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What You Need to Know About Civil Protection Orders in the District of Columbia
What is a protective order?
A protective order is a court order that lasts for up to two years that prohibits another person from contacting, attempting to contact, harassing, or stalking another person. The “Petitioner” is the person who files a request for a protective order, and the “Respondent” is the person who is served with the protective order. A protective order can also grant temporary custody of children to the Petitioner and order the Respondent to vacate the home if the parties live together. Violation of a protective order is a criminal offense that carries jail time and financial penalties.
Who is eligible for a protective order?
To obtain a protective order, there must be a specific relationship between the Petitioner and the Respondent. The Petitioner may file a protective order against a person who has committed or who has threatened to commit an intrafamily offense against the Petitioner, an act of animal cruelty against the Petitioner’s animal, sexual assault, or sex trafficking of the Petitioner. An “intrafamily offense” is a criminal offense that has been committed against an intimate partner, a family member, or a household member, or as an offense punishable as animal cruelty against an animal that an intimate partner, family member, or household member possesses, owns, or controls.
What is a temporary protective order (TPO), and is a TPO always issued before a final protective order hearing?
The court may issue a temporary protection order if the petitioner or a person petitioning on the petitioner's behalf establishes that the safety or welfare of the petitioner, or an animal the petitioner owns, possesses, or controls, is immediately endangered by the respondent. A temporary protection order shall remain in effect for an initial period not to exceed 14 days as necessary to complete service and the hearing on the petition. The court may extend a temporary protection order as necessary to complete service and the hearing on the petition. If a judge declines to grant a TPO but the court finds that there is good cause to believe that the Respondent has committed or threatened to commit an intrafamily offense or animal cruelty, then a final protective order hearing will be scheduled.
Am I entitled to see the other party’s evidence before the hearing?
Unlike a criminal case or a typical civil lawsuit, a party in a protective order proceeding is not automatically entitled to see the other party’s evidence. A judge has the discretion to order that discovery (or evidence) be produced upon motion of a party if it finds good cause to do so.
How do I get a protective order?
The first step in getting a protective order is to file a Petition with the court. This can be done online through the court’s website or in person. If the Petitioner is requesting a TPO, then they will appear before a judge the same day or the next business day to state under oath why they are requesting protection from the Petitioner. If a TPO is not granted or the Petitioner is not requesting a TPO, then a final protective order hearing will be held within 14 days.
How long does a protective order last?
A TPO can last up to 14 days pending the hearing on the final protective order. A final protective order can last for a maximum of two years from the date that the final order is issued.
What should I bring to the final protective order hearing?
Regardless of whether you are the Petitioner or the Respondent, bring all evidence that tends to support your case to the final hearing. You should print out text messages, social media posts, emails, or other documents as opposed to trying to introduce them into evidence through your phone or computer. Either party may call witnesses to testify on their behalf.
What if I am accused of violating a protective order?
Since violation of a protective order is a criminal offense, you should immediately consult with an experienced attorney who can advise you of the criminal process and assist you in your defense. Do not make any statements to the police or anyone else because anything you say can and will be used against you.
Do I Need a Lawyer to File for a Protective Order or Defend Myself Against One?
While a lawyer is not required since this is a civil proceeding, hiring a lawyer can be very helpful in understanding the process and consequences. A lawyer can negotiate with the opposing party and use their knowledge of the rules of evidence at the contested hearing. A lawyer can reduce stress by guiding their client through the entire process from filing a protective order to serving a protective order to defending against a protective order. Protective orders can have serious consequences for a Respondent, especially if the Respondent shares a home or children with the Petitioner. In addition, protective orders can be a problem if the Respondent has a security clearance for their job.
Contact our office at 240-396-4373 to schedule your consultation with one of our skilled attorneys.
Major Differences in ERISA Governed Plans, and Non-ERISA Governed Plans
The Employees’ Retirement Income Security Act (ERISA), as revised, includes many protections for former spouses (or soon-to-be former spouses) as it relates to the submission of QDROs. Chief among them is that once a plan is on notice of a former spouse’s viable claim to the participant’s interest in the plan, the plan has a responsibility to protect that former spouse’s interest through the submission of a court-executed QDRO or the expiration of 18 months, whichever first occurs.
What are these protections?
