Choosing the Right Divorce Mediator

Divorce is a challenging life transition, but it doesn't have to be defined by conflict and animosity. For many couples, mediation offers a more peaceful and collaborative way to to move forward. However, selecting the right mediator can feel confusing. In this blog post, we'll explore the key factors to consider when choosing a divorce mediator to ensure that they are the best fit for your unique needs.

1. Credentials and Training: When evaluating potential mediators, it's essential to consider their training and years of experience. Look for mediators who have a specialty in family law and ample years of experience in the field. In addition, some mediators have a social work background, some are attorneys and some are neither. Consider what is best for your situation.

2. Mediation Style and Approach: Mediators employ various styles and approaches. Some may take a more Facilitative approach, focusing on fostering open communication and guiding parties towards mutually acceptable solutions. Others may adopt a more Evaluative approach, offering insights and recommendations based on their legal or financial expertise. Finally, some have a Transformative style, meaning they are seeking to improve the communication or relationship between the parties as a goal of the process. Consider which mediation style resonates with your preferences and goals for the process.

3. Compatibility and Rapport: The success of mediation often hinges on the rapport between the parties and the mediator. Take the time to meet with potential mediators for an initial discussion to assess their personality, communication style, and ability to establish trust and rapport. A mediator who listens attentively, demonstrates empathy, and fosters a collaborative atmosphere can significantly enhance the mediation experience.

4. Expertise and Specialization: Depending on the complexity of your divorce, you may benefit from working with a mediator who has expertise or specialization in certain areas, such as complex financial matters, small business, pensions, or child custody issues. Consider whether the mediator has the necessary knowledge and experience to address the specific issues relevant to your case effectively.

5. Fees and Cost Structure: Understand the mediator's fee structure and how they charge for their services. Some mediators charge an hourly rate, while others may offer flat fees or packages for specific services. Additionally, inquire about any additional costs, such as administrative fees or charges for document preparation. It's essential to ensure that the mediator's fees are reasonable and align with your budget.

Choosing the right divorce mediator is an important decision that can impact the outcome of your divorce process. By considering factors such as credentials, mediation style, compatibility, expertise, fees, and references, you can identify a mediator who is the best fit for your needs and preferences. We are here to help. Contact our office at 240-396-4373 today.

Do I need a lawyer to attend mediation?

Divorce can be a challenging and emotionally charged process, but it doesn't always have to be adversarial. Many couples choose mediation as a way to navigate their divorce with less conflict and expense. However, one common question that arises is whether hiring a lawyer is necessary when opting for divorce mediation. In this blog post, we'll explore the role of lawyers in divorce mediation and help you decide whether you need one.

Understanding Divorce Mediation:

Before diving into the role of lawyers, let's briefly discuss what divorce mediation entails. Mediation is a form of alternative dispute resolution where a neutral third party, known as a mediator, helps divorcing couples negotiate and reach agreements on issues such as property division, child custody, and spousal support. The mediator makes no decisions; mediation empowers couples to make their own decisions with the guidance of the mediator.

Optional Representation: In divorce mediation, hiring a lawyer is optional. While some individuals choose to have legal representation throughout the mediation process, others may opt to proceed without lawyers. Whether or not you need a lawyer often depends on your specific circumstances, including the complexity of your assets, the level of conflict between you and your spouse, and your comfort level with negotiating on your own behalf. Some mediators will only mediate with both parties proceeding without attorneys, or both proceeding with attorneys.

Receiving Legal Advice: One of the primary reasons people choose to have a lawyer during mediation is to receive legal advice in real time. A lawyer can help you understand your rights and obligations under the law, evaluate proposed agreements, and ensure that your interests are protected before the negotiation proceeds in the wrong direction. If you attend mediation before receiving legal advice, you may discuss or entertain options in mediation that are not in your best interest.

Reviewing Agreements: Even if you choose not to have a lawyer actively participate in mediation sessions, you may still benefit from having a lawyer review any agreements reached during mediation before finalizing them. This step can help ensure that the agreement is fair, legally enforceable, and in your best interests. Additionally, a lawyer can provide valuable insights into potential long-term implications that you may not have considered and make sure the agreement is written accurately.

