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Definitions:
Titled-spouse: Spouse with pension
non-titled spouse: Spouse that does not have the pension. Traditionally this is the spouse with least resources.
Parties to a divorce may find that they lack the funds required to effectively present their case. This is particularly true of non-titled spouses. Frequently the non-titled or economically disadvantaged spouse, because of this lack of financial resources has no choice but to accept a settlement that fails to equitably divide marital/community property and or to provide adequate alimony and child support.
There may be a remedy that can provide the economically disadvantaged spouse with the fees necessary to properly advance her case from a source of money that up to now was overlooked. Possibly all or a substantial portion of your legal fees and expenses can be made the obligation of your husband through a Qualified Domestic Relations Order and the fees and expenses you incur are then paid directly to you from his pension plan. In this article the type of plan that will be discussed as a resource for the economically disadvantaged spouse is a Qualified Defined Contribution Plan. These are ERISA plans.
There are a great many types of Defined Contribution Plans. Examples of such plans are:
401(k) Plan
Thrift Plan
Savings or Investment Plan
Basically, any plan that under the federal law is considered an “individual account balance plan” can be a proper vehicle to meet your divorce expenses. Moreover, and of great significance is the fact that a titled-spouse cannot avoid his obligations by leaving his present job and taking another (with a new pension or transferring his existing pension to the new job). Further the small businessman husband cannot simply “end” his plan and start a new one as a fee avoidance tactic. The fact that a pension plan did not exist at the time of your divorce is not a basis to reject a QDRO against this newly created plan for such items as: attorney fees, alimony arrearages or child support arrearages.
Additionally, the method to determine the amount of attorney fees is not complicated. It is based on a method found at a 1986 U.S. Supreme Court decision. Simply stated the formula is to:
Step I.
Compute the reasonable number of hours expended by your attorney on this matter.
Step II.
Multiply the Step I hours by a reasonable hourly attorney rate.
Hence, the method to compute the amounts due your attorney are easily determined. Once determined this amount may then be inserted into a properly crafted Domestic Relations Order.
YOUR TIME OF OPPORTUNITY:
There are two points in time when you may elect to apply the remedies presented in this article.
One: During the course of your divorce it is essential that you impress on the court that an award of attorney fees is should be made to you. The reasons for this award are your efforts to obtain:
an equitable property settlement
Maintenance/Alimony
Child Support
Two:
After a court has awarded you attorney fees and your Former Spouse has not complied with the court order of payment to you of attorney fees. In such instance time is a consideration. It is suggested that you act as promptly as possible to implement the remedies discussed above.
Spouse Alert:
Although this method of obtaining legal fees and expenses highlighted Qualified Defined Contribution Plans, do not assume that this remedy is not available if the titled-spouse is a participant in an ERISA Qualified Defined Benefit Plan. For this type of plan more complex issues arise, nevertheless it too is a viable remedy.
Troyan, Inc. is prepared to provide Qualified Domestic Relations Order support on this issue to you and or your attorney.
CASES FOR THIS ARTICLE
Adler v. Adler; 638 N.Y.S.2d 29
Anonymous v. Anonymous; 2001 U.S. Dist. LEXIS 20928
Iannotti v. Iannotti; 1997 Conn. Super. LEXIS 146
Sears v. Gago; 717 F.2d 1038
Silverman v. Spiro; 784 N.E.2d 1
Thomas v. Thomas; 789 N.E.2d 821
Tise; 255 F.3d 661
York v. York; 751 N.Y.S.2d 417
ROBERT D. SILVERMAN vs. CLAUDIA A. SPIRO.(MA)
Esther York, appellant, v Joseph York
Lorna J. Renner, Plaintiff, v. Marc Blatte, Defendant. (NY)
Laura Iannone, appellant, v Domenic Iannone, et al., respondents
Keegan v Keegan, 204 A.D.2d 606, 612 N.Y.S.2d 187;
Bumstead v Raisbeck, 230 A.D.2d 759, 646 N.Y.S.2d 368;
Adler v Adler, 224 A.D.2d 282, 638 N.Y.S.2d 29;
Zamos:
The QDRO Covers Amounts Due for Support and Marital Property Division.
ALSO OF GENERAL INTEREST
However, it is now well established that a state court has subject matter jurisdiction to decide whether a domestic relations order is a QDRO, even if the order itself may be substantively defective. (In re Marriage of Shelstead (1998) 66 Cal.App.4th 893, 905.)
From Zamos (CA)
A QDRO May Be Used to Collect Unpaid Support and Marital Property Obligations from a Defined Benefit Pension Plan Created After the Dissolution Was Final.
From Zamos
The order here did not modify the obligations owed by Jerome under the 1982 decree, but merely provided a method for enforcing those obligations. n8 (See In re Marriage of Bruns (Iowa App. 1995) 535 N.W.2d 157
Zamos
The commentators, n9 and the courts in numerous other states, n10 have concluded that a QDRO may be used to enforce the collection of arrearages on payments owed for support and marital property rights, and we conclude the QDRO here was properly employed to enforce Jerome's past due obligations to Patricia.
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n9 See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2002) P18:259 et seq., p. 18-86 et seq.
n10 In re Marriage of Bruns, supra, 535 N.W.2d at p. 161; Baird v. Baird (Mo. App. 1992) 843 S.W.2d 388, 391-392; Stinner v. Stinner (Pa. 1989) 520 Pa. 374, 554 A.2d 45, 47-49; Hogle v. Hogle (Ind. App. 2000) 732 N.E.2d 1278
Calif Ct.
In re the Marriage of ALICE NAVARRO and RAYMOND C. OLIVAREZ
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