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