Can My Child Testify in My Custody Case?

In both Maryland and the District of Columbia, the Court looks at several factors to determine a custody arrangement in the best interests of the child. In both jurisdictions, the child’s preference is a factor, which is most relevant when the child is old enough and mature enough to state a thoughtful preference. There is no specific age at which a judge will consider a child’s preference; it is handled on a case-by-case basis.

Does this mean children testify in custody cases?

The short answer is generally, no, a child will not take the witness stand during a custody trial. Judges, practitioners, and experts generally agree that bringing the child into the middle of the conflict between the parties can emotionally impact the child. Further, children are susceptible to coaching and undue influence.

 What are other ways to show a child’s preference in a custody case?

There are other ways to introduce evidence of the child’s preference:

1. In camera interview: a judge may, in his or her discretion, decide to interview the child in private, upon either party’s request or the request of an attorney who has been appointed for the child. The interview will usually occur once, at the time of the trial, and can be recorded. If it is not recorded, the judge will place a summary on the record. The interview is therefore not confidential.

2. Custody Evaluation: an expert professional may conduct an investigation which can include interviewing the child, interviewing both parties, observing the child with each party, speaking with collateral witnesses, and reviewing documents such as medical/school records and party communications. After the investigation, the evaluator may submit a report to the court and may testify at the custody trial regarding his or her recommendation.

3. Child Advocate Attorney: A child advocate attorney advocates for the child’s wishes. A child advocate attorney treats the child in the same way they would treat an adult client, which means they must follow the client’s instructions. This form of representation is only appropriate for older children who are deemed to have considered judgment.

4. Best Interest Attorney/Guardian Ad Litem: A Best Interest Attorney (Maryland) or Guardian Ad Litem (D.C.) represents the child’s best interests. They are required to tell the court if the child has stated a preference, but ultimately can make recommendations in the child’s best interests which may be different than the child’s wishes.

5. Child Privilege Attorney: A child privilege attorney (“CPA”) has the limited function of determining whether a child’s confidential or privileged communications with his or her mental health professional should be waived. There exists a strong preference for preserving confidentiality. However, if privilege is waived, the privileged information may be made available to the court through records or permitting a mental health professional to testify. A child’s parent cannot waive the child’s privilege on the child’s behalf.

If you have any questions about introducing your child’s preference in a custody case, please contact Markham Law Firm at 240-396-4373 to setup a consultation.

What is a “pre-retirement lump sum” benefit, and can I get one in my divorce?

A pre-retirement lump sum benefit is available from most pension plans. Outside the divorce context, it is paid to a designated beneficiary or current spouse in the event that the pension plan participant dies before they retire and begin to receive benefits from the pension plan. Whether the pre-retirement lump sum benefit (outside the divorce context) can be paid to a designated beneficiary or must be paid to a current spouse is determined by plan rules and federal law. In the divorce context, most plans allow for a Qualified Domestic Relations Order (QDRO) or other, similar order, to supersede the beneficiary designation or plan rules requiring the payment to a current spouse, to allow for a payment to a former spouse.

How is the amount of the pre-retirement lump sum benefit determined?

While the participant is employed, they may be making contributions to the pension plan. In addition, the employer is likely making contributions to the pension plan on the participant’s behalf. These two amounts, as well as interest earned thereon, are usually combined to make up the pre-retirement lump-sum benefit amount.   

How is the pre-retirement lump sum benefit treated in a divorce?

Most plans allow for a QDRO to specify whether all or a portion thereof should be paid to the former spouse (alternate payee) in the event that the participant dies prior to beginning their retirement benefit from the plan. Therefore, it is important that during the negotiation of any settlement agreement or argument in court that the former spouse (alternate payee) include a request for the portion of the pre-retirement lump sum benefit they desire.  

How much of the pre-retirement lump sum benefit can I receive?

A former spouse (alternate payee) can receive up to 100% of the pre-retirement lump sum benefit. Typically, however, a former spouse (alternate payee) would receive 50% of the amount earned during the marriage. For example, if the participant was participating in this pension plan for half (50%) of the marriage, then the former spouse’s (alternate payee’s) benefit would be 50% of 50% of the benefit, or 25% of the total benefit. However, pension plans will typically accept any percentage or easily followed formula that the parties agree upon (or is awarded by the court).

How much of the pre-retirement lump sum can I preserve for a potential future spouse or other beneficiary?

