In a pending divorce case, either party can ask a third-party to join the case, which is known as a joinder.  In a divorce proceeding, California allows a party to file a joinder in divorce if a third-party (such as a retirement plan) is in possession of community property assets. Contributions made to retirement and pension plans during the marriage are community property assets in California and need to be divided like any other asset during the divorce proceeding.

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Keep in mind that most retirement plans do not require a joinder. However, in some instances, a joinder is necessary if one or both spouses have a particular type of retirement or pension plan.  Some plans, such as California State Teachers’ Retirement System (CalSTRS) and California Public Employees Retirement System (CalPERS) and other city and county government plans, require that the plan administrators formally be added to the divorce proceeding before the plan can be divided. With this in mind, it may be wise to file a joinder in divorce even if the plan does not require it. Read on to learn about other reasons to file a joinder in divorce.

How to File a Joinder in Divorce

Joinders for retirement plans can be filed as soon as a divorce is filed. You may ask yourself why this is important? First and foremost, the purpose of filing a joinder early is a protective measure. When you submit a joinder in divorce, it prevents a spouse from liquidating their retirement account to avoid the other spouse from making a claim on it.

To join a retirement plan to the divorce proceeding, first, you will need the full name of the retirement or pension plan.  If you do not know the name of the retirement or pension plan, you may find this information on www.freeerisa.com by searching for the employer name.  You can contact the plan administrator to confirm that your information is correct.

The court requires the following forms to file a joinder in divorce:

  • Request for Joinder of Employee Benefit Plan and Order (FL-372),
  • Pleading on Joinder- Employee Benefit Plan (FL-370),
  • Summons (Joinder) (FL-375),
  • Notice of Appearance and Response of Employee Benefit Plan (FL-374),
  • Notice and Acknowledgement of Receipt, and
  • Retirement Plan Joinder- Information Sheet (FL-318 INFO).

You cannot join multiple plans through one set of joinder forms. The court requires a separate set of joinder forms for each plan, if there is more than one.  Once the necessary forms are filed with the court, the court will issue an Order of Joinder for each plan you wish to join.  You will then need to serve a copy of the joinder order and other documents on the plan administrator.  The plan administrator will have 30 days to respond to the order.

Once the retirement plan has been formally added (joined) to the divorce proceeding, the retirement account will be frozen until the plan administrator gets a Qualified Domestic Relations Order (QDRO).  This prevents one spouse from liquidating the retirement plan. This is one of the reasons a party may want to file a joinder in a divorce, even when the Plan does not need a joinder.

Dividing the Retirement Plan after Joinder

During the divorce negotiations, there are several ways that the parties can decide to divide the retirement plan. Once the divorce proceeding has been finalized, if a retirement plan needs to be divided, the spouse receiving payments from the plan as an alternate payee will need to file a QDRO with the plan administrator.  QDROs define how much the alternate payee is to be paid from the plan and for how long.  QDRO’s are complicated legal documents that must be tailored to fit a specific retirement plan and should be prepared by a legal document preparer or attorney who is familiar with QDRO preparation.

Contact A People’s Choice to help to file a joinder in a divorce. Our office can help you with the joinder process as well as prepare the necessary QDRO to formally divide your retirement accounts. Call us today at 800-747-2780.

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