Is a QDRO Necessary?

There are two ways to read this question, the first being whether a QDRO is necessary for the account or interest that’s being divided. The second is whether a QDRO as a document separate from the agreement or divorce decree is necessary. 

As to the first, always check with the plan administrator. Plans governed by ERISA will need a QDRO to be divided. Plans not governed by ERISA may not need one and may not be divisible by means other than direct payment from the participant to the former spouse. If you think this is something in your case, we can help you write a separate order, or a section of the agreement to make each person’s responsibility in such a case clear. 

As to the second, the answer is a resounding “no” a QDRO as a separate document is not necessary per ERISA. However, a document that meets all of the requirements of a QDRO is necessary. So, this reasonably means that so long as all of the language required by ERISA and the plan is included in the judgment of divorce and/or agreement which is incorporated into the judgment of divorce, then no separate document is needed. 

So this begs the question, why have the QDRO be a separate document?

First, there is the matter of the parties’ privacy. The agreement and/or judgment of divorce usually includes a lot of information not related to the retirement division such as other marital property division, child custody, child support, and/or alimony provisions. If all of the necessary information is included in the agreement or judgment of divorce, then all of the non-related information will be required to be shared with the retirement plan administrator.

Second, sometimes parties will agree to complicated asset off-setting schemes which are described in detail within the agreement. When the QDRO is a separate document, these details are omitted so that the retirement plan administrator sees only the information necessary to divide the retirement plan. The retirement plan administrator does not need, nor do they want, to know the reason behind the division. They just want to know what the division is they need to implement.

Third, plan administrators are generally not attorneys, or even paralegals. They have a checklist to make sure certain provisions are included. They then review any additional provisions to see if there is anything that contradicts the plan rules, adds a burden to the Plan that the Plan is not willing to accept, or otherwise is something to which the Plan does not agree. If such a provision is included, it will cause a rejection. When parties have complicated asset off-setting schemes, sometimes the detailed description of the reason behind the division can cause confusion for the plan administrator. If the division is not clearly stated, the plan administrator will reject the order.

If is for these main reasons that we prefer to have the QDRO as a separate document from the judgment of divorce and settlement agreement.

As an additional note, some plans require that the settlement agreement be submitted to the plan with the QDRO. The reason is to safeguard the plan from future litigation.

In these circumstances, we have learned that if the parties are merely adding information to the QDRO, the plan administrator usually has no concerns. For example, if the parties state in the agreement that the former spouse is entitled to 50% of the amount accrued during the marriage as it relates to a defined contribution account, and then the QDRO states the amount being transferred to the former spouse is $50,000, that should not cause any issues with the plan administrator.

However, if the agreement says that the former spouse’s share of a defined contribution account will not include earnings, gains, and losses from the valuation date to the date of distribution, and then the QDRO says that it will include earnings, gains, and losses, the plan administrator may reject the QDRO. We have come across these cases and the parties have in good faith changed their minds about something in the agreement and simply wish to change it in the QDRO. In such circumstances we include a footnote in the QDRO to acknowledge the discrepancy between the agreement and the QDRO. The footnote makes the plan administrator aware that the parties are knowingly deviating from the agreement so that the QDRO cannot be contested in the future on the grounds of making an award that differs from the parties’ agreement.

If the plan implements an order that differs from the agreement, and a party later files to vacate or amend the order, the plan may be the subject of litigation. Whether the litigation is successful is a different question, but still it would cause legal and administrative fees to defend and therefore is something the plan will want to avoid.

If considering the need in the future for a QDRO as a separate document, consider these points with your client. 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.

The Role of Various Professionals in the Collaborative Divorce Process

Collaborative Divorce is a team-oriented approach that brings together a group of professionals to support couples in reaching an amicable settlement. Unlike traditional divorce, where each party often works in isolation with their attorney, Collaborative Divorce fosters cooperation and open communication. The process involves not just attorneys but also financial experts, mental health professionals, and child specialists, each playing a vital role in helping the couple navigate the complexities of divorce.

1. Collaborative Attorneys

Role: In a collaborative divorce, each spouse is represented by an attorney who is specially trained in Collaborative Law. These attorneys guide their clients through the legal aspects of divorce, ensuring that their rights are protected while promoting cooperative negotiation. Unlike litigation attorneys, Collaborative attorneys do not prepare for court battles; instead, they focus on finding common ground and reaching a mutually satisfactory agreement.

Key Responsibilities:

• Facilitating communication between the spouses.

• Offering legal advice while encouraging compromise.

• Drafting and reviewing the final divorce agreement.

• Ensuring the quality of the collaborative process.