For a defined contribution account the plan will usually prevent the participant from taking loans or making withdrawals from the account. For defined benefit accounts the plan can go as far as preventing the participant from commencing benefits or pausing benefit payments altogether, or can begin to withhold a portion for the former spouse pending the final order. For financially dependent spouses, the submission of a draft order for the purpose of implementing these protections can be a tactic to preserve the marital estate while the divorce is pending.
What is a viable claim from a former spouse?
ERISA does not clearly define what needs to be submitted to a plan for these protections to be put in place. Most ERISA-governed plans are very cautious and will put up protections when they receive a draft DRO.
Non-ERISA governed plans, however, only have such regulations if they are specifically written into their plan rules. Non-ERISA governed plans can protect their participants much more strongly. Imagine this scenario: a draft QDRO is submitted to the plan to ensure it will be accepted by the plan once in final form. The plan takes a while to review, but then responds with a few small edits.
The former spouse makes the edits and submits the draft for a second review. The plan again takes a while to complete the review. During that time the participant retires and commences benefits. The plan then responds to the former spouse’s second draft with substantial changes due to the participant’s retirement changing the benefits being available to the former spouse. Now the former spouse has to scramble to get the QDRO entered and to chase the participant for their share of the benefits that have been paid to the participant.
Alternatively, some non-ERISA governed plans have voluntarily put stricter protections in place for more day-to-day type activities. Specifically, the Thrift Savings Plan (federal government employees and military) requires spousal consent for any withdrawal or loan. While this is great to protect the marital asset, for a person who otherwise needs access to the funds for say, paying an attorney’s retainer fee, it may be a way for the former spouse to block the participant’s access to funds in a time of need. Recently, Congress has considered adding similar protections to ERISA, though no final decision has been made.
Why would these restrictions not be in the existing draft of ERISA?
Perhaps because the title of the statute is the Employees’ Retirement Income Security Act – as some courts have noted, the intent is to protect the asset of the employee, not their beneficiary. However, the protections exist once the former spouse’s claim is raised perhaps because the statute recognizes the need to transfer retirement funds to a more financially dependent spouse. After all, the need for QDROs and QDRO protections arose as divorce became more acceptable and there was one party with substantial retirement assets from employment and the other party had little to no retirement due to being a fulltime homemaker. As a former spouse has a marital claim to the retirement asset, they have a different standing from any other beneficiary.
As attorneys, what can we do to best protect our clients?
Gather information about the plan as early as possible. Figure out what are the plan’s procedures and how quickly they review and implement QDROs. If there is any concern regarding depletion of assets ask the plan what is required to freeze the account. Get the QDROs drafted in advance of a divorce. If there is no freeze on the account from any action prior to the divorce, then upon divorce the plan is unaware of any claim from the former spouse and will allow the participant to make any decision allowed under the plan rules. Not only does this protect the former spouse as best as possible, but it also gets the transfer done as close to the divorce as possible. It allows the parties to move forward from the divorce without the need to go back and get this done later, and as unattached as possible.
Have additional questions? Contact our office at 240-396-4373.
Using Maryland's Child Abduction Prevention Act in Interstate and International Family Law Matters
The Maryland Child Abduction Prevention Act took effect in Maryland on October 1, 2023. It is codified in the Maryland Annotated Code, Family Law Article, Title 9.7 (new). The Act is consistent with the Uniform Child Abduction Prevention Act (“UCAPA”), which has been adopted in its entirety or with modest amendments in sixteen states, including two surrounding jurisdictions (the District of Columbia and Pennsylvania). In 2024, UCAPA was introduced as legislation in five additional states.
Maryland’s UCAPA addresses important facets of assessing and preventing the risk of international and domestic child abductions. Abduction is defined as the wrongful removal or wrongful retention of a child. The Act establishes a comprehensive framework to impose abduction prevention measures at any time before or after a child custody determination if the court finds a credible risk of child abduction.
Child abduction prevention has been an important topic, particularly with the increasingly transient nature of families. Many family law practitioners routinely advise their clients about the risk of child abduction and the preventive measures custodians can take. Separating families often memorialize preventive measures in their written settlement agreements. Maryland’s UCAPA allows judges to be proactive rather than reactive by providing a mechanism for swift court intervention to minimize the risk of child abduction.
