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Getting QDRO judicial signature after divorce


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6 replies to this topic

#1 starless

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Posted 02 July 2013 - 09:06 PM

My ex-wife and I just got divorced. We previously signed a separation agreement that included me transferring some of my 403b to her via a QDRO. We submitted the separation agreement along with the other required forms to file for divorce. Although lawyers had drawn up the agreement and the QDRO, we filed the forms ourselves. (My lawyer had told me we could do this ourselves.) I attended the divorce hearing but my ex was ill and unable to attend. At the divorce I was told that because we'd not specifically requested it, the separation agreement wouldn't be incorporated into the divorce settlement, but that it was still a valid legal document. We shortly afterwards mailed in the QDRO to the court asking for it to be signed by the judge, but this was refused because the separation agreement hadn't been incorporated into the divorce ruling.

Is there some other way we can now go about getting the QDRO signed by a judge?
e.g. can my ex file a civil complaint against me to get the QDRO approved?
My lawyers are terrible and never respond to either email or phone calls!
If it makes any difference, my ex and I both live in Maryland.

Thanks!



#2 Bill Presson

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Posted 02 July 2013 - 10:46 PM

Find new attorneys. Seriously.
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William C. Presson, ERPA, QPA, QKA, APR

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#3 GMK

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Posted 03 July 2013 - 08:11 AM

Find new attorneys. Seriously.

Yes, one's who understand and have experience doing QDRO's. 



#4 CADMT

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Posted 03 July 2013 - 09:26 AM

I cannot even conceive of how you got a JOD without it addressing, in some manner, the disposition of marital property.   The JOD should have said that SA was incorporated in the JOD.  The judge should not have permitted that.  Still in the judge's defense, they probably are overworked and inundated with paperwork and depend on the attorneys for making sure each parties interest is represent.

 

You now need to do three things.

 

1.  Obtain new legal representation to submit a motion ammending the JOD to incorporate settlement agreement.

2.  Include in the motion the DRO for the pension (assuming the DRO is preapproved (prequalified) by the plan (if the plan does preapprovals).  Have the judge sign both the ammended JOD and the DRO.

3.  File a suit against your previous attorney for malpractice.



#5 masteff

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Posted 03 July 2013 - 09:53 AM

I cannot even conceive of how you got a JOD without it addressing, in some manner, the disposition of marital property.   The JOD should have said that SA was incorporated in the JOD.  The judge should not have permitted that.  Still in the judge's defense, they probably are overworked and inundated with paperwork and depend on the attorneys for making sure each parties interest is represent.

 

You now need to do three things.

 

1.  Obtain new legal representation to submit a motion ammending the JOD to incorporate settlement agreement.

2.  Include in the motion the DRO for the pension (assuming the DRO is preapproved (prequalified) by the plan (if the plan does preapprovals).  Have the judge sign both the ammended JOD and the DRO.

3.  File a suit against your previous attorney for malpractice.

 

Don't jump to conclusion based on your state's laws.  This is common in other jurisdictions.  I worked at a corporation with employees in Louisiana and had a rare few that didn't settle the property until years later when one of them approached retirement age (meaning QDROs a dozen or more years after the divorce).


Kurt Vonnegut: 'To be is to do'-Socrates 'To do is to be'-Jean-Paul Sartre 'Do be do be do'-Frank Sinatra

#6 ForksnKnives

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Posted 03 July 2013 - 10:20 AM

 

Don't jump to conclusion based on your state's laws.

 

Agreed. In Texas you could have a settlement agreement that is not incorporated into the divorce decree but still operates as an enforceable contract between the former spouses. Without incorporation the family court would not have the power to issue a DRO on anything not incorporated so it wouldn't make sense to leave the retirement accounts out of the decree itself or an incorporated settlement agreement. Usually in Texas I expect to see settlement agreements left out when the parties are pro se or the settlement agreement includes property of little value and was informally agreed to by the spouses, such as a verbal agreement to split the personal property in the house. Personally, I prefer to draft all financial assets, real estate, debts and high value personal property even if the settlement agreement covers those assets.

 

To the OP, if both spouses agree to the amendments then it should not be too difficult to find a local family lawyer to draft the amendments and put it before the appropriate judge.



#7 CADMT

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Posted 03 July 2013 - 11:12 AM

I said the JOD should have addressed the disposition of martial property, including but not limited to, stating that the division would be accomplished sometime in the future, or that it is a separate agreement already agreed to by the parties, or that there is no property to be divided, or even that the court reserves jurisdiction in the matter, yadda, yadda.   If JOD is completely silent on the division of marital property then the person having control of the property can dispose of it as they see fit, without recourse or even dispose of it in another state because the state court for the dissolution of the marriage did not maintain jurisdiction over the division.  Retaining jurisdiction is the norm in NY, CA, DE, and VA.  Remember QDROs do not have to be filed right away.  They should be, but they don't have to be.  Additionally, the QDRO merely articulates the agreement of the parties in dividing retirement assets.  It does not have to be done at the time of JOD.  However, if there is a JOD that did not resolve or reserve resolution of who gets the house, the dog, the corvette, the guns, and the stills, there is a problem.

 

On the other hand, "family law" is an oxymoron in most states.