Picking a Valuation Date

Every order dividing a retirement account or pension plan needs a valuation date. For accounts such as 401k, 403, 401a, etc., the valuation date tells the plan as of which date to apply the award to the former spouse. If earnings, gains, and losses are included in the former spouse’s award, as of when to begin that calculation.

When picking the valuation date for one of these types of accounts things to consider are:

1. Is the date selected one in which there will be a value? Many plans only value the accounts on business days. So, it may be convenient to say the end of the month in which the Agreement is signed or divorce is entered. If the last day of that month happens to be a Sunday, then the parties may have to agree to the prior Friday, or the following Monday. While this small change seems trivial in a vacuum there could be larger implications. Specifically, if one party is paid on the following Monday, those new contributions would be included in the division, whereas if the valuation date was the Sunday the new contributions would not be included.

2. Is the account actively being funded by a current employer (or by personal IRA contributions)? If yes, then the valuation date will impact whether new contributions from the employer are included. An employer cannot stop making contributions, however, by picking a valuation date, future contributions can be excluded from an equalization calculation.

   If no, then the valuation date has less of an impact. This is because there will not be any new funds being added to the account. The only way the account’s value will change is by gains and losses from the investments within the account. If the account is invested in cash-like stable funds, the balance will likely not change by much. If, however, the account is invested in stocks, then the balance may change dramatically with the performance of those stocks.

3. Are gains and losses to be included in the transfer amount? If yes, then for accounts that are not receiving contributions, it is easiest to reduce the transfer amount to a percent as of the date of transfer. For example, “the Alternate Payee will receive 20% of the Participant’s vested account balance as of the date of transfer to the Alternate Payee.” A growing trend is that financial institutions and retirement plans will not calculate gains and losses on a transfer amount. Therefore, reducing the amount to a percent as of the date of transfer will allow for the Alternate payee to receive the gains and losses without making the financial institution or plan run the calculation.

   If, however, the plan is actively receiving contributions, then reducing the transfer amount to a percent as of the date of transfer will also include future contributions made between the date the percent is determined (likely while negotiating the agreement) and the date the transfer is made (likely a few weeks later, after the divorce is entered and the QDRO is processed by the plan). Such a description of the transfer amount may provide greater benefits to the former spouse than agreed upon.  

   If there is only the one account available to fund the transfer and it is receiving contributions AND the QDRO processer will not calculation gains and losses, the attorney drafting the QDRO should advise their client that the agreement cannot be implemented exactly. If appropriate based on the QDRO attorney’s retainer, they may suggest alternative ideas to get as close as possible to the parties’ agreement.

4. Is the valuation date in the future? If so, to protect both parties, it is best to include language in the agreement to prohibit the parties from taking a loan or withdrawal from their account(s) until the transfer is complete. If a party is to take a loan or withdrawal, it could substantially skew the calculation, resulting in a transfer amount that is different than intended. In fact, this language is good in all situations, even ones where the valuation date is in the past. If a participant withdraws funds from the account that is supposed to transfer the funds to the former spouse, they may withdraw too much, thereby frustrating the transfer.  

If you have a QDRO need, contact us at 240-396-4373 to schedule a consultation. We have attorneys who focus their practice on the division of retirement and preparation of QDROs who can help resolve these issues.

What is a QDRO?

A Qualified Domestic Relations Order (QDRO) is a legal document that outlines how retirement benefits will be divided between divorcing spouses. It establishes the rights of an alternate payee (the non-employee spouse) to receive a portion of the retirement benefits earned by the employee spouse during the marriage.

Importance of QDROs in Divorce Proceedings

1. Division of Retirement Benefits: Retirement accounts, such as 401(k) plans, pensions, and other qualified plans, are often significant assets accumulated during a marriage. A QDRO ensures that these assets are divided between the spouses, in accordance with federal and state laws, as well as the parties’ agreement or judgment of divorce.

2. Compliance with ERISA: The Employee Retirement Income Security Act (ERISA) governs many retirement plans in the United States and sets forth rules regarding the division of retirement benefits in divorce. A QDRO must comply with ERISA guidelines to ensure that the division of benefits is legally enforceable. See also our blog post from February 5, 2024 titled Major Differences in ERISA Governed Plans and Non-ERISA Governed Plans.

3. Protection of Benefits: Without a QDRO, a retirement plan administrator will likely refuse to distribute benefits to anyone other than the employee spouse, even if a divorce decree mandates the division of assets. A QDRO provides the necessary authorization for the plan administrator to divide the benefits as specified.

4. Tax Considerations: Properly structured QDROs can help avoid tax implications for both parties. Specifically, the QDRO shifts the burden of the taxes on the distribution from the employee spouse to the alternate payee. The alternate payee can delay tax payments on the receipt of the funds through a rollover to an IRA. Alternatively, if the alternate payee receives the funds directly, they can avoid the early withdrawal penalty if younger than 59 ½ years of age.

5. Retirement Planning: QDROs play a crucial role in the long-term financial planning of both parties post-divorce. By ensuring a division of retirement benefits, spouses can better prepare for their financial futures and maintain financial stability in retirement.

How to Obtain a QDRO

Obtaining a QDRO generally involves the following steps:

- Drafting: The QDRO must be carefully drafted to comply with both state divorce laws, federal retirement plan regulations, and individual plan rules. It is advisable to seek the assistance of an attorney experienced in QDRO preparation. Most divorce attorneys do not prepare QDROs. If you have retained a divorce attorney to represent you, they may refer you to another attorney for your QDRO. 

