A Guide to Divorce Mediation: The Role of a Mediator in Your Case

Let’s imagine you’re at a crossroads in your marriage. The joy and happiness that once filled your relationship have faded, replaced by dissatisfaction, disagreement, and, ultimately, the realization that you both want different things. Many people contemplate divorce around this time when they realize they are not looking forward to the holidays spent in constant tension and disagreement. This is where divorce mediation comes into play.

Divorce mediation is a voluntary and confidential process where a neutral third party, the mediator, helps the divorcing couple reach a mutually agreeable resolution on various aspects of their separation. This process is not about determining who is right or wrong; instead, it’s about finding common ground and working towards a resolution that respects both parties’ interests and needs.

The goal of divorce mediation is to foster dialogue, reduce conflict, and promote understanding. It offers a platform where you can express your needs and concerns, hear your spouse’s perspective, and negotiate a settlement that works for both of you.

The Role of a Divorce Mediation Attorney

While a divorce mediation attorney might sound similar to a divorce mediator, their roles are distinctly different. A divorce mediation attorney represents one party in the mediation process, providing legal advice and guidance.

The divorce mediation attorney helps you understand your legal rights and obligations. They can also help you explore different settlement possibilities and evaluate their implications. They ensure that you’re making informed decisions throughout the mediation process.

While the mediator remains neutral, the attorney is on your side, advocating for your interests. They can help you prepare for mediation, present your case effectively, and review the proposed settlement agreement to ensure it’s fair and in your best interest.

Importance of Divorce Mediation in Separation

Divorce mediation plays a vital role in separation. It’s a more peaceful and cooperative alternative to traditional litigated divorce, which can be stressful, adversarial, and costly.

In divorce mediation, you and your spouse maintain control over the process and the outcome. You’re not surrendering your fate to the courts; instead, you’re working together to create a settlement that suits your unique circumstances.

Divorce mediation also promotes better communication and understanding. It can help reduce the animosity and conflict that often accompany divorce, making the transition easier for everyone involved, especially children.

How to Prepare for Divorce Mediation

Preparing for divorce mediation involves more than just showing up for the sessions. It requires you to understand your financial situation, identify your priorities, and be ready to negotiate.

Start by gathering all the necessary financial documents, such as tax returns, bank statements, retirement accounts, and property deeds. This information will help you have a clear picture of your marital assets and debts, which is crucial for the division of property.

Next, identify your priorities. What matters most to you? Is it the house, your retirement savings, or your children’s wellbeing? Knowing your priorities will guide your negotiations and help you stay focused on what’s truly important.

Lastly, approach the mediation with an open mind and a willingness to negotiate. Remember, mediation is not about winning or losing, but about finding a solution that works for both parties.

The Process of Divorce Mediation

The process of divorce mediation typically starts with an introductory meeting where the mediator explains the rules and procedures. Following this, you and your spouse will have the opportunity to share your views and concerns.

The mediator will then facilitate discussions on various issues, such as child custody, property division, and spousal support. They will help you explore different options and negotiate a mutually acceptable agreement.

Once you’ve reached an agreement, the mediator will draft a Memorandum of Understanding outlining the terms of your settlement. You and your attorneys will review this document before signing it. After that, the agreement will be incorporated into your divorce decree and become legally binding.

Benefits of Hiring a Divorce Mediator

Hiring a divorce mediator can offer numerous benefits. First and foremost, it can save you time and money. Mediated divorces often take less time and cost less than litigated divorces.

Furthermore, divorce mediation can reduce conflict and stress, promoting a more amicable divorce. It fosters better communication and understanding, which can lead to more sustainable agreements.

Lastly, divorce mediation gives you control over the process and the outcome. You’re not leaving your fate in the hands of a judge; you’re actively participating in crafting a settlement that meets your needs and respects your interests.

Common Misconceptions About Divorce Mediation

Despite its many benefits, there are several misconceptions about divorce mediation. Some people believe that it’s only suitable for amicable divorces. However, that’s not the case. Mediation can be effective even in high-conflict situations, as the mediator can help manage the conflict and facilitate productive discussions.

Another common misconception is that divorce mediation is less binding than court-ordered settlements. However, the agreements reached in mediation are as legally binding as those decided by a judge.

Lastly, some people believe that they can’t have an attorney in mediation. While it’s true that the mediator can’t give legal advice, you’re free to consult with your attorney at any point during the mediation.

