What is Coercive Control?

Many people are familiar with the phrase domestic violence but may be less familiar with the phrase coercive control. Put simply, coercive control describes patterns of abuse that are subtle but can be as harmful as physical violence and verbal abuse. Many victims and survivors of coercive control may develop mental health issues as a result of the abuse.

Coercive control may look and feel different in every relationship and family. Abusers who engage in coercive control may use threatening and intimidating behavior to exercise power and control over their spouse, children, and family members. Some examples of coercive control include, but are not limited to: 

• Isolating the spouse from his or her family and friends

• Limiting the spouse’s access to marital funds and financial information

• Closely monitoring the spouse’s whereabouts or daily routines

• Closely monitoring the spouse’s phone activity and social media accounts

• Humiliating the spouse, including name-calling

• Damaging the spouse’s belongings or home

• Threatening violence against the spouse’s family or friends

Where the abuser and primary victim have children, it is unlikely that those children remain unaffected. This impact occurs even when the abuser intends no harm to the children. Children who witness coercive control in their parents’ relationship may feel scared, distressed, anxious, or distrustful of their parents. Some children feel pressured to take sides and feel responsible for their parents’ conflicts. Other children may feel obligated to take care of the abused parent, which may alternate the parent-child dynamic. Witnessing coercive control in their parents’ relationship has the potential to create substantial psychological issues in children.

If you are searching for compassionate legal representation in your separation or divorce, please reach out to Markham Law Firm at 240-396-4373 to schedule a consultation. 

QDRO Corner: Military Orders – When You Need Additional Information

Representing military service members can come with a lot of extra considerations, only one of which is the division of any disposable retired pay. Depending on the service member’s service record, date of entry, and duty status, you might want to include additional information in your Agreement to make sure all information is obtained before signing.

Specifically, for a service member who is not yet retired nor receiving disposable retired pay, the Order must include the service member’s high-3 and years of creditable service (or creditable reserve points). It’s best to obtain this information while still negotiating the agreement, or in your discovery requests if in litigation.

To determine the service member’s high-3, you’ll need to know the pay grade for the highest 36 consecutive months during the marriage and date of entry.

To determine the amount of creditable reserve points earned, the service member can download a statement reflecting not only the amount of points earned each year, but the specific dates on which the service member performed the drills to earn those points. This detailed statement is especially helpful if the service member earned points prior to the marriage that should not be included in the division to determine the former spouse’s share.

If in litigation, you should request this information in your discovery requests, and if negotiating, you should request it in informal discovery.

In contrast, if the service member is already in pay status, then you don’t need to obtain the information listed above.

Have additional questions about military orders as it relates to a QDRO? Contact our office at 240-396-4373.

QDRO Corner: FERS Disability Retirement

Last month we discussed the military pension disability retirement – this month we will focus on the FERS disability retirement, for all the federal government employees we represent.

Unlike with the military pension, there is some negotiating that can happen with respect to FERS disability pensions. First though, how FERS disability works. The employee receives the greater of their regular FERS annuity or a percentage of their high-3 average salary less a percentage of their social security disability benefits (see OPM publication for more information regarding the calculation). 

At age 62, the employee’s annuity is automatically recalculated to be as if the employee continued working until the day before their 62nd birthday, including an extension of their service time and cost of living adjustments applied to their salary computation during the time that the employee was received disability benefits.

The FERS disability benefits received prior to age 62 are divisible by Court Order and there are points to negotiate on this. Specifically, how the former spouse’s share of the pension should be calculated during the period that the employee is receiving disability benefits. If the Court Order states the award to the former spouse as a portion of the employee’s annuity without any specific distinction for disability benefits then the former spouse will receive a share of the payments actually made by OPM to the employee.

Alternatively, the Court Order could state that the former spouse’s share can be defined that if disability payments are made, the former spouse’s share shall be calculated as if the employee is paid their full FERS benefit.

