highest or final salary earned. For participants who continue to work after the date of divorce, that means they are working toward a larger retirement benefit.
For former spouses, this means that while the marital percent of the benefit may be decreasing as the participant continues to work after the divorce, the benefit that the marital percent is multiplied by is larger due to increased time spent earning credit in the pension system and a larger salary that is used to compute the participant’s total benefit.
So the way to think about it is that if the benefit is calculated at the time of the divorce, the former spouse may be receiving a larger share of a smaller benefit, however, when the calculation is redone at the time the participant retires, the former spouse is receiving a smaller share of a larger benefit. Proportionally, the math works out to limit the benefit payment to the former spouse to amount attributable to the marriage.
Many states have their own version of this formula. Some call it the marital share formula, others refer to it based on the case in which the formula was adopted. For example in Maryland it is referred to as the Bangs formula. This is one way to calculate the former spouse’s interest in a pension due to a divorce. Depending on the circumstances this might not be the appropriate method to divide the pension. It is best to discuss the options with your local divorce counsel.
It is also important to keep in mind that some plans will place a limit on the amount that can be awarded to a former spouse. Specifically, the military limits it to the benefit the member has earned as of the date of divorce, so that all of the increased service time and promotion benefits are retained solely by the member. In such cases, it is important to alter the fraction as described above so that the denominator does not continue to increase. Alternatively, the International Monetary Fund limits the benefit awarded to the former spouse to be 50% of the marital share. Thus, if the parties wanted to award a larger percent to the former spouse say to offset for a different marital property, they would not be able to award the former spouse something like 65% of the marital share of the pension because of the plan’s limitations.
Dealing with pensions and retirement assets can be difficult, and knowing the plan’s rules as well as your state’s rules with respect thereto is key to a successful negotiation. If you’re looking for help dealing with a retirement plan or understanding the plan’s rules, please call us at 240-396-4373 or email us at qdro@markhamlegal.com to see if we can help.
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