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QDRO and Bankruptcy


Guest Simple Girl

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Guest Simple Girl

My question: Can an expouse's portion of a retirement plan be listed as part of filers assets in a Chapter 13 filing? I have a DRO awarding me 1/2 interest in my ex spouses retirement plan. I have been going back and forth with the plan adminstrator in submitting the QDRO. The judgement was entered in 1994, but the QDRO was never filed by my atty at the time. In 2012 my ex filed Chapter 13 and has listed me as creditor for my portion of his retirement.

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It appears that in certain scenarios (mainly involving timing of the approval of the QDRO vs the filing of the bankruptcy), in a Chapter 13 (but not in a Chapter 7), a DRO can be discharged. At the very least, you should consult w/ an attorney to get advice on whether you should file anything w/ the bankruptcy court to protect your interests. You certainly don't want to assume you're safe only to get a nasty surprise.

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

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My question: Can an expouse's portion of a retirement plan be listed as part of filers assets in a Chapter 13 filing? I have a DRO awarding me 1/2 interest in my ex spouses retirement plan. I have been going back and forth with the plan adminstrator in submitting the QDRO. The judgement was entered in 1994, but the QDRO was never filed by my atty at the time. In 2012 my ex filed Chapter 13 and has listed me as creditor for my portion of his retirement.

I am not sure of what has been issued. Are you saying that the court approved a DRO which was submitted to the plan administrator who has not approved a QDRO?

As for your question, there are court cases that have held that your rights to an ownership interest in your ex husbands plan benefits never became his property subject to the jurisdiction of the bankruptcy court even though a QDRO has not been issued. In re Gendreau, 123 F3d 815, 1997 a Federal appeals court held that the ex spouse's property rights arose from the divorce decree, not a QDRO. Since the debtor employee who filed for bankruptcy could not have a greater interest in the pension benefits by filing for bankruptcy, the court held that the ex spouse had a separate identifiable property interest in the plan that is not subject to a stay which prevent the plan administrator from issuing a QDRO. A bankruptcy court has come to the same conclusion holding that it would be inequitable to issue a stay to the proceeding to issue a QDRO due the filing of the bankruptcy petition. In re Carbaugh, 278 BR 512, 2002. There may more recent cases which I am not aware of.

As this is a complex legal matter you need to discuss the cases with your attorney to see if they apply to your case as only he or she can give you legal advice as different provisions of the bankruptcy code that may apply.

mjb

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