Can the judge sign QDRO before the divorce is final?

[Guest tROPHYwIFE]

I spoke to the plan admin who told me the divorce did not have to be final in order for them to split the benefits.

Apparently where I filed my divorce it's untrue the clerk said to me that normally the judge signs the forms when he/she finalizes the divorce.I filed divorce in the state of Texas where there is a 60 day waiting period. I have about 50 days to go. I'm not even sure how soon they will see me in court after the 60 day waiting period is up ( hopefully within a week). The QDRO plan administrator is very cooperative and nice and she told me that once they recieve the DRO from me everything could take about 3 weeks before I get my lump sum (option I will choose). I'm using their model form,they also reviewed it after my husband filled it out, so basically that wont be an issue.

Has anyone ever had one signed by the judge before the divorce decree ?? If so, if I've already filed my petition for divorce can I go back to the courthouse duuring this waiting period and ask judge to sign it?

[JanetM]

In general the divorce doesn't have to be final. Spouse, ex-spouse, or dependent can be alt-payee.

[Effen]

"Unregistered tROHPYwIFE" - is that sort of like a free agent?

[Guest jhall]

Curious if folks could expand on this idea. I understand definition of Alternate Payee may include spouses or former spouses so notion that divorce does not have to be final makes sense. Nonetheless, we usually see QDROs entered at time of or after divorce actually takes place. We have received recent QDRO where divorce is not yet final but the parties, pursuant to an equitable property division agreement, have agreed that one party is to get X amount upon entry of the QDRO (no interest or adjustment--just flat amount). We have been advised by our recordkeeper (very large mutual fund company out of Boston) that the DRO cannot be considered qualified unless and until divorce is final. Anybody else have this experience or see why that would be the case? Thanks.

[Mike Preston]

I imagine it is a state thing. Certainly any state that will issue a DRO has the right to see the DRO treated as a QDRO assuming it meets all the requirements. And one thing is clear: it is not a requirement of ERISA or the Code that the DRO be issued coincident with or following a divorce. Here in California I've been involved in a number of cases, some as early as the late 1980's where divorce was either not final or not even contemplated. If a state domestic relations order is issued, it should be considered by the plan.

[david rigby]

And one thing is clear: it is not a requirement of ERISA or the Code that the DRO be issued coincident with or following a divorce.

Exactly right. The word "divorce" does not appear in IRC 414(p).

[Kimberly S]

Although it is not a requirement that the divorce be final, I can imagine that a judge might be hesitant to sign a DRO before everything else is finalized. If a QDRO is processed before the property settlement is finalized, it could be a real problem if the negotiations break down.

[Guest jhall]

Thanks. These are very helpful comments and are consistent with everything else I have seen regarding no need for actual divorce. On the other hand, I can appreciate some reluctance to enter a DRO before a divorce is final with the chance for reconciliation. (Isn't that one reason so many states have lengthy waiting / living apart requirements to get final divorce.) If spouse rolls over the amounts, I suppose one might argue that no harm was done with division but seems a mess to go through the QDRO process if the parties ultimately reconcile. I suppose the way to police / guard against that concernis simply to have the parties / their lawyers not seek the DRO until they are sure they are ready.

Curious if anybody else has had any similar experience in being told by their recordkeeper that the DRO cannot be processed unless divorce is final--I see no reason under state law for them to claim that and they do not cite any authority. Thanks.

[QDROphile]

Recored keepers can be asses and they need to be directed by fiduciaries who have enough knowledge and spine not to be cowed by the asses. The proeblem is that many clients of the record keepers look to the record keepers to be fiduciaries and lawyers and the record keepers are dumb or desperate enough to fill those roles without admitting it and without competence.

[Bill Presson]

Recored keepers can be asses and they need to be directed by fiduciaries who have enough knowledge and spine not to be cowed by the asses. The proeblem is that many clients of the record keepers look to the record keepers to be fiduciaries and lawyers and the record keepers are dumb or desperate enough to fill those roles without admitting it and without competence.

Don't be so wishy-washy!

If you're referring to the large company in Boston, I'll let it go. But for other recordkeepers, we just try to do our job the best we can.

The original post was about a clerk of the court that said the judge couldn't sign the DRO until the divorce was final. Feel free to include them in your "ass" categorie as well.

[Guest jhall]

Thanks again. FWIW, I also ran across the following discussion in the DOL's online QDRO materials and will serve this up to recordkeeper to see what response is.

Bill Presson, sorry for the recordkeeper venting here but dealing with the Boston outfit can be a real pain. We appreciate all that you "good guys" do for our plans.

1-8: Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO?

No. A domestic relations order that provides for child support or recognizes marital property rights may be a QDRO, without regard to the existence of a divorce proceeding. Such an order, however, must be issued pursuant to state domestic relations law and create or recognize the rights of an individual who is an "alternate payee" (spouse, former spouse, child, or other dependent of a participant).

An order issued in a probate proceeding begun after the death of the participant that purports to recognize an interest with respect to pension benefits arising solely under state community property law, but that doesn't relate to the dissolution of a marriage or recognition of support obligations, is not a QDRO because the proceeding does not relate to a legal separation, marital dissolution, or family support obligation.

Reference: ERISA § 206(d)(3)(B); IRC § 414(p)(1); Advisory Opinion 90-46A (Appendix A); see Boggs v. Boggs, No. 97-79 (S. Ct. June 2, 1997)