Ms. Markham Quoted on Advisor News regarding QDRO Review Fees

Click here to read the full article

“QDRO review fees do not apply to every account. IRAs and government plans do not charge review fees,” noted Jessica Markham, a divorce lawyer at Markham Law Firm in Bethesda, Md. “Only some employer-sponsored plan charge review fees.”

The best way to avoid these fees is to know about them in advance, Markham explained.

“Often, the divorcing couple is equalizing many plans and distribution can be taken from a plan that does not charge such fees,” she said. “Alternatively, some plans charge lesser or no fees if you use their model QDRO. For example, some Fidelity-managed, employee-sponsored plans charge $300 to use their online automated system in, and up to $1200 if you deviate from their system.”

Most attorneys that are preparing divorce agreement and QDROs don’t find out about these charges in advance which leads to problems later, when the financial advisor figures out his or her client is taking a potential $1,200 hit.

Markham has one way to deal with a high QDRO fee: “You can negotiate which spouse pays the fee.”

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Prenuptial Agreements

Potential clients often inquire about prenuptial agreements and why it may or may not be desirable or necessary to have one signed prior to getting married.

 

Prenuptial agreements are most often used to protect assets in the event of a divorce, but can also include a complete waiver or a cap on alimony, and can modify legal entitlement to assets in the event of death. 

 

A prenuptial agreement defines "separate" assets, which are those that are to be excluded from division by the parties in the event of a divorce. The definition of "separate" can be narrowly defined or broadly defined.  Separate assets can be limited to premarital, gifts or inherited assets. Or, separate assets can be defined to include any assets held by either party, regardless of whether the asset was accrued or obtained before the marriage or after.

 

Prenuptial agreements are popular among the “second marriage” crowd, particularly when the parties have accrued significant assets or have children from a previous union.  In such cases, a party may want to provide for his/her child(ren) in their estate planning and ensure that their assets go to their children as opposed to their new spouse. A prenuptial agreement can be a very effective way to do this. 

 

Prenuptial agreements can be as unique as the couples themselves. Life insurance, titling of current or future homes, retirement benefits and death benefits can all be addressed. 

 

It is recommended that both parties obtain independent counsel. One attorney cannot represent both parties in the negotiation and drafting of a prenuptial agreement. The agreement is premised on full disclosure and both parties must understand what they are signing. If you wish to learn more, or wish to have a prenuptial agreement drafted for you, please give us a call. 

Ms. Markham quoted in Woman's Day Article- 15 Signs Your Marriage is Stronger Than You Think

Health, both physical and emotional, can be a factor in whether one person in a marriage decides to call it quits. "Marriage is difficult under the best of circumstances," says Jessica Markham, attorney at law. "If one or both parties suffers from a mental health or mood disorder, including substance abuse, the normal stresses of marriage can become insurmountable. If both parties are emotionally healthy and/or treating their conditions, that's a really positive sign."

See the full article here: http://www.womansday.com/relationships/dating-marriage/g3075/signs-not-to-get-divorced/

Custody Evaluations: Are they Worth It?

        Custody evaluations are great tools that can be utilized in the context of a contested custody case, but they can be cost prohibitive.  The uses and benefits tend to outweigh the cost, which is why attorneys continue to request them. This article addresses "private" custody evaluations, which are privately retained by the parties, or are court-appointed based on one party’s motion or a joint motion. It is important to remember that some courts provide free custody evaluations, so in the jurisdictions that do so, they are highly sought after.

 

            What can custody evaluations be used for? Most simply, they are a single place to find information, and more importantly, a single report or witness to present as evidence or testimony to the judge. In terms of trial, it is much more efficient to present the evaluator and his or her report, rather than parading a child’s entire network of family, friends, and teachers through the courtroom.

 

            Custody evaluators also have the luxury of taking time to see how all the different pieces of information fit together, and ask follow up questions to get the full picture, and can present the information from a neutral, third party perspective. Judges, on the other hand, are forced to take the evidence as presented, and hope that the system of direct and cross examining witnesses has done enough to minimize any bias that exists in the witness.

 

            Custody evaluations are a full spectrum analysis, involving multiple issues, many interviews, and many hours to provide as complete an evaluation as possible. The process takes approximately fifty hours over the course of three to six months, at minimum. For cases in which the parents are farther apart in their beliefs of the child’s best interests, the process could take longer. Full custody evaluations can cost approximately $20,000 on the low end, but can easily be more costly.  The evaluation can be quite costly, but the result can often help determine the direction of the case.

