Courts Signing QDRO

[Brad Steven]

Will a Court sign a Qualifed Domestic Relations Order if it is only signed by one party and the party refuses to sign?

[QDROphile]

The answer is completely dependent on the domestic relations law of the state in which the court is located and the local court rules and procedures. Federal law, meaning ERISA and the tax code, has nothing to say about it. To be more precise, you are asking about a domestic relations order. The plan to which the order applies determines if the domestic relations order is qualified, and the criteria for qualification include nothing about signatures of parties.

[MoJo]

13 hours ago, Brad Steven said:

Will a Court sign a Qualifed Domestic Relations Order if it is only signed by one party and the party refuses to sign?

The answer is "yes."  There is no requirement (anywhere) that the parties "agree" tot he terms of any order, including a DRO.  The reason many do, in fact, acknowledge agreement by signing the order before the judge is because it makes it easy for the judge to issue the order.  Absent agreement, there may have to be a hearing, or other arguments, as to what the order should contain.  If both parties agree - then the judge presumes the order is consistent with the divorce decree/separation agreement.

[fmsinc]

As for the Federal view, see this DOL pamphlet attached, and you can find it at  -
https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf -  Go to Question 1.2, 6th paragraph on page 5 where it says, 

        "There is no requirement that both parties to a marital proceeding sign or otherwise endorse or approve an order."

[ERISA §§ 206(d)(3)(B)(ii), 514(a), 514(b)(7); IRC § 414(p)(1)(B)]
    
    [The same language is found in Gary Shulman's treatice, "Qualified Domestic Relations Handbook", 4th. Ed., Section 18.01.]
 

Many courts are appointing Special Masters to sign for and on behalf of the recalcitrant party.  See for example: 

In re: Matter of Jioie v. Hosier, Ariz: Court of Appeals, 1st Div., Dept. E 2012, 1 CA-CV 11-0333 A. -
http://scholar.google.com/scholar_case?case=15008890219389579531&hl=en&lr=lang_en&as_sdt=2,9&as_vis=1&oi=scholaralrt
the court appointed a special master to prepare the QDRO and ordered the parties to share the cost.  

In re the Marriage of Phipps and Phipps, No. A163407, Court of Appeals of California, First District, Division Three, Filed May 30, 2024 -
https://scholar.google.com/scholar_case?case=9594494900687241931&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AFWwaeYSZAD9szjlrGc6DdHWflSn&html=&pos=1&folt=kw
the Court ordered the husband to sign the QDRO and when he refused the Court directed the Clerk of the Court to sign an “elisor”.  In California, an elisor is a person appointed by a court to perform tasks such as signing or executing documents on behalf of a party who refuses to do so. The court's power to appoint an elisor is outlined in California Code of Civil Procedure Section 128(a)(4).  This power permits the Court  “(4) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” 

The use of an “elisor” in common in California - 
https://scholar.google.com/scholar?hl=en&as_sdt=20000006&q=elisor+"qdrp&btnG=

In Military cases see 10 U.S.C. 1408 - Payment of retired or retainer pay in compliance with court orders - at Section (a)(2) defining "court order" does not require that such an Order be signed or approved by the parties.  

Most states, like Maryland, view a QDRO as an enforcement tool, like a garnishment or an attachment.  See Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d 767 (1989), where the court said: 

""As is evident from this discussion, the QDRO has become an order of high significance in State domestic relations practice. An attempt to cause pension plan benefits payable to one party to be paid to an alternate payee, whether through an attachment in aid of a support obligation or pursuant to the Marital Property Disposition Act (Md. Fam.Law Code Ann. § 8-205) can succeed only through the mechanism of a QDRO. See Fox Valley & Vicinity Const. Workers v. Brown, 879 F.2d 249, 252 (7th Cir.1989): "[E]RISA preempts any attempt to alienate or assign benefits by a domestic relations order if that order is not a QDRO." See also Cummings Techmeier v. Briggs & Stratton, 797 F.2d 383 (7th Cir.1986). Absent such a qualified order, not only will the pension plan administrator refuse to implement the court's decision, but, given the anti-alienation provisions extant in both the labor and tax codes, coupled with the preemption provision of ERISA § 514 (29 U.S.C. § 1144), there is at least a reasonable argument that a non-qualified order may be invalid even as between the parties."
        * * * *
        ". . . .we therefore expressly recognize the ability of a party otherwise entitled to a QDRO to obtain one as an aid to enforcing a previously entered judgment." 

Nobody would expect this type of court order to require the approval of the parties, especially the party whose assets are being taken. 

The practice of having a Court Order approved by the attorneys is a matter of courtesy.  It would be inappropriate to submit a court order without giving the opposing counsel the right to review and approve it, vel non.  Somehow this morphed over to the litigants themselves.  But there is a reason.  Most attorneys know so little about QDROs that they don't want to put themselves in malpractice jeopardy by approving a QDRO.  So they have passed it over to the client instead.  

If a party does not want to sign, file a Motion for Entry of QDRO without his/her cooperation.  I have never seen a court refuse such a request.  In some cases they court wants to hear the testimony of an expert.  

 

DoL QDRO Memo.pdf