Consult An Experienced Divorce Mediation Attorney

Navigating divorce mediation can be challenging, but with the right support and guidance, it can be a beneficial process that leads to a fair, equitable, and amicable resolution. A divorce mediator and a divorce mediation attorney play crucial roles in this process, guiding you towards a mutually beneficial outcome.

Contact our office at 240-396-4373 to schedule a consultation today.

Can You Force Your Spouse to Move Out of the Home in Maryland?

When a marriage hits a rocky patch, the question of living arrangements often arises. One spouse might consider asking the other to move out of the shared home, either temporarily or permanently. However, whether you can legally force your spouse to vacate the marital home in Maryland is a complex matter that involves various legal considerations and procedures. 

Understanding Marital Property Laws in Maryland: 

Maryland follows the principle of equitable distribution when it comes to dividing marital property during a divorce. This means that assets acquired during the marriage are typically considered marital property and subject to division between spouses. The marital home is usually included in this category, regardless of whose name is on the deed or the mortgage. 

Rights to the Marital Home: 

In Maryland, both spouses generally have a right to live in the marital home until a court orders otherwise. This means that neither spouse can unilaterally force the other to move out without a legal basis or a court order. Even if the home is titled to one party only, or was acquired prior to the marriage, the other party, if they are residing there, has certain rights to continue to reside there and a court will generally not order their removal during the pendency of the case, except under limited circumstances. 

Legal Grounds for Exclusion: 

While in most cases it's not possible to simply “kick" your spouse out of the marital home, there are circumstances where a court may order one spouse to leave for a period of time in the context of a domestic violence protective order. Such circumstances often involve issues such as domestic violence, abuse, or threats that make it unsafe for one spouse to continue living with the other. See more information about domestic violence protection orders here. 

Use and Possession: 

If you wish to have your spouse move out of the marital home for a reason other than safety, and there are minor children of the marriage, you may seek a court order awarding exclusive possession of the marital home as part of a divorce or legal separation proceeding. The court may also order a spouse to contribute to the mortgage and other expenses. 

Factors Considered by the Court: 

A parent requesting Use and Possession of the Home must have at least 50% physical custody of a child of the parties. When deciding whether to grant exclusive possession of the marital home to one spouse, the court will consider various factors including each party’s income and overall financial circumstances, as well as their need to remain in the home, the children’s best interests and how use and possession would impact a party’s ability to pay his/her own set of living expenses. 

Consulting with a Family Law Attorney: 

Navigating the legal complexities of marital property rights and obtaining a court order for exclusive possession of the marital home can be challenging. It's crucial to seek guidance from an experienced family law attorney, who is familiar with Maryland's laws and procedures. An attorney can assess your specific situation, advise you on your rights and obligations, review your options, and represent your interests in court proceedings if necessary. 

Conclusion: 

While you generally cannot unilaterally force your spouse to move out of the marital home in Maryland, there are legal avenues available if circumstances such as domestic violence or safety concerns necessitate such action. Seeking the guidance of a knowledgeable attorney can help you understand your rights and take the appropriate steps to protect yourself and your interests during this challenging time. Contact our office at 240-396-4373 to schedule a consultation.

What You Need to Know about Anti-Stalking Protective Orders in DC

What is an anti-stalking order?

An anti-stalking order is a two-year court order that directs a person to refrain from committing or threatening to commit criminal offenses against the Petitioner. The order also directs the Respondent to stay away from or have no contact with the Petitioner and any other individuals or locations specified in the order. The “Petitioner” is the person who files a request for a protective order, and the “Respondent” is the person who is served with the protective order. The court may order additional conditions as it believes necessary to protect the Petitioner, such as relinquishing possession of jointly owned property. A Respondent who has a protective order is required to relinquish any firearms and may not own any firearms during the duration of the order.

Who is eligible to obtain an anti-stalking order?

A Petitioner who can show by a preponderance of the evidence, or more likely than not, that the Respondent committed an act of stalking within 90 days of the filing of the petition is eligible for an anti-stalking order. Unlike a protective order, there does not need to be a specific relationship between the parties – it is the act of stalking that makes the Petitioner a person eligible for an anti-stalking order.

What is the definition of “stalking”?

Stalking is engaging in a course of conduct directed at a specific person with the intent to cause that person to 1) fear for their safety or the safety of another person; 2) feel seriously alarmed, disturbed, or frightened; or 3) suffer emotional distress. Where a single act is of a continuing nature, each 24-hour period constitutes a separate occasion, regardless of whether the conduct is the same on each occasion.

