My stbx and I have been separated for over a year. We are trying to do an uncontested absolute divorce, we have a signed seperation agreement that we are not incorporating, we have two minor children and we have a QDRO draft in process with the plan administrator. We are filing in Durham.
Can you provide some guidance on the language to use in the divorce complaint to ask to have our QDRO entered to split one of his 401(k)s. We know the plan name, the exact amount to split, and the only other request for relief is to return to my maiden name. Or if this is not the process, how would we have the QDRO signed by a judge when the time comes?
Also, if the plan administrator does not provide an approved copy before our court date how do we get that entered? Or do we need to wait for that approved copy to file the complaint?
Thank you.
You will need to include a claim in the absolute divorce complaint for equitable distribution for the limited purpose of entering qualified domestic relations orders.
Then the divorce judgment will need to state that the claim for equitable distribution for the limited purpose of entering qualified domestic relations order is preserved for further hearing.
The QDRO can be entered at the same time as the divorce judgment. Or, with the preservation language above, the QDRO can be entered after the divorce judgment is entered.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
So my ex ended up filling and the line in the complaint regarding the QDRO states the following
“The parties have resolved custody of their minor children with a Parenting Agreement, and all other issues were resolved with a Seperation Agreement; however, the issue of Equitable Distribution needs to held open for disposition via QDRO.”
And in the wherefore it says “That the issue of Equitable Distribution be held open by the Court for disposition via QDRO.”
Per my ex, his attorney said they will ask to have the QDRO entered when we go to court to finalize the divorce. We do have the final version to be entered by the judge.
But my understanding from your response above is that we need to file a complaint before our divorce court date in order for the judge to enter it. Does this language included in the Divorce Complaint qualify as a complaint? Or do we need to file a separate complaint to enter for the QDRO to be entered? And if his attorney attempts to enter the QDRO on the day we go to court for our divorce will the judge allow it?
Thank you.
As long as a claim for equitable distribution of retirement accounts is filed at the time the divorce judgment is entered, then you are protected.
It sounds like the claim was asserted in the complaint in your situation. It is common to have the QDRO entered at the same time that the judge signs the divorce judgment.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.