Dissolution and Retirement Plans
You have a Judgment for Dissolution of Marriage giving you an interest in your former spouse’s retirement, what is next?
Many individuals that have gone through a divorce and are awarded an interest in their former spouse’s retirement plan believe that the Judgment for Dissolution of Marriage is all someone needs to receive the interest in that retirement plan. Unfortunately, it is not. There is a next step that has to be taken to actually divide the retirement plan. This process is called a Qualified Domestic Relations Order or QDRO for short.
A QDRO is a pleading that provides an individual’s retirement plan “ the Plan” specific directions as to how to divide the funds contained in the Plan between the employee spouse “Participant” and the former spouse “Alternate Payee.” A QDRO is a complex legal document, as it provides, among other provisions, the specific calculation of the former spouses interests the Plan, terms of payment to the former spouse and tax consequences as to both parties. As this is a complex process, it is important to retain counsel that is knowledgeable in the preparation of a QDRO. Most family law attorneys do not prepare QDROs and defer to a “QDRO” attorney who understands all of the legalities surrounding QDROs.
Once a QDRO has been prepared pursuant to the terms of the Judgment for Dissolution of the Marriage, the QDRO needs to be approved by the plan, signed by the parties, filed with the court and then the file marked copy needs to be returned to the plan. If the Plan does not approve and then receive a filed QDRO signed by both parties and the Judge, then the former spouse’s interest in the Plan will never be paid out and allocated to the former spouse. The funds that were awarded to the former spouse with remain in the employee spouse’s account.
It is important to note that there is no time limit in the preparation of a QDRO. As such, if an individual’s divorce has been finalized for 10 years and they have been awarded an interest their spouses retirement plan, they can still proceed with the QDRO for that division and allocation. However, the longer the former spouse waits to execute a QDRO, they risk the possibility of the employee spouse liquidating their interest, thus requiring further judicial intervention to recoup those lost funds.
Finally, if the employee spouse refuses to sign off on an approved QDRO, that does not mean that the former spouse will not receive their interest. If the employee spouse refuses to cooperate in the QDRO process, the former spouse can request the clerk of the court sign as an Elisor on the employee spouse’s behalf. However, this requires proof that the QDRO has been approved by the Plan and that the employee spouse is refusing to cooperate and sign after notice of the approved QDRO.
QDROs are a complicated process and appropriate legal counsel should be retained to handle this delicate and complex issue of Family Law.
Lauren Franzella is an attorney in Borton Petrini’s Modesto office. She primarily practices in Family Law and Bankruptcy.
Legal Disclaimer: This article is designed for general information only. The information presented should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship. Each person’s situation is unique and requires as individual analysis as to the application of the law.