What conditions could a court order if an anti-stalking order is issued against the Respondent?

In addition to ordering the Respondent to stay away from or have no contact with the Petitioner, the court can order the Respondent to pay costs and attorneys’ fees, surrender firearms, and stay away from animals belonging to the Petitioner. The court can order the Respondent to vacate a shared home and relinquish shared property. Courts have wide discretion in fashioning orders to protect a Petitioner, so there could be additional requirements that a court deems appropriate.

 How do I obtain an anti-stalking order?

The first step in getting an anti-stalking order is to file a Petition with the court. This can be done online through the court’s website or in person. If the Petitioner is requesting a temporary anti-stalking order, then they will appear before a judge the same day or the next business day to state under oath why they are requesting protection from the petitioner. If temporary order is not granted or the Petitioner is not requesting a temporary order, then a final protective order hearing will be held within 14 days.

What should I do if I am served with an anti-stalking order?

First, do not contact the Petitioner under any circumstances, or you could face criminal charges. Second, you should gather all evidence that tends to support your case, including texts, emails, videos, social media posts, and any other documents. While an anti-stalking order is a civil proceeding, there are often related criminal cases. If you are also charged criminally, it is very important that you consult with an experienced criminal defense attorney who also has experience with anti-stalking orders. You can decide to consent to the order if you do not want to have a contested hearing and risk a judicial finding being made against you that you committed an act of stalking.

What happens at the final hearing?

First, the parties will likely speak with a court mediator prior to appearing before the judge. If the case cannot be resolved with the mediator, then the Respondent can choose to consent to the order without a finding, or the Respondent can request a hearing. If there is a hearing, the Petitioner has the burden of showing by a preponderance of the evidence that the Respondent committed an act of stalking within 90 days prior to filing the petition. Both parties should be prepared to call any witnesses or introduce any evidence that supports their case.

Do I have to have a lawyer?

While a lawyer is not required since this is a civil proceeding, hiring a lawyer can be very helpful in understanding the process and consequences. A lawyer can negotiate with the opposing party and use their knowledge of the rules of evidence at the contested hearing. A lawyer can reduce stress by guiding their client through the entire process from filing a protective order to serving a protective order to defending against a protective order.  Anti-stalking orders can have serious consequences for a Respondent, especially if the Respondent shares a home or children with the Petitioner. In addition, anti-stalking orders can be a problem if the Respondent has a security clearance for their job.

Contact our office at 240-396-4373 to schedule a consultation today.

Sharing our Love with QDRO Tips

Roses are red, violets are blue. We love sharing QDRO Tips with you. This Valentine’s Day we are showing our love by sharing some QDRO Tips:

Earnings, Gains, and Losses are your Friend – The market is quite volatile now and has been for quite some time. Additionally, some 401k, 403b, and similar plans are taking longer than before to effectuate a division of such accounts. Including earnings, gains, and losses on a retirement transfer amount to a former spouse/alternate payee will make it seem like those funds had been in the former spouse/alternate payee’s name since the date the parties decided to value the account. Excluding earnings, gains, and losses on the transfer amount means the participant/account holder will enjoy (or suffer) all fluctuations due to market changes. Imagine, the account has $100,000 as of 2/14/2024 and the parties agree the divide it equally, excluding earnings, gains, and losses. The former spouse will always get $50,000 but if the market falls the participant will end up with less than $50,000 in the account after the transfer is complete. Since no one can predict what the market will do, including earnings, gains, and losses on the transfer amount ensure that both parties will be affected proportionally in such a transfer.

Remember the Survivor Benefit – When dividing a pension, it is important to remember there is a portion paid during the participant’s lifetime, and there is an optional portion that can be paid out after the participant’s death. To continue the payment after the participant’s death is called the survivor benefit. State law dictates whether the survivor benefit is treated the same as the payment made during the participant’s lifetime. It is best to address whether the former spouse will receive a share of the survivor benefit. In the event the parties are divorcing in a state that treats these as separate assets, failing to do so could preclude the former spouse from receiving the benefit at all.

You can Withdraw from Your IRA at age 59 ½ - With the retirement age creeping ever higher for access to social security funds, parties should remember they can access other retirement funds sooner. This can really help parties trying to plan for retirement while going through a divorce. Though, these clients may also benefit from the counsel of a financial planner.

