Qdro and modifying child support procedure


#1

Hello,

I have a separation agreement in place with my spouse. It is filed in the Wake county records for the past 2.5 years or so (early 2009). Now, I am planning to follow your step by step guide to get the final divorce. The steps are quite clear and helpful. However, i have 2 questions -

  1. The separation agreement calls out for a QDRO to be obtained during the final divorce directing my 401K plan to disburse $7500 to her IRA. This would avoid the early withdrawal penalty being assessed by my 401K plan administrator.
    My question is, on the ‘Notice of Divorce Hearing’ form, one can only choose 1 of,
  • Summary Judgement Divorce
  • Non-Jury Divorce
  • Consent Orders, QDRO
    So, which one should i choose ? - I need to BOTH the QDRO and Divorce judgement. OR
    Do I need to fill out 2 of these forms, one with each checkbox checked ?
  1. The monthly child support amount (as calculated during the drafting of this separation agreement about 3 years ago) is written in the Separation agreement. The underlying numbers have changed since then therefore Can you advise on how exactly to go about legally changing the monthly child support payment ? Do we have to file a amended Separation Agreement now OR Is it relatively easier than that ? Both of us have utilized the worksheet B (from the official NC website) to arrive at the new payment amount and are in agreement but are not sure about how to go about making it official.

Thanks in advance.


#2

I would highly recommend you have an attorney handle this QDRO issue for you. Drafting QRDOs can be tricky. All transfers pursuant to separation and divorce are supposed to be tax free, which is why you need the QDRO. Also, you will want to ensure that you do not lose any of your future benefits, so the language in your separation agreement needs to be correct concerning the transfers.

If you do decide to go it alone, you should request a sample QDRO from the retirement plan itself before moving forward and trying to draft it on your own. When you file your divorce complaint, you will need to include a claim for Equitable Distribution of retirement benefits, then submit the QDRO for the judges signature on your actual court date. So, it will be fine for you to enter a summary judgment for divorce and include a claim for ED in the complaint itself. It’s limited ED just for the purposes of entering the QDRO for the judge’s signature.

You can enter into a Consent Order for the child support issue. This will need to be signed, notarized and also submitted to a judge for signature.