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.
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.
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Family Law Attorney
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!
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Divorce / Separation Lawyer
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
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Family Law Attorney
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.