Maryland’s UCAPA provides helpful guidance on how and what to address in largely non-routine issues. Attorneys and litigants now have guidance on what the court will consider so that evidence can be streamlined and presented in a useful way. Judges will review objective facts and apply the risk factor guidance (based on years of research) set forth in UCAPA. The Act’s factors-based analysis is fair in its approach to both foreign and non-foreign parties. Courts will retain discretion in what remedies to impose depending on the facts of the case.
Importantly, Maryland’s UCAPA addresses both domestic and international child abductions. The Act permits a Maryland court to address a petition if it has custody jurisdiction or, if there is no custody jurisdiction in Maryland, under the temporary, emergency jurisdiction provision codified in the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).
Bringing awareness to the risk of child abduction and available remedies is essential in preventing child abductions. Adopting the Maryland Child Abduction Prevention Act brings desired clarity to the court process and to litigants who have genuine concerns about international and domestic child abduction.
The Act has only been in effect in Maryland for a few months. It may take some time before courts routinely use the Act to address child abduction matters. Notably, the preventive measures set forth in the Act are not exhaustive. Petitioners may request other remedies that may be available to prevent abduction. Families who are concerned about preventing or deterring child abduction should seek advice from an experienced family law practitioner. Contact our office at 240-396-4373 to schedule a consultation.
Article originally published in AFCC Maryland Chapter February 2024 Newsletter. Click here for full newsletter.
Leah Ramirez
Leah Ramirez, JD is a Principal of Markham Law Firm. She represents clients in domestic, interstate, and international family law matters.
How to Avoid an Ugly Divorce
Engaging in costly, contentious litigation is not your only approach to divorce. There are several ways to keep your divorce amicable and out of the courtroom that are more cost-efficient, keep you in the driver’s seat, and are in the best interests of your children.
Negotiation
Depending on how complicated the issues are or how much the parties are on the same page, parties can execute a marital settlement agreement through direct negotiations between themselves and/or through counsel. If parties come to agreed-upon terms on their own, it is highly recommended that an attorney draft the agreement and the other party have an attorney of their selection review the agreement, but it is not required.
Mediation
Mediation is a process in which a trained neutral, such as a family law attorney, retired judge, or certified mediator, assists parties in communicating with one another and reaching agreements that meet both party’s needs. Parties may attend mediation with or without counsel and it is confidential. Mediation is party-driven and allows parties to reach decisions that are best suited to their family’s needs.
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 Law 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 maintain goodwill following the divorce. The professionals and parties work collaboratively to achieve the goals of the family. The process ultimately concludes with the execution of a global agreement made for and by you.
Filing for Divorce
Once you have an agreement via mediation, Collaborative Law, or by negotiation between counsel and/or the parties, you will need to file for an uncontested divorce. In Maryland, mutual consent is one of the three no-fault grounds for absolute divorce in Maryland. There is no separation requirement or waiting period. Pursuant to mutual consent, both parties must execute a written settlement agreement. The settlement agreement must resolve all issues including alimony, distribution of property, and custody and child support of the minor child(ren). Once the agreement is executed and filed with the court along with a Complaint and Answer, a ten-minute uncontested divorce hearing will be set. If no party files a pleading to set aside the agreement prior to the divorce hearing, the court will review the settlement agreement to ensure that the terms relating to the minor children are in the best interests of the children, if applicable. If all meets with the approval of the court, the parties will be divorced.
Similarly, in D.C., there is no waiting period or separation requirement as of February 10, 2024. The new law simply requires that either one or both parties assert that they no longer wish to be married. As such, parties may execute a settlement agreement via the aforementioned processes, and file for divorce, asserting that they no longer wish to be married, in order to qualify for a divorce in D.C. To read more about the changes to D.C. divorce laws, please click here.
Our attorneys are trained, experienced, and ready to assist you in achieving an amicable divorce. Click here to contact our office today or call us at 240-396-4373.
Intergovernmental Organizations: Basic Elements to Consider
Intergovernmental Organizations, such as the World Bank, Inter-American Development Bank, the International Monetary Fund, the Asian Development Bank, and the United Nations (to name only a few), have retirement programs with unique rules for division pursuant to a divorce.
