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What's Up Magazine

Leading Legal Professionals 2016 Q&As

May 18, 2016 02:01PM ● By Cate Reynolds
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Q: Should I hire a mediator or an attorney for my divorce?

A: No one should ever go through any family law issue without having met with an attorney to understand their rights. A mediator’s purpose is to settle a case. Mediators assist in many divorce cases. However, a mediator’s assistance can only be as good as the information you have. Before you walk into a mediator’s office, you should have an understanding of what your rights are, know what the assets are between the two of you, and understand the process. In addition, those who have experienced domestic violence should be reluctant to get involved in mediation, since some of the same issues develop in the mediation sessions that had been present during the marriage regarding control, bullying, and intransigence in thought processes. Always know your rights before you do anything. Talking to an attorney will allow you to understand the complete divorce process rather than just understanding what you will be receiving.

Marietta B. Warren, Hillman, Brown & Darrow, P.A.

Q: The judge found me not guilty of drinking and driving. How can the MVA still take my license?

A: You probably either refused to take the breath or blood test or your test result was .08 or greater. The MVA and the Court are separate agencies that have different interests. One hearing does not relate to the other. So yes, the MVA can suspend your license even if you were found not guilty or received a PBJ in court. But, there are certain rules that must be followed before the MVA can take your license. You can request a hearing to challenge the suspension or have an ignition interlock installed, but you need to know which is better for you. Neither of these options are automatic and must be requested within a short time period after you are charged. Do not delay. Get help immediately if you ever find yourself in this predicament.

Crighton A. Chase, Hillman, Brown & Darrow, P.A.

Q: What is meant by “divorce by consent?”

A: Changes to Maryland’s divorce laws from the 2015–16 legislative session went into effect October 2015, which provide for couples who do not have minor children to obtain a divorce if both parties consent to the divorce and have executed a Marital Settlement Agreement that addresses all issues in the divorce. These new amendments are designed to make the process easier for couples who both agree to a divorce and have resolved all issues, such that they no longer have to separate for a year and a day before filing for divorce.

Kendall Summers, Esquire, Kendall Summers Law, The Good Divorce Network

Q: What is mediation and why should I call you?

A: As an objective third party and mediator in a variety of cases including child custody, marital property, workplace conflicts, workers’ comp, personal injury, contracts, and probate/estate disputes, in the Greater D.C. area, Maryland, and Northern Virginia, I have had the privilege of facilitating respectful and empathetic conversations between parties to help them identify their shared interests, clarify their differences, generate options, and empower them to resolve some or all of their differences.

Nancy Karkowsky, Esquire, Attorney-Mediator, The Good Divorce Network

Q: Why should I be thinking about estate docs when I feel great?

A: If you are feeling great and in good health, now is the perfect time to think about handling things when you are not! Preparing Wills, Advance Directives, and similar paperwork is an act of love and kindness to your loved ones. It also gives you control over health care decisions at times of incapacity. You never know when something will happen. Wills can be fairly simple, a great way to remember others, make the gifts in your own way, and to structure giving wisely. Now is really a good time.

Kendall Summers, Esquire, Kendall Summers Law, The Good Divorce Network

Q: Prenuptial agreements: Good or bad?

A: Few people like the sound of a prenuptial agreement (prenup) because it means you have to talk about divorce before you are even married. Still, it is better to be prepared,especially if you are entering a marriage with substantial assets. A prenup is an extremely valuable tool that allows a couple to decide many aspects of a potential divorce, including alimony and property division. A prenup cannot address child custody and child support.

Evan M. Koslow, Esquire, Family Law Attorney and Mediator, The Good Divorce Network

Q: How are pensions handled in divorce cases in Maryland?

A: One of the first questions to ask if there is a pension at issue in a divorce is whether any part of that pension was earned during the marriage. If all or part of the pension was earned during the marriage, then that portion of the pension may be considered a “marital asset” subject to division under the Maryland, Family Law Article, and case law. Pensions are divided by special orders of the Court usually called Qualified Domestic Relations Orders (QDRO’s). If there is a pension at issue, it is advisable to talk with legal counsel.

