Attorneys send you the divorce decree, etc.

[Belgarath]

Just a matter of idle curiosity - now and then, in a QDRO situation, an attorney includes the entire divorce decree, or draft decree, or whatever it might be called. This is the exception rather than the rule, but it happens. I was wondering if this violates any sort of privacy rule, client confidentiality, etc.?

It isn't that I mind receiving them - in fact, they sometimes make for fascinating reading - I've seen some crazy, zany, entertaining, humorous, and sometimes incredibly sad stuff. Just wondering if it is allowed, or technically a no-no? 

[MoJo]

Yea.  You raise a good question - because in my experience, the actual "separation agreement" part of the divorce decree is not "readily" available.  In my jurisdiction, they are not available on-line but I don't know if it is available if you show up at the court.  I would think not - unless heavily redacted.  If it isn't a "public" document, then I wold think it shouldn't be passed around to those who have no need to know, and that could/should be an ethical violation.  That said, we get them all the time, and have to read them because it actually *might* qualify as a DRO.  Most do not.

As far as fascinating reading goes, our current favorite is one that "splits" the open bottle of Johnny Walker Blue Label ($150 a bottle), which was moot - because "he" hand wrote in the margin he had already finished it off - and in the same decree "she" wanted reimbursement for her half of the community property assets spent on ... um ... er ... his "other" friend (including hotel expenditures, travel, jewelry...).

[Belgarath]

I know my parents always told me that they were "divorce-proof," since they had an agreement that whoever ASKED for the divorce had to take 100% custody of us kids!

[ESOP Guy]

My wife has told me we are divorce proof if I ever have an "other friend" as MoJo puts it because she knows where the gun is and I made the mistake of teaching her how to use it. 

 

It has kept me on the straight and narrow for 30 years now! 

[david rigby]

The original question is interesting, especially since the attorney should be the one most sensitive to privacy issues.  Next time it happens, perhaps you can ask the attorney if he/she sees any such privacy issue, and then report back so the class can read the answer.

[XTitan]

I've seen some poorly drafted DROs in the NQ world that referred to the divorce decree for the splits; we've received redacted decrees with that information.

[CuseFan]

My parents must be of the same generation as Belgarath's because I heard the same thing growing up - and it carried weight as there were (and still are) six of us.

[My 2 cents]

2 hours ago, Belgarath said:

I know my parents always told me that they were "divorce-proof," since they had an agreement that whoever ASKED for the divorce had to take 100% custody of us kids!

Preferably in writing!

Once the kids reach adulthood, the agreement would presumably lose much of its effectiveness, and once the parents reach old age, having "custody" of the "kids" could be considered an advantage!  Of course, at that point, other factors could come into play with respect to how "divorce-proof" the marriage is.

[K2retire]

I once worked for a very wealthy man whose wife told him on their wedding day (back in the 1940s) that he could have a divorce any time he thought he could afford it. 

They stayed married until he died some 45 years later.

[Larry Starr]

While the comments are cute, I actually draft most of the QDROs for most of my participants in most of my plans. As such, I require (from the attorney who is hiring me - no, I'm NOT practicing domestic law!) a copy of the pertinent  part of the divorce or separation agreement so I can properly draft the order to reflect the division of property.  Sometimes, the lawyers have screwed up the division of the property language so bad that they need to go back and modify it to reflect what they actually wanted, and I'm often the one to expose that problem.  So, yes, I want and need the divorce/separation decrees.

[My 2 cents]

18 minutes ago, Larry Starr said:

While the comments are cute, I actually draft most of the QDROs for most of my participants in most of my plans. As such, I require (from the attorney who is hiring me - no, I'm NOT practicing domestic law!) a copy of the pertinent  part of the divorce or separation agreement so I can properly draft the order to reflect the division of property.  Sometimes, the lawyers have screwed up the division of the property language so bad that they need to go back and modify it to reflect what they actually wanted, and I'm often the one to expose that problem.  So, yes, I want and need the divorce/separation decrees.

That meets my idea of something meeting a "need to know" standard!

[david rigby]

28 minutes ago, Larry Starr said:

I ... draft ... QDROs .... 

So, yes, I want and need the divorce/separation decrees.

This is important: the drafter need those documents, and (hopefully) creates a DRO such that the PA does not.

[DMcGovern]

IMO there is a lot of information in the full divorce decree, that while it would provide some fascinating reading, isn't my business.  Don't need it to determine if the DRO qualifes.

I feel the same way about death certificates.  I have seen some that go into detail the manner and reason for the death - again, fascinating, but none of my business. 

[Pam Shoup]

Oftentimes, it is not the atttorney or the participant who calls us, it is the alternate payee.  When you ask the AP for the QDRO, you are speaking a foreign language to them.  I tell them to send over what they have and I then contact the attorney and ask for the QDRO.  More often than not, a QDRO has not been drafted (and whatever I have recieved does not qualify) so I then have to walk the attorney through the process.  I prefer not to read through all of the details but sometimes I have to slog my way through just to figure what what the AP is talking about!

