Guest nowafreeman Posted December 21, 2005 Posted December 21, 2005 The assets the QDRO's are dividing are from my 401K and my retirement. My ex-lawyer, I fired him, did anything my ex-wife's lawyer wanted. He was supposed to write the QDRO for me and even collected the money for doing so but never wrote the QDRO. My ex-wife's lawyer wrote many QDRO's each full of errors that my lawyer passed on to me to sign and return. No chance! My lawyer ignored the fact that having her lawyer write the QDRO's was like allowing the wolf to guard the chicken coop. The ex-wife's lawyer expects me to sign the junk QDRO's that he has puked out, giving benefits that the ex-wife is not entitled to. That is not going to happen. I am aware that the court or the plan administrator will not accept a QDRO written by a layperson so I have to have a lawyer on my side. I have written the QDRO's as needed. Yes I know that they can be tricky, but from what I have seen I have a much better handle on it than either my ex-lawyer or the ex-wife's lawyer. Can I have a lawyer review my QDRO’s, add his signature, add mine and submit this to the plan administrator, and if accepted as a QDRO, send it to the courts? Or in other words do I have to get my ex-wife and her lawyer to sign the QDROs?
david rigby Posted December 21, 2005 Posted December 21, 2005 Uhh, perhaps you should seek additional legal advice. It is the court that issues a DRO, qualified or otherwise. I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice.
QDROphile Posted December 21, 2005 Posted December 21, 2005 A plan administrator does not care who is the author of the order. The only concern is that it meets the requirements for qualification. Who signs the document and whether or not the document is a domestic relations order (hoping to be qualified) is a matter of local domestic relations law.
Locust Posted December 21, 2005 Posted December 21, 2005 As a practical matter, the judge will want to have both parties sign off on the order before he or she will sign it. The alternative is to have some sort of adversarial review, which is a waste when all that is required is that the order conform with the terms of the divorce decree - there shouldn't be anything new in the order - and this should be something that the parties can agree to before it gets to the judge. In other words, your best bet is to work cooperatively with the other side to get the order drafted and approved. So that you don't have problems with the plan, you should also get the plan to sign off on it. BTW - I expect your lawyer was glad to be fired.
Guest mjb Posted December 21, 2005 Posted December 21, 2005 You are ignoring reality in that the court will require that any DRO that you or your lawyer submits to the court will have to be sent to your ex and her lawyer for review before the court approves it and they can file objections with the court. Also plan administrators will not review a DRO that has been prepared by one side without it being reviewed and approved by the other side (because the Plan administrator must act impartially and do not want to mediate disputes over terms of the DRO with the parties). You are better off negotiating the order with your ex's lawyer before you submit the order to the court.
Guest Pensions in Paradise Posted December 21, 2005 Posted December 21, 2005 I completely agree with all the prior posts. My question to nowafreeman is - Why is the QDRO creating so much controversy? A QDRO simply assigns benefits in accordance with the divorce decree. If you don't agree with the divorce decree, then you need to get that modified. You cannot change the terms of the divorce decree with a QDRO.
Guest nowafreeman Posted December 22, 2005 Posted December 22, 2005 It appears as though just about everyone that has responded to this question has missed the legal question that was asked. “Does the x-wife and her lawyer have to sign the QDRO?” The court does not issue a QDRO. The court accepts and enters the QDRO if the employer’s plan administrator finds that the paperwork qualifies as a QDRO and meets the terms of the decree. The statement “which is a waste when all that is required is that the order conform with the terms of the divorce decree” shows that you are not at all aware that the QDRO is not simply a repeat of the same words laid out in the Mediated Summary Dissolution Of Marriage Decree. A simple sentence can change a lot. Saying that your ex-wife is to be treated as the surviving spouse when you get remarried or are remarried can exclude your present wife from any of the benefits. It doesn’t surprise me then that the statement like “BTW - I expect your lawyer was glad to be fired.” Drooled out of your mouth. Another very poor assumption. I do not think the court really gives a rip if one side or the other does not like the wording of the QDRO only that the terms of the decree are met. Again, “A QDRO simply assigns benefits in accordance with the divorce decree.” is way out in left field. The wording around the terms of the decree can make a lot of difference for one side or the other. It is your assumption that the divorce decree is what is being hassled over, not true. The terms of the decree are not changed by the QDRO but issues around the terms are affected.
Guest Pensions in Paradise Posted December 22, 2005 Posted December 22, 2005 Question - Does the x-wife and her lawyer have to sign the QDRO? Answer - No, nothing in Code Section 414(p) requires both parties to sign the DRO Assuming you proceed with your plan of action, please let us know how much you eventually spend in legal fees. Because I guarantee you that you'll be retaining an attorney sooner or later. Happy Holidays.
Guest mjb Posted December 22, 2005 Posted December 22, 2005 Now: You still do not understand that the court will not accept a DRO that is submitted by one party and will order that DRO be submitted to your ex spuse for review before signing the DRO. If you ex objects the court may order a hearing or require that the two sides agree to the terms before it will sign the DRO. Second. The Plan admin will not review a DRO that has been prepared by one party and not reviewed by the other. The PA will wait until both sides have agreed to terms because the PA will not mediate to resolve differences. All you are doing is creating an unnessary churning of paper. You need to retain counsel .
