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What is Nesting?
Unlike typical shared parenting time agreements, which have children traveling back and forth between each parent’s home, in a nesting agreement, the parents alternate spending time in the family home (the nest), and the children stay put.
In most cases, separating parents who opt for nesting see the arrangement as a temporary fix for the benefit of the children. Eventually, each spouse will need his or her own home to live separately with the children. Separating parents may opt for nesting if they cannot afford to support two households, if they are still working out their final divorce settlement, or if they want to delay any potential disruption to the children. If used, nesting should only be a temporary arrangement. Nesting may help children through the separation because it allows the children to temporarily stay in the home to which they are accustomed.
There are few options for parents when it comes to nesting. Some separating parents opt to share or have separate rental accommodations. Others will stay with family or friends. Some will organize a combination of each option when they are not with the children.
The most obvious benefit of nesting is financial. Couples who reside together can save money when they only have to support one family home. If the plan is eventually to sell the family home, nesting can be a beneficial financial decision because couples can nest until the housing market is favorable to their needs or until other ancillary matters are resolved. Sometimes, nesting is necessary for couples that need time to reestablish themselves financially before they sell the family home. Arguably, the emotional benefit of nesting for children is maintaining the children’s stability while the parents work through their differences, and avoiding any abrupt changes for the children.
There are, however, considerable downsides of nesting, particularly for extended periods of times. For instance, couples may struggle to move on with their lives after separating if they are continuing to share living spaces. For separating couples that do not communicate well, nesting can be complicated because it requires the couple to agree on the continued maintenance of the home and the nesting schedule. Further complications may be added when the separating spouses have started dating new partners. There may be privacy concerns for any shared spaces in the nest. Nesting, even for a temporary period, is not recommended for couples going through contentious litigation.
For separating parents who communicate well enough to share spaces, nesting can be financially and emotionally beneficial, in the short term, for both the children and parents. Of course, it is vital that nesting couples have a written agreement outlining the parameters of the nesting situation. If you are interested in exploring a nesting arrangement or looking for legal representation in your divorce, reach out to Markham Law Firm today at 240-396-4373.
QDRO Corner: Federal Pension Plans
There are 34 federal pension plans (according to a 1996 report by the General Accounting Office). Of these pension plans, approximately 97% of the federal workforce participate in either the Federal Employees’ Retirement System, Civil Service Retirement System, or the military pension system.
Each plan has its own set of rules for vesting, contributions, and division upon divorce. The plans also are maintained by different agencies. For example, the Office of Personnel Management manages FERS and CSRS, whereas the Defense Finance Accounting Service manages the military pension system, and the Department of State manages the Foreign Service Pension Systems. If you represent a person who has worked at any time for the federal government (as a civilian or military member) or their spouse, it is very important that you have them look into the benefits available to them.
While approximately 97% of the federal workforce participate in one of the three plans listed above, the federal workforce is very large, so it is quite possible you may represent someone in the remaining 3%. Other common plans in the DC Metropolitan area include the Foreign Service Pension System and the Federal Reserve Plans.
Many of these plans will also allow the interest to be transferred from one plan to another, should the employee work for an agency and accrue interest in one plan, and then transfer agencies and begin to accrue interest in another plan. In a settlement agreement, it is important to address the possibility of the employee consolidating their interest into one plan, and if representing the employee, to address whether any of the interest is pre-marital.
If you think you have a client or an opposing party with a federal pension plan and need assistance determining the possible benefits or what can be divided by a court order, we can help .
Divorce and Frozen Embryos in Maryland
When a relationship dissolves, disputes may arise over cryopreserved embryos that the couple preserved during the relationship. In early 2021, a California judge ended a six-year-long legal battle between actress Sofia Vergara (of Modern Family fame) and her former fiancé over embryos the couple created during their relationship. The California judge in Vergara’s case ruled that she and her ex-fiancé must obtain each other’s written permission in order to use the embryos. In Maryland, the Court of Special Appeals recently issued an important decision on embryo disposition in Maryland. The appellate decision in Jocelyn P. v. Joshua P. addressed an issue of first impression in Maryland, and has now clarified the legal landscape for embryos disposition at separation or divorce. Notably, ART is common in Maryland, which ranks among the top quarter of states with the highest rates of ART usage.
