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FAQs

Let us help you find answers to some of your most common questions
EXPLANATION OF QDROS/DROS

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My Judgment of Dissolution of Marriage clearly states that I am to receive 50% of the community property share of my former spouse’s retirement plan through his employer. Why do I need anything further to carry out the transfer?

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If your former spouse’s retirement plan is maintained by a private company, the plan is governed by federal law. Namely, the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC). Both statutes require a specific type of court order called a “Qualified Domestic Relations Order” (QDRO) to assign or transfer retirement benefits to a spouse or former spouse of the employee/participant. Unlike your Judgment which may only contain general terms concerning your right to the retirement plan, the QDRO contains detailed provisions required by ERISA and the IRC—and additional provisions regarding taxation, distribution start dates, payment upon death of either party, etc.

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I was awarded a portion of my former spouse’s retirement benefits earned through his service with the County. I understand that QDROs do not apply to retirement plans maintained by governmental employers. How do I get my share of retirement benefits if the County does not accept a QDRO?

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A QDRO is a term under ERISA which is federal statute that applies to private sector retirement plans. Depending on the employer, governmental plans are established under other federal, state or local statutes that do not use the technical term QDRO. Although these governmental plans do not require QDROs, the governmental plan in your case is subject to similar rules and guidelines regarding the transfer of retirement benefits in a divorce or legal separation. In other words, you will need court order that directs the retirement plan to assign/transfer retirement benefits that is tailored to the retirement plan in your case.

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I was divorced in Canada and the divorce decree states that I am to receive a portion my former spouse’s retirement benefits payable under his retirement plan which is a union plan that insists on a QDRO. How do I obtain a QDRO under my circumstances?

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The union plan requires a QDRO to assign you benefits to which you are entitled under the foreign judgment. A QDRO, by definition, is an order issued by a court of competent jurisdiction—which refers to a U.S. state court. To obtain a QDRO in your case, the divorce decree from Canada must be registered in a state court which will give the U.S. state court the authority to issue a QDRO.

Timing and Deadline for QDROs

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My divorce was 20 plus years ago and I was awarded a portion of my former spouse’s pension plan. We never obtained a QDRO. I recently learned that my former spouse is retired and has been receiving benefits. Is it too late to obtain a QDRO? Am I entitled to back pay from the time my former spouse began receiving pension benefits?

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It is not too late to obtain a QDRO. In your case, you may still obtain a QDRO to receive your share of future benefits. You may, however, have lost the right to make an election to receive payments over your lifetime—meaning that payments may terminate based on your former spouse’s retirement election. With respect to back pay—the particular facts and circumstances of your case will determine whether and to what extent you can receive back pay—either directly from your former spouse or from the retirement plan in the form of an increased share of the pension.

OMITTED OR UNKNOWN RETIREMENT ASSETS

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I recently learned from my children that my former husband retired and is receiving pension checks. My Judgment did not address any pension plan belonging to my former spouse although he worked for one employer his whole career. Do I have any right to the pension money payable to my former spouse?

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If the Judgment does not address a marital asset – the asset is considered an unadjudicated or omitted asset. The Court has continuing jurisdiction (authority) to divide unadjudicated or omitted assets at anytime. The first step is to determine whether and to what extent the pension that is payable to your former spouse was earned during your marriage. If so, you likely have a claim a portion of the pension payable—which can be secured by a QDRO or DRO.

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I am a family law attorney who handled a divorce for a woman over 20 years ago. The Judgment reserved jurisdiction over the husband’s pension plans through his employer. The Judgment was taken by default and at the time we had very little information concerning his pension. She has asked for a referral to a QDRO attorney to divide his pension plans. Is this something you can handle?

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We have helped many individuals in this situation secure their rights to pension benefits. Our knowledge and experience with countless companies/entities and their retirement plans give us a great start in gathering information that will enable us to “find” pension assets that have a community property interest. We will seek information through subpoena or otherwise in an effort to locate the plan or plans that can divided; and then take any and all steps necessary to complete the division.

STRATEGIES FOR MULTIPLE PLANS AND OTHER UNIQUE SITUATIONS

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I have multiple retirement accounts some of which started before marriage. My spouse also has multiple retirement accounts to which he contributed before marriage. We would like to keep costs down. What is the best way to divide these accounts?