Enhanced Communication: Lawyers can also play a role in facilitating communication between parties during mediation. If tensions are high or communication breakdowns occur, having legal representation can help keep discussions productive and focused on reaching mutually acceptable solutions. Having an attorney who can maintain a level head and not be emotional can be very helpful.

Ultimately, whether you need a lawyer for divorce mediation depends on your individual circumstances and preferences. Here are some factors to consider:

1. Complexity of Issues: If your divorce involves complex financial assets, business interests, or contentious child custody matters, having legal representation may be beneficial to ensure that your rights are protected and that you reach a fair and equitable resolution.

2. Level of Conflict: If you and your spouse are on relatively amicable terms and are committed to working together to reach agreements, you may feel comfortable proceeding with mediation without lawyers. However, if there is significant conflict or distrust between you and your spouse, or if you are intimidated by your spouse, having legal guidance can provide added peace of mind and help navigate challenging negotiations.

3. Personal Comfort: Some individuals prefer to have a lawyer by their side throughout the mediation process for added support and reassurance. Others may feel confident in representing themselves or may prefer to work directly with the mediator without involving lawyers.

In conclusion, while hiring a lawyer is not required to attend divorce mediation, it can be a valuable resource. We strongly recommend consulting with an attorney prior to initiating any process, including mediation, to decide whether or not you want to retain an attorney and if so, when. Contact our office at 240-396-4373 to schedule a consultation today. 

What Benefits Are There To Domestic Partnerships in Maryland versus DC?

A formalized relationship between two people can have many benefits, including emotional reliance, relational stability, and shared responsibilities. These days, many people wish to have these benefits without necessarily entering into a marriage that can expose a person to significant legal and financial obligations. Forming a Domestic Partnership can provide all these advantages without the co-mingling of finances and other assets. Unfortunately, not all states recognize domestic partnerships, but the states that do can grant significant benefits to couples. While each state grants different benefits for domestic partners, some examples of benefits include inheritance rights, estate planning perks, access to your partner’s health insurance, and/or hospital visitation access.

How do I file for a Domestic Partnership in Maryland or Washington, DC?

In Maryland, filing for a domestic partnership must be done with the Register of Wills in the jurisdiction where the couple resides. The form that must be filled out is called a “Declaration of Domestic Partnership” and the filing fee is $25.

In DC, applicants for domestic partnerships must file their domestic partner registration form with the Vital Records Division of the DC Department of Health and the fee is $45.

The requirements for who can file for domestic partnership also vary by state.

In Maryland, the individuals filing must both be over the age of 18 years, be the sole partner of the other person, not married, and be in a committed relationship.

In DC, individuals filing must also be 18 years old, have the requisite competency to contract, remain unmarried, and not be in another domestic partnership. DC also requires that the partners sign an affidavit providing that they live in the same permanent residence. This is solely a requirement for DC; Maryland does not require joint residency.

When considering whether to file for a domestic partnership with your loved one, it is important to understand what advantages you will, and will not, receive as a couple.

In Maryland, the main benefit a domestic partner receives is “spousal” treatment if their partner dies without a Last Will and Testament. This means that the surviving partner will have priority to serve as Personal Representative of the estate, will be entitled to the $10,000 spousal allowance, and will have the same inheritance rights that a surviving spouse would.

In DC, domestic partners retain mutual visitation rights in hospitals and nursing homes and if one of the partners works for the DC government, they obtain eligibility for joint health insurance coverage. Domestic Partners who live in DC also get spousal privileges when it comes to inheritance rights. Specifically, if a domestic partner dies without a will, the surviving party will have inheritance rights to the remaining estate. Additionally, if a surviving spouse was dependent on the deceased spouse, the survivor may elect an allowance during the period of administration.

There are specific rules when it comes to the dissolution of a domestic partnership.