 

            A second option for cases that have smaller, more limited questions regarding the children is a brief focused assessment, or specific issue evaluation. Topics that tend to lend themselves to a brief focused assessment include the child’s attachment level to each parent, relocation research, determining the child’s developmental level, and determining the child’s wishes. A brief focused assessment regarding the child’s wishes is a unique way to present the child’s desires without putting the child through the ordeal of testifying in court.

 

            These brief focused assessments can be completed in as few as four to six weeks, and cost closer to $5,000. These assessments are faster and less expensive because they are so narrowed in scope that the amount of people the evaluator must interview is significantly decreased, so the process moves much quicker. However, the brief focused assessments provide the same benefits to a judge, simply on a much more limited scale.

 

            Custody evaluations and brief focused assessments are performed by mental health professionals such as psychologists, psychiatrists, licensed clinical marriage and family therapists or licensed certified social workers-clinical (LSCW-C).

 

            In sum, despite the hefty price tag, it’s safe to say that custody evaluations, in one form or another, will continue to be used in family practice. Their benefits and uses are significant, and typically justify the associated costs.

Visitation Resistance

In separated and divorcing families we will often see cases where a child refuses to visit or have contact with one parent.  There are many reasons a child will give for the refusal, ranging all the way from serious abuse to one parent allowing more freedoms than the other.  The parent whom the child refuses to see may accuse the child-aligned of "parent alienation". In the 1980’s psychiatrist Richard Gardner coined the phrase Parental Alienation Syndrome (PAS).  Some debate exists about whether PAS is a syndrome in the classic term, which is capable of being diagnosed.  However, the phenomenon of parental alienation is typically defined as the psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent.  These cases can get difficult when the Court orders access between the parent and child and the child refuses to go or goes but acts out in protest while with that parent. 

In these cases, one tactic parties and the Courts have started to utilize is Reunification Therapy between the child and the alienated parent.    Reunification therapy involves both parents and the child in the therapy process.  Usually the therapist will meet with each party separately but will also have joint sessions.  Joint sessions between the child and the alienated parent focus on addressing cognitive distortions by the child, coaching the parent to interact more positively, and to avoid blaming and bashing of the other parent. 

To learn more about child visitation resistance contact the attorneys at Markham Law Firm today by calling (240) 396-4373.

Ms. Markham quoted in US News and World Reports article "6 Ways You're Wealthier Than You Realize"

Ms. Markham was quoted in US News and World Reports "6 Ways You're Wealthier Than You Realize"  The full article can be found here.

Jessica Markham, a divorce attorney in Bethesda, Maryland, says, "I'm in the business of finding assets and income. There are many, many types of assets and benefits and income that people often ignore."

Markham explains that employee benefits aren't often thought of as assets because many workers don't put much money toward them and, thus, rarely have reason to think about them. But if your employer is providing a benefit like disability insurance, Markham advises you to keep in mind that many self-employed people value them and end up having to purchase them on their own. If you don't have to do that, you have an asset many people covet.

"Another asset that people often ignore, is unvested pensions," Markham says. "In particular, young people are not concerned with pensions because retirement is so far away, and perhaps they have not reached the 10 year mandatory minimum for pensions to vest."

She adds that too many employees in their 20s don't value retirement benefits at all.

"They often have employers contributing to retirement funds on their behalf, and they simply change jobs and leave behind valuable 401(k)s. Because that was not their own money that they contributed, they believe it to be totally inaccessible, and so they don't think about it," she says.

Congratulations to Leslie Miller

Leslie Miller has just been appointed as the Treasurer of the Montgomery County Women's Bar Association.  In this role, she will also serve on the Board of Directors.  

http://www.mocowba.com/officers/

The Women’s Bar Association of Maryland (WBA) is an organization of women and men committed to the full and equal participation of women in the legal profession and in a just society. The WBA believes that a strong community of women in the legal profession is essential to the administration of justice. The mission and goals of the WBA are to: 

  • Promote and assist women to obtain positions of influence and leadership within their workplace, the legal profession, the judiciary, and the community; 
  • Raise awareness of and fight biases against women within the community at large, the legal profession, and under the law; 
  • Promote and effect diversity, equality and justice under the law and within the legal system; 
  • Support women in the legal profession in their personal and professional lives; 
  • Provide opportunities for volunteerism and advocacy on issues affecting women; 
  • Collaborate with other individuals and organizations to improve the status of women; 
  • Celebrate the individual and collective achievements of women in the legal profession; and 
  • Promote full and equal participation of women in society by eliminating all forms of discrimination. 