First, it is important to note that these organizations are not bound by US law, and therefore are not required to accept a US or state court order dividing one of their employee’s retirement interests. Many of these organizations, including the ones listed above do accept court orders for the purpose, so long as it conforms to the organization’s rules and regulations. The reason is because they want to promote law-abiding behaviors without waiving their privileges and immunities that they enjoy through their status as an intergovernmental organization.
Major points to consider in negotiating or arguing for retirement benefits provided by this organizations:
Survivor benefits. Most of these organizations will not allow a court order dividing the pension benefit to reference survivor benefits. Typically, these organizations require a former spouse survivor benefit be secured by the filing of a beneficiary designation form with the plan’s administrating office. Thus, it is important to require the participant to fill out and submit such form timely, and that such requirement is included in an enforceable document other than the order dividing the retirement benefits.
Cost of survivor benefits. Most of these organizations do not allow for the cost to provide the survivor benefits to the former spouse to be shifted, and may require that the reduction be taken from the participant’s portion of the pension benefit. Where this is the case, parties can usually determine an equal amount by which they reduce the former spouse’s share of the benefit to effectively shift the reduction for the survivor benefits. However, since this involves more work and clear language in the separation agreement (or presentation of evidence to the court) it is wise to advise your client of the potential need for this early on, or to obtain as much information as possible so this is not a surprise after everything is resolved.
Limitations on total award from the retirement plan. Many of these organizations include a limit on how much a participant’s retirement benefit can be reduced from all sources. In effect, the organization wants to secure some amount of the retirement benefit for the participant. The result in dividing it for a divorce means that sometimes the amount awarded to the former spouse must be reduced so that the participant still receives the minimum amount required from the plan. Specifically, imagine a case where the entire service is marital so the former spouse would receive 50% of the entire pension benefit. Then, the former spouse also wants a survivor benefit, but the reduction for the survivor benefit must come from the participant’s share of the pension. This would result in the participant receiving less than 50% of the pension benefit during their lifetime, which violates the plan’s rule that the participant cannot receive less than 50% of their pension benefit. So, in order for the plan to accept the division, the former spouse must either reduce their share of the pension to effectively shift the cost of the survivor benefit to the former spouse, or the former spouse must waive the survivor benefit.
This limit applies to all reductions, so if the participant has multiple marriages and is providing survivor benefits and a share of the pension to multiple former spouses or a current spouse, it is important to check that this rule is followed. Typically, if a draft order is submitted to these plans, they will advise if there is an issue here.
Title of the Court Order. Since the plans are not bound by US laws, they will reject any document (even if otherwise acceptable) if it is called a Qualified Domestic Relations Order because that is a term specific to the Employee Retirement Income Security Act. Some organizations, like the World Bank, require the payment to the former spouse be called Spousal Support. Other organizations simply prohibit the term QDRO but will accept anything else. Especially if dealing with the World Bank, it is important to use the correct terminology in the agreement or other court orders.
A special note here, there are cases in both Maryland and DC that state even though the World Bank requires the phrase “Spousal Support” to be used in their orders, that the courts can divide the benefits pursuant to the jurisdiction’s property division statutes similar to US-based retirement programs.
Cash Balance and Commuted Benefits. Some of these programs include a cash balance benefit or allow the participant to receive a lump sum benefit at the beginning of their retirement followed by a monthly benefit. The organizations may require that these benefits each be discussed separately in the pension division order. Therefore, it is important to discuss in trial or in an agreement.
While there are other aspects to each plan that should be given special consideration these are the major points that come up frequently in these cases. As with all retirement benefits, the most important step is getting all the information early in the case to know all the elements that need to be addressed during the divorce process. We can assist in obtaining plan documents and determining benefits available for division in these types of cases. Depending on your needs, we can provide some services on a flat fee basis. For assistance and information regarding fees, please contact us at 240-396-4373.
D.C. Divorce Law Updates in 2024
The new year brings noteworthy updates to D.C. family law provisions. The Council of the District of Columbia has recently passed D.C. Act 25-322, amending key provisions in D.C. divorce laws. This legislation, effective as of January 26, 2024, has been codified and is now officially law. These changes impact various aspects of family law in the District of Columbia, bringing immediate legal implications.