A former spouse (alternate payee) can receive as little as 0% of the pre-retirement lump sum benefit. As stated above, a typical division would award the former spouse (alternate payee) 50% of the amount earned during the marriage. If this is the case, then any additional amount could be available for a potential future spouse or other beneficiary. Some plans may allow for only one person to receive this benefit, however. So, it is important to research whether this is a plan rule – if that is the case, then if the former spouse (alternate payee) receives any part of the pre-retirement lump sum benefit then the remainder would not be available for a potential future spouse or other beneficiary.

Can a Court award the pre-retirement lump sum benefit?

If the participant’s interest in the pension was earned during the marriage and the regular pension retirement benefit is divisible by the court, then it is likely that the pre-retirement lump-sum benefit is also divisible by the Court. However, it is important to consult with an attorney licensed in your state and experienced in family law to be sure for your specific case.

What happens to these contributions by the participant and the employer if the participant does not die before beginning to receive retirement benefits from the pension plan?

In such an event, the contributions from the participant and employer, and any interest earned thereon, are paid out over time as a part of the regular pension payments. In the event that the participant dies after beginning to receive retirement benefits but before all contributions are paid out, the contributions will be used to fund part of the post-retirement survivor annuity. If no one is designated to receive a post-retirement survivor annuity, the contributions will be paid out in lump sum to the designated beneficiary.

What’s the difference between a “former spouse” and “alternate payee”?

 These are both terms of art that tend to be used loosely. However, they both mean the former spouse of a pension plan participant who is entitled to receive a share of the participant’s interest in the pension plan. The reason for the two terms is that “alternate payee” is preferred for plans that are governed by the Employee Retirement Income Security Act (ERISA), as amended and “former spouse” if preferred for plans that are not governed by ERISA.

Disclaimer: Each pension plan is different and may accumulate the pre-retirement lump sum benefit differently or may treat its division differently in a divorce. It is important to research the pension plan in your case to make sure that 1) the pre-retirement lump sum benefit exists as a benefit option; 2) that the pre-retirement lump sum benefit can be divided in a divorce; and 3) what language the plan needs to properly make the division, if allowed. The information provided here is based on Markham Law Firm’s experience in dealing with pension plans and the majority of plans encountered. If you have a pension in your case and you want help to determine the benefits available and division types allowed by the plan, give us a call at 240-396-4373 or email us at: qdro@markhamlegal.com.

In addition, each state has its own laws regarding the division of property. It is important to consult with an attorney licensed in your state regarding the division of property and how pensions and their benefits are treated in your state.

What Happens to My License After Being Arrested for a DUI in Maryland?

In Maryland, getting arrested for driving under the influence can come with a lot of stressors about the unknown. After a DUI arrest, a licensee must take steps to avoid a license suspension. An attorney can ensure that you have taken the right steps and advise you throughout the process to minimize your anxiety about what is to come.

“I’ve Been Arrested for Drunk Driving” … What Should I Do Now?

             Read your paperwork! After a DUI arrest, a variety of documents are provided to the licensee upon their release from jail. These are important documents and should be reviewed and kept in a safe place. When arrested for a DUI, the arresting officer is likely to seize your driver’s license unless you have an out of state driver’s license. An officer will then provide you with a DR-15A form - this form acts as both the Order of Suspension, as well as a temporary license. The officer then submits a copy of the DR-15A form to the Motor Vehicle Administration (MVA) to notify the MVA that a licensee has been arrested on DUI-related charges. Even if you have an out of state driver’s license, your privilege to drive in Maryland will be suspended unless you request an administrative hearing or install Interlock in your vehicle.

Within 10 days of the arrest, but NO LATER THAN 30 days following a DUI arrest, the licensee or the licensee’s lawyer should request an MVA hearing. Since the temporary license is only valid for 45 days, If the hearing is not requested within 10 days of issuance of the DR-15A form, your license will be suspended until the hearing if the hearing cannot be held within the 45 day period. The DR-15A form provides you with important information on how to request the hearing, such as where to send requests, and costs per request ($150 payable to the Maryland State Treasurer).

Should I always request an MVA hearing?

 While the general rule is that a licensee arrested for DUI should request an MVA hearing, there are some circumstances where it may not make sense. For example, a person who refused a breath test or blew a 0.15 or above is not eligible for a license modification. In these circumstances, it is usually better to install the ignition interlock device on your vehicle, because an Administrative Law Judge (ALJ) does not have authority to modify a suspension in these circumstances. It is always best to speak with a lawyer first because there may have a defense available. In addition, if the licensee is a mechanic or must drive multiple vehicles for work, an ALJ could grant a multi-vehicle exception to the Interlock requirement.

What is an MVA Hearing and What Does it Entail?

