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Is Your Divorce Really Final? Something May Have Been Overlooked
By Margie E. Howard, Attorney at Law
If you have been through a divorce you are already aware that the property division issues can be complex. If you have been married for several years, your interest in your spouse's retirement benefits can be quite extensive. However, the actual distribution of these amounts will not take place until retirement, often several years into the future, which makes this matter even more complicated. Unless things are properly prepared now, obtaining these benefits in the future becomes more difficult. This article intends to help you properly prepare your Judgment and other documents so that you may avoid the unnecessary hassle and expense later.

Today most Family Law attorneys are aware of this problem and are drafting dissolution documents properly for their clients. However, this issue was not as prevalent during the 1980's. Therefore, what I have been experiencing lately in my practice is people contacting me who were divorced during the 1980's, whose ex-spouses have recently retired, and yet they are having trouble receiving the retirement income they were awarded in their divorces so many years ago.

To avoid this trouble, you need to be certain that you have a proper "Joinder of (Your) Interest in (Your Ex-spouse's) Retirement or Pension Plan."

What To Look For

Usually, the divorce or separation Judgment, or Stipulated Judgment of the spouses, will set forth the division of the community property interest in the "soon-to-be" ex-spouse's retirement plan in their divorce/legal separation decree, or it may simply "reserve Judgment" until the interest of each is determined in such plan.

A setting forth of the "division" of YOUR interest in your ex-spouse's retirement or pension plan as stated in your Divorce or Legal Separation Judgment however, is Not Enough to protect your rights in that Plan. A further procedure is required to protect your rights. That procedure is called a "Joinder of Employee Benefit Plan".

If you have been divorced, or legally separated, and your spouse's pension or retirement plan was a part of the division of property that was Awarded to you, your first task is to check your papers to see if you received "Joinder" papers relating to the Pension Plan, or a "Qualified Domestic Relations Order", signed by the Plan and by the Judge of the Court. If you did, you probably have no worry, and need not read further.

Locating Your Joinder Papers

If you were awarded an interest in your spouse's pension or retirement plan, and cannot find a copy of either the "Joinder" papers or a "Qualified Domestic Relations Order", or something equivalent to a "Domestic Relations Order Dividing Benefits", then my first suggestion is to check with your attorney, to make sure there is a copy on file. The second suggestion is to check with the Plan Administrator of your spouse's pension or retirement plan and request a copy of same from them. The third suggestion is to visit the County Clerk's office and request that your file be released to you for review. You will need the Case No. of your dissolution or legal separation to be able to retrieve the file. Look through the file. If the Joinder papers are there and the Qualified Domestic Relation's Order are in the file, then you have nothing to worry about.

If there are no "Joinder of Pension-Employee Benefit Plan" documents on file, then you need to Verify with the pension plan that they DO have you listed as an "Alternate Payee" under the plan anyway. (You, as the "ex-spouse" are normally referred to as the "Alternate Payee" under the vast majority of pension plans). If you are able to verify this information with the Pension/Retirement Plan Administrator, then, again, you probably have nothing to worry about, and need not read further.

If you cannot locate any information in your own records, through your attorney's records, through the clerk's office of the Court in which you were divorced or legally separated, or through the Plan Administrator of the Pension/Retirement Plan to which your ex-spouse belongs or belonged, then you DO have some work to do.

What To Do If You Have No Joinder Papers

All is not lost. The fact that you were awarded an interest in your ex-spouse's retirement or pension plan is all you need to get you started to verify and ensure your interest in his or her retirement / pension plan. The division is usually based upon the years of service to the Plan (employer) by the spouse, divided by the community interest in the plan (based on one-half of the length of the marriage from date of marriage to date of Separation [not the divorce date]). He or she may have worked longer for the company than you were married to each other. Example: If John & Mary were married for 10 years, but he worked at Company X for 10 years before marriage and 10 years during marriage, the equation would equal 10 years as His separate interest in his pension and 10 years as his community property interest in the pension. Community property is divided equally (absent other agreement between the parties or on finding of the Court), and thus, he would have the equivalent of 15 years interest in his pension (10 years separate property and 5 years community), and you would have 5 years' interest in his pension as your "community property" interest in the plan.

The bottom line is that the the "Plan Administrator" of the retirement or pension plan MUST have an Order from the Court at some point TELLING them that they Must Divide the interest; therefore, an Order cutting a check to your ex-spouse at retirement, for his or her interest, and cutting a check directly payable to YOU at his/her retirement, for Your interest.

Unless YOU verify that your qualified domestic relations interest in your former spouse's retirement plan has been protected via a Court Order, you may be in jeopardy of losing potential payments due you under your divorce or legal separation decree or Judgment. Protect your future interest in this valuable community asset and at least Verify and Investigate that Your rights have been and are protected.

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