Q. Alyssa J. of Maryland asks: "Does my former spouse have to sign the QDRO?"
A. Brett from Pension Evaluators & QDROS Of Troyan, Inc Associates
Group answers: "The QDRO is written as a "stipulation" which means "agreement"
between you and your former spouse. Therefore, you must both sign it,
in addition to the Judge's signature.
If your former spouse refuses to sign, he or she is most likely violating
the order entered upon your divorce, which often states that a QDRO must
be prepared. It sometimes even goes as far as requiring QDRO Pros to prepare
the QDRO. By refusing, he or she could be held in contempt. However, you
may find it necessary to have your Family Law Attorney file papers with
the court asking the Court to sign in place of your former spouse or ordering
your former spouse to sign.
Often our clients are concerned that once a Qualified Domestic Relations
Order (or QDRO) is prepared, their former spouse will refuse to sign the
QDRO. Generally, both parties' signatures are required in order to
file the QDRO at court.
HOLD SPOUSE IN CONTEMPT PROCEEDINGS FOR QDROs
If the division of your retirement benefits was a part of your judgment
of dissolution or court-filed marital settlement agreement, then there
is likely already a court order in place directing your former spouse
to cooperate with the QDRO. You, or your attorney, can remind your former
spouse that if he/she refuses to sign any Domestic Relations Order, he/she
will be in violation of the previous court order. You can commence contempt
proceedings against your former spouse under your state's family law
code. Any person who willfully disobeys a court order, and has both the
knowledge and ability to comply with that order, and is found guilty of
contempt may be fined, required to pay attorneys' fees, ordered to
perform community service, or imprisoned.
FILE A MOTION TO APPOINT AN ELISOR FOR A QDRO SIGNATURE
Another alternative is to file a motion to appoint an elisor, especially
common in the western states. An elisor allows a court-appointed individual
to sign the QDRO on your former spouse's behalf if he/she refuses
to sign. Your divorce attorney can assist you with this motion, which
usually begins by completing and filing a "Request for Order"
with the court that heard your divorce matter. If you do not have an attorney,
your local family law facilitator's office may be able to assist you.
TROYAN® CAN HELP OR REFER YOU TO AN EXPERT DIVORCE ATTORNEY FROM OUR ACCUQDRO® DATABASE
The good news is that once a former spouse is made aware of the penalties
for refusing to sign a QDRO, he/she will often become cooperative. If
you need help with a QDRO or have other Qualified Domestic Relations Order
Questions, please call your QDRO Experts today at (800) 221-0706. Usually,
you and your ex-spouse write the QDRO as an agreement where you both sign
and the Judge signs. But if the parties don't agree about the QDRO's
terms, the Judge will make the final decision and enter the order with
or without both parties' consent. The Judge can order a party to sign
the QDRO so it can be given to the plan administrator with both parties'
signatures.
The former spouse (Alternate Payee) does not have to sign the QDRO. Technically
only the Judge's signature is required by the Plan. The QDRO can be
sent to the Judge for signature with a letter asking the Judge to sign
it if no objection is received from the other party within 5 days - copy
of both to both spouses. The spouse in our opinion then has the obligation
to object and state to the Judge what are the valid reasons for refusing
to sign the QDRO. The Judge likely will then sign or decide to schedule
a hearing to hear both sides. A valid objection is if the QDRO does not
accomplish all the requirements that the court ordered. Another objection
could be that the wording doesn't protect the former spouse (Alternate
Payee). Then a proposal of modification would be made by the spouse. I
would then suggest that and Order to Show cause is presented to the Judge
and have both sides come before the Judge and sign. Sometimes you may
be able to recoup Attorney fees if one side is in non-compliance as per
the Operative document in the Divorce."
Brett Disdale
Lead QDRO Consultant