Kendall Summers, Esquire, Kendall Summers Law, The Good Divorce Network

Q: What’s the best approach to use in your separation and divorce?

A: Mediation, unbundled legal services, collaborative practice, negotiated settlement, cooperative settlement, or litigation? The answer is, it depends. I review many factors with my client to help them make an informed decision. Complexity of the issues, a couple’s level of trust/honesty, their communication style, level of emotionality, and disparity in bargaining power, and/or financial sophistication are just a few. Choosing the right dispute resolution process is a key step in moving forward with your separation and divorce and to a successful transition. Make sure you feel comfortable with the professional you hire and with the conflict resolution approach you choose.

Nancy Weller, Esquire, The Good Divorce Network

Q: How do I know if my record can be expunged?

A: If you receive a nolle prosequi disposition or if your case is dismissed, you may file for an expungement immediately. If you receive a Probation Before Judgment, you will have to wait three years after the disposition or after probationary period, whichever comes after, in order to file a petition. Unfortunately, if one receives a Probation BeforeJudgment for an alcohol-related offense, you are still not eligible for an expungement. The statute is designed to preclude someone who’s been found guilty of an alcohol-related offense (or granted a Probation Before Judgment) from ever being able to erase this sort of conviction from his or her record. Determining one’s eligibility for an expungement is a bit involved, thus it would be safe to consult an attorney about personal circumstances.

Gill Cochran, Cochran & Chhabra, LLC

Q: Do I need a lawyer if I’m injured in a car accident?

A: Yes! Your lawyer can resolve the property damage (free of charge), get you a rental car, recoup the diminished value of the vehicle, help with Personal Injury Protection (PIP), and seek additional coverage. Your lawyer knows the value of the case based on trying similar cases and will provide leverage against the insurance company. He or she will also negotiate health insurance liens and outstanding medical bills. There is value in having a professional assist you.

Debbie Potter, The Jaklitsch Law Group

Q: Should I have a trust?

A: A trust may help you accomplish your objectives: hedging against your own possible disability by having a structure in place to seamlessly manage your affairs if necessary; protecting young or inexperienced children until they reach sufficient age and understanding to manage for themselves; providing long-term financial care for a disabled child; making available your assets after your death for the benefit of your loved ones while insulating those assets from their creditors; effectuating state and/or federal tax planning. The key is to tailor your estate plan to you and your family. No particular planning tool is a one-size-fits-all solution; trusts are highly flexible, useful planning tools.

Frederick R. Franke, Jr., Law Office of Frederick R. Franke, Jr. LLC

Q: If I have an arrest warrant, what are my options to have it removed?

A: Your options range from turning yourself in to law enforcement to hiring an attorney to attempt to quash (remove) the warrant. No matter which option you choose, however, it would be wise to consult with an attorney. An attorney can provide more detail regarding the entire process and tailoring his or her advice to your particular situation (i.e., the charges that resulted in a warrant, severity of allegations, what county the charges stem from, etc.). Ideally, an attorney would submit a motion on your behalf requesting a judge to lift the warrant. If this request is denied, turning oneself in is likely the next option.

Raquel Smith, Cochran & Chhabra, LLC

Q: Who pays my medical bills when I am injured in an automobile accident?

A: If your policy has Personal Injury Protection (PIP), it will pay dollarfor- dollar reimbursement of your medical bills and 85 percent of your gross lost wages up to the policy limits. Once your medical treatment is complete, we will send all of your medical records and bills to the at-fault party’s insurance company and begin to negotiate a settlement for compensation for your injuries.

Stacie J. Wollman, The Law Office of Stacie J. Wollman

Q: The Court has ordered me to go through mediation before trial; what should I expect?

A: Most jurisdictions now require mediation as a pre-condition to trial. The parties meet with an attorney or retired judge to determine if they can compromise on their differences. The decision is voluntary. A compromise almost always is a difficult challenge for all parties to accept, but is often preferable to the grind, expense, and risk of trial. The most important difference is control. In mediation, you make the final decision. In court, a judge or jury makes the final decision.

