Jump to content

No QDRO filed after divorce - can ex go after new assets/new spouse's assets?


Recommended Posts

I was married for 17 years and divorced in 2010.  We were supposed to file a QDRO, but none was done because my ex couldn't come up with her half of the costs.  We had no assets, and the QDRO was for my retirement.

I'm planning on remarrying and I wanted to know: after I remarry, can my ex file a QDRO and try to go after assets acquired after the divorce?  Could she go after my new spouse's assets?  Or would she be limited to the assets at the time of the divorce?

Trying to get some peace of mind since I plan on remarrying soon.  I'm starting the process for a QDRO now.

Thanks

Link to comment
Share on other sites

  • DP66 changed the title to No QDRO filed after divorce - can ex go after new assets/new spouse's assets?

Your divorce property settlement terms, specified in the divorce judgment/decree/settlement, determine what the domestic relations order - DRO - (to become a QDRO) will apply to. You stated that "your retirement" was to be the subject of the QDRO. That rules out anything else, but you provide no information about what your what your "retirement" is, as specified in the divorce judgment/decree/settlement. Assuming that your "retirement" is some kind of qualified plan, the divorce judgment/decree/settlement should also specify what part of the plan benefits were awarded to your former spouse. Usually the award is based on amounts and benefits accrued at the time of the divorce and a delayed QDRO will not change that. But the award might include additions and accruals under the plan(s) after the divorce date. That would be unusual.  Your new spouse's assets should be safe, as well as your assets (after giving effect to the divorce judgment/decree/settlement) acquired after the divorce, except your "retirement". The former spouse would have to go back to the court that issued the divorce judgment/decree/settlement to get more. A QDRO is almost always derivative, but the plan will follow whatever is put in the QDRO that is issued by the court and should not look to the original divorce documents. It is your job to make sure nothing more is added to the terms of the proposed DRO that is submitted to the court. 

Link to comment
Share on other sites

Yes, to all that.  Pay close attention to QDROphile's last sentence.  Just a bit more clarification: 

  • First, you should ask for a copy of the plan's written QDRO procedures.
  • If you don't have an attorney who is very familiar with QDRO rules, keep looking.
  • Usually, the best procedure is to have a draft DRO (typically created by the parties and/or their legal counsel) sent to the Plan sponsor (or some person/organization they designate for administrative purposes).  Review of that draft (perhaps more than one) frequently enables small (sometimes large) errors to be corrected, and then a final (court issued) DRO is produced and sent to the plan and/or administrator.  It becomes a QDRO only when the plan and/or administrator approves and accepts it. 
  • If the plan is sponsored by a governmental agency, such as a state/local government, they will have different (but likely similar) rules.
  • If "your retirement" includes other accounts, such as one or more IRAs, any division will be handled outside of the QDRO process.

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.

Link to comment
Share on other sites

Nobody on his blog can answer your questions without knowing more information than you have provided. 

You have referred to a "QDRO" but it is my experience that lay people (and Judges) use that acronym generically even it does not relate to an ERISA qualified benefit.  They use it when discussing as IRA and plans sponsored by Federal, state county and municipal plans, none of which are covered by ERISA.  The rules are not the same.

Do you live in a state that deals with "marital property" or a state that deals with "community property" or in Louisiana. 

Did the agreement or the decree of divorce use the term "marital share", and if so did it define how that "marital share" was to be computed?   

You have not stated whether or not the plan is a defined contribution plan (like a 401(k)), or a defined benefit plan where you retire after a certain number of years of service with a certain income history and are eligible for a lifetime annuity and your former spouse may be entitled to a survivor annuity.   

I am guessing that your plan is a 401(k) plan (a defined contribution plan) but there is no way to advise you without seeing the exact terms of what was supposed to be in the QDRO.   

Does it state a "Valuation Date"?  Does it adjust the amount payable to your former spouse for gains, losses and investment experience?  If it does not reflect such an adjustment does the law of your state take the position that adjustment for gains, losses and investment experience are implicit even if not addressed?  Will it even be possible for the Plan Administrators to may such an adjustment, or will records no longer be available or has the plan changed Third Party Administrators (TPA) who cannot or will not go back prior to the date that they became TPAs?

If your plan is a 401(k) and you have retired, Federal law permits you to take out the full amount in your account without notice to, or consent by, your former spouse -- unless the plan provides otherwise -- or unless the plan has actual notice of your agreement or the judgment of divorce and have been told by their attorney will sit on the money until the parties reach an agreement or the court tells them what to do. 

If your plan is a 401(k), it may decide to wash its hands of people who take 14 years to protect their rights and file an interpleader and deposit the money in the Registry of the Court.   

In a defined contribution plan like the 401(k), it will be important to know how outstanding loans will be addressed and whether or not you have made hardship distributions and how much of your account is "vested" and whether you have a Traditional and/or a Roth component of your account.   

Does your 401(k) plan permit an immediate lump sum rollover or distribution to your former spouse, or is she required to wait until you retire?   

Do you live in a state where the 14-year delay has resulted in the court losing jurisdiction to enter a QDRO pursuant to a state statute of limitations, or the concept of laches, or because the period to ask for the QDRO expired per the Rules of Procedure, or some other reason?  

If your plan is a pension plan and you remarry and then retire (in that order), your former spouse will lose all rights to a survivor annuity benefit no matter what was the agreement of the parties or what was in the divorce decree or what is set forth in the QDRO.  In some states if the agreement or the parties or the judgment of divorce does not explicitly mention survivor annuity benefits, the former spouse will not get them....period.  

Is your plan sponsored by a church or religious organization or a labor union?  They tend to have strange rules.

It is important to know the exact name of the plan?  Don't tell me, for example, "Lockheed", since that company has 49 different pension and retirement plans.   

If you wife was represented by an attorney, the attorney should be sued for malpractice and report to the State Grievance Commission for incompetence.  It may be too late for that (statute of limitations) but more and more states are adopting the "discovery rule."

So DP66, you are not going to receive any useful information here, and you may some wrong information, even from me.  If you want a correct answer you need to ask the right questions and you haven't done that.   

If you want to cross out all of the personal information in the agreement or in the divorce decree except for the name of the e Plan, and submit it to this message board, I will take a look at it and give you my thoughts. 

DSG 

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...