In Jocelyn P., the lower court aligned with the California judge’s approach in Vergara’s case, which was ultimately overturned by the Maryland appellate court. The lower court’s approach is commonly referred to as “contemporaneous mutual consent,” and requires both parties to agree before anything can be done with frozen embryos. The Maryland appellate court instead outlined a “blended contractual/balancing-of-interests approach,” finding that, “courts should first look to the preference of the parties in any prior agreement expressing their intent regarding pre-embryos” and, in the absence of such an agreement, “courts should seek to balance the competing interests.”
The most impactful language came from the appellate court’s discussion about ART contracts. The court condemned “boilerplate language” and held that “as matter of first impression, progenitors, not fertility centers, must expressly and affirmatively designate their own intent with respect to disposition of pre-embryos.” The court further held that “boilerplate language in third-party form contracts that lack expression or direction from the progenitors will not qualify as express agreement regarding what to do with pre-embryos.” The appellate court is directing parties engaged in ART to create clear contracts stating their plans for preserved embryos in the case of divorce or separation. Anything less, such as personal and inarticulate contracts, will no longer suffice to control the disposition of cryopreserved embryos.
Regardless of the lower court’s outcome for Jocelyn and Joshua when addressing this new case law on remand, the appellate court opinion exemplifies the importance of creating a clear contract addressing ART, which frequently arises in the family law context. At Markham Law Firm we continue to stay knowledgeable about recent family law decisions from our courts of appeal. Do not hesitate to reach out today at 240-396-4373.
Guardianships and Britney Spears: What is #FreeBritney About?
On June 23, 2021, Britney Spears spoke openly in court about the conservatorship that has controlled her financial and personal life for the past thirteen years. Spears’ testimony was powerful. She shared that under the conservatorship she is forced to have an IUD even though she would like more children, and that in the past she was forcibly given medications, such as lithium, that further limited her ability to function autonomously. Unsurprisingly, Spears referred to the conservatorship as “abusive,” and her testimony further ignited the #FreeBritney movement, which has protested Spears’ conservatorship for over a decade. So, what is a conservatorship and how is it legally allowed to restrict Spears’ autonomy?
In Maryland, unlike California, conservatorships are termed guardianships. To initiate a guardianship in Maryland, a person (typically a family member or close friend) must petition the court for guardianship over another. The petitioner must show that guardianship over the person or property is the least restrictive means available to assist the individual. The court must find that the individual is unable to manage his or her own affairs (personal or financial) due to a disability or minority. Qualifying disabilities range from age to mental illness. Spears’ father, Jamie Spears, originally petitioned the California court for conservatorship over Spears due to mental illness after the highly publicized incidents in which Spears shaved her head and attacked a paparazzi’s vehicle.
There are two types of guardianships: guardian of the person and guardian of the property. The court can determine that an individual with a disability needs one or both types of guardians. Spears’ conservatorship concerns both her person and her property.
Although Spears appeared in court on June 23, she has not petitioned the court to end her conservatorship. Instead, Spears previously asked the court to permanently remove her father, Jamie Spears, who temporarily relinquished his authority citing to illness. The court ultimately denied Spears’ request. While an individual living under a guardianship can assert objections throughout the process, the court decides who to appoint as guardian.
Spears’ opposition to her conservatorship is not unique. Oftentimes, individuals will oppose their own guardianships, in which case a trial is held, and the court must decide if the guardianship is necessary. Some guardianships are voluntary, but many are not the choice of the individual living under the guardianship, a conflict that is inherent to the concept of guardianship. Thus, Britney does not have the power to #FreeBritney, rather the decision to do so is within the purview of the court.