No More Waiting Period for Divorce
In D.C., it has been the law for many years that parties have grounds to seek a divorce if (1) “both parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation for a period of six months” before filing for divorce or (2) “both parties to the marriage have lived separate and apart without cohabitation for a period of one year” before filing for divorce. D.C. Code §16-904(a). This means that you could file for a divorce after being mutually and voluntarily separated for six months or after being separated for one year. In D.C., you were considered separated for the time you ceased acting as a married couple, including not sharing a bed or bedroom or having marital relations.
However, as soon as the new law goes into effect, there will no longer be a waiting period to file for divorce after separation. Instead, “[a] divorce from the bonds of marriage may be granted upon the assertion by one or both parties that they no longer wish to remain married.” D.C. Act 25-322, Grounds for Divorce, Legal Separation, and Annulment Amendment Act of 2023.
Similarly, a legal separation may also be granted “upon at least one party’s assertion that they intend to pursue a separate life without obtaining a divorce” whereas previously, the parties were required to mutually and voluntarily live separate and apart or to have lived separate and apart for at least one year before filing.
Abuse as a Factor in Marital Property Division and Alimony
Property division in D.C. is done on an equitable basis (whatever the Court thinks is fair and reasonable). In determining what is an equitable distribution of property, the legislation directs the Court to consider a non-exhaustive list of factors, which includes things like the duration of the marriage, if alimony is being awarded, custody provisions, etc. See D.C. Code § 16-910(a)(2). The new law adds an additional factor for the Court’s consideration: “the history of physical, emotional, or financial abuse by one party against the other.” D.C. Act 25-322. The new law also adds this same language regarding abuse to the non-exhaustive list of factors the Court should consider when determining alimony. See D.C. Code § 16-913(d)(5). For more information about marital property division in D.C., please check out our previous blog post here.
Use and Possession of the Family Home
Pendente lite (Latin for “pending litigation”) relief are things the Court can award on a temporary basis, before the final hearing/trial, while the divorce and/or custody case is pending. This relief includes temporary alimony, temporary child support, and temporary custody. The new law adds one additional form of pendente lite relief: use and possession of the family home. Use and possession of the family home means that the Court can award one party occupancy of the family home for a prescribed period of time, regardless of how the home is titled.
Why These Changes Are Important
By removing the waiting period to file for divorce, the new law removes a major barrier to ending a legal relationship. The sooner you can close one chapter of your life, the sooner you can move on to bigger and better things.
These changes also provide significant protections to spouses who are survivors of domestic violence by preventing one spouse from unnecessarily delaying a divorce, allowing the Court to weigh abuse as a factor when considering equitable distribution of marital property and alimony, and allowing an abused spouse to stay in the family home, even if the home or lease is titled in the other party’s name.
If you have further questions regarding D.C.’s new divorce laws, please contact Markham Law Firm at 240-396-4373 to setup a consultation.
Navigating Firearm Ownership: A Step-by-Step Guide to Buying a Gun in Maryland
As a resident of Maryland, the process of purchasing a firearm involves adherence to specific regulations and procedures established by state law. Whether you are a first-time gun buyer or looking to add to your collection, understanding the legal requirements is crucial. In this blog post, we'll provide a step-by-step guide on how to buy a gun in Maryland, ensuring a lawful and smooth process.
Meet Eligibility Requirements:
Before initiating the process, ensure that you meet the eligibility criteria for firearm ownership in Maryland. Individuals must be at least 18 years old to purchase a long gun (shotgun or rifle) and 21 years old to purchase a handgun.
Complete a Firearm Safety Training Course:
Maryland law requires first-time handgun buyers to complete a certified firearms safety training course. This course covers essential topics such as firearm safety, state laws, and proper handling and storage.
Choose a Licensed Firearm Dealer:
When purchasing a firearm, you must do so through a licensed dealer in Maryland. Ensure that the dealer is authorized by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and holds a valid Federal Firearms License (FFL).
Submit an Application:
For handgun purchases, you need to complete the Maryland State Police Application to Purchase a Regulated Firearm. This application can be obtained from the licensed dealer or downloaded from the Maryland State Police website.
Pass a Background Check:
As part of the application process, a background check will be conducted to verify your eligibility for firearm ownership. This includes criminal history, mental health status, and other factors that may disqualify an individual from owning a firearm.
