Don’t Allow Lawyer To Delay QDRO
Question: Even though I have not been "in the market" for a divorce, I have read your column for years because of the terrific information you provide. But now that my husband has left me, I read your column with even more interest. This is especially true when it comes to dividing pensions at divorce because my husband's pension and our home are the two largest assets we have acquired in our 24- year marriage. With all of the complications involved, it would seem that divorce lawyers would get more attuned to the details of pension division, but my lawyer keeps telling me that nothing needs to be done until the case is settled or tried and that we have plenty of time. What do you think?
Answer: We strongly disagree with dilatory tactics when it comes to getting information about a spouse's pension. While those in the workplace save for retirement through pensions and profit-sharing plans, spouses like you who don't work outside the home face many complicated challenges at divorce in valuing and then dividing pension benefits. First of all, we urge you and your lawyer to get as much information as possible as early as possible. To not do so could result in not only delay in getting your money, but also increased expense to you. As a beneficiary under your spouse's pension plan, you should request a copy of the summary plan description from the plan administrator - generally, your husband's employer. The SPD not only describes the plan, but also tells you and your lawyer your rights under the plan, including whether survivor annuities or other death benefits are provided under the plan. As a beneficiary, you may also make written request for copies of plan documents and a statement describing your spouse's vested benefits under the plan. These requests should be made in writing, and there may be a charge for this information.
As part of the divorce process, based on the law of your state, you may be able to obtain rights to part of your spouse's pension benefit (and if you had such a benefit, your spouse could receive a part of yours). This is accomplished through a "qualified domestic relations order" (QDRO) that is issued by the court as part of the divorce process. For these reasons, you and your attorney should contact the plan administrator to find out about the requirements that the QDRO must meet. Orders that do not comply with the plan will not be accepted - meaning delay and unnecessary expense to you and the employer. In addition, because of potential complications that we have pointed out in prior columns, we believe that QDROs should be issued simultaneously with the rendering of a divorce decree or an order approving a property settlement agreement.
Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is seen in newspapers throughout the United States and can be found on the Internet at http://www.flyingsolo.com.
Please e-mail your questions to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, SC 29211. To receive the American Academy of Matrimonial Lawyers "Divorce Manual," send $7.50 payable to "AAML Fulfillment" and we'll make sure you receive it.