- Approval: Once drafted, the QDRO must be submitted to the court for approval as part of the divorce proceedings. The court will review the document to ensure that it meets all legal requirements.

- Implementation: After approval, the QDRO is submitted to the retirement plan administrator for implementation. If the administrator approves the QDRO, the administrator will then divide the retirement benefits according to the terms outlined in the QDRO. If the administrator rejects the QDRO, the administrator will notify the parties of the defects, which must be resolved and an amended QDRO must be prepared.

In divorce proceedings, the division of assets can be a complex and contentious process. A Qualified Domestic Relations Order (QDRO) is a vital tool that ensures the distribution of retirement benefits between divorcing spouses. By understanding the importance of QDROs and seeking appropriate legal guidance from an experienced attorney, divorcing couples can navigate this aspect of the divorce process with greater clarity and confidence, paving the way for a smoother transition into their post-divorce financial futures.

Markham Law Firm employs attorneys who prepare QDROs and work in the division of retirement benefits on a regular basis. If you are in need of a QDRO please call us at 240-396-4373.

Reciprocal Pension Awards

When both parties in a divorce have a pension that was earned during the marriage, it sounds like a great idea to say to your client that the goal of any final agreement would be for each party to receive a reciprocal award from the other’s pension. To quote Captain Jack Sparrow from Pirates of the Caribbean, that’s “a fine goal, to be sure.” But as we all know, the devil is in the details.  

If the parties have an interest in the same pension plan, then the goal is easy to accomplish. By having the same pension interest on both sides, the same rules for division of that interest will apply. Therefore, even if the plan has a unique or difficult to handle rule, it will apply to both parties.

If, however, the parties have an interest in different plans, they are likely dealing with different rules, and it may be that an exact, reciprocal award is not possible. Alternatively, it may simply take some creative solutions to get to a reciprocal award, or as close as possible thereto.

Major Considerations that may thwart a reciprocal pension award:  

1.         Being Divisible by QDRO. If one party’s pension is not divisible by QDRO, EDRO, COAP, or any other court order any agreement will require a consideration of tax payments. This necessity is because when a party is paid their share of a pension for property division purposes through a QDRO (or similar order) the recipient will pay income tax on those funds when received.  However, when the pension is not divisible by QDRO (or similar order) only the participant is being taxed, so the parties must figure out by how much the other spouse’s share will be reduced to account for taxes, and if (and how) the parties will reconcile such reduction.

2.          Amount of Annuity Payable to the Former Spouse. Some pensions have restrictions on how much of the participant’s’ pension can be awarded to a former spouse. If a limit is placed on one party, how will that impact the award to the other party? Will the reciprocal awards simply be similarly reduced, or will there be a direct payment from one party to the other to make up for the limitation on payment from the plan?

3.         Amount of Survivor Benefit Payable. Some plans have set amounts of a survivor benefit that can be paid; other plans allow the survivor benefit to be divided into any size slice. It is important here to ensure the amount of survivor benefit agreed upon is available in both plans.

4.       Cost of the Survivor Benefit. Most plans require the pension during the participant’s lifetime (while in pay status) to be reduced to provide funds for the survivor benefit. Some plans allow for this cost to be shifted easily between the parties through the Court Order. Others only allow for this reduction to be handled in a certain way.

5.       Shared or Separate Interest Division. If the parties agree to divide the pensions as a separate interest, and later find out only one can be divided in such a manner, it can bring all of the above listed issues back on the negotiating table in order to figure out how to reach a new reciprocal award.

6.         Valuation Date. Some pension plans will allow (or require) the former spouse’s share to be determined as of the date of divorce or some date other than the date the participant commences benefits. By selecting a date prior to the benefit commencement date, the parties are in essence saying that the former spouse’s benefit is not going to increase or be impacted by any post-divorce salary increases earned by the participant. The parties may agree to this, but whether it can be (or is required to be) implemented by the plan is an important question.

While the above is a long list of issues that can arise, they can all be alleviated by requesting the plan documents early in the case to investigate and understand the plans in your case. Alternatively if reviewing plan documents is not something you want to or are comfortable doing, retaining an attorney with experience dealing with retirement plans and their division is another great option. In addition, attorneys specializing in this area may already be familiar with the plans in your case, which can alleviate the need to request information from the other party (which is an especially good benefit when the other party is not cooperative).

Markham Law Firm has attorneys specializing in the preparation of QDROs (and similar orders) and the division of retirement assets. If you need assistance, please call out office at 240.396.4373 or email qdro@markhamlegal.com to see how we can help. 

Divorce and Social Security

Social Security benefits, although often overlooked, are an important part of divorce, especially as couples near retirement age. Although Social Security is not divisible as property in a divorce, it is an important piece of retirement income that should not be ignored.

Social Security Benefits in General

 

Social Security is a federal program that provides financial assistance to retirees, disabled individuals, and survivors of deceased workers. The benefits are primarily based on a worker's earnings history and are designed to provide a basic level of income during retirement. The benefit is meant to be supplemented by a worker’s separate retirement savings, such as a 401k, IRA, 403b, pension, etc.

The more a person earns through employment prior to retiring, the more a person contributes to social security through taxes, to a point. The government sets a maximum income (“Social Security Tax Limit”) that workers will pay social security taxes on. In 2024, this limit is $168,600, meaning that people earning more than this amount will only pay social security tax on the first $168,600 earned in 2024. The more a person earns through employment, the more that person will receive as a social security benefit, to a point. The Social Security Administration calculates each person’s benefits according to a complex formula. Each person over the age of 18 years can create an account online to review their anticipated social security benefits.