            An MVA hearing on an Order of Suspension for a DUI is administrative hearing that occurs through the Office of Administrative Hearings (OAH) to determine whether the suspension will be modified. The hearing is conducted in front of Administrative Law Judge and has no bearing on any criminal proceedings associated with the arrest. Even if no criminal charges are being brought against you, the MVA hearing will take place. At the hearing, an attorney can be helpful if a licensee has a defense or wants to request modification of the suspension to permit the licensee to drive to/from work or school. The Judge will listen to the case presented and witnesses may be presented.

            A modified suspension essentially allows the licensee to drive only for specific purposes, such as driving to work, school, or certain substance abuse treatment programs. A restricted license may be granted only if you agreed to submit to a chemical test to determine your blood alcohol content (BAC) at the time of driving under the influence. Only those whose BAC results are between .08 and .14 are eligible for a restricted license. Refusals and BAC’s over 0.14 must either accept the suspension or install the ignition interlock device.

How long will my license be suspended?

             For refusing to submit to a breath test, the suspension if for 270 days for a first offense and two (2) years for a second or subsequent offense. For a BAC between 0.08 – 0.14, the suspension shall be 180 days for a first or subsequent offense. For BAC’s of 0.15 or more, the suspension shall be for 180 days for a first offense and 270 days for a second or subsequent offense.

What if I do not request an MVA hearing?

             In lieu of requesting an MVA hearing, individuals who were arrested for a DUI may elect to participate in Maryland’s Ignition Interlock Program. If eligible, the MVA will issue a licensee an Interlock-restricted license. This means that the licensee may only drive vehicles equipped with an Interlock device unless an exception has been granted for work vehicles only. The ignition interlock requires a driver to blow into a device to determine the estimated BAC of the driver. If the BAC registers more than 0.025, the vehicle will not start.

            Individuals who opt into the ignition interlock program must participate for a specified amount of time, depending on what their BAC was at the time of arrest. If you blew between a .08 and a .15, you are required to participate for a minimum of 180 days. If your BAC was above a .15, you must participate for a minimum of 1 year. If you refused a test at the time of arrest, you must participate for a minimum of 1 year. The length of participation may be extended for violations of the program.

               Getting arrested for a DUI can be very stressful and affect a licensee’s ability to drive – it is very important to talk to a lawyer to protect your rights and advise you on the best way to proceed. Contact our office at 240-396-4373 or click here to learn more. 

Can I request the opposing party pay for my attorney’s fees?

In Maryland and the District of Columbia, each party generally pays for their own costs of litigation. However, you may still be entitled to request an award of attorney’s fees under certain circumstances. Attorney’s fees may be awarded pendente lite (during the pendency of the litigation) or at the conclusion of the case.

Can I request the opposing party pay for my attorney’s fees in Maryland?

In Maryland, the Court may award attorney’s fees in family law cases if there is an applicable statute. In making this determination, the Court will consider each party’s financial resources and needs, as well as whether there was substantial justification for bringing, maintaining or defending the proceeding. MD Code, Fam. Law §§ 7-107, 8-214, 11-110, & 12-103. Ultimately, you must prove that you have a financial need for an award of attorney’s fees, that you were substantially justified in your position during litigation, and that the other party has the financial ability to contribute to your attorney’s fees.

Can I request the opposing party pay for my attorney’s fees in D.C?

In D.C., the Court has discretion in awarding attorney’s fees under several principles:

1. Suit Money: The Court may award attorney’s fees as “suit money” in cases involving divorce, child support, or alimony. The party requesting suit money must make an initial showing that suit money is necessary “to litigate the divorce action on a level playing field with the other spouse.” McClintic v. McClintic, 39 A.3d 1274, 1276 (D.C. 2012). Suit money is meant to level the burden between the parties, especially where one party has greater economic resources. Once the initial showing of need is made, the Court must determine whether the litigation is burdensome to the party seeking the suit money.

2. Necessaries Doctrine: The necessaries doctrine authorizes the Court to award attorney’s fees and other costs to a prevailing party in a custody case when that party was forced to incur attorney’s fees to protect the interests of the children. Specifically, fees may be awarded where one party is seeking to preserve a custody arrangement (formal or informal) against the other party’s attempts to disrupt it, for example, by withholding the children.

3. Bad Faith: In exceptional circumstances, if one party has acted in bad faith during the litigation, unnecessarily resulting in additional attorney’s fees and costs, then the Court may award the opposing party attorney’s fees to compensate for the bad actor’s behavior.

If you have questions about litigation and attorney’s fees in your family law matter, please contact Markham Law Firm at 240-396-4373 for assistance.

