Division of property can be a tricky issue in a divorce but Sacramento divorce attorney's Keegan & Myers can help ensure that you are treated fairly. Retirement (Pension) plans are sometimes overlooked in divorce settlements.
Retirement and/or deferred compensation plans paid into by one spouse, either directly or by the employer, or a combination of both, are subject to property division in a divorce under California law. Most retirement and deferred compensation funds are divided using what is called a QDRO or a Qualified Domestic Relations Order issued by a Family Court (sometimes incorrectly referred to as a QUADRO). QDRO’s, mandated under the ERISA body of law, are not used if the retirement plan is a public plan (usually state, federal or military – but these can also be divided by using a similar but differing legal process).
It is important to understand that a divorce decree will not be recognized by retirement fund administrators as a valid QDRO even if division of the fund is specified by the decree unless all of the information required in a QDRO is contained in the divorce decree. While a QDRO does assign rights to a portion of retirement benefits to a spouse or former spouse, a QDRO may not enable that individual to immediately access the funds. First, it depends on the type of plan, whether it is a pension (defined benefit) or a deferred compensation (defined contribution) such as a 401k, 457, 403b, etc. In order to receive the start of a pension the retirement fund member must retire, be eligible to retire, withdraw the funds, or die before the spouse will receive his or her portion.
It is important in a divorce settlement to have a qualified attorney draft or review a QDRO. You will want an attorney who is thoroughly familiar with all the legal implications and who has experience in finding errors in language that might limit a spouse’s rights. A QDRO may be drafted in an “aggressive” fashion that conceals important limitations on benefit options, or limits a spouse’s share of funds. We at Keegan & Myers specialize in drafting and reviewing QDRO agreements and we can ensure that you are treated fairly in dividing this valuable property.
The QDRO should be filed with the court at the same time as, or even before, the “Dissolution Order” (terminating the marriage). The provisions for dividing retirement plans need to be clearly written and in detail as part of the Settlement Agreement. Under some plans (federal) if certain provisions are left out of this order, even though they are properly detailed in the DRO (such orders for public plans are normally referred to simply as “domestic relations orders”),they are potentially lost forever. One of these items is the survivor benefit plan for the non-employee spouse.. This is important because it is difficult and costly to re-visit a Settlement Agreement after it is filed with the court and may even require a “change of circumstances” to get the original order modified. Keegan & Myers will work with you to make certain that all of these details are attended to. We know that divorce is an emotional time and our job is to make sure that nothing gets overlooked and that you are treated fairly.
F. Patrick Keegan, Esq. of Keegan & Myers is recognized as an expert in drafting QDRO orders to fairly divide retirement and deferred compensation funds. His main area of practice is Family Law with over 20 years of experience.
The entire staff of attorneys of the Keegan & Myers law firm can professionally guide you through the process of property identification, valuation and division to ensure that your rights are protected. Please call us for a low cost initial consultation at (916) 780-0440.