Rignal W. Baldwin, BaldwinLaw LLC

Q: What happens when owners of real estate disagree about whether to sell the property, which owner should be responsible for costs and maintenance, or if the owners (such as an unmarried couple) are separating and cannot agree on what will become of the property?

A: “Sale in lieu of partition” is one solution. If one owner wants to sell, and the other refuses, or if one owner is bearing an unfair share of taxes and other costs, the owner(s) should consult experienced real estate counsel. Essentially, an owner wanting to sell may petition the Circuit Court to order the property sold. If the Court grants the petition, the property may be ordered sold at an auction to the highest bidder and the proceeds, after expenses and lien payoff (if any), will be divided between the parties. An owner who has paid more than his or her share of expenses then may seek reimbursement from sale proceeds.

Jerome l. Feldman, Bernstein & Feldman, P.A.

Q: How do I get divorced based upon “mutual consent?”

A: If you and your spouse do not have any minor children together and if you settle the issues relating to your divorce, you may get divorced without being separated for 12 months. In fact, you need not be separated at all. To qualify for a “mutual consent” divorce, you must submit to the court a fully executed settlement agreement that resolves ALL issues relating to alimony, property division, monetary award, and counsel fees. Both parties must want the divorce. The parties may appear before a standing examiner, a court-appointed lawyer who takes uncontested divorce testimony and who prepares and sends the appropriate paperwork to the court. The judgment of divorce would then be mailed to you. Getting divorced based upon mutual consent is amicable and inexpensive, and allows you to determine the outcome of your divorce, not a judge.

Stacey Rice, Brassel Alexander & Rice, LLC

Q: What Asset Protection Laws are available in Maryland?

A: In Maryland, an “inter vivid QTIP trust” can now be used for asset protection. Under this new law, one spouse may create a trust for the other spouse, but retain the right to receive income or principal back if the donee spouse dies first. The rules are very precise, but if followed carefully, the trust is not subject to the donor’s creditor claims. For example, a high-risk spouse could create this trust for a low-risk spouse with spendthrift provisions and fund the trust with non-retirement assets.

Randall D. Fisher, Fisher Law Office

Q: When is a lawsuit the best way to resolve an issue or dispute?

A: Almost never. Litigation is expensive, time consuming, and can be emotionally exhausting. More importantly, if you’re spending your days wandering the halls of courthouses, unless you are an attorney, you are not doing what you do to make a living. Resolving disputes and solving problems requires cooperation, patience, and a desire to look forward, not back. The right trial lawyer is the one who encourages clients to find common ground when it is possible, but is prepared for litigation when it is not.

Christopher R. Daily, Brady Fischel & Daily, LLC

Q: Why undergo business succession planning?

A: Effective planning creates a sustainable platform to guide the company forward under a solid management team and an ownership structure that reduces uncertainty. Business succession planning offers stability, can help minimize the chances of conflict, helps to prepare the next-generation of leaders ahead of time, serves as a powerful hiring and retention tool, and helps assure maximum financial flexibility at a transition event, while minimizing related tax burdens. Consider an attorney who has team to handle every aspect of your transition, including Stock and Asset sales, Trusts, Valuations, and Contingency Plans.

Stephen A. Oberg, Managing Director, Council Baradel – Attorneys at Law

Q: When starting or joining a business with a friend, what steps are needed?

A: Starting or joining an existing business is an exciting time. Getting into a business with anyone is best done with a clear agreement defining every person’s relationship, responsibilities, contributions, management rights, income, sharing of profits and losses, etc. Lawyers evaluate the type of business you need (for example, LLC, Corporation, Partnership, or Joint Venture), register it with the State, and prepare your business agreements. Planning early may avoid later expensive lawsuits if a disagreement develops or your business expectations change. As your business grows or owners change, your agreements and business documents may require modification or updating.

Ronald H. Jarashow, Gormley Jarashow Bowman, LLC

Q: What is a donor advised fund?