At Markham Law we handle guardianship matters with the utmost care and compassion—reach out today at 240-396-4373 with any of your Maryland guardianship needs.
QDRO Corner: Cost of Survivor Benefits
Most pension plan survivor benefits come at a cost. The reason for this is because most pension plans determine the benefit amount assuming that the payment will be made only during the life of the retiree. In order to extend payments for an additional life, the plan will decrease the monthly benefit to apply those funds toward the survivor benefit. To be clear, this cost is taken by the plan as a deduction each month from the monthly pension benefits.
Things to consider regarding the cost of the survivor benefit.
The larger the survivor benefit, typically, the larger the cost. Some plans determine the cost actuarily while other plans have a set fee schedule.
How does the cost for the survivor benefit get paid? There are two ways that plans can take the cost from the parties, the first option is as a reduction to both or either party’s monthly benefit and the other is ‘off the top’ of the monthly benefit.
Reduction to both or either party’s benefit. Under this scheme, the parties can determine whether one party pays the entire cost, or if they will share the cost equally. This scheme results in the plan taking the cost AFTER the monthly benefit is divided between the parties.
Off the top. Under this scheme, the parties cannot allocate the cost of the survivor benefit to either party. The plan takes the cost of the survivor benefit BEFORE dividing the monthly payment between the parties. In essence, this results in the parties paying their proportional share of the survivor benefit. If the parties want to shift the cost, they’ll have to determine an equalizing payment to be made on a monthly basis between themselves, separate from the QDRO.
Some plans provide a certain amount of survivor benefits without any cost, but will charge a very high cost for any survivor benefit amount above the free survivor benefit amount.
If you don’t know if there’s a cost, it’s best to reach out to the plan in advance of signing an agreement. You’ll be able to find out if there is a cost, what the cost is, and how the plan requires the cost be paid. Such information can help the parties determine whether the benefit is worth the cost, and can save the parties from negotiating for this after everything else is resolved.
If you have any QDRO questions, please reach out to Beatriz Giglioli at bgiglioli@markhamlegal.com
What we know about the high-profile Bill and Melinda Gates divorce
On May 3, 2021, in what may be Twitter’s most famous divorce tweet of all time, Melinda French Gates and Bill Gates announced that they are ending their marriage. Bill Gates is the fourth richest person in the world, with a net worth of approximately $124 billion. The Gates’ settlement of marital property could be the largest of all time. Understandably, the Gates desire to keep the details of their high-profile divorce private. One month into the Gates’ announcement, here is what we do know about this multi-billion-dollar divorce.
Each party will be represented by at least three law firms, including attorneys versed in Washington State family law. One of Melinda French Gates’ attorneys is celebrity divorce lawyer Robert Stephan Cohen.
Melinda French Gates could become the second richest woman in the world after the divorce is finalized. In fact, on the day the couple announced their separation, Bill transferred $2.4 billion dollars in securities to Melinda, officially making her a billionaire separate from her husband.
Melinda French Gates is not asking for alimony. Instead, she will likely receive billions of dollars in assets—similar to Mackenzie Bezos, who received a four percent stake in Amazon (worth $38 billion), when she divorced Amazon founder and the richest man in the world, Jeff Bezos.
The couple has no minor children. The youngest Gates child is 18, suggesting that the couple may have waited for her to reach legal adulthood before divorcing.
In 2017, Bill Gates announced that each his three children would inherit $10 million of his fortune, but there is speculation that Melinda French Gates is attempting to increase that amount in the couple’s settlement.
While there is speculation that the Gates had a prenup, their separation agreement will likely supersede the terms of any premarital agreement.
In addition to billions of dollars in Microsoft stock, the Gates’ divorce will divide the couple’s real estate, which is worth $170 million and includes their 66,000 square foot home outside of Seattle, Washington.
The Gates’ art collection is worth $124 million and includes works by artists from Leonardo da Vinci to Winslow Homer. The collection could also be divided in the divorce settlement.