Considerations in Dividing Defined Contribution Accounts

“Earnings, gains, and losses” and “market fluctuations” are two phrases used to describe the investment experience of the funds within a defined contribution account (401k, 403b, 457, TSP, etc.). In dividing a defined contribution account pursuant to a domestic relations order, the parties usually have the option of including earnings, gains, and losses on the amount to be transferred, or not. If these will be included, then the parties must select a valuation date from which to apply the earnings gains and losses.

What is the valuation date?

The date that the former spouse’s benefit will be valued. No contributions from any source (employee or employer) can affect the former spouse’s benefit after that date.

Why include earnings, gains, and loses on a transfer amount through a domestic relations order?

Division of the earnings, gains, and losses protects against surprises in the market.

Let’s say Spouse A is to receive 50% of Spouse B’s old 401k as of December 31, 2021, with earnings, gains, and losses applied thereon (Spouse B and the employer are no longer contributing to the 401k). At the time, $100,000 was in the account. Due to market fluctuations, at the time the account was to be divided, only $80,000 was in the account. Therefore, each party received $40,000 upon division.

 
Assume the same facts as above, but this time with no earnings, gains, and losses applied. Spouse A will receive $50,000 and Spouse B will retain $30,000.

Continue to assume the same facts, but this time due to market fluctuations only $40,000 remained in the account at the time it was to be divided. Without earnings, gains, and losses Spouse A would receive all $40,000 (even though Spouse A should have received $50,000) and the plan will consider its obligation satisfied. Spouse B would have $0 left in their retirement account and owe Spouse Ten Thousand Dollars.

Why would people not include the earnings, gains, and losses?  

 Sometimes the retirement account is the only cash source large enough to fund a buy-out of a non-liquid asset, such as the marital home. Both parties want the transfer to occur quickly, and they cooperate to minimize the time between the agreement being made and the transfer ultimately occurring. While the market can still have dramatic changes in short periods of time, the chances of dramatic changes are at least decreased the quicker the domestic relations order is created and processed.

Alternatively, the account-owning spouse may have a job that allows them to more quickly accrue retirement assets through things like employer matching contributions. Therefore, the account-owning spouse may want to ensure they are transferring a substantial amount of funds to their former spouse for their former spouse’s retirement savings ability.

How is the amount of earnings, gains, and losses determined?

In short, by a calculation by the plan administrator. The plan administrator will divide the transfer amount proportionally between all investments within the account as of the valuation date, and then trace those specific funds through to the date of transfer.

Most plan administrators require that this tracing be done proportionally through the account, as in, the domestic relations order generally cannot specify that the former spouse will receive a certain amount of each investment within the account. Some plans allow for this specification, but it is extremely rare so it should not be assumed as an option.

What if multiple accounts are being equalized?

The only earnings, gains, and losses that will be considered are the ones in the account being divided. So if each party has multiple retirement accounts, but it ends up that Spouse A needs to transfer $25,000 to Spouse B so the marital portion of their retirement accounts is equalized, if Spouse A makes a transfer out of one account, only that account’s market experience will impact the transfer amount. If Spouse B’s accounts have good investments, it will not decrease the amount being transferred to Spouse B from Spouse A. Similarly, if a different one of Spouse A’s accounts does poorly, it will not decrease the amount being transferred.  

The best way to view the retirement accounts is that they are each completely separate from the other retirement accounts, even if they might be held by the same financial institution or earned from employment with the same employer.

If the parties invest their retirement account completely differently, such that one is very risky while the other is very conservative, it might be worth considering if multiple orders would better serve the parties’ intent in their agreement.

If you need a QDRO prepared or have questions about specific to this QDRO topic, please contact our office at 240-396-4373 or contact us via this form to discuss what your specific case might need.

How Do I get a Carry Permit in DC?

The District of Colombia continues to have strict firearm laws, so it is imperative that you are properly licensed and any firearm(s) is/are properly registered. Possessing a firearm in D.C. without a Concealed Carry Pistol License (CCPL) is a felony and carries a maximum penalty of up to 5 years in jail and/or a fine of up to $12,500. D.C. does not have reciprocity with any state, so a permit from another state will not suffice.

Who is eligible to obtain a carry license in DC?

Any person who meets the following criteria is eligible to obtain a Concealed Carry Pistol License (CCPL) in the District of Colombia:

1.  Be 21 years of age or older. (Applicants between the age of 18 and 21 may qualify to register a long gun[1] if they have a notarized statement from their parent or guardian stating that the parent or guardian assumes civil liability for all damages resulting from the applicant’s use of the firearm. This special registration, however, will expire on the applicant’s 21st birthday.)

2. Not stand convicted of certain weapons offenses, or a felony in this or any other jurisdiction (which includes all crimes punishable by imprisonment for a term exceeding one year).