Shared or Separate Pension Interest Division – Some pensions can only be divided such that the former spouse receives money only if, as, and when the participant receives money from the pension. If that’s the case, for the former spouse to receive payments after the death of the participant they will need to be awarded a survivor benefit. Some pensions may also be divided so that the former spouse can begin to receive payments when they choose, and have the payment made for their lifetime. There are sometimes complex actuarial considerations in this decision, but ultimately is a decision the parties need to make.

401ks can Fund Alimony and Child Support Arrears Payments – If a party does not have sufficient funds to pay alimony or child support arrears directly, a court order can be entered to make such payment from the obligor’s 401k. Such court order must specify the purpose of the payment is for alimony or child support (as opposed to division of marital property) so that the tax will be charged to the obligor rather than the payee.

Get Plan Documents Early – Too often parties agree to a division of retirement benefits, only to learn that the plan does not allow for their agreed-upon plan. The parties then have to go back to the negotiating table (or court) to find a new way forward. Getting the plan documents early allows the parties to move forward knowing their options so they know what they agree upon will be allowed by the plan.

Pick Your Title: QDRO, EDRO, or COAP – “QDRO” is a term of art defined under the Employee Retirement Income Security Act (ERISA). Not all retirement plans are governed by ERISA, however, and those plans do not like to use ERISA language. As such, they have adopted other preferred titles, such as Eligible Domestic Relations Orders or Court Order Acceptable for Processing. While some plans are particular about the title of these orders submitted to them, others are not. But it is important to know that picking the wrong name could result in a rejection, even if the rest of the order would otherwise be acceptable.

Some Plans are not Divisible – Plans governed by ERISA are required to be divisible by court order in some manner. For plans not governed by ERISA though, no division mechanism is required, and in fact, the plans can have a non-alienation clause prohibiting the transfer of the asset. Many of these plans are for highly compensated individuals such as partners and shareholders of large organizations. If the funds in these accounts are marital funds that should be divided, the parties will likely need to find some other asset to transfer instead.

If you have additional questions about QDROs, contact our office at 240-396-4373.

What You Need to Know About Civil Protection Orders in the District of Columbia

What is a protective order?

A protective order is a court order that lasts for up to two years that prohibits another person from contacting, attempting to contact, harassing, or stalking another person. The “Petitioner” is the person who files a request for a protective order, and the “Respondent” is the person who is served with the protective order. A protective order can also grant temporary custody of children to the Petitioner and order the Respondent to vacate the home if the parties live together. Violation of a protective order is a criminal offense that carries jail time and financial penalties.

Who is eligible for a protective order?

To obtain a protective order, there must be a specific relationship between the Petitioner and the Respondent. The Petitioner may file a protective order against a person who has committed or who has threatened to commit an intrafamily offense against the Petitioner, an act of animal cruelty against the Petitioner’s animal, sexual assault, or sex trafficking of the Petitioner. An “intrafamily offense” is a criminal offense that has been committed against an intimate partner, a family member, or a household member, or as an offense punishable as animal cruelty against an animal that an intimate partner, family member, or household member possesses, owns, or controls.

What is a temporary protective order (TPO), and is a TPO always issued before a final protective order hearing?

The court may issue a temporary protection order if the petitioner or a person petitioning on the petitioner's behalf establishes that the safety or welfare of the petitioner, or an animal the petitioner owns, possesses, or controls, is immediately endangered by the respondent. A temporary protection order shall remain in effect for an initial period not to exceed 14 days as necessary to complete service and the hearing on the petition. The court may extend a temporary protection order as necessary to complete service and the hearing on the petition. If a judge declines to grant a TPO but the court finds that there is good cause to believe that the Respondent has committed or threatened to commit an intrafamily offense or animal cruelty, then a final protective order hearing will be scheduled.

Am I entitled to see the other party’s evidence before the hearing?

Unlike a criminal case or a typical civil lawsuit, a party in a protective order proceeding is not automatically entitled to see the other party’s evidence. A judge has the discretion to order that discovery (or evidence) be produced upon motion of a party if it finds good cause to do so.

How do I get a protective order?

The first step in getting a protective order is to file a Petition with the court. This can be done online through the court’s website or in person. If the Petitioner is requesting a TPO, then they will appear before a judge the same day or the next business day to state under oath why they are requesting protection from the Petitioner. If a TPO is not granted or the Petitioner is not requesting a TPO, then a final protective order hearing will be held within 14 days.

How long does a protective order last?