Although the Gates announced their divorce in 2021, it is rumored that Melinda French Gates hired divorce lawyers in 2019 when news broke about her husband’s alleged friendship with convicted sex offender Jeffery Epstein.
While the Gates are divorcing, they will both continue to devote time to the Bill and Melinda Gates Foundation which aims to reduce disease, poverty and inequity worldwide.
Those are the highlights of what we know so far about Bill and Melinda Gates divorce. Dividing 27 years’ worth of monetary and non-monetary contributions to a marriage is no simple task.
If you are considering separation or you are involved in a divorce in Maryland or the District of Columbia, contact our team at Markham Law Firm at 240-396-4373. It is vital that you secure highly competent legal representation even if your assets do not include a da Vinci.
QDRO Corner: Oh, what’s in a name?
In order for a QDRO to be accepted by the plan, it must refer to the plan by its proper name. It’s a simple rule but is easily violated. Plan names may appear on the regular account statement, in an online portal account, in the employee handbook/benefits statement, and in correspondence between the employer/plan and the employee. However, some of these sources may refer to a plan by an old name, or a shortened version of the name. In addition, some plans may be known generally by the name of the umbrella plan, but there are subplans and the specific subplan name must be included in the QDRO.
One large plan in the Maryland/DC area that is quite particular about this is the Maryland State Retirement and Pension System. This is the plan in which public school teachers in Maryland participate. Based on when the teacher started working for the state and a few other criteria, the teacher could be a participant in the Teachers’ Retirement System or the Teachers’ Pension System. Getting this one-word difference wrong will result in the State rejecting the order.
The best way to avoid this simple error is to obtain a statement of the plan and compare the name listed there to the plan name listed in the Summary Plan Document (which can be obtained by calling the plan and asking for it). When drafting agreements or seeking a share of a retirement benefit in court, be sure to use the correct plan name for the best specificity. This will delay any ambiguity for the QDRO drafter.
Wait! Before you file your custody case, remember to consider if the Hague Convention on the Civil Aspects of International Child Abduction applies.
The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) governs custody jurisdiction between countries. It is an international treaty that has been ratified with the United States by nearly 80 countries. Most recently, Pakistan and Jamaica have ratified the Hague Convention with the United States.
All family law practitioners should consider whether or not the Hague Convention applies to an international family law case. It is an essential step in any case involving international children. If the left-behind parent submits to the local jurisdiction, Hague Convention claims may be impacted.
Let’s examine the following example. You have a family that lived together in Ecuador. The father moved to the United States. The mother and child continue to live in Ecuador. The mother agreed for the parties’ child to visit the father in the United States for three months during the summer. Three months have passed, but the father has not returned the child to Ecuador. Three more months have passed and the father files for custody in state court.
In the above example, if the mother files an answer to the father’s custody case in state court, she has submitted to the state court’s jurisdiction. Before filing an answer, she should consider her alternative legal options, including the Hague Convention. In this frequently occurring scenario, it is essential that both parties are advised on the possibility of a Hague Convention case and the consequences for bringing the claim or not bringing the claim.
So how do you know when you should consider the Hague Convention? You should ask the following questions:
1. Are there two countries involved?
2. Have the two countries ratified the Hague Convention with the other?
3. Where is the child’s habitual residence?
Practice Note: In 2020, the Supreme Court of the United States established the habitual residence test that applies in the Unites States.
4. Did one parent remove the child from the habitual residence, retain the child in the United States, or state that he or she will not return the child after the agreed limited time in the United States?
5. When did the retention or removal occur?
Practice Note: There is an important one-year deadline to consider from the date of the retention or removal.
6. Does the left-behind parent have rights of custody under the laws of the habitual residence?
Practice Note: This is a legal question that should be determined in consultation with a legal professional in the country of the habitual residence.
7. Was the left-behind parent exercising his or her rights of custody at the time of the removal or retention?
If you answered yes to the most or all of the above questions, then you should consult with an experienced attorney regarding the Hague Convention.