In Maryland, there are certain grounds for dissolving a domestic partnership. These include mutual consent, termination by one party, termination due to abandonment, marriage, or death. To dissolve, the partner(s) must elect a ground for dissolution and file and sign a “Declaration of Termination of Domestic Partnership” form with the Register of Wills. Unlike divorce, this form can be filed with only one of the partners’ consent. Absent abandonment, marriage, or death, the filing will take up to six months to go into effect.

In DC, there are no specific grounds for termination. Instead, to terminate a domestic partnership, one or both parties must make an appointment in the DC Vital Records Office and file for termination. Recognition of the termination will take about 6 months unless the partners marry or there is abandonment by one of the parties. If that is the case, the dissolution of the partnership will go into effect immediately.

Do I need a legal agreement for my Domestic Partnership?

In addition to the simple registration and dissolution process set forth above, however, a couple forming a Domestic Partnership should consider entering into a more detailed legal agreement that sets forth what their rights and responsibilities will be to each other.  These contracts can set forth each party’s expected contributions towards household expenses, maintaining a minimum amount of life insurance for each other, and clearly outlining which assets belong to the parties jointly versus individually.  They can include provisions about confidentiality, and require mediation in the event of a dispute when a separation is being contemplated.  These contracts also address how much notice needs to be provided to the other in the event of a split, and who will take over the responsibility of a joint lease or mortgage when one party moves out.      

Overall, when considering if a domestic partnership is right for you, it is important to obtain legal advice from an experienced family law attorney who can help you understand all the logistical and beneficial aspects of forming this union.  Contact our office at 240-396-4373 to schedule a consultation to make sure you cover all your bases.

A Guide to Divorce Mediation: The Role of a Mediator in Your Case

Let’s imagine you’re at a crossroads in your marriage. The joy and happiness that once filled your relationship have faded, replaced by dissatisfaction, disagreement, and, ultimately, the realization that you both want different things. Many people contemplate divorce around this time when they realize they are not looking forward to the holidays spent in constant tension and disagreement. This is where divorce mediation comes into play.

Divorce mediation is a voluntary and confidential process where a neutral third party, the mediator, helps the divorcing couple reach a mutually agreeable resolution on various aspects of their separation. This process is not about determining who is right or wrong; instead, it’s about finding common ground and working towards a resolution that respects both parties’ interests and needs.

The goal of divorce mediation is to foster dialogue, reduce conflict, and promote understanding. It offers a platform where you can express your needs and concerns, hear your spouse’s perspective, and negotiate a settlement that works for both of you.

The Role of a Divorce Mediation Attorney

While a divorce mediation attorney might sound similar to a divorce mediator, their roles are distinctly different. A divorce mediation attorney represents one party in the mediation process, providing legal advice and guidance.

The divorce mediation attorney helps you understand your legal rights and obligations. They can also help you explore different settlement possibilities and evaluate their implications. They ensure that you’re making informed decisions throughout the mediation process.

While the mediator remains neutral, the attorney is on your side, advocating for your interests. They can help you prepare for mediation, present your case effectively, and review the proposed settlement agreement to ensure it’s fair and in your best interest.

Importance of Divorce Mediation in Separation

Divorce mediation plays a vital role in separation. It’s a more peaceful and cooperative alternative to traditional litigated divorce, which can be stressful, adversarial, and costly.

In divorce mediation, you and your spouse maintain control over the process and the outcome. You’re not surrendering your fate to the courts; instead, you’re working together to create a settlement that suits your unique circumstances.

Divorce mediation also promotes better communication and understanding. It can help reduce the animosity and conflict that often accompany divorce, making the transition easier for everyone involved, especially children.

How to Prepare for Divorce Mediation

Preparing for divorce mediation involves more than just showing up for the sessions. It requires you to understand your financial situation, identify your priorities, and be ready to negotiate.

Start by gathering all the necessary financial documents, such as tax returns, bank statements, retirement accounts, and property deeds. This information will help you have a clear picture of your marital assets and debts, which is crucial for the division of property.

Next, identify your priorities. What matters most to you? Is it the house, your retirement savings, or your children’s wellbeing? Knowing your priorities will guide your negotiations and help you stay focused on what’s truly important.