A TPO can last up to 14 days pending the hearing on the final protective order. A final protective order can last for a maximum of two years from the date that the final order is issued.

What should I bring to the final protective order hearing?

Regardless of whether you are the Petitioner or the Respondent, bring all evidence that tends to support your case to the final hearing. You should print out text messages, social media posts, emails, or other documents as opposed to trying to introduce them into evidence through your phone or computer. Either party may call witnesses to testify on their behalf.

What if I am accused of violating a protective order?

Since violation of a protective order is a criminal offense, you should immediately consult with an experienced attorney who can advise you of the criminal process and assist you in your defense. Do not make any statements to the police or anyone else because anything you say can and will be used against you.

Do I Need a Lawyer to File for a Protective Order or Defend Myself Against One?

While a lawyer is not required since this is a civil proceeding, hiring a lawyer can be very helpful in understanding the process and consequences. A lawyer can negotiate with the opposing party and use their knowledge of the rules of evidence at the contested hearing. A lawyer can reduce stress by guiding their client through the entire process from filing a protective order to serving a protective order to defending against a protective order. Protective orders can have serious consequences for a Respondent, especially if the Respondent shares a home or children with the Petitioner. In addition, protective orders can be a problem if the Respondent has a security clearance for their job.

Contact our office at 240-396-4373 to schedule your consultation with one of our skilled attorneys.

Major Differences in ERISA Governed Plans, and Non-ERISA Governed Plans

The Employees’ Retirement Income Security Act (ERISA), as revised, includes many protections for former spouses (or soon-to-be former spouses) as it relates to the submission of QDROs. Chief among them is that once a plan is on notice of a former spouse’s viable claim to the participant’s interest in the plan, the plan has a responsibility to protect that former spouse’s interest through the submission of a court-executed QDRO or the expiration of 18 months, whichever first occurs.

What are these protections?

For a defined contribution account the plan will usually prevent the participant from taking loans or making withdrawals from the account. For defined benefit accounts the plan can go as far as preventing the participant from commencing benefits or pausing benefit payments altogether, or can begin to withhold a portion for the former spouse pending the final order. For financially dependent spouses, the submission of a draft order for the purpose of implementing these protections can be a tactic to preserve the marital estate while the divorce is pending.

What is a viable claim from a former spouse?

ERISA does not clearly define what needs to be submitted to a plan for these protections to be put in place. Most ERISA-governed plans are very cautious and will put up protections when they receive a draft DRO.

Non-ERISA governed plans, however, only have such regulations if they are specifically written into their plan rules. Non-ERISA governed plans can protect their participants much more strongly. Imagine this scenario: a draft QDRO is submitted to the plan to ensure it will be accepted by the plan once in final form. The plan takes a while to review, but then responds with a few small edits.

The former spouse makes the edits and submits the draft for a second review. The plan again takes a while to complete the review. During that time the participant retires and commences benefits. The plan then responds to the former spouse’s second draft with substantial changes due to the participant’s retirement changing the benefits being available to the former spouse. Now the former spouse has to scramble to get the QDRO entered and to chase the participant for their share of the benefits that have been paid to the participant.

Alternatively, some non-ERISA governed plans have voluntarily put stricter protections in place for more day-to-day type activities. Specifically, the Thrift Savings Plan (federal government employees and military) requires spousal consent for any withdrawal or loan. While this is great to protect the marital asset, for a person who otherwise needs access to the funds for say, paying an attorney’s retainer fee, it may be a way for the former spouse to block the participant’s access to funds in a time of need. Recently, Congress has considered adding similar protections to ERISA, though no final decision has been made.

Why would these restrictions not be in the existing draft of ERISA?

Perhaps because the title of the statute is the Employees’ Retirement Income Security Act – as some courts have noted, the intent is to protect the asset of the employee, not their beneficiary. However, the protections exist once the former spouse’s claim is raised perhaps because the statute recognizes the need to transfer retirement funds to a more financially dependent spouse. After all, the need for QDROs and QDRO protections arose as divorce became more acceptable and there was one party with substantial retirement assets from employment and the other party had little to no retirement due to being a fulltime homemaker. As a former spouse has a marital claim to the retirement asset, they have a different standing from any other beneficiary.

As attorneys, what can we do to best protect our clients?

