Legal proceedings are complex. Sometimes, unexpected people and parties have an interest in the legal process. When this is the case, you must add them to the legal proceedings before you can fully resolve the case. You will use a joinder to do this. So what is a joinder, and can filing a joinder help you in your legal case?

What is a Joinder?

In a civil case, joinder involves the process in which a defendant adds an unnamed third party to a lawsuit. A plaintiff cannot hold a person liable unless they are a party in the case. Usually, plaintiffs establish joinder when they wish to pursue legal action against a new party. This new party is a third-party defendant.

You can also file a joinder in divorce and family law cases. For example, it is often necessary to formally join a retirement plan to the divorce case to protect the account. Some retirement plans require formal joining before the plan will acknowledge a qualified domestic relation order (QDRO).

As another illustration, matters involving grandparent rights usually require filing a joinder. Since the grandparents are not part of a family law or paternity case, it is necessary to join them in a case if they are seeking grandparent visitation.

How to File a Joinder

The type of joinder you file will determine the process you follow. In a civil case, you will first need to file a motion for joinder. You will make a formal request to the court to add a person or entity to the lawsuit.

In divorce, you can file a joinder to request the addition of a pension plan administrator to a qualified domestic relations order.

If either situation applies to you, keep in mind that the court may order that a person who claims an interest in the proceeding be joined as a party to the case according to the rules adopted by the Judicial Council in Section 211. Secondly, an employee benefit plan may be joined as a party only per Chapter 6 (commencing with Section 2060 of the California Family Law Code).

If possible, file the joinder at the same time as the divorce petition or soon afterwards. If the retirement account holder liquidates the retirement funds after a final judgment of divorce, the payee may not receive his/her entitlement.

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, filing a joinder early serves as 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 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.

Rules of the Joinder Process

Federal Civil Procedure Rules 18 through 21 establish the joinder process. Rule 19–20 details the procedures the plaintiff must take to join a defendant to a lawsuit. Rule 21 addresses the improper joinder of parties and the failure of the plaintiff to join parties who should be part of the lawsuit.

California Civil Procedure and California Rules of Court also address how to add parties to a civil matter. You may hear different terms in relation to the term joinder. For example, joinder may be necessary or permissive:

  • Necessary joinder means, literally, that the action was required. For example, a judge cannot hear a lawsuit or make a court order until the joining of all proper parties because the plaintiff did not include all defendants or claims.
  • Permissive joinder means although it is not necessary to add the parties, the court will permit the plaintiff to add them. If the joinder is permissive, then the court may decide to hear the additional claims later. In this situation, the lawsuit can continue in its original form.

Who Can Ask to Join a Party?

To understand the joinder process, you must know the people who may have a financial or other interest in the divorce case. Remember, you can join any person claiming or controlling interest in the divorce as a party to the case.

There are three types of people who may seek joinder:

  1. The petitioner or the respondent may apply to the court for an order joining a person as a party to the case who has or claims custody or physical control of any of the minor children or who has in his or her possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding.
  2. A person who has or claims custody or physical control of any of the minor children may apply to the court for an order joining himself or herself as a party to the proceeding.
  3. A person served with an order temporarily restraining the use of property that is in his or her possession or control or that he or she claims to own, or affecting the custody of minor children may apply to the court for an order joining himself or herself as a party to the proceeding.

There are specific forms that you must complete, file with the court, and serve on the opposing party and the party you are joining to the lawsuit. Contact A People’s Choice for more information on how to complete the necessary forms you need to join a party to a pending lawsuit. Call us today at 805-648-5540.