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To answer this question we will need to value the community and separate property interest in the various accounts/plans. Once we arrive at values for each plan/account, we will present our findings and recommendations which typically offer multiple options to divide the various accounts/plans. In doing so, we take into consideration the features and characteristics of each plan so that the parties are fully informed as to the consequences of their agreement. For example, two plans may have the same marital value but one may provide “better” survivor benefits—such that a simple trade off could produce an inequitable or undesired result.

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When I retired, I designated my then spouse as beneficiary to receive 100% of my pension if I predecease her. I have since remarried. I was only married to my first spouse for 5 years during my 30 year service with the State of California. My first spouse will therefore receive a far greater monthly benefit following my death than her entitlement during my life-and to the exclusion of my current spouse. Can anything be done to change my election or this inequitable result?

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Perhaps. This is a somewhat common fact pattern. Of course, it works the other way too—where a current spouse is designated as beneficiary to receive a greater share of survivor benefits to the exclusion of a former spouse who was married to the employee for the bulk of his/her career. These are often contentious (or at least, sensitive) issues but in many cases there are ways to work out an resolution between the parties. The end result will depend on the facts of the case which require analysis and often creativity.

QDROS FOR SPOUSAL SUPPORT

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I am owed $100,000 plus in spousal support arrearages. I am receiving benefits under an existing QDRO that pays me 50% of the marital share. Can I obtain a second QDRO against the pension to recover some or all of the spousal support owed to me?

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Generally, yes. A QDRO may provide for payment of marital property, spousal support, and/or child support. The use of a QDRO for spousal support or child support is not limited to on going (current) support and may be used to effectively reimburse you for amounts owed. QDROs for support (whether arrears or current) present unique issues but are quite effective to capture past amounts owed due for support.

GILLMORE RIGHTS AND WAIVERS

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I was awarded one-half of the community property share of my former spouse’s pension through the City. The retirement plan administrator has informed me that I cannot receive my share of the pension until my former spouse retires and elects to receive his share of the pension. I am 8 years older than my former spouse who is 55 and eligible to receive a pension. Is there any way I can get my share of pension now?

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Yes. You have the right under In re Marriage of Gillmore to compel your former spouse to pay you directly the amount that you would receive from the pension if your former spouse retired now. This right stems from the Gillmore case and is known as a Gillmore Election. You may only exercise the Gillmore election if your former spouse is eligible to receive his/her share of the pension. There are pros and cons in making a Gillmore election and if spousal support payments are being made—consideration must be given to the impact a Gillmore election has on support payments. Gillmore Elections always begin with determining the amount payable and consideration of all facts and circumstances in your situation.

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I obtained a divorce over 15 years ago and have a QDRO that assigns me a portion of my wife’s pension plan. Through our adult children, I learned that she is thinking of retiring soon. I believe that my share is pretty small and I am willing to waive it. Can I hire you to look in to the value of my share? If I agree to waive my interest in her plan, do I need another QDRO that awards her 100% of her pension?

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How generous of you. You may certainly hire our firm to assist you with your decision whether or not to waive your rights to the pension. If you decide to waive your interest, we will need to prepare a court order (not a QDRO) that vacates or voids the existing QDRO so that your claim to benefits under her pension plan is released.

QDRO REVIEW AND DISPUTED ISSUES

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My mother had a QDRO prepared by another attorney and is demanding that she sign the QDRO immediately or face litigation and possibly monetary sanctions. Can your firm assist my mother?

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Perhaps. Your mother has been presented with a legal document that will impact her retirement benefits. It is extremely important that the QDRO protect her rights and provide for an accurate division. It is also important she understands fully what she is signing. We can do everything from reviewing the QDRO and providing her with our comments and suggestions; to engaging in negotiations with the attorney threatening to return to court and seek sanctions; to representing your mother in litigation, if necessary.

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My former spouse and I disputed just about every issue in our divorce. Although our Judgment states that I am to receive 50% of the community property share of his pension I anticipate that he will contest the QDRO or may try to influence how it is drafted. How will your office handle disputes regarding the QDRO?

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This is precisely what distinguishes our services from other QDRO preparation services. We have encountered just about every issue and many personalities in the course of our representation. In cases where there are valid points of contention, either through ambiguities in the Judgment or law, we present the client with as much information as possible so that they can decide whether to open the doors to negotiation or whether to move forward with litigation. We regard litigation as a last resort and make every attempt to resolve issues before recommending litigation.