Lastly, approach the mediation with an open mind and a willingness to negotiate. Remember, mediation is not about winning or losing, but about finding a solution that works for both parties.

The Process of Divorce Mediation

The process of divorce mediation typically starts with an introductory meeting where the mediator explains the rules and procedures. Following this, you and your spouse will have the opportunity to share your views and concerns.

The mediator will then facilitate discussions on various issues, such as child custody, property division, and spousal support. They will help you explore different options and negotiate a mutually acceptable agreement.

Once you’ve reached an agreement, the mediator will draft a Memorandum of Understanding outlining the terms of your settlement. You and your attorneys will review this document before signing it. After that, the agreement will be incorporated into your divorce decree and become legally binding.

Benefits of Hiring a Divorce Mediator

Hiring a divorce mediator can offer numerous benefits. First and foremost, it can save you time and money. Mediated divorces often take less time and cost less than litigated divorces.

Furthermore, divorce mediation can reduce conflict and stress, promoting a more amicable divorce. It fosters better communication and understanding, which can lead to more sustainable agreements.

Lastly, divorce mediation gives you control over the process and the outcome. You’re not leaving your fate in the hands of a judge; you’re actively participating in crafting a settlement that meets your needs and respects your interests.

Common Misconceptions About Divorce Mediation

Despite its many benefits, there are several misconceptions about divorce mediation. Some people believe that it’s only suitable for amicable divorces. However, that’s not the case. Mediation can be effective even in high-conflict situations, as the mediator can help manage the conflict and facilitate productive discussions.

Another common misconception is that divorce mediation is less binding than court-ordered settlements. However, the agreements reached in mediation are as legally binding as those decided by a judge.

Lastly, some people believe that they can’t have an attorney in mediation. While it’s true that the mediator can’t give legal advice, you’re free to consult with your attorney at any point during the mediation.

Consult An Experienced Divorce Mediation Attorney

Navigating divorce mediation can be challenging, but with the right support and guidance, it can be a beneficial process that leads to a fair, equitable, and amicable resolution. A divorce mediator and a divorce mediation attorney play crucial roles in this process, guiding you towards a mutually beneficial outcome.

Contact our office at 240-396-4373 to schedule a consultation today.

Can You Force Your Spouse to Move Out of the Home in Maryland?

When a marriage hits a rocky patch, the question of living arrangements often arises. One spouse might consider asking the other to move out of the shared home, either temporarily or permanently. However, whether you can legally force your spouse to vacate the marital home in Maryland is a complex matter that involves various legal considerations and procedures. 

Understanding Marital Property Laws in Maryland: 

Maryland follows the principle of equitable distribution when it comes to dividing marital property during a divorce. This means that assets acquired during the marriage are typically considered marital property and subject to division between spouses. The marital home is usually included in this category, regardless of whose name is on the deed or the mortgage. 

Rights to the Marital Home: 

In Maryland, both spouses generally have a right to live in the marital home until a court orders otherwise. This means that neither spouse can unilaterally force the other to move out without a legal basis or a court order. Even if the home is titled to one party only, or was acquired prior to the marriage, the other party, if they are residing there, has certain rights to continue to reside there and a court will generally not order their removal during the pendency of the case, except under limited circumstances. 

Legal Grounds for Exclusion: 

While in most cases it's not possible to simply “kick" your spouse out of the marital home, there are circumstances where a court may order one spouse to leave for a period of time in the context of a domestic violence protective order. Such circumstances often involve issues such as domestic violence, abuse, or threats that make it unsafe for one spouse to continue living with the other. See more information about domestic violence protection orders here. 

Use and Possession: 

If you wish to have your spouse move out of the marital home for a reason other than safety, and there are minor children of the marriage, you may seek a court order awarding exclusive possession of the marital home as part of a divorce or legal separation proceeding. The court may also order a spouse to contribute to the mortgage and other expenses. 