A: A donor advised fund is a simple and flexible way to give to charity now, or to create a source of funding for charitable giving by future generations of your family. Under federal tax rules, if a donor’s control over a fund owned by a charitable organization is limited to giving advice, and the charity is not obligated to follow the donor’s advice, then the contribution to the fund is deductible as a charitable contribution if the other requirements for deduction are satisfied. The fund can be a great tool to bring families together to agree on annual charitable gifts.

Frank Campbell, Holden & Campbell

Q: My company has a dispute with a vendor and the agreement has an arbitration clause. Is it binding and how do we file?

A: If your contract is enforceable, the arbitration clause is binding. The agreement should identify the arbitration process. Most arbitration provisions use the American Arbitration Association (“AAA”). The forms and fees for filing an arbitration demand can be found on the AAA website (www.adr.org). If the agreement does not specify AAA, the parties need to agree upon an independent arbitrator. If the parties cannot agree, you may need to file a motion to compel arbitration in court. Once arbitration has been initiated, AAA will assign an independent arbitrator to rule on the case. In arbitration, the discovery process and rules of evidence are different than if your case had proceeded in court and you should consult with experienced counsel for assistance.

Jonathan P. Kagan, Kagan Law Group, LLC

Q: How does the court decide who should have custody, and are there different types of custody?

A: In deciding a custody arrangement, the courts look to the best interests of the child or children. So, if you are seeking custody, your job is to convince the court that the children’s interests are best served by being placed in the custody arrangement you are requesting. Basically, there are two forms of custody: legal and physical. Legal custody concerns decision-making authority, which could be joint or sole. Physical custody relates to where the children reside/where they sleep.

Hollie S. Cutler, Law Offices of Hollie S. Cutler, LLC

Q: Why is it important to seek advice from an attorney as soon as possible about a potential claim?

A: Memories are generally more accurate when fresh and tend to fade over time. If you consult with an attorney promptly, there is a greater likelihood that you will remember more facts and will be able to provide the attorney with more details regarding your potential claim. Many, if not most, cases also involve documents, electronically stored information, or other objects or things that can be used as evidence if claims are pursued. Prompt consultation with an attorney increases the possibility of preserving evidence that might otherwise be lost or destroyed. Prompt consultation with an attorney is also important because lawsuits asserting claims also must be filed within time limits established by law, and failure to file within the applicable time limits prevents recovery of damages.

Kathleen Howard Meredith, Iliff, Meredith, Wildberger & Brennan, P.C.

Q: Is reporting a work-related injury to my supervisor and my employer’s insurance company enough to preserve my legal rights?

A: No, in addition to reporting your injury to your supervisor, you must also file a claim with the Maryland Workers’ Compensation Commission. This is separate and apart from opening a claim with the insurance company. If you have been injured at work in any way, you should contact a Workers’ Compensation attorney to file a claim with the Commission as soon as possible. Filing the claim form does not mean you have to pursue the claim, but failing to file it within two years of the injury could result in your claim being barred by the statute of limitations.

Joyce Jones, Jones & Suh, LLC

Q: How can I afford to hire an attorney for my Social Security Disability, Long Term Disability, Workers’ Compensation, or Personal injury case if I have no income?

A: All of these cases are handled on a contingency fee basis. That means you don’t have to pay the attorney at all unless you win your case. The attorney’s fee will be a percentage of the amount that you recover from winning your case. The percentage varies according to the type of case. The fee percentages for Social Security Disability and Workers’ Compensation cases are regulated by the governmental agencies. In addition, our law firm will waive the cost of any expenses unless a recovery is made on your behalf.

Michael Steinhardt, Steinhardt, Siskind and Associates, L.L.C.

Q: I want to purchase a small shopping center. What should I consider?

A: Commercial and industrial properties may contain environmental contamination not readily apparent to a potential buyer. Federal and state laws regulate contaminated properties and sometimes mandate costly cleanup. In addition, banks are often unwilling to lend money for the acquisition or development of contaminated property. Thus, proper due diligence allows a buyer to identify the nature and extent of contamination, allocate the resources required for cleanup, and understand restrictions on future uses of the property. Commercial property purchasers should retain experienced professionals to assess legal and lending liabilities, and prepare appropriate contract and loan documents.

