Are you divorced and have a problem with your QDRO or other retirement division issue? If so, read this article about problems that can happen after a divorce is finalized – the so called “post decree” time period.
After I recently won a hearing regarding division of a pension, I realized many people get divorced with plans to divide a retirement account – then something goes wrong. As a QDRO litigation lawyer in Illinois, I’ve done my best here to address those issues.
If you got divorced in Illinois, then you have a “judgment for dissolution’ which lays out the terms of your divorce. But people sometimes violate the judgment. And that happens a lot with splitting retirement accounts. That’s why there is sometimes litigation about retirement after a divorce.
What can go wrong?
What can’t? As you may know, dividing a 401k, pension, or the like can involve serious money. Not surprisingly, people like to lie and violate court orders when it comes to keeping or gaining an unfair share of a retirement account.
Here are just some of the things that can go wrong.
1. Refusal to enter order: When retirement division lawyers are supposed to be entered after a divorce is finalized, sometimes the other side refuses to agree to such an order. Why? Don’t know. What can you do about it? File a motion, go to court, and argue that the judge should enter the order.
2. Arguing about language of the order: Sometimes a judgment for dissolution will be entered with very clear provisions about what a retirement division order (aka QDRO) should say. What can you do about it? File a motion, go to court, and argue that the judge should enter the order with the language that you want.
3. Wanting a do-over: Sometimes people get divorced, and the judgment for dissolution states that certain things should happen to a retirement account. For example, that a pension should be split amongst the two former spouses. But – low and behold – the person in whose name the pension is decides he or she doesn’t want to give up the pension. So what do they do? They try to “unfinalize” the divorce by filing a motion to vacate the judgment for dissolution. They want to basically erase the divorce, open up the case, and somehow get divorce without giving up part of the pension. I just won a case like that. If someone wants to do that, you can’t stop them from trying, but you can possibly win.
What can I do about this?
If you read the above sample of the things that can go wrong, then you see that going to court is one way to get the problem solves.
The other way is to come to an agreement. Do you think you shouldn’t have to renegotiate something you think is already clear? Join the club.
To sum it up, your choices are as follows:
- Go to court
- Do nothing and hope the other person also does nothing
Do I need a QDRO lawyer?
Yes. And no.
When most people thing of a QDRO lawyer, or retirement plan division lawyer, they think of someone who drafts a QDRO or other retirement plan division order. Many of those lawyers simply draft orders which require specialized knowledge. Some may be great lawyers when it comes to drafting those orders. But they may not be good litigators – or they may not litigate cases at all.
I am a QDRO litigation lawyer. That means that I don’t draft the QDRO or other retirement division orders – but I litigate cases involving QDROs in Illinois and other retirement plan division orders.
Drafting specialized retirement plan division orders is one thing. Litigate the division of retirement benefits is another entirely.
If a client calls me about a retirement division issue, I will use a lawyer who specializes in QDRO drafting as an expert. Then I will handle the litigation.
How long can a case take?
Even if you are already divorced and simply arguing about dividing a retirement plan, there is no easy answer for how long it will take.
Let me give you an example.
In a case I had my client got divorced about one year prior; I was not her lawyer then. The judgment for dissolution stated that the ex-spouses would have to split the husband’s pension equally. A few months after the judgment was issues, the wife sent to the husband a draft of the QDRO she wanted to enter. He wouldn’t sign it. Instead, he filed a motion to modify the judgment asking that the Court keep the judgment the same except not force him to split his pension.
I filed a motion to dismiss the husband’s motion. The arguments were fairly complicated and beyond the scope of this article. However, I will tell you that there were about 3 or 4 trips to court before we got to a final hearing on the matter, and multiple other motions filed. From start to finish the case too about a year and a half. And that was a fairly simple one.
The time it actually takes to get the retirement split after a divorce can vary based on the Court’s schedule, the complexity of a case, what you want to do, and what the other party does.
One way to end a case very quickly is to give the other party everything he or she wants. But if you wanted to do that, you probably wouldn’t be looking for a QDRO lawyer.
Should I use my old QDRO lawyer?
Perhaps you used a lawyer to draft your QDRO. Maybe the work was great. Or maybe it wasn’t.
You are always free to hire any lawyer you want. But often I will choose work with a QDRO lawyer other than the one who drafted the original QDRO. At the least, I will have another QDRO drafter review the one you already have. The goal would be look out for any potential problems that could cause a problem with litigation.
Who is the best QDRO lawyer?
If you are looking for the best QDRO lawyer, I assume you are looking for someone to help draft a QDRO. In that case, I can make a referral.
I prefer to use only lawyers in Illinois to draft Illinois QDROs. There are some good reasons for that, including that non-lawyers simply don’t have the legal expertise I expect in someone who drafts legal documents.
I wrote some other articles about QDROs and splitting retirement. One is about finding a lawyer to draft a QDRO, see that article here.