When a couple divorces, it can be a complicated and emotionally charged process. One important part of the divorce process is the Qualified Domestic Relations Order (QDRO). This document is used to divide retirement accounts such as pension plans, 401(k)s, and IRAs as part of the divorce settlement. However, what happens if one party does not take the necessary steps to create and file the QDRO? This blog post will discuss the implications of an ex-spouse not filing the QDRO, and what the other party can do to protect their interests. It is important to be aware of the potential consequences that could arise if a QDRO is not filed, and to understand how to move forward to protect your rightful assets.
Determine Whether The Unfiled QDRO is Really a Problem
There’s nothing I hate more – as an attorney that cares about clients’ wellbeing, than getting a call from someone who needs to retire immediately, but just discovered that their pension or 401(k) is frozen and they can’t. I have had end-stage cancer patients, forced retirees that can’t return to work (but can’t take their pension), disabled participants, and a few people about to lose their house, all of whom waited and called at the last possible second.
For those people, not having the QDRO already done is a problem – a big one. In fact, for most people, not having the QDRO done is a problem. If you’re the non-employee (alternate payee) spouse, not having the QDRO done means you have no rights to the plan – and if it is cashed out, rolled over, or the employee (participant) dies, you could end up with nothing at all.
On the other hand, if you are the employee (participant), and the plan was not alerted to the divorce, and your ex never filed the QDRO … many people in your shoes decide to risk it, cash out the plan or retire, and deal with the ex if they ever show up. That’s not the safest plan – the ex has a right to a piece of your retirement whether or not a QDRO was filed, so if they push it, you’ll have to pay them back – but many people do get away with it. (And in extremely rare cases, your state may have time limits on the QDRO which mean you don’t have to split your retirement assets at all.)
Speak with your attorney to review your options
Yes, “ask a lawyer.” In fact, we offer a free consultation for just this reason.
If your ex-spouse has not filed a Qualified Domestic Relations Order (QDRO) to divide your marital assets, it is important to contact an attorney as soon as possible. Your attorney can review the specifics of your situation, explain your options, and provide advice on how to proceed. Depending on the state where you live, there are different rules and regulations that may apply to your case. Your attorney can provide guidance on the best approach to ensure a fair and equitable property division and help protect your rights.
Contact your ex to see if they filed a QDRO
Assuming you and your ex are on decent terms, and that you’re not trying to hold out and hope that they forget, reaching out about the QDRO and being forthcoming might be your best bet.
If you and your ex-spouse had a qualified domestic relations order (QDRO) drafted as part of your divorce settlement, it is important to make sure that it was filed with the appropriate court or retirement plan administrator. It wouldn’t be unheard of for it to be drafted but never filed – attorneys and parties forget surprisingly often to follow through with it after the marathon divorce process. If your ex-spouse never filed the QDRO, you will need to take action to make sure it is filed so that you can receive your share of any retirement benefits that you are entitled to, whether you are an employee or non-employee. (Remember that often, if the plan knows about the divorce, they will put a hold on your plan until the QDRO or a waiver is returned to them.)
On the other hand, if the QDRO was filed with the court, it might just be waiting for you to order a copy and send it back to the retirement plan administrator for processing.
File a motion with the court to compel your ex to file a QDRO
If your ex-spouse has refused to cooperate on a Qualified Domestic Relations Order (QDRO) with the court, you may need to take action to ensure that your portion of the pension is secured. One option you have is to file a motion with the court to compel your ex to file a QDRO. This process can be time-consuming and expensive, but it is often the only way to get your partner to comply with the court’s orders. A motion to compel can be filed with the court that issued the divorce decree and can include a request for the court to enter a QDRO without your ex’s consent. The court will review the motion and decide whether or not to grant your request. If the court grants your motion, it will either sign a QDRO that you provide or order the parties to get a QDRO prepared and filed for the judge’s signature within a specified timeframe.
Explore other alternatives to divide retirement accounts
If your ex-spouse never filed a QDRO, still refuses to cooperate, and you don’t have the time or desire to go to court, then you will need to explore other alternatives to divide your retirement accounts. If your ex is willing, many people will negotiate a buyout – a lump sum in exchange for a waiver of rights to the account. Others may sign the waiver with no buyout at all – they simply don’t want a part of their ex’s retirement. A third option is a trade: if either party has an IRA account, those do not require a QDRO to divide and as such, they are easier to transfer as part of a trade. (Just remember to get the asset swap in writing and discuss it with an attorney before signing off – you may just be trading tax-advantaged assets for something far less valuable.)
In conclusion, if your ex has not filed a QDRO, then it is important to take the necessary steps to protect your financial interests. It is a good idea to contact an experienced attorney to help you with the process so that the division of assets is done correctly and in accordance with the law. By doing so, you will be able to ensure that any retirement benefits you are entitled to are correctly distributed to you.