Since the employee’s benefit could be reduced based on the amount of social security benefits while receiving FERS disability, this could be a financially important distinction for the former spouse. While such a division would likely result in a larger reduction to the funds received by the employee while on disability, the employee will receive social security benefits, which are non-divisible.

QDRO Corner: Military Disability Retirement

Here in the DMV, we represent a large amount of military service members. As such, we see the military pension (disposable pay) frequently, along with military disability pay. Military disability is paid through the Department of Veterans Affairs and is not taxable income and is not divisible in a divorce.  

This is an important distinction not because there is anything that can be done about it when negotiating a settlement, but to set good expectations for your client. When a military member is receiving regular disposable pay and has a disability rating that makes them eligible for disability pay, it is solely the member’s option whether to receive the funds as disposable pay or disability pay. This option cannot be waived by the member in a separation or divorce agreement.

If the member has a disability rating less than 50%, the only way to receive disability is to waive an equal amount of disposable retired pay, i.e.: the member will receive the same amount of gross funds each month, but the amount that is disability will not be taxed, therefore netting a larger amount. This decision impacts the former spouse because the member can decide to receive disability pay, thereby increasing their own income by avoiding taxes, and lowering the former spouse’s income by decreasing the amount of disposable retired pay available for division. Note, there is no way to draft around the member’s option – the only way to try to equalize is to take from a different asset.

If the member has a disability rating of 50% or higher, they may be eligible for Concurrent Retirement and Disability Pay. This program allows eligible members to receive their full disposable pay, as well as disability pay without waiving any of the disposable pay.  

The amount of disability received from the Department of Veteran’s Affairs can change based on periodic re-evaluations. If the disability rating changes, the amount of disability received will likely change. The amount of disability received will only change if the disability rating changes.

Stay tuned for next month’s QDRO Corner about FERS disability pay for federal government employees!  

QDRO Corner: A Military Special Rule

The Military has a special rule which dictates when the Department of Finances and Account Service (“DFAS”) or any other pay center may make payments of disposable retired pay (the military pension) to a former spouse. This rule is generally known as the 10/10 rule. This rule states that the parties must have been married for at least ten years, overlapping with at least 10 years of the service member’s service – all in order for the former spouse to be eligible for payments of disposable retired pay as a division of property directly from DFAS.

It is very important to note here that whether a former spouse is entitled to a portion of disposable retired pay as a division of property is a matter of state law. If the parties have not been married for at least 10 years but the former spouse is to receive a portion of the disposable retired pay either by court order or agreement of the parties, then those payments will have to be made by the service member directly to the former spouse.

Senate Bill 41/House Bill 132: Putting Minors in Charge of Their Mental Health Treatment

During the 2021 session, the Maryland Legislature passed Senate Bill 41/House Bill 132, which lowers the age at which minors may seek emotional health care without a parent or guardian’s consent. The law went into effect October 1, 2021.

The law allows minors 12 to 16 to seek mental and emotional health treatment without the permission from their parent or guardian. The law requires that the child may only receive treatment if the child is deemed to be mature enough to seek the treatment. The health care provider, from who the minor is seeking the treatment, decides whether the child is mature enough or not. The law only recognizes heath care providers as those who are (1) licensed under the Health Occupations Articles; and (2) are acting within the scope of the individual’s license to diagnose and treat mental and emotional disorders. This specification limits whom a child may seek out for treatment.

It can be difficult for parents or guardians to relinquish control over their child’s health treatment, whether mental or physical, and because of that the law has some safeguards built in for them. Regardless of child consent, the law provides that parents or guardians may be informed of their child’s care plan, so no one is kept completely in the dark. Most importantly, the law does not allow children under the age of 16 to be prescribed psychiatric medication without parent or guardian permission. Although in these instances it is in the hands of the minor to seek out the treatment, parents can still be involved.