2016 Daily Record Leading Women Honor

Baltimore, Md., (October 6, 2016) — The Daily Record selected Ms. Markham to receive one of the 2016 Leading Women awards.

The Daily Record’s Leading Women awards honor 50 women who are 40 years of age or younger for the accomplishments they have made so far in their careers. A panel of previous Top 100 Women and Leading Women winners selected the honorees based on their professional experience, community involvement and commitment to inspiring change. 

  "The Daily Record's 2016 Leading Women are truly inspirational. Their professional accomplishments, community involvement and commitment to inspiring change exemplifies why they are Leading Women in Maryland," said Suzanne Fischer-Huettner, publisher of The Daily Record. "They excel to high levels professionally and personally, and The Daily Record congratulates them on this award." 

Healthcare Surrogates and Directives

End of life decisions can be difficult for most anyone, but infusing family dynamics can make the process that much more difficult.  Proper Health Care Directives can often help to circumvent any misunderstandings in the future.

A patient with capacity has a right to make his or her own medical decisions, including whether life-sustaining procedures should be used.  It is important to remember that a patient can be competent to make healthcare decisions despite suffering from a mental illness.

Healthcare Directives

Healthcare Directives allow for adults who have decision-making capacity to deal with future care issues by one of three methods:

1)  Written Instructions – Also known as a living will.

2) An agent – Also known as a proxy or durable power of attorney for health care.  A healthcare agent has authority to make a decision about life-sustaining procedures.  The agent is to make a decision consistent with the patient’s wishes or what is in the patient’s best interest, if wishes are unknown.  If more than one agent is designated in the healthcare directive, and those agents do not agree on a medical decision, the matter can be referred to Patient Advisory Committee (Ethics Committee).

3) Oral instruction – Must be made to the proper medical staff, witnessed and documented in the patient file.

Patients can revoke healthcare directives at any time and there is a strong presumption of competency when a person tries to revoke a healthcare directive.

Healthcare Surrogates

If a patient has not designated a healthcare agent, the court has not appointed a Guardian, and the person can no longer make healthcare decisions (as determined by 2 physicians) a surrogate has the authority to make the decision.  There is presumption of consent to treatment in an emergency.  Surrogates are asked to make ONE decision (i.e. will you consent to this surgery or can we transfer the person from a hospital to a nursing home).  Surrogates are not making health care decisions on an ongoing basis.

Individuals asked to make surrogate decisions are placed in a particular class and may be consulted only if the next higher in unavailable:

1)  The person’s guardian

2)  Spouse/Domestic Partner

3)  Adult child

4)  Parent

5)  Adult sibling

6)  Friend/Relative

Surrogate decision making is not valid if the patient has expressed disagreement about the treatment, even if the patient did not have capacity when expressing such disagreement.

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***

 

Breaking Down the Myths and Misconceptions of Common Law Marriage

I’m sure you’ve heard a statement like this one before: “If you live with someone for seven years then you’re considered married.”

Well…that isn’t actually true.

In fact only 11 states and the District of Columbia still recognize common law marriage.  Fewer and fewer states are recognizing common law marriage as it is a lot more difficult to prove than just simply living with someone for a certain period of time.

Disclaimer here: I can only specifically speak about the state of common law marriages in Maryland and the District of Columbia.

Maryland does not recognize common law marriage.  In order to be married in the State of Maryland you must do it the "traditional" way.  This includes obtaining a marriage license, having a marriage ceremony, and receiving a valid marriage certificate.

The District of Columbia does recognize common law marriage, but it isn’t easy to prove, especially if one person believes a common law marriage exists and the other person does not (this tends to be motivated by financial factors upon divorce).

In order to prove a common law marriage in the District of Columbia the following four factors need to be met:

(1) No impediment to the marriage;

(2) A present intent to be married to each other during the marriage;

(3) Cohabitation; and

(4) The parties hold themselves out as husband and wife in the community.

The second factor is the trickiest.  A present intent to be married to each other during the marriage actually means that in the absence of an actual ceremony, during the marriage, the parties had to acknowledge a present intent to be married to each other, and not a future intent to be married (i.e. being engaged).  

The lesson here is a simple one, if you live in the District of Columbia, it is much easier to just go ahead and get married with a license and a ceremony, because it’s going to cost you a lot more money to prove that you have a common law marriage then if you just have a marriage certificate upon divorce.  

And just remember there’s no such thing as a common law divorce…

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***

 

Collaborative Law

Civil litigation is expensive, time consuming, and emotionally draining; but it does not have to be this way.  Many forms of Alternative Dispute Resolution (ADR) exist to avoid going to court, save time and money, and reduce the stress of legal proceedings. One such form of ADR is collaborative practice. Collaborative practice opens the door to a more holistic form of representation.