Waiting Period:
Maryland has a mandatory seven-day waiting period for handgun purchases. This waiting period allows for the completion of the background check and provides a cooling-off period before taking possession of the firearm.
Buying a gun in Maryland involves a well-defined process designed to uphold safety and accountability. By adhering to the legal requirements and following this step-by-step guide, you can navigate the process smoothly and lawfully. Always stay informed about any updates or changes to Maryland's firearm laws and regulations to ensure responsible firearm ownership. If you have specific questions or concerns, consulting with a knowledgeable attorney can provide additional guidance tailored to your individual circumstances. Contact our office at 240-396-4373 to schedule a consultation with Attorney Morgan E. Leigh.
Expunging and Sealing Records in Maryland
Sealing and expunging cases in Maryland can be a lifesaver for someone looking for a job, trying to purchase a firearm, or anyone who just doesn’t want their personal information up on a court’s website for the world to see.
What is an expungement versus a shielding?
An expungement means to remove information from public inspection by obliteration or by removing the records to a separate and secure area where only someone with a legitimate reason for inspection may access the record. An expungement has legal implications with respect to how and when the expunged case may be referenced or must be disclosed that do not apply to a shielding.
A shielding means to remove the records kept in a courthouse to a separate secure area where only someone with legitimate reason may access the record and completely removing all information concerning the proceeding from the public website, including the names of the parties, case numbers, and any reference to the proceeding or any reference to the removal of the proceeding from the public website. Shielding records applies in the civil context, not the criminal context. This is most often seen when dealing with peace orders and protective orders.
What is the effect of an expungement or a shielding?
Expungements:
In most circumstances, an expungement eliminates access to an arrest or criminal record, thereby shielding it from public view. Whether an expungement will remove a record from the NCIC/FBI database will depend on whether it was a conviction or a non-conviction that was expunged. Convictions that are expunged will not appear on a MD criminal background check but may still appear on a National Crime Information Center (NCIC) record. If the expungement is for an arrest that did not result in a conviction, or for criminal charges that were resolved via a dismissal, judgment of acquittal, STET, or probation before judgment (PBJ), the expungement will also have the effect of removing the record from the NCIC database.
In Maryland, taking certain adverse actions against someone based on an expunged case is a criminal offense punishable by up to 1 year in jail and/or a $1,000 fine. This often comes into play when someone is applying to purchase a firearm or applying for a carry permit. This means that there is a legal effect that an expungement has independent of removing the case from public view.
Disclosure of information about criminal charges that have been expunged may not be required: (i) by an employer or educational institution of a person who applies for employment or admission; or (ii) by a unit, official, or employee of the State or a political subdivision of the State of a person who applies for a license, permit, registration, or governmental service. In addition, a person is not required to refer to or give information concerning an expunged charge when answering a question concerning (i) a criminal charge that did not result in a conviction; or (ii) a conviction that the Governor pardoned. Refusal to disclose information about expunged criminal charges may not be the sole reason for: (i) an employer to discharge or refuse to hire the person; or (ii) a unit, official, or employee of the State or a political subdivision of the State to deny the person’s application.
Shielding
While peace and protective orders are not criminal cases and will not show up on a criminal background check, many people do not want any publicly available records of the proceedings, because it is embarrassing, or maybe they have a security clearance. This is not to say that disclosure of the case may not be required for applications and/or renewals of security clearances, as this bears on the particular situation and circumstance. Once a peace or protective order is shielded, it will no longer be viewable by the public.
What charges/cases are eligible for expungement?
Maryland has very liberal expungement laws compared to many other states. If your case is dismissed or you are found not guilty, you are immediately eligible to expunge both the court and arrest records. If you file an expungement petition within 3 years of the case’s conclusion, you must also submit a waiver form, asserting your waiver of your right to sue the arresting law enforcement agency or the complainant in your case.
If your case was resolved with a probation before judgment (PBJ) or a STET with the condition of drug or alcohol abuse treatment, you may file an expungement petition on whichever of the following dates is later: 1) the date probation was completed or the drug/alcohol treatment was completed; or 2) three (3) years after the probation was granted or STET with the requirement of drug/alcohol abuse treatment was entered on the docket. Thus, the earliest that a case may be expunged pursuant to a PBJ disposition is 3 years after the entry of the PBJ. DUI-related cases are never eligible for expungement, regardless of the entry of a PBJ.
