During a divorce, most couples usually split community property assets 50/50. However, a couple may choose not to divide their current retirement plans, and each waive any community property interest they may have. In the first place, it is not necessary to divide all retirements plans in a divorce. However, if the court has ordered the division of a retirement account, or the parties have agreed to divide one or more retirement accounts, it will be necessary to file a QDRO after divorce. We often receive calls from client about how to file a QDRO after divorce. Here is what you need to know about the QDRO process after divorce.

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Specificallly, to formally divide a retirement account, the parties will need to prepare a Qualified Domestic Relations Order (QDRO). Once signed by the judge, the QDRO allows the retirement account administrator to get access to the retirement plan benefits and divide them into two accounts. In other words, the division will follow the court order and divorce judgment. Contact A People’s Choice to speak with our legal document assistant about your QDRO matter. We can help you prepare the forms you need to file a QDRO after divorce to get your share of a former spouse’s retirement benefits.  Provided that you would like to prepare a QDRO without having to hire an expensive attorney, this article will explain how to file a QDRO after divorce.

What is a QDRO?

A QDRO is a formal court order that gives instructions to a pension plan administrator to divide a defined benefit plan after divorce and provide a part of it to an ex-spouse. For example, a QDRO may also be used to separate IRAs, 401(k)s, and other retirement plans. Moreover, the division can be a percentage or a specific dollar amount.  When considering how to file a QDRO after divorce, you will need to know how to divide the retirement. Provided that the divorce judgment outlines the exact division of the retirement plans, a spouse must file a QDRO after divorce once the court enters a judgment. Keep mind, the QDRO process is an extra step after the court enters the divorce judgment. In other words, the court does not automatically issue a QDRO after divorce upon the entry of judgment. Furthermore, unless the parties prepare a formal QDRO, the retirement account will not be divided.

A QDRO is a separate order granted by the court in addition to the divorce judgment. The QDRO order will contain specific directions to a pension plan administrator on how to divide the plan between the spouses. When you file a QDRO after divorce, the QDRO will be specific to one retirement account. In other words, if you have more than one retirement plan to divide, you will need to prepare a separate QDRO for each plan. A couple should prepare and file their QDRO as soon as the court grants a divorce judgment. For instance, an extended delay in filing the required QDRO may hinder a party receiving their court-ordered share at a later date. You will need a QDRO if you are trying to divide the following types of plans:

  1. 401(k), 403(b), and 457 plan
  2. Tax-sheltered annuities
  3. Corporate defined benefit or pension plans
  4. Employee stock ownership plan
  5. Profit-sharing plan
  6. Thrift plan

Keep in mind, each company may have particular guidelines regarding how to divide the above-referenced plans. In other words, no two QDROs are alike.

Notifying the Retirement Plan

In California, a spouse has an assumed interest in any retirement plan that was paid into with community property funds during the marriage. Conversely, a spouse has an assumed interest in any accumulated retirement benefits accrued through employment. Once a couple files divorce, they should notify the plan administrator of all retirement accounts of their plans to divorce. Notification can be done informally in writing or through a more formal process called “Joinder.” A Joinder formally links the Plan to the divorce proceedings and puts a “lock” on the plan until the plan has been divided by the court.

How to File a QDRO After Divorce in California

The marital settlement agreement or final divorce judgment should include language about what amount each spouse is to receive from the retirement plan. If the document is silent, it may be necessary to have the court clarify the Judgment before you can prepare the QDRO. In most instances, the QDRO preparer will include a standard formula the plan adminstrator can use to to compute the amount payable. It is important to have the plan administrator pre-approve the QDRO to make sure it complies with the plan’s rquirements before filing it with the court. Once the QDRO is pre-approved by the plan administrator, you and your spouse must sign the QDRO.  Submit the QDRO with the court to have the judge sign the order. Once it is filed with the court and approved by the judge, send a copy of the document to the plan administrator. The plan administrator will provide payment instructions to both parties.

Despite common belief, you do not need to hire an attorney to file a QDRO after divorce in California. Contact A People’s Choice and our legal document preparer will walk you through the steps you need to complete to file a QDRO after divorce and successfully divided your retirement plan consistent with your divorce judgment. Call us today at 800-747-2780.

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