Dividing marital property during a divorce case often involves retirement. This crucial resource can be one of the most important and valuable assets in a case. However, unlike other marital property, most retirement accounts must be divided using a specific document called a qualified domestic relations order (QDRO).
Dividing marital property during a California divorce can be a complex and drawn-out process. Once everything is decided, and the final decree is signed, it may feel like you can finally move on with your life. While many aspects of your case may be done, there may still be some important tasks to complete. Signing a QDRO is one of those tasks.
What is a QDRO?
A QDRO, or qualified domestic relations order, is a legal document prepared to create an alternate payee’s right to receive a portion of the retirement benefits that are payable to a qualified beneficiary. The purpose of a QDRO is to make it possible for a qualified plan’s retirement benefits to be paid to someone who is not the named payee.
Qualified retirement plans are tax-deferred plans such as a 401(k) or a pension plan and are governed by the Employee Retirement Income Security Act of 1974 (ERISA). In the context of divorce, when one spouse is awarded a portion of the other spouse’s retirement, the ERISA-approved method for this allocation is through a QDRO. The QDRO can also assign interest to alternate payees such as a child or other dependent. The QDRO will identify the retirement account and the percentage or amount that can be paid to the former spouse or other alternate payees.
My Spouse had Disappeared without Signing the QDRO
If you are awarded a portion of your ex’s qualified plan retirement benefits during your California divorce, you will need a signed QDRO to effectuate the transfer of your interests. In most cases, there will be language in the divorce order that says your ex must sign the documents needed to make this possible. However, sometimes a party may disappear before the QDRO is signed. This may occur for a variety of reasons. For instance, your ex may be angry that they must divide their retirement. It may also be due to a significant delay between the divorce and the preparation of the QDRO. Whatever the reason, you need to get the QDRO signed to make it possible for the plan administrator to pay you your portion of your ex’s retirement benefits after a California divorce.
The good news is that California law allows a court to appoint another individual to provide the necessary signature in this situation. California Civil Code Section 128 provides that the court has the power: “To compel obedience to its judgments, orders, and process and to the orders of a judge out of court, in an action or proceeding pending therein.” To make this possible, the court can appoint an “Elisor” to sign documents on behalf of a non-compliant party to effectuate a judgment or order. In many cases, the Elisor will be the court clerk.
Before an Elisor can be appointed to sign the QDRO, you will need to be able to show that you have tried to reach your ex to get them to sign the required documents. If your ex refuses or won’t respond, you can ask the court to issue an order for another to be appointed as the Elisor to sign on their behalf. If you can’t find your ex, you may also have to obtain approval to serve them by alternate means, such as using service by publication.
Contact an Experienced California Divorce Attorney
If your ex has disappeared without signing the QDRO, you should contact an experienced California divorce attorney as soon as possible to discuss the matter. Your divorce lawyer can help you evaluate the situation and determine your options.
The attorneys at the Law Offices of Judy L. Burger are experienced California divorce attorneys who can help you during and after your divorce. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities. Call us at 415-293-8314 to schedule a private appointment or visit our website.