2. Financial Specialists

Role: Financial specialists play a crucial role in the collaborative divorce process by helping couples understand the financial implications of their decisions. These professionals can be accountants, financial planners, or certified divorce financial analysts (CDFAs). They provide an unbiased analysis of the couple’s financial situation, offering insights into asset division, tax implications, retirement planning, and more.

Key Responsibilities:

• Analyzing financial documents and assets.

• Assisting in the equitable division of property.

• Projecting future financial needs and stability.

• Providing guidance on budgeting and financial planning post-divorce.

3. Mental Health Professionals (Divorce Coaches)

Role: Mental health professionals, often referred to as divorce coaches, are integral to the emotional well-being of both spouses during the collaborative process. These professionals, typically therapists or counselors with experience in divorce-related issues, help manage the emotional stress that comes with the process. They work individually with each spouse or as a neutral party to facilitate communication and reduce conflict. In some cases, they can also draft the Parenting Plan.

Key Responsibilities:

• Supporting emotional stability and resilience.

• Helping clients manage stress, anger, and anxiety.

• Assisting in effective communication and conflict resolution.

• Guiding clients through the emotional aspects of the process.

4. Child Specialists

Role: When children are involved, a child specialist is often included in the collaborative team to ensure that their needs are prioritized. These professionals are usually child psychologists or therapists with expertise in family dynamics and child development. They work as a neutral party, giving children a voice in the process.

Key Responsibilities:

• Assessing the emotional and psychological needs of the children.

• Providing insights into how divorce decisions may impact the children.

• Helping parents develop a child-centered parenting plan.

• Facilitating communication between parents and children about the divorce.

• Checking in with the children about how they are doing in the process

5. Mediators (Optional)

Role: While not always a formal part of the Collaborative Divorce team, mediators can sometimes be brought in to assist with specific issues or at the conclusion of the case. A mediator is a neutral third party who helps facilitate discussions and resolve conflicts that may arise.

Key Responsibilities:

• Offering alternative solutions to impasses.

• Ensuring that both parties feel heard and understood.

• Helping to reach a final agreement on disputed matters.

Conclusion

The Collaborative Divorce process is designed to be holistic, addressing not only the legal aspects of divorce but also the emotional, financial, and familial challenges that arise. By involving a team of professionals, the process becomes more comprehensive and supportive, helping couples navigate their separation with dignity and respect. Each professional brings a unique set of skills and expertise, contributing to a well-rounded approach that prioritizes the well-being of all parties involved, including children.

For couples seeking a less adversarial and more constructive path to divorce, the Collaborative process offers a valuable alternative that emphasizes cooperation, understanding, and shared solutions. Reach out to Markham Law Firm to find out if your case is right for Collaborative. Please contact our office to speak with a dedicated family law attorney. Our group of highly experienced attorneys are ready to help answer your questions and guide you through this process.

Navigating Custody Agreements in Maryland

In any custody dispute or divorce involving minor children, the goal is to negotiate a comprehensive written agreement that resolves all issues related to physical and legal custody until they emancipate. Unfortunately, when your co-parent is not adhering to the terms of your custody agreement, you may need to re-engage a family law attorney to help you address the situation.  Here are the most important considerations to take into account when deciding to take further legal action.

Understanding Custody Agreements in Maryland

In Maryland, a custody agreement is a legally binding document that outlines the terms of legal custody, the weekly time-sharing schedule and holiday arrangements, as well as the responsibilities of each parent. These agreements are also referred to as a Parenting Plan and are typically incorporated into a Court Order.  These agreements are put in place to ensure the children’s best are met and to provide clear guidelines for both parents.

Steps to Take if Your Coparent Isn't Following the Custody Agreement

1. Document the Violations

Start by meticulously documenting each instance where your coparent violates the custody agreement. Note the dates, times, and nature of the violations. Keep all emails/texts and a calendar and/or log that can later serve as crucial evidence if you need to take legal action. Note that in Maryland you may not record audio of your coparent without his/her permission.

2. Communicate

Try your best address the issues as they arise, but not when the child is present. Sometimes, violations occur due to misunderstandings or logistical issues that can be resolved through communication. Keep these discussions civil and focused on the best interests of your child.  If you are unable to have productive conversations in real time, then use email or text when you are calm and can express yourself clearly without being critical or antagonistic.  If you need help filtering your messages, you may consider hiring a parenting coach to help improve your communication.  Always remember these messages might later be read in court, so be respectful and don’t’ ramble.  

3.  Refer to the Custody Agreement

Review the custody agreement carefully to ensure that you have a clear understanding of its terms. This will help you reference specific provisions when discussing the matter with your coparent or a legal professional.  In the event circumstances have changed now requiring a revision of the Parenting Plan, or if there is a dispute in how you interpret the agreement, most agreements require the parents to attend mediation before filing in court. 