What this law seeks to accomplish is clear. The law presents an opportunity to struggling youth to access the treatment they need when they feel they cannot ask a parent or guardian for it. The law especially allows greater access to mental health treatment for those children who are struggling with things they are not comfortable exploring with their parent or guardian, such as LGBTQ+ issues, abusive relationships, or uncomfortable family situations.

There is some concern, however, giving so much responsibility to minors in this age group. It may be difficult for these minors to determine whether the treatment or therapy approach suggested is appropriate for them. Additionally, another issue arises in how these services will be covered when the minor is likely on a parent’s insurance or does not have the fiscal means to cover this treatment themselves.

The law on its face and what it seeks to accomplish is a great aid for struggling minors. The law could really support a child going through a parent’s separation or custody battle help themselves. The law, however, may have a serious impact on the parents or guardians in cases involving legal custody disputes and selection of therapy because the it puts the choice in the hands of the child.

QDRO Corner: Describing the Amount to Transfer to the Alternate Payee

A necessary element of any QDRO is the amount that the Plan should pay to the
Alternate Payee. The amount is described one way for defined benefit plans (pensions,
annuities, etc.) and another way for defined contribution plans (401k, 403b, TPS, etc.).

Defined Contribution Plans

Defined contribution plans have separate accounts that hold funds designated for a
single, specific person. The transfer amount should be described in terms of a specific
dollar figure or a percentage of the total account balance, as of a specific date. All other
considerations, such as a premarital interest, using the retirement accounts to equalize
or buy-out interest is other assets, etc. should be described in detail within the
Agreement, and ultimately boiled down to a specific dollar amount or percentage to be
used within the QDRO.

Exception: The Federal Thrift Savings Plan is an exception here, as this plan will also
accept awards described as a percentage of the account accumulated between two
dates. This description allows attorneys to divide the TSP on its own, and have the TSP
Board do the math to avoid dividing any premarital or post marital contributions.

Defined Benefit Plans

Defined benefit plans are large funds in which many people have an interest, but funds
are typically not set aside or designated for a single person. Awards to an alternate
payee for these plans should be described as either a flat dollar amount, a percentage
of payments received, or as a fraction.

It is important to keep in mind here that these plans are typically monthly benefits and
many have provisions limiting how much of the benefit can be given to an alternate
payee. So, if using a flat dollar description, it is important to know how much the
participant is receiving, and if there a restriction.

Exception: There are cash-balance defined benefit plans. These plans are a sort of
hybrid between a traditional defined benefit plan and a traditional defined contribution
plan. Some are divided using a defined benefit structure and others are divided using a
defined contribution structure.

At the end of the day, it’s important to know what type of plan is being divided to know
how to describe the award to the alternate payee in a way that the plan will accept. To
do this, it is best to obtain the information regarding the plan during negotiation of the
agreement and to prepare the QDRO along with the Agreement.

We can help with obtaining information from the plan, reviewing draft agreement
language, and preparing QDROs while the agreement is being negotiated.  Contact our office at 240-396-4373.

QDRO Corner: ERISA and Pensions in Pay Status

It is best practice to submit a QDRO as soon as possible following a divorce for many reasons. In the case of the alternate payee of a pension that’s already being paid out to the retired participant, the number of reasons increase. The sooner the QDRO is accepted and processed by the plan, the sooner the alternate payee can receive their share directly from the plan – or start receiving their share at all if the retired participant isn’t making payments to the alternate payee in the meantime.

The Employee Retirement Income Security Act (ERISA) contemplated this situation and includes provisions to protect the funds for the alternate payee. Once a draft QDRO is submitted to a pension plan that is already making payments to a retired participant, the plan is required to withhold the amount of funds awarded to the alternate payee. This withholding will last for a period of 18 months or until receipt of a final, court-executed QDRO is accepted by the plan, whichever first occurs. If the 18 months expires and no final order is received, the withheld funds will be paid to the retired participant. If a final order is received and accepted by the plan, the withheld funds will be paid to the alternate payee according to the provisions in the final court order.