Guest nowafreeman Posted December 28, 2005 Posted December 28, 2005 To mjb No you do not understand. The plan admin. has reviewed a QDRO that was only prepaired and viewed by one side. When this was done but corrections were needed the plan admin. sent me a corbon copy of the letter that was sent to my ex's lawyer. That was when I found out that my ex's lawyer had written and submitted a QDRO and then I found out that my lawyer had NOT written the QDRO that I had paid him to write.
GBurns Posted December 28, 2005 Posted December 28, 2005 Are you saying that the Plan Administrator received a DRO that neither you nor your lawyer ever saw and ever agreed to? Which would mean that the Court accepted a DRO submitted by 1 side only and neither you nor your lawyer were notified and neither you nor your lawyer saw that the filing of a new item had been made in the case. While I know that ex parte motions and filings are at times slipped in and accepted, it should have been caught by either you or your lawyer and an objection filed. Someone seems to have slipped up. I do not understand how come you did not know and were not aware that your lawyer "had NOT written the QDRO that I had paid him to write" ? IMHO, instead of fuming, file a motion with the court or ask the Plan Admin. to file for interpleader. George D. Burns Cost Reduction Strategies Burns and Associates, Inc www.costreductionstrategies.com(under construction) www.employeebenefitsstrategies.com(under construction)
E as in ERISA Posted December 28, 2005 Posted December 28, 2005 ...The court does not issue a QDRO. The court accepts and enters the QDRO if the employer’s plan administrator finds that the paperwork qualifies as a QDRO and meets the terms of the decree....you are not at all aware that the QDRO is not simply a repeat of the same words laid out in the Mediated Summary Dissolution Of Marriage Decree. ... Again, “A QDRO simply assigns benefits in accordance with the divorce decree.” is way out in left field. The wording around the terms of the decree can make a lot of difference for one side or the other. It is your assumption that the divorce decree is what is being hassled over, not true. The terms of the decree are not changed by the QDRO but issues around the terms are affected. NAF -- People are going to stop responding because you don't know what you're talking about, but you're insulting everyone. A court generally issues the DRO (domestic relations order), which is any judgment or decree or order made pursuant to domestic relations law and relating to child support, alimony, or marital property. If that DRO assigns rights in the participant's plan benefits and meets a list of requirements (certain facts must be stated in the order and it can't alter plan benefits), a plan administrator can consider it a QDRO (qualified domestic relations order) and make distributions from the plan pursuant to that order. In reviewing the DRO, the plan administrator does not compare the DRO to the rest of the decree. It simply looks at whether the DRO contains all the required facts and does not provide the alternate payee with benefits not provided under the plan. The rest of it is all process, which may vary state by state and court by court. The court probably isn't going to issue the DRO unless the parties have both first agreed to it. But everyone on this board can probably tell you that courts will definitely issue DROs without plan administrators input first. Which is why they remain DROs (and not qualified DROs) until the plan administrator tells the participant and his attorney what to fix. And then they go through the process again and a new DRO will be issued. And the plan administrator will okay it as qualified.
Guest nowafreeman Posted December 31, 2005 Posted December 31, 2005 Q: Are you saying that the Plan Administrator received a DRO that neither you nor your lawyer ever saw and ever agreed to? A: NO I didn’t say that. As I said the Plan Administrator received a proposed QDRO from the ex’s lawyer that I never saw. I don’t know if my lawyer saw it or not. Again the court does not issue a QDRO. A Divorce Decree was accepted by the court that was agreed to by all the parties. Q: Which would mean that the Court accepted a DRO submitted by 1 side only and neither you nor your lawyer were notified and neither you nor your lawyer saw that the filing of a new item had been made in the case. A: What new item? What are you talking about? Q: While I know that ex parte motions and filings are at times slipped in and accepted, it should have been caught by either you or your lawyer and an objection filed. Someone seems to have slipped up. A: Again, this doe not make any sense. What are you talking about? Q: I do not understand why you did not know and were not aware that your lawyer "had NOT written the QDRO that I had paid him to write”? A: Due to the fact that I was not looking over my lawyers shoulder at all times I was not aware of what he was doing or not doing behind my back. Since he was slack enough to start writing the QDRO but never finish it and also since he was doing whatever the ex’s lawyer wanted him to do it wasn’t about to get done nor was he going to tell me that he wasn’t going to finish it. Q: NAF -- People are going to stop responding because you don't know what you're talking about, but you're insulting everyone. A: I do know what I am talking about, this is REAL life not what someone at a keyboard is making up as they go along, like a lot of the people that are responding. If pointing out the facts or the truth is insulting to some, tough. Q:A court generally issues the DRO (domestic relations order), which is any judgment or decree or order made pursuant to domestic relations law and relating to child support, alimony, or marital property………. A: Again the court does not issue a DRO but accepts a Divorce Decree that was agreed to by both parties. A lawyer crafts a QDRO that is sent to the Plan Administrator and if it is accepted as Qualified then it becomes a QDRO that can be sent to the court. I got the singles answer I was looking for when I asked the question if the ex’s lawyer and or she had to sign the QDRO. That answer is NO. As far as this forum goes: I am done with the trash that has been generated here by a lot of people that think they know everything but really know very little.
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