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Getting divorced. No assets at this time but I have retirement accounts. Divorce agreement states that we split all debt and

Walnut Creek, CA |

assets. We (ex and I ) have a judgment from a lawsuit on a second mortgage (private investor, not a bank) that was defaulted on. I was unaware of the lawsuit (I moved), ex attended the hearing and lied that she was unemployed. They applied a garnishment for the full amount on my wages. I am fine with paying my share but want to assign her half to her. She is claiming barely any income (self employed) and says the only assets she has are my retirement accounts and spousal support. I do not need/want to declare bankruptcy as she suggests to get out from under. Can I have the amount she owes deducted from her portion of the retirement accounts and how do I go about that? I would like to get the QDRO finished.

Attorney Answers 6

  1. Best answer

    California divorce laws provide that the community is ordinarily split evenly down the middle. Bot assets and debts.

    If she is not paying an overdue debt, but you are, then you are entitled to an offset against her interest in the remaining community property.

    If you have the jingle in your pockets, retain a lawyer to give you the advice you need to prevail in this situation. Click on the "Find a Lawyer" tab above, and retain counsel to at least advise you and guide you in the right direction. Many lawyers will assist you for a reduced fee, or represent you for a standard fee.

    Better to do this right than pay twice.

    This is a public forum. Any questions or answers published here should not be construed as the giving or receiving of legal advice or the formation of any attorney-client relationship. You should consult with a competent attorney in the jurisdiction where your legal issues are pending and get good, solid legal advice. This being a public forum, those answers you do read are merely given for informational purposes only.

  2. Yes, you could have an agreement to offset such payments from her share of retirement accounts or support. See an attorney to make sure it is done properly.

  3. I agree with the other two answers you already received. I would like to add additional information to them, but in short you need to hire an attorney for your divorce and also a QDRO attorney. I explain why below.

    Anybody can file a QDRO in court (including yourself pro-se), but I will strongly encourage you to find an attorney, with background in retirement plans and high sophistication with QDROs to do the actual preparation of the QDRO for you, even if you file it yourself or even if a local divorce attorney files it for you. You do not need a local QDRO attorney because most likely federal law regulates the retirement plan in question, so any QDRO attorney in the country could draft it for you.

    I only do QDROs and similar orders, which is my focus area. But there are a few other well-qualified QDRO attorneys in the country. Hiring a QDRO attorney does not necessarily mean it will cost you more. Please look around, do your research, do your due diligence. Focus on finding a QDRO specialist, not just any family lawyer to do the actual preparation of the QDRO.

    Many divorce attorneys are wise to outsource the drafting of these documents (QDROs, COAPs for military plans, etc.) to attorneys who are highly knowledgeable in the area of retirement plan law.

    Find somebody with a background in retirement plan law. Preparing a QDRO is more retirement plan law than family or divorce law. You can find QDRO attorneys who draft them for a flat fee, but make sure they draft them specifically for you, tailoring it to your case and circumstances. You need your own QDRO attorney to draft or review the QDRO prepared by the opposing party’s attorney. You need somebody who will look after your interests. QDROs are not neutral documents. I would be wary of anybody offering to prepare it for you and your former spouse "representing" you both simultaneously.

    The Plan administrator may easily approve a QDRO that complies with legal requirements regardless of whether the QDRO actually protects your interests. The Plan approval of a QDRO does not mean that it was properly drafted for your benefit. It only means the QDRO meets a few basic requirements mandated by law.

    Also, please do not take it upon yourself to do it with a Model QDRO the plan administrator of the retirement plan in question could have provided. You need to tailor Model QDROs. Please see the two articles in the link below describing the risks of using Model QDROs.

    A lot is lost for the individuals when the QDRO is not properly drafted. Little words make big differences in the world of QDROs. Also, a lot could be lost if the QDRO is not drafted promptly within a reasonable time after the divorce. Good luck!

    Please let me know if this has been helpful to you by clicking the "Mark as Helpful" button at the bottom of this answer. Or choose a "best answer" if you wish. This does not take long and it would mean a lot to me.

    * I am not your lawyer until you and I have signed an Engagement Letter. This and other similar posts by me on the Internet are for informational purposes only. They are not legal advice. Nothing I post online should be taken as legal advice for any individual case or situation. This answer is not intended to create, and receipt or viewing of it does not constitute, an attorney-client relationship. While I do provide my best effort to be accurate, I do not guarantee accuracy given the general nature of these posts, answers and comments.

    Veronica A. Silva is an attorney licensed only in Illinois. The use of the Internet and this answer or similar communication with the QDRO Law Center (QLC) or any individual member of QLC does not establish an attorney-client relationship. This answer is for information purposes only and does not constitute legal advice. Confidential or time-sensitive information should not be communicated and/or relied upon via this website. If you have hired an attorney, you must consult with your attorney.

  4. To give you a definitive answer an attorney is going to have to carefully review your dissolution Judgment. It’s really too far of a stretch to try to give you advisement when we don’t know what the Court Order says in regard to debts. I don’t know why you are in a rush to get the QDRO finished. Until the QDRO is finished, your ex will not participate in your retirement plan.

    I hope this is helpful.

    John N. Kitta

    If you have found this information helpful, please let the attorney know by marking best answer. Thank you. This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.

  5. Depending on when your ex went into Court and stated that she has barely any income, you may be able to rectify the assignment of the debt pursuant to the judgment concerning the second mortgage default to you and have the correct amount apportioned to your ex. The legal mechanism may be a motion under California Code of Civil Procedure section 473(b) since a default was entered against you. Get help from a qualified attorney today. And good luck to you.

  6. Have the appropriate petitions and responses been filed? She will need to either agree in a stipulation as to what you want done or you will need to get a court order. Seek legal assistance.

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