Expungement is also available for cases transferred to juvenile court and for crimes based on an act that is no longer a crime (i.e. possession of marijuana by a person over 21).
There are many misdemeanor convictions that may be expunged 3-5 years after the completion of the sentence, including probation. It’s an extensive list, so consult a criminal defense attorney about your options if you or someone you know has a case that may be eligible for expungement. Certain felonies may be expunged 7-10 years after the completion of the sentence, including probation. Possession with intent to distribute marijuana may be filed 3 years after the completion of the sentence, including probation.
What cases are eligible for shielding?
A peace order or protective order that was denied or dismissed may be shielded under the following circumstances:
That the petition was denied or dismissed at the interim, temporary, or final peace order stage of the proceeding;
That a final peace order or protective order has not been previously issued against the respondent in a proceeding between the petitioner or the petitioner’s employee and the respondent;
That the respondent has not been found guilty of a crime arising from an act described in § 3-1503(a) of this subtitle against the petitioner or the petitioner’s employee; and
That none of the following are pending at the time of the hearing:
An interim or temporary peace order or protective order issued against the respondent in a proceeding between the petitioner or the petitioner’s employee and the respondent; or
A criminal charge against the respondent arising from an alleged act described in § 3-1503(a) of this subtitle against the petitioner or the petitioner’s employee.
A court may deny the shielding if it does not find good cause to shield the case. The judge must weigh the privacy of the petitioner (or their employee) or the respondent and the potential danger of adverse consequences to the petitioner (their employee) or the respondent against the potential risk of future harm and danger to the petitioner (or their employee) and the community.
A peace or protective order that was consented to may be shielded if the Petitioner consents, the order was not violated, there were no prior final protective or peace orders between the parties, and the Respondent has not been found guilty of a crime arising out of the facts alleged in the order. There can be no pending peace or protective orders or criminal charges against the Respondent. If the Petitioner does not consent to the shielding at the first hearing, the Respondent may request for another shielding one year from the date of the first hearing.
If you have questions about whether a case can be expunged or shielded, contact us at 240-396-4373 to discuss your options.
Safeguarding Your Future: Addressing Key Issues in Prenuptial Agreements
Planning for marriage involves not only the excitement of starting a new chapter but also the practical aspects of merging two lives. Prenuptial agreements, commonly known as prenups, are legal documents that allow couples to proactively address various financial and personal matters before tying the knot. In this blog post, we'll explore the key issues that can be addressed in a prenuptial agreement, providing couples with a valuable tool for establishing clarity and security in their marriage.
Asset Division: One of the primary purposes of a prenuptial agreement is to outline how assets and debts will be divided in the event of a divorce. This can include real estate, investments, business interests, and any other property acquired during the marriage.
Alimony (Spousal Support): Prenuptial agreements can establish the terms and conditions for alimony or spousal support in the event of a divorce. This may include the amount, duration, and conditions under which support will be provided.
Debt Allocation: Couples can use a prenup to specify how existing debts and future liabilities will be allocated between them. This is particularly important when one spouse brings significant debt into the marriage.
Inheritance Rights: Prenuptial agreements can address the issue of inheritance, clarifying how assets will be distributed in the event of the death of one spouse. This can be especially relevant for individuals with children from previous marriages.
Business Interests: If one or both spouses own a business, a prenuptial agreement can outline how the business will be treated in the event of a divorce. This may include valuation methods, ownership rights, and whether the business will be considered marital property.
Financial Responsibilities: Prenups can establish financial responsibilities during the marriage, including how joint and individual expenses will be handled. This can provide a clear framework for managing finances and avoiding potential conflicts.
Estate Planning: Couples can use a prenuptial agreement to address estate planning issues, such as the distribution of assets upon the death of a spouse. This can work in conjunction with wills and other estate-planning documents.
Child Custody and Support: While prenuptial agreements cannot determine child custody arrangements or child support amounts, they can include provisions for how these matters will be approached in the event of a divorce, offering a roadmap for future negotiations.