4. Consult with a Family Law Attorney

If you are unable to address your issues on your own, consult with a family law attorney. An experienced attorney can provide legal advice tailored to your situation and help you understand your rights and options.  They can help prepare you for mediation and provide valuable information as to the pros/cons and costs of the court process so you can make an informed decision before filing anything in court.

5. Consider Mediation

Even if your Parenting Plan does not require mediation before filing in court, this alternative dispute option is an effective way to resolve disputes without going to court. A neutral third party can help facilitate discussions and negotiations between you and your coparent to reach a mutually agreeable solution. 

6. File a Motion for Contempt 

If your spouse continues to disregard the custody agreement, you may need to file a motion for contempt with the court. This legal action requests the court to enforce the agreement and hold them accountable for violations. Your documentation of the violations will be essential in this process. Contempt requires willful violation of an agreement and may result in limited remedies, including an award of attorney's fees.

7. Request a Modification of the Custody Agreement

If the current custody arrangement is no longer feasible or in the best interest of your child, you might consider requesting a modification of the custody agreement. This involves going back to court and demonstrating that a change is necessary due to substantial and material changes in circumstances.

Remember, the primary goal is to provide a stable and supportive environment for your child. Please contact our office to speak with a dedicated family law attorney. Our group of highly experienced attorneys are ready to help answer your questions and guide you through this process.

Possession of Firearms 2024 Legal Update

2024 FIREARM LAWS UPDATE

Since the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, which created a new legal test for assessing laws that fall within the Second Amendment, courts have decided several more cases that substantially affect gun rights in the United States. The Bruen legal test requires firearm regulations to be consistent with U.S. history and tradition. Following is a recap of some of the most recent and influential court decisions following Bruen.

Supreme Court upholds the federal firearm ban for domestic violence abusers in United States v. Rahimi:

On June 21, 2024, in an 8-1 vote, the Supreme Court upheld the federal law prohibiting any individual subject to a domestic-violence protective order from possessing a firearm. In United States v. Rahimi, the defendant was subject to a protective order for assaulting his girlfriend when police found him in possession of firearms. The defendant pled guilty to unlawfully possessing firearms under a protective order and then appealed on constitutional grounds.

The Supreme Court analyzed The Federal Gun Control Act of 1968 was enacted to prevent a person convicted of a domestic violence misdemeanor crime and a person subject to a domestic violence protective order from purchasing and possessing guns and ammunition. In his majority opinion, Chief Justice John Roberts refers to early English and American gun laws that have prevented individuals who threatened harm to others from using firearms. The Chief Justice compares these early laws to the Gun Control Act of 1968 and writes that “when an individual poses a clear threat of violence to another, the threatening individual may be disarmed.”

Supreme Court strikes down the ATF’s bump stock ban in Garland v. Cargill:

On June 14, 2024, the Supreme Court struck down the Bureau of Alcohol, Tobacco, Firearm, and Explosives’ (ATF) ban on “bump-stock” devices in Garland v. Cargill. A “bump-stock” is a firearm accessory that allows semiautomatic rifles to fire bullets at a similar rate as a fully automatic weapon. After authorities discovered bump stocks in the 2017 Las Vegas mass shooting, the ATF banned bump-stocks, classifying them as “machineguns.” In Cargill, the respondent surrendered his bump stocks due to the ATF’s new regulation and filed a lawsuit against the ATF. The respondent argued that the ATF exceeded its authority with the regulation.

After the Fifth Circuit Court upheld the constitutional challenges, the Supreme Court granted review. The Court held that a bump-stock did not meet the statutory definition of a machinegun. A firearm with a bump-stock does not fire more than one bullet by a single trigger and it is not automatic, two requirements for a machinegun. In striking down the bump stock ban as unconstitutional, the Supreme Court held that the ATF exceeded its authority in classifying a bump stick as a machine gun. 

Supreme Court sent case challenging “felon-in-possession” law to back to lower court in light of Rahimi:

The Supreme Court remanded the “felon-in-possession” challenge in Garland v. Range and sent the case back to the U.S. Court of Appeals for the Third Circuit for further consideration in light of its decision in Rahimi. The issue in in Range involves the constitutionality of 18 U.S.C. § 922(g)(1) as applied to Mr. Range. The defendant in Range plead guilty to a PA law for making false statements to obtain food stamps, which carried a sentence of up to five years in prison. 18 U.S.C. § 922(g)(1) prohibits a person from possessing a firearm if the person has been convicted of a crime with a maximum penalty exceeding one year.

