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In a CA uncontested divorce, is a QDRO necessary if both spouses agree on the split? Same for Legal Separation,?e

If both spouses agree to the division of retirement benefits..ie I keep mine, he keeps his, is a QDRO necessary? i have 403b, he has IRA's. Although not equal, if uncontested is a QDRO legally required? I will be filing for Legal Separation, for personal reasons. I understand all the same rules exist as for divorce. Only exception is neither can remarry. HELP!

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Attorney answers (1)

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Hope the following information helps:
1) Since a QDRO is a court order compelling a third party custodian of pension benefits to allocate and disburse pension benefits to parties after a divorce/separation judgment, then a QDRO is not necessary if both parties agree to mutual waivers of their respective pension benefits. As you are waiving rights to unequal and/or dissimilar assets, there should be a clause in the settlement agreement or stipulated judgment stating that your waiver is knowing and voluntary and there will be no rights to set-off, credits or trade-off for this waiver. Furthermore, parties to a divorce/separation proceeding are expected to exchange Declarations of Disclosure with specific information about assets such as retirement benefits before any judgment can be entered.
2) Apparently, people usually seek a judgment of Legal Separation, instead of Divorce, for personal or religious reasons. Although only one party's consent or petition is required for a Divorce judgment, both parties' consent are required for a Legal Separation judgment. Both a judgment of Legal Separation or Divorce will function as a final determination of custody, visitation, support and property rights of the parties to a marriage. You will also cease to accrue any further marital rights, including community property rights, after such a judgment. Under Probate Code 78(d), a judgment of Legal Separation will cut off your rights as a surviving spouse under intestate succession laws too. Following the judgment, you will remain married "in name" only, cannot remarry unless a divorce judgment is entered. Generally, you could still remain under your separated spouse's medical insurance coverage, which is a concern for people with preexisting medical conditions or due to rising costs. However, it would be a good idea to first double-check with your insurance provider about its policy on this issue.

[Note: the information provided is for consumer education purpose only, not intended to be legal advice to be relied on, and does not create an attorney-client relationship]

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