Factors Considered by the Court: 

A parent requesting Use and Possession of the Home must have at least 50% physical custody of a child of the parties. When deciding whether to grant exclusive possession of the marital home to one spouse, the court will consider various factors including each party’s income and overall financial circumstances, as well as their need to remain in the home, the children’s best interests and how use and possession would impact a party’s ability to pay his/her own set of living expenses. 

Consulting with a Family Law Attorney: 

Navigating the legal complexities of marital property rights and obtaining a court order for exclusive possession of the marital home can be challenging. It's crucial to seek guidance from an experienced family law attorney, who is familiar with Maryland's laws and procedures. An attorney can assess your specific situation, advise you on your rights and obligations, review your options, and represent your interests in court proceedings if necessary. 

Conclusion: 

While you generally cannot unilaterally force your spouse to move out of the marital home in Maryland, there are legal avenues available if circumstances such as domestic violence or safety concerns necessitate such action. Seeking the guidance of a knowledgeable attorney can help you understand your rights and take the appropriate steps to protect yourself and your interests during this challenging time. Contact our office at 240-396-4373 to schedule a consultation.

What You Need to Know about Anti-Stalking Protective Orders in DC

What is an anti-stalking order?

An anti-stalking order is a two-year court order that directs a person to refrain from committing or threatening to commit criminal offenses against the Petitioner. The order also directs the Respondent to stay away from or have no contact with the Petitioner and any other individuals or locations specified in the order. 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. The court may order additional conditions as it believes necessary to protect the Petitioner, such as relinquishing possession of jointly owned property. A Respondent who has a protective order is required to relinquish any firearms and may not own any firearms during the duration of the order.

Who is eligible to obtain an anti-stalking order?

A Petitioner who can show by a preponderance of the evidence, or more likely than not, that the Respondent committed an act of stalking within 90 days of the filing of the petition is eligible for an anti-stalking order. Unlike a protective order, there does not need to be a specific relationship between the parties – it is the act of stalking that makes the Petitioner a person eligible for an anti-stalking order.

What is the definition of “stalking”?

Stalking is engaging in a course of conduct directed at a specific person with the intent to cause that person to 1) fear for their safety or the safety of another person; 2) feel seriously alarmed, disturbed, or frightened; or 3) suffer emotional distress. Where a single act is of a continuing nature, each 24-hour period constitutes a separate occasion, regardless of whether the conduct is the same on each occasion.

What conditions could a court order if an anti-stalking order is issued against the Respondent?

In addition to ordering the Respondent to stay away from or have no contact with the Petitioner, the court can order the Respondent to pay costs and attorneys’ fees, surrender firearms, and stay away from animals belonging to the Petitioner. The court can order the Respondent to vacate a shared home and relinquish shared property. Courts have wide discretion in fashioning orders to protect a Petitioner, so there could be additional requirements that a court deems appropriate.

 How do I obtain an anti-stalking order?

The first step in getting an anti-stalking 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 temporary anti-stalking order, 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 temporary order is not granted or the Petitioner is not requesting a temporary order, then a final protective order hearing will be held within 14 days.

What should I do if I am served with an anti-stalking order?

First, do not contact the Petitioner under any circumstances, or you could face criminal charges. Second, you should gather all evidence that tends to support your case, including texts, emails, videos, social media posts, and any other documents. While an anti-stalking order is a civil proceeding, there are often related criminal cases. If you are also charged criminally, it is very important that you consult with an experienced criminal defense attorney who also has experience with anti-stalking orders. You can decide to consent to the order if you do not want to have a contested hearing and risk a judicial finding being made against you that you committed an act of stalking.

What happens at the final hearing?

First, the parties will likely speak with a court mediator prior to appearing before the judge. If the case cannot be resolved with the mediator, then the Respondent can choose to consent to the order without a finding, or the Respondent can request a hearing. If there is a hearing, the Petitioner has the burden of showing by a preponderance of the evidence that the Respondent committed an act of stalking within 90 days prior to filing the petition. Both parties should be prepared to call any witnesses or introduce any evidence that supports their case.

Do I have to have a lawyer?

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.  Anti-stalking orders can have serious consequences for a Respondent, especially if the Respondent shares a home or children with the Petitioner. In addition, anti-stalking orders can be a problem if the Respondent has a security clearance for their job.