Circuit Court Split on the “Felon-in-Possession” Prohibition

18 U.S.C. § 922(g)(1) bars any individual convicted of a crime punishable by imprisonment for more than one year from possessing firearms. There is now a split in the Circuit Courts on the application and constitutionality of the federal “felon-in-possession” law. In the Third Circuit, the court held that § 922(g)(1) could not constitutionally apply to the defendant who had a prior felony for making false statements to obtain food stamps as such prohibition was not consistent with U.S. history and tradition. The Ninth Circuit ruled similarly in a separate case, United States v. Duarte, holding that § 922(g)(1) was unconstitutionally applied to the defendant who had five prior, nonviolent criminal convictions under California law.

In contrast, the Seventh, Eighth, Tenth, and Eleventh Circuits have issued recent decisions upholding the § 922(g)(1) challenges. The focus of these cases will likely boil down to the nature of the underlying conviction – was it a violent or dangerous crime or not?

Other Second Amendment cases on the rise:

            Ghost guns:

            In Garland v. VanDerStok, the Supreme Court will decide (1) Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.

 Medical marijuana users and gun possession:

In Greene v. Garland, the plaintiffs are challenging §922(g)(3), which prohibits individuals who use medical marijuana from purchasing and/or possessing firearms and ammunition. The United States District Court for the Western District of Pennsylvania is set to decide the case, but no hearing date has been set.

Public carry ban:

In Novotny v. Moore, the plaintiffs challenged a MD state law that expands the areas where an individual is prohibited from possessing a firearm. These areas include health care facilities, restaurants, and private buildings opened to the public. The United States District Court of Maryland is set to decide this case, but no hearing date has been set.

Maryland “assault weapon” ban:

Additionally, in Bianchi v. Brown, the plaintiffs have challenged Maryland’s assault weapons ban as unconstitutional under the Second Amendment. The U.S. Supreme Court heard oral arguments in March. The decision remains pending.

Consult an attorney experienced in firearm laws:

The firearm laws are changing rapidly throughout the country. Since gun offenses can carry stiff penalties, including jail time, make sure that you speak with an experienced firearms law attorney so that you can ensure your compliance with national and local laws. Please contact our office to speak with a criminal defense attorney. These convictions carry collateral consequences that may affect immigration, employment, and receipt of public assistance.

Why do we use the phrase “court of competent jurisdiction”

Why do we use the phrase “court of competent jurisdiction” when referencing a court that will enter the qualified domestic relations order?

Most agreements we see prepared by other attorneys include a line such as “the parties shall promptly submit a qualified domestic relations order to a court of competent jurisdiction.” But what is that anyways, a “court of competent jurisdiction”?

As attorneys, we only seek to file for our clients’ divorce in a court that has both subject matter jurisdiction over the divorce and personal jurisdiction over the parties. Logically, that is a court of competent jurisdiction, because it has both the authority to make a decision and the means to enforce it upon the parties. However, it would appear that this is not the type of decision the Employees’ Retirement Income Security Act is referencing.

 
Specifically, ERISA 206(H)(i) states “During any period in which the issue of whether a domestic relations order is a qualified domestic relations order is being determined (by the plan administrator, by a court of competent jurisdiction, or otherwise), the plan administrator shall separately account for the amounts (hereinafter in this subparagraph referred to as the “segregated amounts”) which would have been payable to the alternate payee during such period if the order had been determined to be a qualified domestic relations order.”

So the court being referenced here must be one with the jurisdiction to determine if the domestic relations order prepared for the purpose of dividing the retirement account is a qualified domestic relations order. This distinction then begs the inquiry, what makes a domestic relations order qualified? According to ERISA, if the domestic relations order assigns to an alternate payee or recognizes the alternate payee’s right to receive benefits payable to a participant (ie: someone other than the alternate payee), relates to the provision of child support, alimony, or marital property rights to a spouse, former spouse, or other dependent of the participant, and is issued by a state or Tribal court (among other requirements) the domestic relations order is qualified. 29 USC 1056(d)(3).

If the order is qualified, then the plan administrator is required implement it and make payment to the alternate payee. If the order is not qualified, then the plan administrator is prohibited from implementing it.

Now that we know the distinction between a domestic relations order and one that is qualified, who determines whether it is qualified? ERISA 206(H)(i) above makes clear that the plan administrator or a court of competent jurisdiction will determine whether the domestic relations order is qualified. But does it matter which one makes the determination?

A domestic relations order, once entered by the court in the divorce case will be sent to the plan administrator for their determination as to whether the order qualifies. It is at this point that the plan administrator must begin to segregate the benefits for the alternate payee, pursuant to section 206(H)(i), above.