Non-Division of Social Security Benefits in Divorce

As stated above, when a couple divorces, Social Security benefits earned during the marriage are not subject to division, unlike marital assets. However, there are several key points to consider:

1. Individual Work Records: Each spouse's individual work record determines their eligibility for Social Security benefits. Even if a couple divorces, each spouse retains their own earnings history and is entitled to benefits based on their own record.

2.  Former Spouse's Benefit Entitlement: If a marriage meets the 10-year requirement (see next point), a former spouse may be entitled to receive Social Security benefits based on their former partner's earnings record. If a former spouse receives benefits based on their former partner’s earnings record, it does not impact the former partner’s social security benefits in any way. The former spouse can receive an amount up to 50% of the other party’s social security benefit by using the other party’s earnings record. Such a disparity in benefit amounts can exist if one party took time off work (such as to be a stay at home parent, illness, etc.) or if one party earned substantially more than the other. Note, if the former spouse’s social security benefit is lower than their spouse’s benefit because the former spouse worked for an employer but did not pay social security tax during such employment (such as working for the federal government and participating in the CSRS pension plan or working for an international organization, to name only a few potential reasons) there is a Windfall Elimination Provision that will decrease the former spouse’s benefit amount both on their own earnings record and based on their spouse’s earnings record.

3.  Duration of Marriage: To be eligible for Social Security benefits based on an ex-spouse's record, the marriage must have lasted at least 10 years. If the marriage falls short of this duration, the ex-spouse is not entitled to benefits based on the former partner's record.

4.  Remarriage: If an ex-spouse remarries, they generally lose eligibility for benefits based on their former partner's record, unless the subsequent marriage ends. A person must be unmarried to be eligible for benefits based on a former partner’s earnings record.

Consider the Whole Financial Picture

While Social Security benefits cannot be divided, they are a factor to be considered in various aspects of a divorce. For example, assessing each spouse's financial needs, especially in retirement, is crucial. Social Security benefits can significantly impact one's income during retirement, so it's important to understand how they fit into the overall financial picture. Disparate social security entitlements could impact alimony.

Parties going through a divorce should be confident their attorneys understand how social security and retirement benefits will impact them in the present or future, and can structure any agreement (or request in court) a division of assets and income that considers all of these factors. Contact our office today at 240-396-4373 to set up a consultation with an attorney at Markham Law Firm.

The Top Things to Consider Including in Your Prenuptial Agreement

Getting married is an exciting time in your life. It is important to consider the potential legal and financial implications of your union. That’s where a prenuptial agreement comes in. While it may not be the most romantic aspect of wedding planning, a prenup can provide peace of mind and protect your assets in the event of a divorce. This is even more important as 40% to 50% of marriages end in divorce. But what should you include in your prenuptial agreement?

From property division and spousal support, to the logistics of selling the marital home in the event of a separation, there are several critical elements to consider. In this article, we’ll explore the top things to include in your prenuptial agreement so you can feel confident and prepared for your future together. So, whether you’re getting ready to tie the knot or just curious about prenups, read on to learn more!

Understanding the Importance of a Prenuptial Agreement

A prenuptial agreement is a legal document that outlines how assets and debts will be divided in the event of a divorce. It can also address other important issues, such as spousal support and alimony. While no one wants to think about the possibility of divorce, it’s important to be prepared for the worst-case scenario. A prenup can help avoid costly legal battles down the road.

One of the most significant benefits of a prenuptial agreement is that it can protect assets that were acquired before the marriage. For example, if you own a home or have a significant amount of savings, a prenup can ensure that you maintain control over those assets in the event of a divorce. Without a prenup, those assets could be subject to division according to certain state laws.

Another important consideration is that a prenup can help avoid conflicts that may arise in the event of a divorce. By setting clear expectations upfront, both parties can feel more secure and confident in their financial futures. A prenup can also help protect any children from a previous marriage by ensuring that their inheritance is preserved.

What to Include in a Prenuptial Agreement

When drafting a prenuptial agreement, it’s important to consider all the relevant issues that may arise in the event of a divorce. In 2021, the divorce rate in the US stood at 2.5 per 1,000 people. Every situation is unique, there are some common elements that should be included in most prenups.

Financial Considerations to Include in a Prenuptial Agreement

One of the most important elements of a prenuptial agreement is financial considerations. This may include how assets will be divided, how debts will be allocated, and how income and expenses will be treated during the marriage. It’s important to be as specific as possible when outlining these provisions to avoid confusion or disputes at a future date.

For example, if one party has significant student loan debt, the prenup may specify that the other party will not be responsible for those debts in the event of a divorce. Similarly, if one party owns a business, the prenup may outline how that business will be valued and divided in the event of a divorce.

Another important financial consideration is how income will be treated during the marriage. This may include whether income earned during the marriage will be considered separate or marital property. By specifying these provisions upfront, both parties can avoid confusion and potential conflict going ahead.

Property and Asset Division in a Prenuptial Agreement

Another critical element of a prenuptial agreement is the division of property and assets. This may include how real estate, investments, and other valuable assets will be divided in the event of a divorce.

For example, the prenup may specify that any property acquired during the marriage will be considered marital property and subject to division in the event of a divorce. Alternatively, the prenup may outline how specific assets, such as a family heirloom or vacation home, will be divided in the event of a divorce.

