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Divorced parents - no QDRO


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My parents divorced back in 1999 after 20 years of marriage.

In the divorce settlement it states that my mother is to receive 50% of my father's retirement benefits. Its one sentence, nothing more. He worked for Foster Farms and Safeway (Teamster) during their marriage.

I was a little kid at the time but even I knew the importance of getting a good attorney; when they told us they were getting a divorce I handed them the phonebook and told them to find attorneys.

Well here we are 16 years later with my father about to retire and I find out that my parents used the same $750 flat rate divorce attorney.

My mother had no idea what a QDRO was and now needs 2 apparently. One for Foster Farms and one for Safeway/Teamsters. There is no wording in the divorce settlement about a QDRO or who needs to pay for it to be drawn up.

My mother gave up her right to alimony because after the divorce was final he started playing games, stopped working and tried to get the child support and alimony reduced. Looking at all the numbers now, how much he was earning and how little he was supposed to pay her in comparison I can't believe he did that. Because of this I want my mother to get every penny she is entitled to from his retirement plans.

Father is retiring 10/31. We contacted the PA for Foster Farms and he sent a sample QDRO. It seems very simple to fill in the missing information but I want to be sure we do this right. We haven't contacted the PA for Safeway because I'm afraid he will find out and do something awful again. From what I've read on the internet the longer she waits the more likely it is she will lose out on receiving anything.

What does my mother need to do now? Who does she need to contact? Is this something she can do on her own or at the Self Help Center at the Court House? If not can anyone recommend an attorney in the Modesto, CA area?

Also, he is remarried now. What happens if he passes away before my mother. Does his new wife get all his retirement benefits? Or does my mother still have a right to receive her share? I know he has his new wife listed as alternate payee on everything now.

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Your mother still has the right to 50% of his retirement benefits as stated in the divorce papers.

What she needs to do now is hire a lawyer who knows how to do a QDRO. The sample from Foster Farms may be adequate or it may be nearly useless. As when you were young, continue to recognize the importance of getting a good attorney, where good means that the attorney understands QDRO's.

And I wouldn't wait. The processing of a QDRO can be time consuming.

Good luck.

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Tough one. From the sound of things, this isn't going to be easy for your mother. The best case scenario for her is that your father agrees to let her control the process, so she is in charge of: 1) getting the DRO's prepared; 2) having them submitted to the plans for pre-approval (if they even have a pre-approval process); 3) submitted to the court so a judge can sign it; and, 4) presented to the plan so they can pay her what she is entitled to.

But you and I know that your father is not going to agree to let her control the process.

There are two things I would suggest:

1) get a copy of each plan's "QDRO Procedures". Both plans are big enough that they might have the information publicly available or will send the information out to anyone who asks, without the need to identify a specific plan participant.

2) SHE NEEDS COMPETENT LEGAL ADVICE.

It doesn't need to necessarily be expensive legal advice, either. There are various organizations that exist to offer low cost family law assistance, if your mom qualifies.

Good luck.

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Thank you all for the helpful advice.

How long does the process to obtain a QDRO take? I know that the PA can take up to 18 months to approve or deny and that is a separate process.

Tough one. From the sound of things, this isn't going to be easy for your mother. The best case scenario for her is that your father agrees to let her control the process, so she is in charge of: 1) getting the DRO's prepared; 2) having them submitted to the plans for pre-approval (if they even have a pre-approval process); 3) submitted to the court so a judge can sign it; and, 4) presented to the plan so they can pay her what she is entitled to.

But you and I know that your father is not going to agree to let her control the process.

There are two things I would suggest:

1) get a copy of each plan's "QDRO Procedures". Both plans are big enough that they might have the information publicly available or will send the information out to anyone who asks, without the need to identify a specific plan participant.

2) SHE NEEDS COMPETENT LEGAL ADVICE.

It doesn't need to necessarily be expensive legal advice, either. There are various organizations that exist to offer low cost family law assistance, if your mom qualifies.

Good luck.

I thought this was all up to her. What happens if he gets involved with the QDRO? Worst case scenario?

2) Where do I start to look into this? Google search, local court house?

I am not a lawyer but the first thing I would do is send a joinder (is that the right word) notifying BOTH plans of a pending QDRO. Preferably BEFORE he files any retirement papers or make any elections with either pension plan.

He has already filed with both companies and SS. Is it to late to send the joinder? What will sending a joinder do?

Is there a possibility of him cashing everything out and running off with everything? This is my main worry.

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Technically, it's up to the judge, not Mom or Dad. But, Mike's advice is right on: if she is "in control", she gets her opinions and suggested DRO in front of the judge, preferably first. If your "competent legal advice" is not familiar with QDRO's, keep looking.

Caveat One: The sample QDRO might be useful. However, a defined benefit plan is very different from a defined contribution plan when it's time to split under a QDRO. Don't try to fit one type of plan into a sample that was designed for the other type.

Caveat Two: Two employers, but don't assume there are only two plans. He may have been covered under multiple plans at either or both employers.

Caveat Three: If he has taken a distribution from a previous plan, and rolled it to an IRA, the company will no longer have jurisdiction and a QDRO will not work. However, your attorney should investigate this possibility since the amount rolled over (or a portion) might be covered by the original sentence in the divorce settlement.

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.

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If you are concerned about him taking action which will disenfranchise your mother, you need to have her let the plans know of an impending QDRO as soon as possible. A joinder will certainly do that, but so will a letter from your mom directly to the PA. You have to weigh the value of letting the PA know about the impending QDRO against your concerns that your father may try to make things more difficult if he is notified. Personally, I'd have her call both PA's immediately and ask how she can send a letter to the PA. I'd draft a letter for my mom immediately and have her sign it and immediately deliver it as per the instruction. Get confirmation of receipt, if possible, by sending certified-return receipt or an overnight delivery service and require signature acceptance. I'd then get a copy of the QDRO procedures and, if necessary, send that letter to wherever the QDRO procedures says letters should be sent (it never hurts to have sent two letters). Then make sure to follow the procedures.

Worst case scenario if he hasn't taken a full distribution of all of his benefits (unlikely) is he gets a lawyer that thinks she is entitled to absolutely nothing.

If it were me, I'd start with a google search for QDRO's and call a few of them. I think what you are looking for is a firm that specializes in low cost QDRO's (that is, they do a LOT of them) and they are either run by or have a very close working relationship with an ERISA attorney. Or vice versa, looking for an attorney that specializes in ERISA family law who does a LOT of QDRO's or has a working relationship (or ownership interest) in a firm that does QDRO's.

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A letter or other notice to the plan is not going to provide any protection unless the plan has decided that something less than a domestic relations order will suffice. The law requires a domestic relations order before a plan is required to act (including to protect a would-be alternate payee). If the plans are based in California (and maybe elsewhere) they will probably treat a California joinder order as a domestic relations order for purposes of preserving benefits until matters are resolved. A joinder is an abomination, but most plans will choke it down with the intended effect.

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