So if the plan administrator makes the determination, how could the question of whether a domestic relations order is qualified get before a court of competent jurisdiction? A plan administrator’s decision may be challenged, if either the participant or the alternate payee believes the plan administrator made a mistake. Usually there are administrative procedures to handle such a challenge, but once those are exhausted the issue could go before a court. That court would need to have jurisdiction over the plan to be able to decide if the plan administrator made the correct decision regarding the qualification of the domestic relations order.

Why does this matter? Let’s say the QDRO is for a pension, and at the time of the divorce the participant is already receiving benefits. This means that from the moment the QDRO is received by the plan administrator, all future payments must be divided for the alternate payee. If the plan administrator determines the order to be qualified and the participant objects, then pursuant to Section 206(H)(i), the plan administrator is required to continue to segregate the payments for the alternate payee through the final appeal of the question. Further, if the court of competent jurisdiction agrees with the plan administrator that the order is qualified, then all of the benefit that has been segregated for the alternate payee shall be paid to the alternate payee. This procedure ensures that the participant cannot challenge the plan administrator’s decision regarding qualification of the order in hopes of delaying the implementation of the order. It discourages disingenuous challenges by protecting the alternate payee’s benefit until such time that the decision is final.  

So, attorneys must have latched on to the phrase “court of competent jurisdiction” at some point and decided to use it in separation agreements.  Since it is not a defined term in ERISA, it is not necessarily wrong to use in agreements, because the agreement could be that the domestic relations order will first be submitted to a court with jurisdiction over the divorce and the parties. However, since it is not a term seen elsewhere, its use in separation agreements is not necessary.

If you or your client needs a QDRO, please give us a call at 240-396-4373 to discuss your case specifically and what you or your client needs.

What You Need to Know About Possessing Marijuana in the District of Columbia

            The District of Columbia (DC) is a jurisdiction that operates as a state but is interwoven with federal property where federal law applies. This is why it is important for you to understand DC’s marijuana laws to avoid exposing yourself to criminal liability. DC law does not apply once you set foot onto federal property. In addition, Rock Creek Park and the Metro are also places where the possession of marijuana is prohibited.

District of Columbia

Marijuana possession:

In DC, a person 21 years or older may possess, purchase, or transport two ounces or less of marijuana. Possession of more than two ounces of marijuana by anyone, regardless, of age, is still a criminal offense unless you possess a valid medical marijuana card. In addition, any person 21 years or older may possess, grow, harvest, or process within their principal residence no more than six cannabis plants. Note that DC has only legalized the possession of two ounces or less of marijuana. So, if you are in possession of more than two ounces, then you may be found guilty of a misdemeanor and may be imprisoned up to 180 days, fined $1,000, or both[ML1] . In addition, possession of marijuana with the intent to distribute and the distribution of marijuana, regardless of the amount, are still prohibited under DC law. If you are found committing either of the two mentioned crimes, you are subject to no more than 5 years in prison, up to $12,500 in fines, or both.

Transfer of marijuana between adults:

 The transfer of marijuana between adults 21 and older of one ounce or less of marijuana is lawful. The transfer of more than one ounce is still unlawful.

Medical marijuana:

DC acknowledges medical marijuana in a separate law, allowing medical marijuana to be consumed only at permitted areas, such as a patient’s home, another person’s home with permission, or medical facility. DC limits the possession of medical marijuana to eight ounces. Those who have an out-of-state, valid medical marijuana card may also possess and manage medical marijuana in DC.

Prohibition on smoking marijuana in public:

Whether you are smoking marijuana for medical or recreational purposes, DC still prohibits individuals from smoking in public areas. Public areas include a street, alley, sidewalk, parking area, in a vehicle in the mentioned areas, or any place where the public is welcomed. The punishment for smoking marijuana in a public area includes imprisonment up to 60 days, up to $500 in fines, or both.

Under 21:

Although DC has legalized medical marijuana and limited amounts of recreational marijuana, people under the age of 21 are still prohibited from possessing marijuana for recreational use. If you are under 21 years old and you are found in possession of less than two ounces of marijuana, you will be subject to a civil penalty of $25 and the marijuana will be seized. A person under 18 who possesses marijuana is subject to a civil penalty of $25. The Office of Administrative Hearings will mail a copy of the citation to the parent or guardian of the minor.  

Federal Law:

Although we see DC and other states legalizing possession of marijuana, possession of marijuana is still unlawful pursuant to federal law. The federal government prohibits any person from “knowingly or intentionally” possessing a controlled substance, including marijuana, unless the person obtained the substance through a valid prescription. If you are found in possession of marijuana, without any prior drug convictions, you will be subject to a year in prison, fined a minimum of $1,000, or both. However, if have a prior conviction, then you will be subject up to two years in prison, fined a minimum of $2,000, or both. The penalties are higher for possession with the intent to distribute and distribution of marijuana.