Spousal Support and Alimony in a Prenuptial Agreement

Spousal support and alimony are often contentious issues in divorce proceedings. By including provisions for spousal support and alimony in a prenuptial agreement, both parties can avoid lengthy and costly legal battles down the road.

The prenup may outline how spousal support will be calculated, how long it will last, and under what conditions it may be terminated.

Addressing Debts and Liabilities in a Prenuptial Agreement

In addition to assets, a prenup should also address debts and liabilities. This may include how credit card debt, student loans, and other debts will be allocated in the event of a divorce.

For example, the prenup may specify that any debt acquired during the marriage will be considered joint debt and subject to division in the event of a divorce. Alternatively, the prenup may outline how specific debts, such as medical bills or personal loans, will be allocated in the event of a divorce.

Protecting Family-Owned Businesses in a Prenuptial Agreement

If one party owns a family-owned business, it’s important to consider how that business will be protected in the event of a divorce. A prenuptial agreement can help ensure that the business remains in the family and is not subject to division in the event of a divorce.

The prenup may outline how the business will be valued, how ownership will be determined, and how any profits or losses will be allocated.

Legal Considerations When Drafting a Prenuptial Agreement

When drafting a prenuptial agreement, it’s important to consider the legal implications of each provision. It’s also important to ensure that the prenup complies with state laws and regulations.

To ensure that your prenup is legally binding, it’s important to work with an experienced attorney who can help draft the document and ensure that it complies with state laws. It’s also important to ensure that both parties have had an opportunity to review and understand the prenup before signing.

How to Approach Discussing a Prenuptial Agreement with Your Partner

Discussing a prenuptial agreement with your partner can be a sensitive issue. It’s important to approach the conversation in a respectful and open-minded manner.

Start by explaining why you feel a prenup is important and how it can benefit both parties. Be sure to address any concerns your partner may have and be open to compromise. Remember that a prenup is a legal document, but it doesn’t have to be an adversarial process.

Common Misconceptions About Prenuptial Agreements

There are several common misconceptions about prenuptial agreements. One of the most common is that only wealthy individuals need prenups. In reality, anyone can benefit from a prenup, regardless of their income or assets.

Another misconception is that a prenup is a sign of distrust or lack of commitment. In reality, a prenup helps avoid conflicts. It’s important to approach the conversation with your partner in a positive and constructive manner.

A prenuptial agreement is an important consideration for any couple. By addressing important legal and financial issues upfront, both parties can feel more secure and confident in their financial futures. If you’re considering a prenup, contact our office at 240-396-4373 today.

The Benefits of Hiring a Prenuptial Agreement Attorney: Why You Need One for Your Prenup

Planning a wedding is an exciting and blissful time, but amidst the joyous chaos, it’s important not to overlook the practical side of things. That’s where a prenuptial agreement attorney can come to the rescue. A prenup may not be the most romantic aspect of marriage, but it can save couples from potential legal headaches down the line—especially when you consider that the statistics show that about 50% of first marriages and 75% of second marriages will end in divorce. Everyone hopes to beat these odds, but we need to be safe here not sorry later down the road.

What is a prenuptial agreement?

A prenuptial agreement, commonly referred to as a prenup, is a legal contract that couples enter into before getting married or entering a civil partnership. It outlines how their assets, debts, and other financial matters will be divided in the event of a divorce or separation. While it may not be the most romantic topic to discuss, a prenup can provide clarity and protection for both parties involved.

A prenuptial agreement covers a wide range of issues, including the division of property, spousal support, and the handling of debts. It can also address other matters such as the protection of family heirlooms or the safeguarding of independent business interests. By clearly outlining each party’s rights and responsibilities, a prenup can help avoid lengthy and costly legal battles in the future.

Understanding the importance of a prenuptial agreement attorney

When it comes to drafting a prenuptial agreement, it’s crucial to have the guidance of a knowledgeable and experienced attorney. A prenuptial agreement attorney specializes in family law and understands the complexities of creating a legally binding contract that protects the interests of both parties.

While some couples may consider using online templates or attempting to draft their own prenup, it’s important to remember that these documents are subject to state laws and regulations. A prenuptial agreement attorney can ensure that your prenup is tailored to your specific needs and complies with all legal requirements.

Additionally, an attorney can provide valuable advice and guidance on issues you may not have considered. They can help you navigate the emotional aspects of discussing financial matters and ensure that both parties are treated fairly throughout the process.

Benefits of hiring a prenuptial agreement attorney

1. Expertise in family law

One of the key benefits of hiring a prenuptial agreement attorney is their expertise in family law. They have in-depth knowledge of the legal requirements and can guide you through the entire process, from drafting the agreement to ensuring its enforceability in court.

A prenuptial agreement attorney can help you understand the implications of certain clauses and provisions, ensuring that your prenup is comprehensive and protects your interests. They can also provide valuable insights into how courts typically interpret prenuptial agreements, helping you create a document that is more likely to hold up in litigation.

2. Addressing common concerns and potential pitfalls

A prenuptial agreement attorney can help address common concerns and potential pitfalls that couples often overlook. For example, they can advise on how to handle future inheritances, protect business interests, or ensure that both parties are financially secure in the event of a divorce.

By discussing these concerns and potential issues early on, a prenuptial agreement attorney can help couples make informed decisions and avoid future conflicts. They can also provide guidance on what is considered fair and reasonable in terms of spousal support, property division, and other financial matters.