3. Not be under indictment for a crime of violence or a weapons offense.

4. Within the previous five years:

   • Not stand convicted: (1) of a narcotics or dangerous drug offense; (2) under D.C. Official Code § 22-404 (assaults and threats) or § 22-407 (threats to do bodily harm), or a violation of a similar statute in another jurisdiction; (3) of two or more violations of driving under the influence of alcohol or drugs; (4) of an intrafamily offense punishable as a misdemeanor; (5) of a misdemeanor involving certain firearms violations. (6) Stalking; or (7) violation of an Extreme Risk Protection Order.

   • Not have been acquitted of any criminal charge by reason of insanity or adjudicated a chronic alcoholic by any court.

   • Not have been voluntarily or involuntarily committed to any mental hospital or institution.

   • Not have a history of violent behavior.

   • Not have been the respondent in an intrafamily proceeding in which a civil protection order or a foreign protection order was issued against the applicant.

5. Not appear to suffer from a physical defect which would make it unsafe to possess and use a firearm safely and responsibly.

6. Not have been found negligent in any firearm mishap causing death or injury to another human being.

7. Not otherwise be ineligible to possess a firearm under D.C. Official Code § 22-4503.

What do I have to do before I apply?

All applicants for a Concealed Carry Pistol License (CCPL) must complete the required training before a permit will be issued. An applicant may, however, apply for preliminary approval prior to completing the training. The training requirements can be found here.

CCPL applicants must complete at least 16 hours of firearm training from an MPD-certified firearm training instructor, as well as two hours of range training from an MPD-certified instructor. The training must cover the following topics:

(a) Firearm safety, including firearm safety in the home, a discussion of prevention of access by minors, locking and storing of firearms, and use of safety devices such as secure lock boxes;

(b) Firearm nomenclature;

(c) The basic principles of marksmanship;

(d) The care, cleaning, maintenance, loading, unloading, and storage of pistols;

(e) Situational awareness, conflict management, and use of deadly force;

(f) Selection of pistols and ammunition for defensive purposes; and

(g) All applicable District and federal firearms laws

Where Do I Apply?

All Concealed Carry Pistol License (CCPL) applications are reviewed and issued by the District of Colombia Metropolitan Police Department (MPD). The application can be found on the mpdc.dc.gov website, or here.  Once the application and action items are completed, they must be brought to the Firearms Registration Section in person at 300 Indiana Ave. NW, Room 3077, Washington, DC 20001 during normal business hours. Call the Firearms Registration Branch at 202-727-4275 to schedule an appointment.

What Information Do I Need?

In order to successfully complete the application for a CCPL, the applicant must provide a Statement of Eligibility, information regarding their firearms training background, and the applicant’s authorization to disclose mental health records.  

How Long Does It Take to get a Carry Permit in DC?

Applications will typically be approved or denied within 90 days of submission. This period may take longer if MPD deems a more extensive background check necessary.

What are the Steps for Appealing the Denial of my Carry Permit?

 If your application for a CCPL is denied, an appeal process is available, but you need to act quickly. The Concealed Pistol Licensing Review Board has the authority to review appeals of application denials. First, all applicants must file their appeal within fifteen days of the Chief’s official denial notice. The appeal requires four documents to be submitted to the Review Board via email: (1) a copy of the firearms registration certificate or approved Form PD219 Application; (2) a copy of the Police Chief’s final action being appealed (i.e. the denial document); (3) a detailed description of why the Chief’s denial of the application was in error, including the current relief sought; and (4) proper authorization for representation, if an attorney is hired to assist with the appeal.

Do I need a lawyer for an appeal?

While an attorney is not required to assist in submitting an appeal, they are highly beneficial to the process and can increase the likelihood that the appeal is successful.

Do I have to register my firearms?

The District of Columbia requires that firearms be registered through MPD. This does not apply to someone who is simply traveling through the District and has the firearm(s) stored in a locked container in their vehicle and is compliant with federal interstate transport laws. You can find a guide on firearm registration on the mpdc.dc.gov website or by clicking here.

Have additional questions regarding carry permits in DC? 

Contact us at 240-396-4373 or click here to schedule a consultation. 

What do I need to know about peace orders in Maryland?

What is a peace order?