HERE is a non-exhaustive list of federal properties that you should keep in mind when carrying marijuana. Such properties include the National Mall, the White House, the federal agency buildings, etc.

It is important to understand that while DC permits people to possess marijuana, there are areas within the District that follow federal law, prohibiting and penalizing any individual found with marijuana on its property. Rock Creek Park is one such place, because it is designated as a national park and federal law applies.

President Biden’s Pardon on Possession of Marijuana:

On October 6, 2022, President Joseph R. Biden Jr.’s proclamation granted pardons for offenses related to the simple possession of marijuana committed at the federal level or in DC. To qualify for the pardon, you must be a U.S. citizen or a lawful permanent resident (“LPR”) who committed the offense of simple possession of marijuana or attempted possession of marijuana under the Controlled Substances Act (§21 U.S.C. 844) or DC Code §48-904.01(d)(1). You must have been charged, prosecuted, or convicted on or before the date of the proclamation. The pardon is not extended to other offenses related to marijuana or other controlled substances. You may review and/or apply for the pardon through the Department of Justice’s website by clicking HERE.

Consult with an attorney:

If you or someone you know is charged with a marijuana-related crime, it is important to consult with an experienced criminal defense attorney to preserve your rights and assist you throughout the process. Please contact our office to speak with a criminal defense attorney. These convictions carry collateral consequences that may affect immigration, employment, and receipt of public assistance.

Determining the Non-Marital Portion of a Pension

Pensions are hard to divide when the participant is not yet receiving the payments. Without knowing the amount of the benefit, how are the parties supposed to know how much was earned during the marriage, and thus the amount to transfer to the alternate payee?

States have determined what is referred to as a ‘coverture fraction’ or ‘marital share formula’ which resolves this issue. In Maryland it is referred to as the Bangs Formula, because that is the case that first figured out a version of this formula in Maryland (59 Md. App. 350, 475 A.2d 1214 (1984)). However, for Maryland attorneys it is important to remember that the formula was updated in Pleasant v. Pleasant, 97 Md. App. 711, 632 A.2d 202 (1993).

In Maryland, the Bangs Formula (as updated by Pleasant) is as follows: (1) the total monthly benefitreceived by the participant times (2) a percent times (3) a fraction. The fraction is defined such that the numerator (the top number) is the total number of months of service credited toward retirement earned during the marriage, and the denominator (the bottom number of the fraction) is the total number of months of service credited toward retirement as of a certain date.

Certain parts of the formula above are bolded. This is because those are variable based on which pension is being divided, or as the parties may agree. But, first to break down the entire formula.

(1) The total benefit received by the participant. Typically, this is the largest, unreduced amount earned by the participant. So this number is pre-tax, pre-division for any other QDROs (if applicable), and pre-deductions (if the participant is paying for health insurance deductibles, life insurance deductibles, or other benefits from their pension). Alternatively, the parties could agree to divide a smaller amount, such as the net amount after all of the deductions and withholdings are made. Not all plans will allow a division of any smaller amount, so it is important to get plan QDRO procedures in advance to make sure the parties are agreeing to an amount that can be implemented.

(2) A percent. This percent is the share of the marital portion that will be awarded to the former spouse. Typically this percent is 50%, however parties can agree to any percent they wish. Reasons parties agree to an amount other than 50% is to offset for another asset or decrease for the anticipated cost of survivor benefits.

Again here, not all plans will allow for an amount greater than 50% of the entire pension, or even 50% of the amount earned during the marriage to be transferred to the alternate payee. This is only a restriction on what the plan will pay to the alternate payee directly. It is not under any circumstances a limitation on the amount that can be awarded to the alternate payee. If the parties agree to award the alternate payee more than the plan will pay directly, then they parties must agree on a way for the participant to pay the additional amount directly to the alternate payee.

(3) A Fraction. The fraction is the total number of [unit of measurement] earned by the participant during the marriage divided by the total number of [unit of measurement] earned by the participant as of [insert date]. The result of the fraction will be the percent of the pension that was earned during the marriage.

Many retirement plans will use months of service that count as credit in the retirement plan as the unit of measurement. These plans are for the more typical types of employment such as teachers, government employees, executives, and skilled labor union members where the work is more predictable in terms of the effort is expended on a day-to-day basis.