3. Representing your interests during negotiations

Negotiating the terms of a prenuptial agreement can be a delicate and sensitive process. Hiring a prenuptial agreement attorney ensures that you have someone representing your interests and advocating for you during these negotiations.

An attorney can help you articulate your needs and preferences, ensuring that the final agreement reflects your wishes. They can also help navigate any disagreements that may arise between you and your partner, facilitating a fair and balanced outcome.

How a prenuptial agreement attorney can protect your assets

One of the primary reasons couples opt for a prenuptial agreement is to protect their assets and future income. Whether you have significant financial holdings, a successful business, or valuable personal property, a prenup can provide the necessary safeguards.

A prenuptial agreement attorney will work with you to identify and properly document your assets. They will help determine what should be considered separate property, which is not subject to division in the event of a divorce. This can include assets that were acquired prior to the marriage, inheritances, or gifts received during the marriage.

By clearly outlining the division of assets in your prenup, you can save yourself from potential disputes and ensure that you retain what is rightfully yours. This can provide peace of mind and financial security, allowing you to focus on building a strong foundation for your future together.

Common misconceptions about prenuptial agreements

There are several common misconceptions about prenuptial agreements that can deter couples from considering one. It’s important to debunk these myths and understand the true benefits of having a prenup in place.

One common misconception is that prenups are only for the wealthy. While it’s true that high-net-worth individuals often utilize prenups to protect their assets, prenuptial agreements can benefit couples from all walks of life. Whether you have significant assets or not, a prenup can provide clarity and protection for both parties involved.

Another misconception is that prenups are unromantic or a sign of mistrust. In reality, a prenuptial agreement is simply a tool for open and honest communication about financial matters. It allows couples to have important conversations about their goals, expectations, and responsibilities, which can ultimately strengthen their relationship.

The role of a prenuptial agreement attorney in negotiations

Negotiating the terms of a prenuptial agreement can be a sensitive and complex process. A prenuptial agreement attorney plays a crucial role in facilitating these negotiations and ensuring that both parties are treated fairly.

An attorney will help you identify your priorities and interests, ensuring that they are reflected in the final agreement. They will also provide guidance on what is considered fair and reasonable in terms of spousal support, property division, and other financial matters.

Throughout the negotiation process, a prenuptial agreement attorney will advocate for you and protect your rights. They will help you navigate any disagreements that may arise, working towards a mutually beneficial outcome.

Conclusion: The peace of mind that comes with hiring a prenuptial agreement attorney

In conclusion, a prenuptial agreement attorney can be a valuable asset when it comes to protecting your interests and ensuring a solid foundation for your future together. From guiding you through the process of drafting a comprehensive agreement to representing your interests during negotiations, an attorney can provide the expertise and guidance you need.

Don’t let the misconception that prenups are only for the wealthy hold you back. A prenuptial agreement attorney can help couples from all walks of life navigate the complexities of marriage and secure a solid foundation for their future together. By addressing common concerns, protecting your assets, and ensuring a fair and balanced agreement, a prenup can provide invaluable peace of mind for both parties involved.

Contact our office at 240-396-4373 to discuss your prenuptial agreement needs.

Getting A Divorce in Montgomery County MD: The Role of a Divorce Lawyer

Divorce is a difficult decision that can have a significant impact on your life. If you’re considering ending your marriage you may be wondering about the role of a divorce lawyer. Family law attorneys are legal professionals who specialize in handling divorce cases and can provide you with invaluable guidance and support during this challenging time. They can help you navigate the complex legal system, protect your rights, and ensure that you receive a fair settlement. 

In this article, we’ll explore the role of a divorce lawyer in Maryland, which has implemented significant changes to the domestic relations laws recently.. Whether you’re facing a contested or uncontested divorce, having a skilled and knowledgeable divorce lawyer by your side to guide you through the legal process can make all the difference. So, let’s dive in and learn more about how they can help you through this difficult journey. 

The Role of a Divorce Lawyer 

A divorce lawyer plays a critical role in helping you navigate the legal process of ending your marriage. In just an initial consult, they can provide you with valuable advice and support, ensuring that you understand your rights and obligations.  They can provide an overview of the filing process and your options for finalizing a divorce while ensuring  your rights are protected throughout the process. A divorce lawyer can also help you understand the legal requirements for getting a divorce in Maryland, which is now a no-fault divorce jurisdiction.   

The fault grounds for divorce such as adultery, abandonment or cruelty of treatment have been eliminated.  Instead, there are now three (3) no-fault grounds for divorce: (1) irreconcilable differences; (2) a 6 month separation, which can be in the same house; or (3) Mutual Consent, where the parties have a signed agreement resolving all issues arising from their marriage.. 

One of the most important roles of a divorce lawyer is to help you negotiate a fair settlement. This includes dividing marital assets, determining spousal support, and establishing child custody and support arrangements if necessary. A divorce lawyer can guide you through the process, ensuring that your interests are represented and that your settlement is fair and equitable. 

A divorce lawyer can also help you understand the legal implications of your divorce. This includes understanding the tax implications of your settlement and any other legal issues that may arise during the process. They can also provide you with valuable advice on how to protect your rights and ensure that your interests are protected throughout the process. 

Benefits of Hiring a Divorce Lawyer 

Hiring a divorce lawyer can provide you with a range of benefits during the divorce process. One of the most significant benefits is that they can help you navigate the legal system. Divorce proceedings can be complex and difficult to understand, and having a skilled lawyer by your side can help you make sense of the process and ensure that you follow the necessary steps. 

