Poorly drafted divorce agreements involving dividing retirement benefits such as 401ks, IRAs and pensions are a common issue resulting in post-divorce litigation. Sometimes, specific details are not addressed in the agreement or a step in the execution process is overlooked. Unfortunately, not getting it right the first time can lead to the loss of valuable benefits or costly litigation to correct mistakes.
What exactly is a QDRO?
When couples divorce, there may be retirement accounts to divide such as 401Ks, pensions and IRA’s. While the division of an IRA is fairly straightforward, 401Ks and pensions are governed by federal law and require a Qualified Domestic Relations Order or QDRO to divide the funds.
A Well-Drafted Agreement
Although you and your spouse may agree to split all retirement funds 50/50, it is important to address specific issues related to the disbursement of retirement funds in the agreement. Issues might include whether changes in the value between the date of divorce and the date of actual division are included in the benefit; if the ex-spouse has to wait for the employee to retire to access the benefit; or if lump sum withdrawals can be made. There are many issues that can be resolved ahead of time that can be spelled out in the agreement if you know what questions to ask. Working with an experienced divorce lawyer to draft a comprehensive agreement is crucial to avoid a loss in benefits and future litigation.
Executing a QDRO – Avoiding Holes in the Process
When the QDRO is drafted and approved by the lawyers, the plan should be sent to the retirement fund administrator to ensure that the company can in fact execute the order’s provisions. If the order doesn’t conflict with the plan rules, the plan administrator will likely approve it and send it to the judge for signature. A signed order will then be returned to the plan administrator for execution and the divorcing parties and their respective attorneys should be provided notification to ensure the asset has been properly divided – any missteps along the way can result in costly legal fees to set it right or possibly the loss of benefits.
Contact Our Waukesha Marital Property Division Lawyers When Retirement Funds are at Stake
A comprehensive, well executed QDRO will ensure that valuable retirement assets are divided properly and that all divorcing parties get their fair share. If you are considering divorce and have assets such as retirement accounts, speak to an experienced marital property division lawyer for help. The Waukesha divorce lawyers of Probst Law Offices can provide you with a free initial consultation so that you can make informed decisions regarding the division of marital assets or other family law issues you may have.
If you are scheduled for an initial consolation with a divorce lawyer, it is a good idea to think about questions you may want to ask. You will likely want information regarding their experience, a general sense of how your case will be handled, and what fees you can expect. First, let’s consider the attorney’s experience and what questions you may have:
- Does the attorney handle the type of divorce you are seeking? Are you looking for divorce mediation services, a collaborative divorce, or a more traditional divorce? Perhaps you and your spouse have hammered out an agreement you only wish to have reviewed. Your attorney should have experience in the type of divorce you hope to enter into – many will be happy to provide a referral if they do not offer the services you seek.
- Has the attorney handled cases involving child custody disputes, spousal support, business valuation, or whatever issue is your major concern? Divorce can be simple or complex depending on whether children are involved, if there is a family business or substantial property to be divided – you will want an attorney that has experience handling issues that are relevant to your case.
- Ask the attorney how many divorce cases they have handled and whether those cases went to trial or settled beforehand. A skilled negotiator can often help you reach a fair settlement, but it is also advantageous to have an attorney that has experience in the courtroom, and the judges who may hear your case, in the event you and your spouse cannot agree.
- Does the lawyer know the opposing attorney and are they able to work well together? When trying to reach a settlement, it is helpful if the attorneys representing the spouses are able to communicate effectively so if there is a problem, you should know.
When you are seeking legal representation for a divorce, finding an attorney with experience and knowledge is important. Preparing questions in advance of your consultation will help you to decide if the attorney has the experience to handle your case. Please see our Wisconsin family law blog posts regarding questions to ask regarding what you can expect in a divorce case and questions regarding fees before hiring a divorce attorney.
Probst Law Offices has decades of experience specializing in all areas of Wisconsin family law, including divorce, divorce mediation, collaborative divorce, child custody, spousal support, property division, guardianship and termination of parental rights and we will answer your divorce questions. To set-up your free initial consultation, give us a call at 414-210-3135 or email us.
If you are considering divorce, it is important to understand how attorney billing and miscellaneous fees are handled before hiring an attorney. It is a good idea to ask questions about fees when hiring a divorce lawyer at your initial consultation so you know what you can expect if you hire the attorney.
- What is the billing rate? Attorneys typically bill by the hour, so you will want to ask what their billing rate is and that of the associate (if any) assigned to your case. Ask what is the minimum unit of time the attorney bills at and if phone calls are billed.
- Do I need a retainer? Typically a firm will ask for a retainer, a lump sum, which they will deduct charges from as the case progresses. Ask if a retainer is required and how much it is? Ask what happens when the retainer is depleted.
- Can my spouse pick up the tab? One question that many clients ask is if the attorney can collect fees from their spouse – ask your attorney about options in this regard.
- What other fees can I expect? Ask about any extra fees you can expect beyond the attorney’s fees such as court costs, process servers, expert witnesses, photocopies, stenographers and more. Ask if the fees are paid in advance or as you go. An experienced attorney will be able to provide you a ballpark figure on various miscellaneous fees you may incur in your case so you have a general idea of what you can expect.
It is important to understand attorney fees and other costs associated with getting a divorce. Preparing a few questions in advance of your initial consultation regarding the potential costs along with questions pertaining to the attorney’s family law experience and what you can expect from your case will help you make an informed decision when seeking a Wisconsin divorce attorney. For a free initial consultation, give us a call at 414-210-3135 or an email.