Some plans have other units of measurement. For example, the reserve military members accrue retirement points based on drills completed throughout the year (or time served in active duty). Some months the member will earn more than others, and therefore counting the points earned, rather than months served is a more accurate means to determine how much effort was expended during the marriage to earn the marital portion of the pension. As an example, some reserve programs used to advertise as requiring only one weekend per month and two weeks during the summer. Using the points unit of measurement, the month in which the 2 weeks is served is properly weighted more heavily than the months in which only a weekend is served.

Finally, the date the parties pick can also alter the fraction. Picking the amount of service earned as of the date of the participant’s retirement may mean only the months of service actually worked and earned as credit in the retirement system will be used for the denominator of the fraction. Alternatively, picking the amount of service earned as of the date the participant begins to receive benefits may inflate the denominator to include unused sick or vacation leave accrued by the participant. Typically, a retirement plan’s QDRO procedures will not describe the plans’ default setting here, nor will it flag this as a potential area that the parties may change. Some plans may not allow for the parties to pick between these two dates and may require a certain date be used. As mentioned above, when in doubt (or just to double check), always ask for more information from the plan.  

If your case involves a pension division, the attorneys at Markham Law Firm are available to assist by drafting the retirement order (QDRO), consulting on the retirement division and drafting proposed language for a settlement agreement or proposed judgment of divorce, or consulting on certain plans.

Changes to Maryland’s DUI Laws Coming October 1, 2024 –Mandatory Ignition Interlock & Expungement of DUI PBJs

Maryland passed important legislation that will go into effect on October 1, 2024, that will affect some people charged with DUI-related offenses in Maryland. These changes affect driving under the influence of alcohol – not driving under the influence of a controlled substance or driving under the influence of a combination of alcohol and a controlled substance.

Expungement:

            Some DUI charges are now eligible for expungement. Previously, DUI-related offenses were not eligible for expungement unless the charge was dismissed, the accused was acquitted, or the case was placed on the STET docket. So unlike other criminal charges, a person who received a probation before judgment (PBJ) would be ineligible to expunge their case, even though a PBJ is not a conviction under Maryland law.

            The change in the law now allows a person to expunge a DUI where they received a PBJ 15 years “after the date the petitioner was discharged from probation.” Md. Crim. Pro. § 10-105(c)(2)(II). The new law only applies to charges under Md. Trans. Code Ann. § 21-902(a) and (b) for driving under the influence of alcohol. If the charge is a subsequent offense, or if the charge involved controlled substances other than alcohol (Md. Trans. Code Ann. § 21-902(c) or (d)), expungement is still not permissible. Similarly, if the person is convicted of a subsequent offense, other than a minor traffic violation, within 15 years after their discharge for probation from a DUI, they will be prohibited from expunging the charge.

Ignition Interlock:

            The ignition interlock program is now required for anyone who is convicted of or receives a PBJ for an alcohol-related DUI offense (§ 21-902(a) and (b)), or for anyone whose license is suspended for an accumulation of points for an alcohol-related DUI offense. Previously, courts had discretion whether to order ignition interlock in most cases for a person who received a PBJ for driving under the influence of alcohol.

            An ignition interlock device is a small breathalizer that is connected to a vehicle’s ignition to stop a driver from starting their car if the breathalizer detects alcohol. The device must be professionally installed by one of the Maryland Motor Vehicle Administration’s approved interlock providers. The list of approved providers can be found by clicking HERE. A person must participate in the ignition interlock program for 6 months for a first offense, one year for a second offense, and three years for a third or subsequent offense. The clock begins to run once the driver brings proof of installation of the device to the MVA.

            Once the MVA receives proof of installation of the ignition interlock device, the driver will be issued an interlock-restricted driver’s license. The driver is only permitted to drive a vehicle fitted with the ignition interlock device and will incur criminal and monetary penalties for failing to comply with the license restriction.

            It is important to consult an experienced criminal defense attorney if you have been charged with a DUI to protect your rights and advise you throughout the process.

Things to Know When Calling a QDRO Attorney

If dividing retirement assets as a part of their divorce, client will likely need to reach out to an QDRO attorney (if their divorce attorney does not prepare these orders). Many clients are hesitant during this call because they are already in a dealing with many life changes. To add to the amount of change, they need to add a QDRO attorney to their divorce team of professionals. Understandably, the whole process can seem quite daunting.

Here are some tips to help that conversation go smoother and to prepare the client for that call:

1. The QDRO attorney will need to acquaint themselves to the case that the client and their divorce attorney know very well. The QDRO attorney will need some basic facts about the marriage and the parties to get oriented. Such information will likely include the date of marriage, ages of the parties, jurisdiction of the case, and the negotiation or litigation status. Some attorneys may want dates of birth and social security numbers for both parties. Many plan administrators will require this information before sharing any general plan information with the QDRO attorney. Other QDRO attorneys will ask for this information only if it is necessary.