Hague Convention cases are unique and increasingly more frequent. The cases are unlike family law cases in many respects. A Hague Convention return case can be filed in federal court or state court. The treaty contemplates that the case from start to finish will be completed in six weeks. Time is therefore of the essence. Which country has custody jurisdiction can have a long-lasting impact on families and their cases.
There may also be alternative legal routes to consider if, for example, you have a custody order from another country. In addition to a Hague Convention return case, you may want to consider a Hague Convention access case or registration and enforcement of a custody order. Stay tuned for the next blog on registration and enforcement under the Uniform Child Custody Jurisdiction and Enforcement Act.
This information is not a substitute for legal advice applicable to your case. Consult an attorney with respect to your circumstances. If you have questions, please reach out to Leah M. Ramirez, Esquire at lramirez@markhamlegal.com.
QDRO Corner: Survivor Benefit and Beneficiary Elections
Defined benefit plans allow for a participant to elect to provide a survivor benefit. A survivor benefit is a monthly payment to a survivor which begins upon the death of the plan participant. In Maryland this is a separate benefit from the participant’s retirement benefit and must be requested and treated as a separate asset in court or when negotiating a settlement.
A participant must make an election at retirement (or sooner) if the participant is going to provide a survivor benefit for a spouse. However, this election is not reliable for a former spouse expecting to receive a survivor benefit in the future. This is true for a few reasons:
First, some plans, like the CSRS and FERS will automatically terminate survivor benefit elections made prior to a divorce, even if the participant is already retired and in pay status. (Typically, once a participant is in pay status no changes can be made to a survivor benefit election).
Second, if the participant is not yet in pay status, then the election form can be voided by the participant, and a new election made either for someone else, or for no one else. (Typically, a participant can change their survivor benefit elections at will prior to retiring, or going into pay status).
Third, some plans require that a survivor benefit be provided for a current spouse, unless waived. If the participant remarries without a COAP in place, then the plan rules may require a survivor benefit for a new spouse.
It is important that even if the former spouse is only awarded a survivor benefit from the participant’s defined benefit plan that the former spouse get the benefit secured by a COAP or QDRO. The QDRO should explicitly state the benefit for the former spouse, and be submitted timely with the divorce to limit the opportunity for problems. If you want to know if your QDRO language is clear, please reach out and we can review your Order.
If you have any QDRO questions, please reach out to Veronica Dulin at vdulin@markhamlegal.com.
QDRO Corner: Fees Related to QDRO Preparation and Implementation
In the general process of having a QDRO prepared and implemented, there are more fees than just the fee to have the Order drafted by the attorney. These fees can add up to a substantial amount of money, and therefore it is important to address them at least generally in an agreement.
In total, the fees can include:
1. Drafting Attorney’s Fee
2. If the drafting attorney represents only one party, then the other party will likely incur fees to have an attorney review the QDRO on his/her behalf
3. Court fees to obtain the certified copies
4. Postage to mail or otherwise deliver the certified copies to the Plan
5. Review fee charged by the Plan
What is the review fee charged by the Plan? Plans of course have their own attorneys or other trained staff review submitted QDROs to ensure that if implemented, the Plan remains within compliance with ERISA or other laws regulating their plan, and within the rules of their plan. The Plan is allowed to pass these fees on to plan participants if the fee is published so that the participant has notice of such fee in advance. Note, the amount of the fee is not required to be published, only the fact that there is a fee and that it may be passed on to the participant.
Fees typically range from approximately $300 - $2,400 per order and are determined by the Plan. The fee is not paid out-of-pocket by the participant, but rather the fee is taken from the participant’s account during the transfer or review process.
Many plans will allow for this review fee to be transferred entirely to the alternate payee, or to be shared between the parties. If this fee is not addressed in the QDRO, plans typically will default to charging it to the participant, or rejecting the order for vagueness. It is best to contact the plan while still negotiating the agreement so that this fee can be addressed as a part of the larger agreement.
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