A peace order is a court order issued to protect a Petitioner (the victim) from the abusive or harassing behavior of another (the Respondent) by prohibiting the Respondent from committing certain acts, including contacting the Petitioner directly or through a third party.  A Petitioner can get a peace order if they can show that within 30 days prior to filing the petition, the Respondent committed one or more of the following acts, and there is a substantial likelihood that the Respondent will commit another prohibited act in the future:

(i) An act that causes serious bodily harm

(ii) An act that places the petitioner or the petitioner’s employee in fear of imminent serious bodily harm

(iii) Assault in any degree

(iv) False imprisonment

(v) Harassment

(vi) Stalking under 

(vii) Trespass

(viii) Malicious destruction of property

(ix) Misuse of telephone facilities and equipment

(x) Misuse of electronic communication or interactive computer service

(xi) Revenge porn

(xii) Visual surveillance

What is the difference between a peace order and a protective order?

A protective order is reserved for individuals who have a familial relationship, a sexual relationship, live in the same household, or have a child in common.  A peace order is available to individuals outside of those categories. A peace order lasts for up to six months, while a protective order is in effect for one year.

How do I get a peace order?

 To obtain a peace order, you must file a Petition for Peace Order with the court within 30 days of the abusive/harassing conduct. During business hours, the Petition can be filed with the clerk at the nearest District Court, and a judge can issue a temporary peace order that lasts up to 7 days. During non-business hours, the Petition can be filed with a Commissioner who can enter an Interim Peace Order that will last for up to 3 days. A final peace order hearing is typically held 7 days after the entry of the temporary peace order. The final peace order hearing is where the judge will look at the evidence to determine whether the Petitioner should be granted relief. The Petitioner has the burden of showing clear and convincing evidence that the Respondent committed a prohibited act. If the Petitioner meets their burden, the court will issue the appropriate relief, such as ordering the Respondent to refrain from contacting the Petitioner.

What happens after a peace order is issued?

 Once a peace order is issued and served on the Respondent, the Respondent must refrain from contacting the petitioner. A final peace order last for up to six months. A final peace order may include the following relief: (i) refraining from committing or threatening to commit an abusive act against the petitioner; (ii) Order the respondent to refrain from contacting, attempting to contact, or harassing the petitioner; (iii) Order the respondent to refrain from entering the home, workplace, or school of the petitioner. Md. Courts and Judicial Proceedings Code Ann. § 3-1505.

The Respondent or the Petitioner may file an appeal within 30 days of the judge’s ruling in District Court.

Will the peace order remain on my record?

Since a peace order is a civil matter, it will not go on your criminal record. However, it will appear on a public database of the Maryland Court system. Under some circumstances, you may be eligible to shield the peace order.  A shielding will be granted if the peace order was dismissed or if the Respondent consented to the peace order, and the court finds that (1) the order was denied or dismissed, (2) there is no final peace order against the party, (3) there are no ongoing criminal charges arising from the alleged act, (4) the party has not been found guilty of any crime relating to the alleged act, and (5) the petitioner has not filed any other ongoing orders against the party.

What happens if a peace order is violated?

 Violation of a peace order is a criminal offense punishable by up to 90 days in jail and/or a fine of up to $1,000. Violations of peace orders are prosecuted by the Office of the State’s Attorney for the county where the violation occurred.

Can I remove a peace order from my record?

In many circumstances, Respondents may limit access to peace order records by filing a motion to shield the peace order with the court that issued the order. The Respondent must appear at a hearing before a shielding can be ordered. Once a peace order is shielded, it is no longer viewable by the public.

Do I need a lawyer?

 While you are not required to have a lawyer, having a lawyer can be advantageous. A lawyer can explain the process from start to finish and set expectations. A lawyer can help organize evidence in the most efficient way possible and negotiate with the opposing party. A lawyer can assist in obtaining the forms of relief that you are seeking, as well as defend against a peace order, depending upon what side you are on. Having a knowledgeable lawyer can reduce your stress and help you understand the process from start to finish. 

Click here or call us at 240-396-4373 to schedule a consultation with one of our attorneys.

Want to learn about peace orders in Maryland? Attorney Morgan E. Leigh shares information about the peace order process in Maryland.

Posthumous QDRO – Is it Allowed?

The scenario is easy to picture, parties are divorced and a QDRO is needed to divide the participant’s account. They don’t do the QDRO right away, and the alternate payee thinks about their benefit upon hearing the news that the participant died. Can they still get that benefit, or are they out of luck?

The answer hinges on two major case-specific facts, what retirement plan should have been divided, and where did the divorce happen?

The retirement plan in question is important because the first question to ask is whether the plan is governed by the Employee Retirement Income Security Act (“ERISA”). If it is not, then they can more easily make up their own rules, and the attorney’s considerations are focused more on their state court’s willingness to accept a posthumous QDRO and the plan’s willingness to accept it. These will vary enormously in their procedures, so it is best to assume that each plan is different and to do fresh research any time this might come up.