[QDROphile]

Any time a plan receives a divorce decree  or a similar document under domestic relations law, it has to respond to the receipt of the domestic relations order in accordance with the statutory requirements.  The decree cannot simply be disregarded.  If the domestic relations order accompanies another domestic relations order that wants to be a QDRO, the plan administrator has the following options, perhaps among others.  Usually I prefer the first, but it depends on the circumstances and terms of the documents:

1. The notice of qualification (or failure to qualify) defines the DRO at issue to be the combined decree and related order, but states that the provisions of the decree have not been considered in the qualification of the order and will not affect the administration of the QDRO.

2.  Same as #1 except the combined terms of the decree plus other order are considered to be the terms of the QDRO.  This will not work if any relevant conflicting terms cannot be reconciled. 

3.  Separate review and notices are afforded each DRO.  I presume that the decree will fail to qualify.  If it fails, the good QDRO will be held up pending the required reasonable time for correcting defects in the failed decree.  If people are smart, they will just formally accept disqualification and proceed; people in the circumstances are not smart and will be totally confused.  Shame on the lawyer in particular.  If the decree qualifies, any number of things can happen that I will not spell out in speculation.  Resort to #2.

[MoJo]

14 hours ago, QDROphile said:

Any time a plan receives a divorce decree  or a similar document under domestic relations law, it has to respond to the receipt of the domestic relations order in accordance with the statutory requirements.  The decree cannot simply be disregarded.

That's why we read all the assorted (if not sordid) details!

[CarloCarmichael]

The actual separation agreement, part of the divorce decree is not readily available

[Mike Preston]

Is that a question?

[Thornton]

I agree with Larry entirely. It is our responsibility as drafters of QDROs to ensure that the document we draft agrees with the division of the retirement plan set forth in the divorce decree.

[Lance Monroe]

My wife and her ex got a divorce just over 18 years ago.  He was too cheap after the divorce to file for the QDRO and asked my wife's attorney to do it.  She told him if he wanted it, to have his attorney do and pay him.   Just over 18 years later my wife retired and she has been getting her pension for the past 2 years.  His attorney sent us a demand for her ssn so he can talk to the place she retired from years ago and see if there is a QDRO in place.  There is not and was not at the time.  Now he is trying to get her to pay him a lump sum of money.  It does not work like that.  The program states that he would have to roll anything  he is entitled to in the divorce decree into his own IRA.  He has none.  Can he really come after her after all this time? He has an attorney snooping around and he will not get her ssn from us.

[MoJo]

On 2/3/2018 at 1:52 AM, Lance Monroe said:

My wife and her ex got a divorce just over 18 years ago.  He was too cheap after the divorce to file for the QDRO and asked my wife's attorney to do it.  She told him if he wanted it, to have his attorney do and pay him.   Just over 18 years later my wife retired and she has been getting her pension for the past 2 years.  His attorney sent us a demand for her ssn so he can talk to the place she retired from years ago and see if there is a QDRO in place.  There is not and was not at the time.  Now he is trying to get her to pay him a lump sum of money.  It does not work like that.  The program states that he would have to roll anything  he is entitled to in the divorce decree into his own IRA.  He has none.  Can he really come after her after all this time? He has an attorney snooping around and he will not get her ssn from us.

What does the separation agreement/decree of divorce say?

[Larry Starr]

On 2/3/2018 at 1:52 AM, Lance Monroe said:

My wife and her ex got a divorce just over 18 years ago.  He was too cheap after the divorce to file for the QDRO and asked my wife's attorney to do it.  She told him if he wanted it, to have his attorney do and pay him.   Just over 18 years later my wife retired and she has been getting her pension for the past 2 years.  His attorney sent us a demand for her ssn so he can talk to the place she retired from years ago and see if there is a QDRO in place.  There is not and was not at the time.  Now he is trying to get her to pay him a lump sum of money.  It does not work like that.  The program states that he would have to roll anything  he is entitled to in the divorce decree into his own IRA.  He has none.  Can he really come after her after all this time? He has an attorney snooping around and he will not get her ssn from us.

There is no QDRO, so your wife's money is her money. It is the QDRO that confers rights on the alternate payee. Also, the original attorneys were lax for NOT allocating in the divorce decree the responsibility for who is to get the QDRO and who is to pay for it.

He does not have to have an IRA; I don't know what "program" you mean when you said it states that he would have to roll into an IRA.  The divorce decree cannot do that and the QDRO cannot do that; the alternate payee has all the rights under the plan as any other regular participant would have with regard to distributions.  If a lump sum is available, it is available to all.

More important, as noted at the beginning, there is no QDRO.  Tell the attorney to pound sand (but nicely).

[jpod]

MoJo is right.  They may have decided to skip the qdro procedure and impose an obligation on her to pay him a part of her pension as, when and if she receives it.  Unorthodox, but possible.

[Mike Preston]

5 hours ago, jpod said:

MoJo is right.  They may have decided to skip the qdro procedure and impose an obligation on her to pay him a part of her pension as, when and if she receives it.  Unorthodox, but possible.

Huh?

[jpod]

MoJo is right that you need to go back and look at the divorce papers.  I don't know what MoJo was thinking, but the ex-wife may have an obligation to pay the ex-husband money equal to a share of her pension now that she is actually receiving it.