Personal Property: Prenups can detail how personal property, such as vehicles, jewelry, or other valuable items, will be divided in the event of a divorce.
Dispute Resolution: Including a dispute resolution clause in a prenuptial agreement can specify the methods to be used in resolving conflicts, whether through mediation, arbitration, or another agreed-upon process.
Prenuptial agreements are versatile legal tools that enable couples to address a wide range of issues, providing a roadmap for potential scenarios that may arise during their marriage. By openly discussing and documenting their expectations and agreements, couples can foster transparency, trust, and understanding, setting the foundation for a secure and harmonious future together. If you are considering a prenuptial agreement, call our office at 240-396-4373 or contact us to set up a consultation with one of our skilled attorneys.
QDRO Corner: The Only Certainties are Death and Taxes
Many of our clients tend to skim over the details of their agreements, instead focusing on the big items, such as how much will a retirement equalization amount be, but they ignore the details of how the funds will actually be transferred.
1. A Domestic Relations Order is Needed
Yes, many attorneys still forget to tell their clients that a QDRO (or similar order) is usually needed to transfer retirement assets after the divorce is final, or fails to explain the consequences of delaying. As this firm states regularly, the best practice is to draft the order with the Agreement, and submit it to the court at the divorce hearing, or submit it as soon as possible after receiving the final order from a trial. If a client prefers to wait for any reason, be sure they are advised of the potential issues related thereto.
The biggest issue if a party decides to wait on the QDRO is the death of the account holder before the QDRO transfer occurs. After a divorce, the account holder can change the beneficiary for their retirement accounts without consent from the former spouse. A retirement plan will appropriately pay the beneficiary(ies) listed upon being notified of their participant’s death. Once the funds leave the plan’s control and are sent to the beneficiary(ies) a QDRO is not helpful. The former spouse’s only option at that point is to sue the beneficiary(ies) for the funds. That is a less-than-ideal scenario for everyone involved.
Alternatively, the plan participant may not want to share their retirement assets with their former spouse and may move them to other accounts, or even cash them out to make the funds harder to find. In the case where the funds are simply moved to another retirement account, a QDRO can still be used. The problem is that information from the new account would have to be obtained. If the funds were withdrawn, then the former spouse has to chase through the participant’s finances and likely determine the post-tax equivalent they should receive. And, if the participant didn’t want to share the asset to start, the passage of time will not likely change their mind and make them suddenly cooperative. Many former spouses in this situation end up spending lots of money on attorneys’ fees to figure out what happened, and then figure out an alternative method to be made whole.
2. Tax
Most agreements will describe the retirement equalization transfer as being “tax-free” because it is incident to divorce. As attorneys, it is our job to instruct clients that the transfer is “tax-free” to the spouse who owns the account from which the funds will be taken so long as the funds leave the account due to a QDRO (or similar order).
The transfer is also “tax-free” to the spouse receiving the funds if the funds are rolled over into an eligible retirement account. The spouse receiving the funds should be made aware that when the spouse takes the funds out of the retirement account, the spouse will then be taxed on the funds as if they had been that spouse’s funds all along. In addition, if the spouse receiving the funds takes the funds as cash, instead of rolling them into an eligible retirement account, then the funds will be taxed.
The “tax-free” transfer language is not a means to exempt the funds being transferred from being taxed ever, instead, it is simply notice that so long as the funds are transferred from one retirement account to another that at the time of the transfer no taxes will be paid, and particularly that however the former spouse decides to receive the funds, the participant will not suffer any tax consequences.
Ultimately how the former spouse wants to receive the funds is up to the former spouse (unless they have agreed to something specific in the settlement agreement). Whether they want to roll the funds over to a retirement account or take some or all of the funds as cash is a question they may want to discuss with a tax professional or financial planner so they can have a better idea of the tax implications they may be facing.
While some cases may have special circumstances in which the delay of a QDRO is the best practice, those situations from our experience are quite rare. If that is the case, then language protecting the former spouse’s interest and outlining the next steps and timing should be clearly explained in the agreement.
Contact our office at 240-396-4373 if you need assistance with your QDRO.
Note: While the bulk of this article is specific to ERISA-covered plans such as 401k, 403b, etc., the same logic applies to retirement plans not covered by ERISA such as IRAs. The method of the transfer may be different, however.
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