2. The QDRO attorney will also need to know basic information about the type of division(s) that are needed. For example, is it an equalization of multiple 401k-type accounts or is there a pension? The best information here is to be able to tell the QDRO attorney the name of the plans that will be divided, and/or the financial institutions involved.

3. Relationships. The QDRO attorney will likely want to know how is the relationship between the counsel or the parties. Is everyone cooperating so there will be a free flow of information, or will it be like pulling teeth to get information from the other side?

4. Timeline. Sometimes in highly contested cases the Court will issue a deadline by which they want any QDROs to be submitted after the Judgment of Divorce is entered. A good QDRO attorney should be able to provide a time estimate in the initial phone call so that the counsel can advise the court early if an extension will be necessary.

With the above information, a QDRO attorney should be able to have a substantive conversation with a new client.

For the clients or counsel who have not dealt with many QDROs, here are some questions to ask the QDRO attorney which can help gauge the attorney’s experience, but also to set expectations for the process:

1. What does the whole process look like from signing the retainer to the final transfer of the funds?

2. What is the timeline or anticipated time frame for each step of the process?  

3. Are there any additional steps that must be taken to finalize the transfer that are not covered in the QDRO attorney’s retainer?

It is important to remember that although the QDRO attorney will be reaching out to the retirement plan administrator directly and obtaining information about the plan in general the plan will not provide account specific information without the participant’s express approval. For example, if the balance of the account as of a certain date is needed, and the participant is not willingly sharing that information, the plan will not share that information directly to the QDRO attorney. All rules of confidentiality and safe guarding of each participant’s account still apply to the plan administrator. This is why the QDRO attorney can usually get information about the plan and their QDRO procedures in general, but not specific information about the participant’s account.

If you or your client needs a QDRO, please give us a call at 240-396-4373 to discuss your case specifically and what you or your client needs.

Understanding Brief Focused Assessments in Custody Cases

In contested custody cases, courts may order evaluations to assess the well-being of the child and determine custody arrangements. One such evaluation method gaining prominence is the Brief Focused Assessment (BFA). Let's delve into what BFAs entail, their purpose, and how they impact custody proceedings.

What is a Brief Focused Assessment?

A Brief Focused Assessment is a specialized evaluation method used in custody cases to gather targeted information about the family dynamics, parental capacities, and/or the child's needs. Unlike comprehensive psychological evaluations or custody evaluations, BFAs focus on specific issues or concerns raised by the court or the parties. These assessments are designed to be more efficient and cost-effective, providing timely insights without the extensive time commitment of traditional evaluations.

Purpose of Brief Focused Assessments:

The primary objective of BFAs is to provide the court or parties with relevant and actionable information to aid in custody decision-making. BFAs must have a referral question, meaning a specific BFA may explore issues such as allegations of abuse, substance misuse, parental alienation, or the child's particularized needs. By honing in on key areas of contention, BFAs streamline the evaluation process and help courts address pertinent concerns promptly and skip over less important factors. By way of example, if the appropriateness of each parent's home is not at issue, a home visit may not be conducted.

Process of Conducting a Brief Focused Assessment:

1. Initial Stage: The evaluator meets or speaks with the involved parties, and/or the attorneys, to discuss the purpose and scope of the assessment. They clarify expectations, gather background information, and identify the specific issues to address.

2. Data Collection: Through interviews, observations, and collateral information from relevant sources (e.g., therapists, teachers), the evaluator gathers pertinent data related to the identified issues. This phase may involve home visits, and reviewing documents, and is dependent on the issues being explored.

3. Analysis and Report Preparation: The evaluator synthesizes the collected information. They compile their findings into a concise report, outlining recommendations for custody arrangements or interventions as deemed necessary.

Benefits of Brief Focused Assessments:

1. Targeted Evaluation: BFAs focus on specific issues, avoiding the need for comprehensive assessments unless warranted, thus saving time and resources.

2. Timely Completion: By promptly addressing key concerns, BFAs expedite the custody process, reducing prolonged legal battles and minimizing the emotional strain on families.

3. Customized Recommendations: The focused nature of BFAs allows evaluators to tailor recommendations to address the unique disputes of each case, promoting child-centered outcomes.

4. Court Guidance: BFAs provide courts with valuable insights and expert opinions, aiding judges in making informed custody determinations based on empirical data and professional expertise.

Brief Focused Assessments serve as valuable tools. They may aid in settlement, or they may aid the judicial officer in determining the best interests of the child. If you are unsure whether a BFA may be right for your case give our office a call at 240.396.4373.