Another benefit of hiring a divorce lawyer is that they can help you negotiate a fair settlement. Divorce settlements can be contentious and emotional, and having a lawyer by your side can help you keep your emotions in check and ensure that your interests are represented in negotiations. 

A divorce lawyer can also provide you with valuable advice and support throughout the process. They can help you understand your legal rights and obligations and provide you with guidance on how to protect your interests during the divorce proceedings. This can be particularly helpful if you are dealing with a difficult or contentious spouse. 

Steps Involved in Getting a Divorce in Montgomery County, MD 

Getting a divorce in Montgomery County, MD, involves several steps that must be followed to ensure that the process is completed correctly. The first step is to file a complaint for divorce with the Circuit Court for Montgomery County. This document outlines the grounds for divorce and any other relevant information about the marriage. 

Once the complaint has been filed, the next step is to serve the complaint on your spouse, unless they are willing to waive formal services and accept service via email.  Formal service is normally done by certified mail or by hiring a process server to deliver the complaint in person. Your spouse will then have 30 days to respond to the complaint. 

If your spouse does not respond to the complaint, you can file a motion for default judgment. This allows you to proceed with the divorce without your spouse’s participation. If your spouse does respond to the complaint, the next step is to negotiate a settlement agreement. 

Most families try mediation or wait until the court orders them to attend mediation.  If you are unable to reach a settlement agreement with your spouse, the next step is to request a court hearing. A judge will hear arguments from both sides and decide on any unresolved issues. Once the judge has issued a final decree of divorce, the divorce is final. 

Legal Requirements for Divorce in Montgomery County, MD 

To file for divorce in Montgomery County, MD, you must meet certain legal requirements. The most important requirement is that you must have grounds for divorce. Maryland is now a no-fault jurisdiction, so either you will allege (1) irreconcilable differences; (2) a 6 month separation or (3) Mutual Consent, provided both spouses have signed a comprehensive agreement. 

In addition to meeting the grounds for divorce, you must also meet residency requirements. To file for divorce in Montgomery County, MD, you or your spouse must have lived in the county for at least six months before filing. 

Common Issues in Divorce Cases 

Divorce cases can be complex and emotional, and many common issues may arise during the process. One of the most common issues is property division. Marital assets must be divided fairly and equitably between the two spouses. This can be a contentious issue, especially if there are significant assets involved. 

Another common issue in divorce cases is child custody and support. If you have children, you will need to establish a Parenting Agreement, which is a detailed arrangement regarding custody and support that is in the best interests of the child. This can be a difficult process, and having a divorce lawyer by your side can be invaluable. 

Other common issues in divorce cases include spousal support, retirement account division, and tax implications of the settlement. A divorce lawyer can help you navigate these issues and ensure that your interests are protected throughout the process. 

How a Divorce Lawyer Can Help with Property Division 

One of the most contentious issues in divorce cases is property division. Marital assets must be divided fairly and equitably between the two spouses, which can be a difficult and emotional process. A divorce lawyer can help you negotiate a fair settlement, ensuring that your interests are represented and that you receive a fair share of the marital assets. 

A divorce lawyer will help you identify all the marital assets and debts, including real estate, retirement accounts, and personal property. They will also help you value these assets and determine the best way to divide them. 

If you and your spouse are unable to reach an agreement on property division, a divorce lawyer can represent you in court. They will argue on your behalf and ensure that your interests are protected throughout the process. 

Child Custody and Support Issues in Divorce Cases 

Child custody and support can be one of the most difficult issues to resolve in a divorce case. If you have children, you will need to establish a custody and support arrangement that is in the best interests of the child. 

A divorce lawyer can help you negotiate a custody and support agreement with your spouse. They can help you understand the legal requirements for custody and support, and ensure that your interests are represented throughout the process. 

If you and your spouse are unable to reach an agreement on custody and support, a divorce lawyer can represent you in court. They can argue on your behalf and ensure that your interests are protected during the legal proceedings. 

Alternatives to Going to Court for a Divorce 

Going to court for a divorce can be a lengthy and expensive process. Fortunately, there are alternatives to going to court that may be more appropriate for your situation. One alternative is mediation. 

Mediation involves a neutral third party who helps you and your spouse negotiate a settlement agreement. This can be a more amicable and cost-effective way to resolve your divorce. 

Another alternative is collaborative divorce. This involves a team approach, with both spouses and their lawyers working together to reach a settlement agreement. This can be a more collaborative and less adversarial way to end a marriage. 

Choosing the Right Divorce Lawyer 

Choosing the right divorce lawyer is an important decision that can have a significant impact on the outcome of your divorce. When choosing a divorce lawyer, it’s important to look for someone experienced, knowledgeable, and compassionate. 

You should also look for a divorce lawyer who is a good communicator and who will keep you informed throughout the process. They should be able to explain complex legal issues in a way that you can understand and should be responsive to your questions and concerns. 

Getting a divorce can be a difficult and emotional process. However, with the help of a skilled and knowledgeable divorce lawyer, you can navigate the legal system and ensure that your rights are protected throughout the process. 

A divorce lawyer can provide you with invaluable guidance and support, helping you negotiate a fair settlement and resolve any issues that may arise during the divorce proceedings. If you’re considering ending your marriage, be sure to consult with a divorce lawyer who can help you through this difficult journey.  Contact our office today at 240-396-4373 to schedule a consultation with one of our experienced attorneys. 