The jurisdiction of the divorce is important because ERISA is a federal law. The circuits are clashing as to whether they will enforce posthumous QDROs and if so, for how long after the participants death. The circuit positions are described below. There are a few circuits that have not yet weighed in on the issue, attorneys practicing in those areas will have to check and see if their state has any precedent.

Minority Opinion

The First and Fourth Circuits are in the minority by rejecting posthumous QDROs. Their argument is based on the plan’s future stability and need to know the benefits payable with respect to each participant as of the date of the participant’s death. Posthumous QDROs may require a plan to pay benefit greater than those actuarily available to the participant and the participant’s survivors, which would be a violation of ERISA and threaten the viability of the plan in the long term.

The First Circuit’s opinion on the issue is per curiam, and it simply refused to enforce a posthumous QDRO due to its rejection by the plan. The First Circuit specifically states that the decision does not determine the question if it would enforce an otherwise proper posthumous QDRO. Garcia-Tatupu v. Bell, 747 Fed. Appx. 873 (2019), affirming lower court decision Garcia-Tatupu v. Bell, 296 F. Supp. 3d, 407 (D. Mass, 2017).

The Fourth Circuit’s opinion is specifically about survivor benefits for a pension plan, noting that surviving spouse benefits vest in the participant’s surviving spouse on the date of the participant’s retirement. Part of this is for plan administration, in that the plan must calculate the participant’s payment on an actuarial basis, therefore it needs to know the identity and life expectancy of the surviving spouse when they begin to make payments. Hopkins v AT&T Global Info. Solutions Co., 105 F.3d 153 (1997). While the benefit in question is the surviving spouse benefit, this is what is described as the “post-retirement survivor benefit” in most divorces, and in plans governed by ERISA may be transferred to the former spouse (from a future surviving spouse) via a QDRO.

Majority Opinion

The Second, Third, Fifth, Ninth, and Tenth Circuits allow for posthumous QDROs, arguing largely that it will not be rejected simply because of the time it was issued, although there is some difference within the circuits there. Specifically, some of these circuits take a view that within the eighteen-month period prescribed by ERISA to review a QDRO and segregate the alternate payee’s benefit any QDRO is timely. Patton v. Denver Post Corp., 326 F.3d 1148, 1151 (2003). Patton states that this is because ERISA clearly allows for revised QDROs to be submitted within the eighteen-month period, so too can new Orders be accepted because payments during the period can be retroactive.

In this Tenth Circuit opinion, Patton also makes clear that no notice to the Plan would be required prior to the participant’s death – whether by notice of divorce, marriage, or otherwise.

Alternatively, they state that because a QDRO is the key to enforcing an otherwise valid interest in a retirement plan, “there is no conceptual reason why a QDRO must be obtained before the plan participant’s benefits become payable on account of his retirement or death.” Trs. of the Dirs. Guild of America-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421 (2000).

Circuits yet to opine on the issue: Six, Seven, Eleven, and Twelve

The cases discussed herein are largely with respect to pension plans and survivor benefits. The reason for this is simple – when the retirement asset at issue is a defined contribution plan (ie: 401k, 403b, TSP, etc.) the plan will make a payment to the beneficiary upon receiving notice of the participant’s death. At such time, the plan has no additional funds available to pay to an alternate payee should the plan receive a QDRO after such payment is made. Therefore, any enforcement action by the alternate payee would more properly be directed at the beneficiary rather than the plan.

Note: some cases cited may not be published opinions but are provided for information and research purposes.

If you need a QDRO prepared or have questions about specific to this QDRO topic, please contact our office at 240-396-4373 to discuss what your specific case might need.

Motions to Seal and Expungement of Criminal Records in the District of Columbia

The District of Columbia recently passed the Second Chance Amendment Act of 2022 to fix the District’s complex, confusing, and draconian laws dealing with the sealing and expungement of criminal records. The effective date of the new law [D.C. Law 24-284] has been delayed to January 1, 2026, but it will have a drastic impact on sealing and expungement of criminal records in the District.

What is a motion to seal versus an expungement?

While both sealing and expungement involve limiting public access to criminal records, they have a different effect. Sealing a criminal record means that the record is not completely erased, but it is hidden from public view and access. When a criminal record is sealed, it is typically inaccessible to the general public, including potential employers, landlords, and the general public. However, certain government agencies and law enforcement may still be able to access sealed records in specific situations.

Expungement goes a step further than sealing a criminal record. When a record is expunged, the record itself is erased or destroyed, and the effect is usually as if the criminal offense never occurred. Expungements typically result in complete removal of the criminal record from public databases and it is usually more restrictive than sealing. There may be differences in the effect of an expungement, depending upon whether the record expunged was a conviction versus a non-conviction or arrest.