Gather information about the plan as early as possible. Figure out what are the plan’s procedures and how quickly they review and implement QDROs. If there is any concern regarding depletion of assets ask the plan what is required to freeze the account. Get the QDROs drafted in advance of a divorce. If there is no freeze on the account from any action prior to the divorce, then upon divorce the plan is unaware of any claim from the former spouse and will allow the participant to make any decision allowed under the plan rules. Not only does this protect the former spouse as best as possible, but it also gets the transfer done as close to the divorce as possible. It allows the parties to move forward from the divorce without the need to go back and get this done later, and as unattached as possible.

Have additional questions?  Contact our office at 240-396-4373. 

Using Maryland's Child Abduction Prevention Act in Interstate and International Family Law Matters

The Maryland Child Abduction Prevention Act took effect in Maryland on October 1, 2023. It is codified in the Maryland Annotated Code, Family Law Article, Title 9.7 (new). The Act is consistent with the Uniform Child Abduction Prevention Act (“UCAPA”), which has been adopted in its entirety or with modest amendments in sixteen states, including two surrounding jurisdictions (the District of Columbia and Pennsylvania). In 2024, UCAPA was introduced as legislation in five additional states.

Maryland’s UCAPA addresses important facets of assessing and preventing the risk of international and domestic child abductions. Abduction is defined as the wrongful removal or wrongful retention of a child. The Act establishes a comprehensive framework to impose abduction prevention measures at any time before or after a child custody determination if the court finds a credible risk of child abduction.

Child abduction prevention has been an important topic, particularly with the increasingly transient nature of families. Many family law practitioners routinely advise their clients about the risk of child abduction and the preventive measures custodians can take. Separating families often memorialize preventive measures in their written settlement agreements. Maryland’s UCAPA allows judges to be proactive rather than reactive by providing a mechanism for swift court intervention to minimize the risk of child abduction.

Maryland’s UCAPA provides helpful guidance on how and what to address in largely non-routine issues. Attorneys and litigants now have guidance on what the court will consider so that evidence can be streamlined and presented in a useful way. Judges will review objective facts and apply the risk factor guidance (based on years of research) set forth in UCAPA. The Act’s factors-based analysis is fair in its approach to both foreign and non-foreign parties. Courts will retain discretion in what remedies to impose depending on the facts of the case.

Importantly, Maryland’s UCAPA addresses both domestic and international child abductions. The Act permits a Maryland court to address a petition if it has custody jurisdiction or, if there is no custody jurisdiction in Maryland, under the temporary, emergency jurisdiction provision codified in the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).

Bringing awareness to the risk of child abduction and available remedies is essential in preventing child abductions. Adopting the Maryland Child Abduction Prevention Act brings desired clarity to the court process and to litigants who have genuine concerns about international and domestic child abduction.

The Act has only been in effect in Maryland for a few months. It may take some time before courts routinely use the Act to address child abduction matters. Notably, the preventive measures set forth in the Act are not exhaustive. Petitioners may request other remedies that may be available to prevent abduction. Families who are concerned about preventing or deterring child abduction should seek advice from an experienced family law practitioner. Contact our office at 240-396-4373 to schedule a consultation. 

Article originally published in AFCC Maryland Chapter February 2024 Newsletter. Click here for full newsletter. 

Leah Ramirez

Leah Ramirez, JD is a Principal of Markham Law Firm. She represents clients in domestic, interstate, and international family law matters.

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How to Avoid an Ugly Divorce

Engaging in costly, contentious litigation is not your only approach to divorce. There are several ways to keep your divorce amicable and out of the courtroom that are more cost-efficient, keep you in the driver’s seat, and are in the best interests of your children.

Negotiation

Depending on how complicated the issues are or how much the parties are on the same page, parties can execute a marital settlement agreement through direct negotiations between themselves and/or through counsel. If parties come to agreed-upon terms on their own, it is highly recommended that an attorney draft the agreement and the other party have an attorney of their selection review the agreement, but it is not required.

Mediation

Mediation is a process in which a trained neutral, such as a family law attorney, retired judge, or certified mediator, assists parties in communicating with one another and reaching agreements that meet both party’s needs. Parties may attend mediation with or without counsel and it is confidential. Mediation is party-driven and allows parties to reach decisions that are best suited to their family’s needs.

Collaborative Law

The Collaborative Law process is a multidisciplinary approach that utilizes professionals in relevant areas such as law, accounting/finance, and psychology/social work to consult with clients on various objectives and outcomes. The Collaborative Law process is party-focused with professionals offering advice and the parties making the decision. This process is intended to help alleviate any anger and resentment between parties and maintain goodwill following the divorce. The professionals and parties work collaboratively to achieve the goals of the family. The process ultimately concludes with the execution of a global agreement made for and by you.