Zoom vs. In-Person Mediation in Family Law Cases

The landscape of mediation has expanded beyond traditional in-person sessions to include virtual platforms like Zoom. This shift offers both opportunities and challenges, particularly in the realm of family law disputes where emotions run high and communication is key. Let's delve into the pros and cons of Zoom mediation versus in-person mediation for family law cases.

Zoom Mediation:

Pros:

1. Convenience: Zoom mediation eliminates the need for travel, allowing parties to participate from the comfort of their own homes or offices. This convenience can be especially beneficial for individuals with busy schedules, childcare responsibilities, or mobility limitations.

2. Accessibility: Virtual mediation expands access to professional mediators, regardless of geographical location. Parties can engage mediators from different cities or even countries, widening the pool of expertise available to them.

3. Cost-Effectiveness: Virtual mediation can be more cost-effective than in-person sessions, as it eliminates expenses associated with travel, accommodation, and venue rental. This makes mediation more accessible to individuals with limited financial resources.

4. Flexibility: Zoom mediation offers greater flexibility in scheduling, allowing parties to find mutually convenient times for sessions. This flexibility can expedite the mediation process and reduce the time and stress associated with scheduling conflicts.

5. Safety: Virtual sessions allow the parties to be kept in separate rooms with no risk of seeing each other, which is incredibly helpful in cases where one party feels intimidated by the other.

Cons:

1. Technical Challenges:  Zoom mediation relies on technology, and technical glitches such as poor internet connection or audiovisual issues can disrupt proceedings. Technical difficulties may impede effective communication and lead to frustration among participants.

2. Lack of Personal Connection: Virtual mediation may lack the personal connection and rapport that can be established through in-person interactions. Non-verbal cues and subtle nuances may be harder to perceive over video, potentially hindering the development of trust and empathy between parties and the mediator.

3. Distractions: Participants in Zoom mediation may be susceptible to distractions in their environment, such as noise from other household members or interruptions from electronic devices. These distractions can detract from the focus and effectiveness of the mediation process.

In-Person Mediation:

Pros:

1. Physical Presence: In-person mediation allows for direct, face-to-face interaction between parties and the mediator. This physical presence can foster a sense of connection, trust, and accountability, enhancing the quality of communication and the likelihood of reaching agreements.

2. Non-Verbal Communication: In-person mediation enables participants to observe and respond to non-verbal cues such as body language, facial expressions, and tone of voice. These subtle cues can convey emotions and intentions more effectively than words alone, facilitating deeper understanding and empathy.

3. Controlled Environment: In-person mediation provides a controlled environment free from the distractions and technical limitations associated with virtual platforms. Participants can focus their attention fully on the mediation process, leading to more productive discussions and outcomes.

Cons:

1. Logistical Challenges: In-person mediation requires coordination of schedules, transportation, and venue arrangements. This logistical complexity can introduce delays and logistical barriers, particularly for parties residing in different locations or with conflicting commitments.

2. Safety Concerns: In-person mediation may raise concerns about health and safety. Participants may feel apprehensive about attending face-to-face sessions due to concerns about intimidation, control or safety.

3. Costs: In-person mediation may incur additional costs associated with venue rental or travel expenses. These costs can be prohibitive for parties with limited financial resources, potentially restricting access to mediation services.

In conclusion, the choice between Zoom and in-person mediation depends on various factors, including individual preferences, logistical considerations, and the nature of the dispute. Both modalities offer distinct advantages and challenges, and the most effective approach may vary depending on the specific circumstances of each case.

Ultimately, the goal of mediation remains the same: to facilitate constructive dialogue, promote mutual understanding, and empower parties to reach amicable resolutions that prioritize the best interests of everyone involved. Whether conducted virtually or in person, mediation serves as a valuable tool for navigating family law disputes and fostering positive outcomes for families in transition.

To explore whether mediation is the best option for you to proceed with your case, contact us at 240-396-4373 to schedule a consult today.

QDRO CORNER: Concurrent Payments of FERS and CSRS Pensions

When a person becomes employed by the federal government will determine whether they earn an interest in the Civil Service Retirement System (“CSRS”) or the Federal Employees’ Retirement System (“FERS”). CSRS was closed at the end of 1983 and FERS began in the beginning of 1984.

Former federal government employees may have an interest in both CSRS and FERS systems. These employees may have been an employee under CSRS, left the employ of the federal government for a period, and then returned when FERS was the pension system provided to employees.

When these benefits are paid to the retired participant, they are paid in a single, combined payment. The retired participant receives an annual statement which describes the benefit paid from each retirement system, and any COLA applied thereto. In addition, if a survivor benefit was selected at retirement (or awarded pursuant to a Court Order) the statement will show the amount of benefit and to whom it is awarded.

This annual statement is helpful for a few reasons. First, the amount awarded to the soon-to-be former spouse can easily be calculated. This knowledge will help both parties plan financially for the future.

Second, to confirm whether the retiree is receiving a benefit from one or both pension systems. Some people who were CSRS employees at the time the plans switched were required to or had the option to switch to FERS. For these participants, they would no longer have a CSRS interest, as it would have been transferred to FERS. As such, any award to a soon-to-be former spouse from CSRS in this case would worthless.

Alternatively, if the benefit is coming from both systems the parties can properly allocate the division between the plans, or shift the soon-to-be former spouse’s benefit to come entirely from one plan. Parties may want to shift the soon-to-be former spouse’s benefit to be from one plan only so that there is only one domestic relations order needed.  