In addition to the general ADR benefits, collaborative practice also encourages mutual respect, keeps the parties in control of the process and seeks to solve problems through interest-based discussions to find mutually agreeable solutions that are the most efficient and create the best all around agreement. The collaborative approach shifts the focus of the representation to the parties’ underlying interests, needs and objectives, finding the best route to satisfy the parties’ mutual goals while following all ethical obligations.

But first, what is Collaborative Practice?

Collaborative Practice is a form of ADR that requires transparency between the parties, attorneys, and any coaches (mental health professionals to guide the parties), financial specialists, child specialists and any other “team” members, an agreement not to litigate, and a commitment to respect the shared goals of the parties. The means of reaching the end goal of a divorce is to cooperate to find the best solution for every issue involved, rather than the best that any one party could get from a judge.

Sounds great, so what’s the catch? To start a collaborative process, the parties, attorneys, and rest of the team must sign a participation agreement stating that each professional team member’s participation in the process is limited – that is to say that any attorney a party hires for collaborative may only participate as a collaborative attorney. If the process fails and the case proceeds to litigation, the parties must find new counsel, and the collaborative attorneys must transfer the case to the new attorneys, and most of the collaborative process remains confidential. This limitation applies not only to the attorneys, but entire professional team including coaches, financial experts and child specialists, if retained.  

How do you tell if collaborative is the right method for a case? The crux of collaborative practice is trust and transparency within the team; therefore, one spouse cannot intimidate the other. Such a relationship could lead the intimidated spouse to simply agree with the other, rather than voicing his/her own opinion, thoughts and interests. In a setting where sharing is so important, the intimidation must be overcome. Additionally, the parties must be reasonable and willing to see the process as something other than a ‘if you get this, then I get that’ system. Rather than breaking down each aspect of the marriage and splitting it between the spouses, the collaborative approach finds the best solution for each aspect and the team works to combine the best solutions and the parties’ goals into one agreement.  

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***

 

What is a DeFacto Parent and what does it mean?

       Although slow on the uptake, Maryland has finally gotten on board with giving de facto parents custody and visitation rights with their (non-biological) child. Let’s break it down – what is a “de facto” parent? A de facto parent is a person who in all senses acts, appears, and is understood by the child, the parent, and society at large to be the child’s parent. However, there is always a catch – here it is that the parent is not actually related to the child, biologically, or legally such as through adoption. Previously, Maryland held that in such circumstances, the biological or adoptive parent had absolute rights over the child in terms of custody and visitation, and could cut off access to the non-related parent.

            Imagine a non-married couple of 5 years gives birth to a beautiful baby girl. The child is biologically related to one parent, but not the other. They name the child with both last names, send out birth announcements together, and hold themselves out in the community as equal parents, such as going to the parent teacher conferences together, sharing transportation of the child to events, and playdates, and sharing in the child’s care at home with cleaning, mentoring, education, and homework, etc. For some reason, when the child is 7 years old the relationship between the parents sours, and biological Parent A moves out, taking the child. Non-biologically related Parent B seeks to continue the relationship with the child, but is blocked by Parent A.

            Parent B can seek to establish de facto parent status, which would result in a court Order to allow Parent B visitation and/or custody of the child, just as Parent B would be able to do if s/he was a biological parent.

            Parent B must first establish that s/he satisfies the 4-factor test:

        1.    Parent A (the biological parent) consented to the establishment of the parent-like relationship between the child and Parent B;

           2.     Parent B and the child lived in the same home;

           3.     Parent B assumed the obligations of parenthood without the expectation of financial compensation from Parent A; and

        4.   Parent B has been in a parental role sufficiently long enough to create a bonded relationship that is parental in nature.

        Once Parent B satisfies the 4-factor test, then s/he must prove that it is in the best interests of the child to have a parental relationship with Parent B. The 4-factor and best interest test is not easy to prove, though it can be done.

        Courts want to keep parents in a child’s life if that parental relationship is going to be beneficial to the child.  However, the Court will make sure that it is only awarding custody and visitation to people who are truly parents, by the intent of Parent A, function Parent B, and the intent of Parent B. Courts will be extremely careful only to award custody and visitation to a person who was truly a parent in the past and present, and intends to remain a parent in the future.

            This is a new and burgeoning area of Maryland law. The information explained here is to present the new law in Maryland, which is likely to change and evolve as cases arise.

 

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***