Filing for Divorce

Once you have an agreement via mediation, Collaborative Law, or by negotiation between counsel and/or the parties, you will need to file for an uncontested divorce. In Maryland, mutual consent is one of the three no-fault grounds for absolute divorce in Maryland. There is no separation requirement or waiting period. Pursuant to mutual consent, both parties must execute a written settlement agreement. The settlement agreement must resolve all issues including alimony, distribution of property, and custody and child support of the minor child(ren). Once the agreement is executed and filed with the court along with a Complaint and Answer, a ten-minute uncontested divorce hearing will be set. If no party files a pleading to set aside the agreement prior to the divorce hearing, the court will review the settlement agreement to ensure that the terms relating to the minor children are in the best interests of the children, if applicable. If all meets with the approval of the court, the parties will be divorced.

Similarly, in D.C., there is no waiting period or separation requirement as of February 10, 2024. The new law simply requires that either one or both parties assert that they no longer wish to be married. As such, parties may execute a settlement agreement via the aforementioned processes, and file for divorce, asserting that they no longer wish to be married, in order to qualify for a divorce in D.C. To read more about the changes to D.C. divorce laws, please click here.

Our attorneys are trained, experienced, and ready to assist you in achieving an amicable divorce. Click here to contact our office today or call us at 240-396-4373.

Intergovernmental Organizations: Basic Elements to Consider

Intergovernmental Organizations, such as the World Bank, Inter-American Development Bank, the International Monetary Fund, the Asian Development Bank, and the United Nations (to name only a few), have retirement programs with unique rules for division pursuant to a divorce.

First, it is important to note that these organizations are not bound by US law, and therefore are not required to accept a US or state court order dividing one of their employee’s retirement interests. Many of these organizations, including the ones listed above do accept court orders for the purpose, so long as it conforms to the organization’s rules and regulations. The reason is because they want to promote law-abiding behaviors without waiving their privileges and immunities that they enjoy through their status as an intergovernmental organization.

Major points to consider in negotiating or arguing for retirement benefits provided by this organizations:

1. Survivor benefits. Most of these organizations will not allow a court order dividing the pension benefit to reference survivor benefits. Typically, these organizations require a former spouse survivor benefit be secured by the filing of a beneficiary designation form with the plan’s administrating office. Thus, it is important to require the participant to fill out and submit such form timely, and that such requirement is included in an enforceable document other than the order dividing the retirement benefits.

2.  Cost of survivor benefits. Most of these organizations do not allow for the cost to provide the survivor benefits to the former spouse to be shifted, and may require that the reduction be taken from the participant’s portion of the pension benefit. Where this is the case, parties can usually determine an equal amount by which they reduce the former spouse’s share of the benefit to effectively shift the reduction for the survivor benefits. However, since this involves more work and clear language in the separation agreement (or presentation of evidence to the court) it is wise to advise your client of the potential need for this early on, or to obtain as much information as possible so this is not a surprise after everything is resolved.

3.  Limitations on total award from the retirement plan. Many of these organizations include a limit on how much a participant’s retirement benefit can be reduced from all sources. In effect, the organization wants to secure some amount of the retirement benefit for the participant. The result in dividing it for a divorce means that sometimes the amount awarded to the former spouse must be reduced so that the participant still receives the minimum amount required from the plan. Specifically, imagine a case where the entire service is marital so the former spouse would receive 50% of the entire pension benefit. Then, the former spouse also wants a survivor benefit, but the reduction for the survivor benefit must come from the participant’s share of the pension. This would result in the participant receiving less than 50% of the pension benefit during their lifetime, which violates the plan’s rule that the participant cannot receive less than 50% of their pension benefit. So, in order for the plan to accept the division, the former spouse must either reduce their share of the pension to effectively shift the cost of the survivor benefit to the former spouse, or the former spouse must waive the survivor benefit.

   • This limit applies to all reductions, so if the participant has multiple marriages and is providing survivor benefits and a share of the pension to multiple former spouses or a current spouse, it is important to check that this rule is followed. Typically, if a draft order is submitted to these plans, they will advise if there is an issue here.