Finally, the domestic relations order dividing the pension interest must state the name of the plan it is dividing. Being able to confirm if a retiree is receiving benefits from one or both retirement systems is incredibly helpful to ensure the former spouse will receive the proper amount of benefits. If this is not confirmed, the former spouse may receive less than anticipated once payments to the former spouse begin, and may have waived interest in all other benefits. This situation would leave the former spouse potentially without recourse to enforce the agreement and get what they expected.

If the annual statement is not available for any reason, it is best practice to include in the agreement as much information as possible to ensure the former spouse receives the intended amount, such as the amount that the retiree receives on a monthly basis, and the estimated amount the former spouse should receive on a monthly basis. In addition, if the parties believe but are unsure if the benefits are entirely from one retirement system, the agreement should include a paragraph that the parties will cooperate to ensure the former spouse receives they entire benefit, including, if necessary, a second Court Order to divide the other pension interest and direct payment of the difference from the retiree until the second Court Order is put in place.

Finally, a consideration here too is whether enough information is being exchanged for the parties to be making informed decisions. If the attorney has any concern that a party is not going to receive the agreed upon amount they should be sure to send their client a written communication with their concerns, recommended action, and suggested language for the agreement.  This will make clear the attorney’s concerns with the agreement and proposed solutions. This communication will help to protect the attorney against any malpractice claims in the event the agreement does not provide the former spouse with the expected benefits.

If you have a case where a party may have both benefits and you need assistance in drafting settlement agreement language, proposing language for a judgment of divorce, or determining the best way to divide the benefits to implement the parties’ intended division, call us. We offer consultations on federal benefits and flat fee retainers for defined scopes of work in this area. Contact our office at 240-396-4373 to schedule a consultation today. 

What Do I do If I am Served with a Domestic Violence Protective Order?

Receiving a domestic violence protective order can be a distressing and overwhelming experience. Whether the allegations are justified or unfounded, it's essential to handle the situation with care and diligence. Understanding your rights and the necessary steps to take can help protect your interests and ensure a fair resolution. Here's a comprehensive guide on what to do if you are served with a domestic violence protective order:

1. Remain Calm and Composed

Receiving a protective order can evoke strong emotions such as anger, confusion, or fear. However, it's crucial to maintain composure and avoid any actions or statements that could escalate the situation further. Do not act out of anger or contact the person that filed the order (petitioner). You may be recorded on an officer's body worn camera or by someone nearby, and you do not want to appear violent or unhinged.

If the order requires you to vacate your home, request that the sheriff or law enforcement officer give you a minute to grab your wallet and cellphone so that you can obtain a hotel room and/or call a friend or loved one for a temporary place to stay. If you are in possession of firearms, let officers know since it is unlawful to possess firearms while under a protective order.

2. Read the Protective Order Carefully

Carefully review the contents of the protective order, including the specific allegations, restrictions, and duration of the order. Pay close attention to any conditions or limitations imposed by the court, such as maintaining a certain distance from the petitioner or refraining from contacting them. Many protective orders prohibit communication by third parties as well, so it may be unlawful for you to have a friend contact the petitioner on your behalf, no matter how benign the request. Some protective orders will allow communication via text or email as it relates to the well-being of the minor children, so you will want to take note of any limitations on the type of contact allowed.

3. Adhere to the Terms of the Protective Order

It is crucial to comply with the terms and conditions outlined in the protective order, even if you disagree with its issuance. Violating the order can result in serious legal consequences, including arrest and criminal charges. Avoid any contact or communication with the petitioner, directly or indirectly, until the order is modified or lifted by the court, unless the order specifically permits certain types of communication such as texting to facilitate access to shared children.

4. Seek Legal Advice

Consult with an experienced attorney who specializes in domestic violence cases as soon as possible. A knowledgeable attorney can provide valuable guidance on how to proceed, represent your interests in court, and help you navigate the legal complexities of the situation. Your attorney can communicate with the petitioner and opposing counsel, which can be extremely helpful when trying to resolve the case or collect belongings that may still be at the petitioner's home.

5. Gather Evidence

Compile any evidence or documentation that may support your case, such as witness statements, texts, email, social media posts, photos, or surveillance footage. This evidence can be instrumental in challenging the allegations and presenting a compelling defense in court. Think about what evidence there may be to support your response to the petition for a protective order.

6. Attend Court Hearings

Attend all scheduled court hearings related to the protective order and follow any directives from the judge. Be punctual, respectful, and cooperative during proceedings, and refrain from any disruptive behavior that could undermine your credibility. If demonstrate anger or instability, this could help the petitioner's case and harm yours.

7. Respect the Court's Decision

Ultimately, respect the authority of the court and abide by its rulings, even if they are unfavorable. If the protective order is granted, comply with its terms until it expires or seek legal recourse for modification or termination through the appropriate channels. In Maryland, protective orders issued in the District Court may be appealed to the Circuit Court within 30 days after the issuance of the ruling where you can receive an entirely new trial.

Being served with a domestic violence protective order is a serious matter that requires careful attention and strategic action. By remaining calm, understanding your rights, seeking legal advice, and adhering to the terms of the order, you can navigate this challenging situation with greater clarity and confidence. Remember, prioritizing safety, compliance with the law, and seeking resolution through legal channels are paramount in protecting your interests and moving forward constructively.  Contact our office today at 240-396-4373 to schedule a consultation with one of our experienced attorneys.