Therefore, the best way to preserve the alternate payee’s share of a pension which is in pay-status is to submit a draft order to the plan right away, even if the terms may change between the draft and the final order.   

QDRO Corner: Is the Survivor Benefit Worth the Negotiation?

Most pensions allow for the participant to designate a survivor to continue to receive payments from the pension after the participant’s death. Traditionally, plan participants select their spouse as the survivor, but upon divorce, they often no longer wish for their spouse to receive such a benefit.

Here are some factors to consider when discussing with your client whether it’s worth a negotiation regarding the disposition of the survivor benefit in the divorce:

1.    What is the cost of the benefit (described in the June 22, 2021 blog post)? Is the cost worth it to them as compared to the anticipated benefit?  Would life insurance or a beneficiary designation on another account be more cost effective?

 2.    Does the plan allow for multiple survivors? If you represent the plan participant, see if your client anticipates getting remarried, and if so, how soon. Some plans, such as military retired pay, only allow for one survivor. In this situation, even if the designated survivor doesn’t receive the maximum survivor benefit, the rest cannot be awarded to anyone else, even a future surviving spouse. Alternatively, FERS and CSRS with the federal government will allow the survivor benefit to be divided between multiple survivors, so long as the total benefit amongst the survivors does not exceed the maximum benefit allowed.

3.    Does the plan have a remarriage restriction? If you represent the alternate payee, it is important to note if there is a possibility of losing the survivor benefit upon the alternate payee’s remarriage, or remarriage before reaching a certain age. Specifically with FERS and CSRS, if the survivor remarries before reaching age 55, the survivor benefit may be lost. Similarly, in some plans if the survivor’s second marriage ends then the survivor benefit may be reinstated.

Using these considerations, and others, you might discover that a negotiation over the survivor benefit, at least from your client’s perspective, might not be worth the current expense, and therefore could be an easier concession to make, and the energy can be focused somewhere it will benefit your client more. It is for this reason, that we suggest obtaining the plan documents and considering the plan specific rules while drafting a settlement agreement, rather than waiting to draft the QDRO until after the divorce.

QDRO Corner: What is the Process to Draft a QDRO?

A QDRO or COAP is specifically drafted for each retirement plan. Federal law requires that certain items be included in the QDRO, such as the participant and alternate payee’s last known mailing addresses, and the amount to be transferred to the alternate payee. However, plans can require that additional, more administrative language be included in the QDRO, such as what happens if the plan over or under pays the alternate payee, or when the alternate payee is allowed to designate a beneficiary.

In order to know the special requirements of each plan, we have to receive these terms from the plan. Some plans have these terms readily available to share and can email them upon request. Other plans require that the plan participant request the terms and share them with us.  Other plans insist on mailing the terms rather than emailing. The speed with which a plan can provide the information greatly impacts how quickly the QDRO can be prepared.  

Once we have these terms from the plan, we’ll draft the QDRO in accordance with the settlement agreement or court order. For any required term that is not addressed by the settlement agreement or court order, we’ll advise as to the options of how to address it. Sometimes there are terms in the settlement agreement or court order that are prohibited by the plan, and we’ll consult with the client to figure out the closest allowable option. We’ll also have a call with the client to review the QDRO to ensure the client understands the QDRO, and how the company will handle processing the QDRO once it is finalized. 

In addition, many plans will review a draft QDRO (ie: before it is submitted to Court) to ensure its compliance with federal law and the terms of the plan. This is beneficial for multiple reasons, but mostly to ensure that once a document is executed by the Court, the parties know that it will be accepted by the plan. However, the biggest down side is that many plans take 30-45 days to complete the review and then mail a letter describing the outcome of the review to our office. In many cases, the letter from the plan states that once the QDRO is signed by the judge, it will be accepted by the plan.

Alternatively, if a QDRO does need to be revised before it can be accepted by the plan, the letter from the plan will clearly state what changes need to be made. As a matter of course, we submit the draft to the plan to review, and the leave it to the client if they would like to wait for the response before submitting to the Court.