The District’s current law does not expunge criminal records – they are “sealed.” The new law permits expungement of some records and expands what records are eligible for sealing.

What cases are eligible to be sealed or expunged?

Current Law

             Under the current law, there are two grounds for sealing a criminal record:

1. Actual innocence; and

2. In the interests of Justice

 Actual innocence:

A person may file a motion to seal criminal records under the current law on the basis of actual innocence if he or she can show that the offense that they were arrested for did not occur, or that they are not the person who committed the offense. This form of record sealing provides more protection than the interests of justice – if granted, the person moving for record sealing (the “movant”) is restored to the status they held prior to their arrest. It is best to file this type of request within 4 years of the arrest, because after 4 years, the burden on the movant changes from preponderance of the evidence to clear and convincing evidence.

In the Interests of Justice:

If a person is not eligible to seal their criminal record under the actual innocence standard, they may be eligible to seal their record in the interests of justice. There is a minimum of a two-year waiting period before a person may file a motion to seal criminal records in the interests of justice. A lawyer may be able to assist with an earlier filing of such a motion if the government agrees. Individuals who wish to seal their record, but have records that contain disqualifying misdemeanor arrests, disqualifying misdemeanor convictions, or felony convictions, must wait longer to file a motion to seal. A record sealed in the interests of justice must be disclosed in certain circumstances, such as jury service or an application for employment/licensure with certain entities and government organizations.

 New Law

 Automatic expungement of criminal records:

The new law requires the automatic expungement of criminal records for citations, arrests, charges, or convictions, for criminal offenses that are subsequently decriminalized, legalized, or held unconstitutional in most circumstances. The expungement must occur within 90 days after termination of the case, or by January 1, 2026, whichever is later.

 Expungement of criminal records by motion:

With respect to motions to expunge records based on actual innocence, the new law is similar in many ways to the current law but differs in several important aspects. First, there is no longer a different burden if the motion is filed after 4 years: the movant must show by a preponderance of the evidence that the offense did not occur or was not committed by the movant, regardless of when the motion for expungement is filed. Second, it requires an order dismissing, granting or denying the motion to be issued no later than 180 days after the motion is filed, unless there is good cause for delay. If a motion is denied, then the person may move for relief again after a one-year waiting period. The effect of an expungement is to restore the movant to the position they held prior to their arrest.

 Automatic sealing of criminal records:

The new law requires automatic sealing of criminal records for certain citations, arrests, or charges where the prosecution was terminated or that did not result in a conviction. These records must be sealed within 90 days of the termination of the case. Automatic sealing will also be ordered for citations, arrests, charges, and convictions for misdemeanors if at least 10 years has elapsed since completion of the sentence. There are limitations on the types of crimes that are eligible for automatic sealing – certain crimes are not eligible for automatic sealing.

Sealing criminal records by motion:

As with the current law, a motion may be filed to seal criminal records prior to the 10-year waiting period for automatic sealing in many circumstances and in circumstances where automatic sealing is not an option. The waiting period is still 5 years from the completion of the movant’s sentence for most misdemeanors, but the waiting period has been reduced from 10 years to 8 years for certain felonies. There is no automatic expungement of felonies under the either the new law or current law.

Do I need a lawyer to seal or expunge my criminal record?

While having a lawyer is not required, having an experienced lawyer can increase the likelihood that relief is granted, because the lawyer can ensure that the appropriate evidence is presented and the proper legal standard are followed.  Contact us at 240-396-4373 to schedule a consultation. 

When a Reduction to the Former Spouse’s Payment is Required by the Plan

Certain plans, such as the Interamerican Development Bank and the International Monetary Fund limit the amount of the participant’s pension that can be given to a former spouse or otherwise reduced. Other reductions might come from providing a survivor benefit to a former or current spouse.

Specifically, a participant must receive at least 50% of their unreduced pension benefit upon retirement with these two plans. Since both of these plans require a reduction to provide a survivor benefit, this means that a participant cannot give a former spouse both 50% of the pension benefit and ANY survivor benefit.

This requires a certain amount of math to figure out what can be provided to the former spouse and still provide the participant their minimum required benefit. This is not something attorneys can do for their clients, unfortunately. However, a willing participant could work with the HR department to run various scenarios for the parties to discuss.

In a negotiation or trial on the matter, obtaining this information requires some advance planning to avoid delays. If you’re dealing with one of these or a similar plan, call us at 240-396-4373 to discuss any questions you may have.