Contact our office at 240-396-4373 to schedule a consultation today.

Sharing our Love with QDRO Tips

Roses are red, violets are blue. We love sharing QDRO Tips with you. This Valentine’s Day we are showing our love by sharing some QDRO Tips:

Earnings, Gains, and Losses are your Friend – The market is quite volatile now and has been for quite some time. Additionally, some 401k, 403b, and similar plans are taking longer than before to effectuate a division of such accounts. Including earnings, gains, and losses on a retirement transfer amount to a former spouse/alternate payee will make it seem like those funds had been in the former spouse/alternate payee’s name since the date the parties decided to value the account. Excluding earnings, gains, and losses on the transfer amount means the participant/account holder will enjoy (or suffer) all fluctuations due to market changes. Imagine, the account has $100,000 as of 2/14/2024 and the parties agree the divide it equally, excluding earnings, gains, and losses. The former spouse will always get $50,000 but if the market falls the participant will end up with less than $50,000 in the account after the transfer is complete. Since no one can predict what the market will do, including earnings, gains, and losses on the transfer amount ensure that both parties will be affected proportionally in such a transfer.

Remember the Survivor Benefit – When dividing a pension, it is important to remember there is a portion paid during the participant’s lifetime, and there is an optional portion that can be paid out after the participant’s death. To continue the payment after the participant’s death is called the survivor benefit. State law dictates whether the survivor benefit is treated the same as the payment made during the participant’s lifetime. It is best to address whether the former spouse will receive a share of the survivor benefit. In the event the parties are divorcing in a state that treats these as separate assets, failing to do so could preclude the former spouse from receiving the benefit at all.

You can Withdraw from Your IRA at age 59 ½ - With the retirement age creeping ever higher for access to social security funds, parties should remember they can access other retirement funds sooner. This can really help parties trying to plan for retirement while going through a divorce. Though, these clients may also benefit from the counsel of a financial planner.

Shared or Separate Pension Interest Division – Some pensions can only be divided such that the former spouse receives money only if, as, and when the participant receives money from the pension. If that’s the case, for the former spouse to receive payments after the death of the participant they will need to be awarded a survivor benefit. Some pensions may also be divided so that the former spouse can begin to receive payments when they choose, and have the payment made for their lifetime. There are sometimes complex actuarial considerations in this decision, but ultimately is a decision the parties need to make.

401ks can Fund Alimony and Child Support Arrears Payments – If a party does not have sufficient funds to pay alimony or child support arrears directly, a court order can be entered to make such payment from the obligor’s 401k. Such court order must specify the purpose of the payment is for alimony or child support (as opposed to division of marital property) so that the tax will be charged to the obligor rather than the payee.

Get Plan Documents Early – Too often parties agree to a division of retirement benefits, only to learn that the plan does not allow for their agreed-upon plan. The parties then have to go back to the negotiating table (or court) to find a new way forward. Getting the plan documents early allows the parties to move forward knowing their options so they know what they agree upon will be allowed by the plan.

Pick Your Title: QDRO, EDRO, or COAP – “QDRO” is a term of art defined under the Employee Retirement Income Security Act (ERISA). Not all retirement plans are governed by ERISA, however, and those plans do not like to use ERISA language. As such, they have adopted other preferred titles, such as Eligible Domestic Relations Orders or Court Order Acceptable for Processing. While some plans are particular about the title of these orders submitted to them, others are not. But it is important to know that picking the wrong name could result in a rejection, even if the rest of the order would otherwise be acceptable.

Some Plans are not Divisible – Plans governed by ERISA are required to be divisible by court order in some manner. For plans not governed by ERISA though, no division mechanism is required, and in fact, the plans can have a non-alienation clause prohibiting the transfer of the asset. Many of these plans are for highly compensated individuals such as partners and shareholders of large organizations. If the funds in these accounts are marital funds that should be divided, the parties will likely need to find some other asset to transfer instead.

If you have additional questions about QDROs, contact our office at 240-396-4373.

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.

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