Megan Roberts-Satinsky, Linowes and Blocher LLP

Q: Will the Court help us resolve custody/ visitation issues?

A: Yes. If there are unresolved custody/visitation issues, the Court will require that both parents attend an on-line education program to: (i) familiarize them with the Court system and what to expect and (ii) to prepare the parties for mediation. The Court will then assign a certified mediator who will spend up to four hours with the parties, assisting them in reaching a solution to their differences. Most cases involving custody/ visitation issues are settled with help.

Stephen P. Krohn, Stephen P. Krohn, P.A.

Q: How does a person who is about to become involved in a family law problem select the right lawyer?

A: 1) Start by checking the lawyer’s rating in Martindale-Hubbell, a publication which rates attorneys based on evaluations from one’s peers. 2) Inquire of friends who have been through a similar situation. 3) Inquire of lawyer friends you may have. 4) Ask people at the courthouse who work for the court in the family law division. 5) Confer with more than one lawyer to make certain that you are comfortable with the person selected. Lawyers are not “one size fits all.” Determine what you are looking for—super aggressive, cerebral, or warm and fuzzy. Look for someone who is responsive in getting back to you, who will not delegate duties to others, and who specializes in the issues that are likely to be involved in your case. This is a very important decision — select wisely.

Ron Naditch, Ronald M. Naditch, P.A.

Q: Why do I need an estate plan?

A: Even if you consider your assets modest, you will want to designate who cares for you and your property if you become incapacitated, who raises your children if you can’t, and to whom, when, and how your assets should pass at death. The State’s default “estate plan” will probably differ from your priorities, especially if you worry about future beneficiaries’ creditors or divorce. Planning for the risk of potential assisted living costs is becoming increasingly important and should be an integral component of your overall plan. Finally, that “modest” estate may be larger than you think — don’t forget about your current non-spendable funds such as life insurance, retirement funds, and government benefits.

Richard T. Wright and Leanne Fryer Broyles, The Wright Firm

Q: What should I do if I get into a car accident?

A: If you are involved in an auto accident it is very important to (i) call the police; (ii) exchange information with the at-fault driver getting insurance information, driver’s license number and tag number (with the advent of smart phones — it is super easy to simply take pictures of all of these things); (iii) take a picture of the property damage and the location of the accident; (iv) seek medical treatment, and (v) contact a lawyer.

John Leo Walter, Esquire, Eastern Shore Legal

Q: Social Media –What should I do?

A: I advise my clients to avoid all social media. Once posted, attorneys cannot protect their clients because they are ethically prohibited from advising a client to change or destroy evidence. The information shared on social media can be secured by the opposing party and introduced into evidence at trial. Your “friends” may be amused or sympathetic to your posts but the court will not. Social media can be entertaining, informative, and innocent if used properly, but your spouse is gathering the information with the sole purpose of using it against you. Why give him/her the chance?

Philip Cronan, Hollis, Cronan & Fronk, P.A.

Q: What concerns should I have when I get automobile insurance, to protect myself and occupants of my vehicles?

A: Too often, we meet with victims of a motor vehicle collision where the other driver was underinsured and steps had not been taken by the client to have proper insurance protection for themselves and the occupants of their vehicles. In the event of a serious crash, the results can be devastating. You have a right to have underinsured/uninsured motorist coverage as high as your liability coverage. Get it. You also have a right to maximize your personal injury protection (PIP) & medical payments coverage to protect the occupants of your vehicles. You should do that as well if you can afford it. You need to protect the people in your vehicles.

Melanie J. Barney, Jacobs & Barney

Q: I’m applying for a job that requires a background check.What can I expect?

A: Employer background checks may reveal information related to your driving record, criminal history and court records, credit score and employment history. Maryland law permits expungement of certain criminal and traffic matters depending on disposition. Dismissals, stets and certain probations before judgment can be expunged. Probation before judgment for a DUI/DWI offense in the State of Maryland is never eligible for expungement. I would highly recommend you seek competent legal counsel to review your criminal and traffic history to identify any matters that may be eligible for expungement.

Stephanie Shipley, Shipley Law Firm.