Win Heiskala, CLD-F, Mediator with Divorce Mediation Group, looks at why it is beneficial to include a pension attorney in your matter if you are dividing a pension.
You are in mediation with Divorce Mediation Group to work out all of your agreements, and one of your motivations for the mediation process is to save on legal fees. Then the Mediator starts talking about pensions, QDROs, and the recommendation to seek the services of a "QDRO attorney." Why? What is this?
First, "QDRO" is an acronym (one of many in family law) that means Qualified Domestic Relations Order. It is a specific and separate order in a family law case that may be required under federal law if the division of a pension is to be enforceable. Whether or not a QDRO is required sometimes depends on the advice of counsel. Even some pensions that do not require a QDRO because they are government plans, still require a special and different order (DRO) for the same reasons of enforceability.
If you have assets in your family law case that have names like pension plan, profit sharing plan, 401(k) Plan, ESOP, to name a few, you are in QDRO country. Once that is determined, when it is best to seek the consultation with a pension attorney? As soon as possible. "But we are just dividing it equally, we don’t need one," you may think or say. Wrong. Besides the need for the specific Order to carry out your agreement, there are other decisions to make in that process:
- Is there a separate property portion of the pension asset (earned prior to marriage or after date of separation?)
- Are there survivor benefits to allocate?
- Are there different elections within a Plan to be made?
- What is the date for division?
- What is the exact name of the Plan, the Administrator?
- Is there any equalization being done, either within the pension asset or against other assets?
- Are there any loans against the pension asset?
- Are there provisions within the Plan documents regarding remarriage and how they affect benefits?
- Who is going to obtain the pension attorney? Do we need one or two?
- Who is going to pay for the preparation of the separate Order?
These are but a few of the questions to be answered, and there may be more. Every pension-type asset can be unique. Certainly, these issues can be mediated, but they need to be first identified by the pension attorney. When? It is always better to have adequate information about an issue before mediating that issue. In addition, agreements concerning pension assets need to be coordinated into the MSA (Marital Settlement Agreement – another acronym) language.
There are many qualified pension attorneys in San Diego that we believe can consult with you during your Mediation process for purposes of identifying the issues to be decided and prepare the necessary documents for enforcement of your ultimate agreement.
Consider visiting one of these professionals at the beginning of your matter to ensure you understand all of the options available to you when dividing pension assets.