Separation Agreements and Retirement Plans – Avoidable Errors

Lately, I have seen a number of separation agreements that have been prepared by individuals (presumably without any attorney input), and have been signed off by the Court, which have insufficient information, or are totally incomprehensible, in order to write a QDRO.  Sometimes these have been so bad  I am afraid that the Court will not sign off on the QDRO if it is not in line with the Separation Agreement.  In these cases I have  recommended that the parties prepare a stipulation amending their Separation Agreement so that the documents line up and both express the wishes of the parties (hopefully they agree!).

While I do not expect parties to know what should be in their separation agreement regarding their retirement plan divisions, I would have thought that the Court would be reviewing these a bit more carefully before signing off on them.   However, the Courts are very stressed with too many cases and not enough staff, so it is not surprising that they miss these kinds of issues.  Besides, if a non IRA retirement plan is going to be transferred or divided, then a QDRO will need to be prepared, and the issues can be sorted out then – unless the parties are not cooperating, or the Participant has died (thus making it very difficult for their spouse to have the money transferred).

My suggestion is to have a QDRO specialist review your separation agreement BEFORE it is signed and submitted to the Court to make sure that the separation agreement is clear, ties up with the Sworn Financial Statement and the actual plan documents, and has sufficient wording for a QDRO to be prepared.  Better yet, have the QDRO prepared before submitting all your documents to the Court.

 

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