4.  Title of the Court Order. Since the plans are not bound by US laws, they will reject any document (even if otherwise acceptable) if it is called a Qualified Domestic Relations Order because that is a term specific to the Employee Retirement Income Security Act. Some organizations, like the World Bank, require the payment to the former spouse be called Spousal Support. Other organizations simply prohibit the term QDRO but will accept anything else. Especially if dealing with the World Bank, it is important to use the correct terminology in the agreement or other court orders.

   •  A special note here, there are cases in both Maryland and DC that state even though the World Bank requires the phrase “Spousal Support” to be used in their orders, that the courts can divide the benefits pursuant to the jurisdiction’s property division statutes similar to US-based retirement programs.

5.  Cash Balance and Commuted Benefits. Some of these programs include a cash balance benefit or allow the participant to receive a lump sum benefit at the beginning of their retirement followed by a monthly benefit. The organizations may require that these benefits each be discussed separately in the pension division order. Therefore, it is important to discuss in trial or in an agreement.

While there are other aspects to each plan that should be given special consideration these are the major points that come up frequently in these cases. As with all retirement benefits, the most important step is getting all the information early in the case to know all the elements that need to be addressed during the divorce process. We can assist in obtaining plan documents and determining benefits available for division in these types of cases. Depending on your needs, we can provide some services on a flat fee basis. For assistance and information regarding fees, please contact us at 240-396-4373.

D.C. Divorce Law Updates in 2024

The new year brings noteworthy updates to D.C. family law provisions. The Council of the District of Columbia has recently passed D.C. Act 25-322, amending key provisions in D.C. divorce laws. This legislation, effective as of January 26, 2024, has been codified and is now officially law. These changes impact various aspects of family law in the District of Columbia, bringing immediate legal implications.

No More Waiting Period for Divorce

In D.C., it has been the law for many years that parties have grounds to seek a divorce if (1) “both parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation for a period of six months” before filing for divorce or (2) “both parties to the marriage have lived separate and apart without cohabitation for a period of one year” before filing for divorce. D.C. Code §16-904(a). This means that you could file for a divorce after being mutually and voluntarily separated for six months or after being separated for one year. In D.C., you were considered separated for the time you ceased acting as a married couple, including not sharing a bed or bedroom or having marital relations. 

However, as soon as the new law goes into effect, there will no longer be a waiting period to file for divorce after separation. Instead, “[a] divorce from the bonds of marriage may be granted upon the assertion by one or both parties that they no longer wish to remain married.” D.C. Act 25-322, Grounds for Divorce, Legal Separation, and Annulment Amendment Act of 2023. 

Similarly, a legal separation may also be granted “upon at least one party’s assertion that they intend to pursue a separate life without obtaining a divorce” whereas previously, the parties were required to mutually and voluntarily live separate and apart or to have lived separate and apart for at least one year before filing.

Abuse as a Factor in Marital Property Division and Alimony

Property division in D.C. is done on an equitable basis (whatever the Court thinks is fair and reasonable). In determining what is an equitable distribution of property, the legislation directs the Court to consider a non-exhaustive list of factors, which includes things like the duration of the marriage, if alimony is being awarded, custody provisions, etc. See D.C. Code § 16-910(a)(2). The new law adds an additional factor for the Court’s consideration: “the history of physical, emotional, or financial abuse by one party against the other.” D.C. Act 25-322. The new law also adds this same language regarding abuse to the non-exhaustive list of factors the Court should consider when determining alimony. See D.C. Code § 16-913(d)(5). For more information about marital property division in D.C., please check out our previous blog post here.

Use and Possession of the Family Home

Pendente lite (Latin for “pending litigation”) relief are things the Court can award on a temporary basis, before the final hearing/trial, while the divorce and/or custody case is pending. This relief includes temporary alimony, temporary child support, and temporary custody. The new law adds one additional form of pendente lite relief: use and possession of the family home. Use and possession of the family home means that the Court can award one party occupancy of the family home for a prescribed period of time, regardless of how the home is titled.

Why These Changes Are Important 

By removing the waiting period to file for divorce, the new law removes a major barrier to ending a legal relationship. The sooner you can close one chapter of your life, the sooner you can move on to bigger and better things.

These changes also provide significant protections to spouses who are survivors of domestic violence by preventing one spouse from unnecessarily delaying a divorce, allowing the Court to weigh abuse as a factor when considering equitable distribution of marital property and alimony, and allowing an abused spouse to stay in the family home, even if the home or lease is titled in the other party’s name.

If you have further questions regarding D.C.’s new divorce laws, please contact Markham Law Firm at 240-396-4373 to setup a consultation.