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Procedure of discovery and division of retirements in divorce

Procedure for discovering and dividing retirement benefits in divorce

This short article was written for the sole purpose of enlightening my employees as to the process of acquiring retirement information. Once the information is gathered and the property is divided an enforcement order may be necessary to divide such retirement. Marshall Willick's office does an excellent job at preparing such enforcement orders which may be a qualified domestic relations order which is used to divide a private plan governed by ERISA or a Court Order Acceptable for Processing which might be used to divide a government controlled plan. These enforcement orders are separate Orders from the Decree itself. These enforcement orders typically require special language which will allow the plan administrators of such retirement plans to divide the retirement asset.

As soon as you pick up a divorce case with possible retirements you need to get the retirement plan documents. To acquire this information you need to send a discovery request in the form of a subpoena duces tecum or a signed release to the plan administrator. This request will allow the plan administrator to release the plan documents whether you are dealing with a defined contribution or defined benefit style plan. Typically you are going to need the name, social security number, and date of birth of the employee spouse. Within your request you are going to ask for a significant amount of detail which I have not included in this blog for sake of brevity. To determine who to contact start with Human Resources of the company you are seeking information from. They should be able to direct you to the plan administrator.

Once you have this information you can work towards settlement. The information will likewise enable you or someone like Mr. Willick mentioned above to prepare the QDRO. Be advised the QDRO is only used to divide private plans. You will not need a QDRO to divide non private plans such as a government plan. Also, IRAs and Keogh plans which are private plans are exceptions to the rule in that they don't require QDROs to divide.

Despite what you may often hear an IRA can be divided without a QDRO and without tax consequences in a divorce. Simply divide the IRA in the Decree of and submit the certified Decree to the Plan or to the bank which holds manages the IRA. Of course the receiving member will need to rollover the funds into her or his own account to avoid a tax consequence.

A non-private plan that you are likely to come across frequently for Nevada state employees is Public Employee Retirement System (PERS). Given that this is again, not a private plan governed by ERISA, you will not need a QDRO to enforce your decree. To acquire the necessary information you should again issue a subpoena or a release signed by the employee spouse. You can contact them here in Las Vegas at 5820 South Eastern Ave., Suite 220, Las Vegas, NV 89119. Or call them at 702 486 3900 or fax to 702 678 6934.

Federal employees may have either a Civil Service Retirement for members beginning employment prior to 1984 or a Federal Employee Retirement if they began employment post 1984. In either event remember that Federal law trumps state law and thus Federal agencies can ignore subpoenas issued from state courts. That being said, Federal agencies will typically comply with your request. For Federal employees make your request directly to the United States Office of Personnel Management (OPM) Court Ordered Benefits Branch in Washington DC.

There will be times when you will pick up a case in which prior divorcees omitted an asset from the Decree of divorce. Nevada case law allows for partition of assets in this scenario. Amie v. Amie, 106 Nev. 541, 796 P.2d 233 (1990) is the seminal case on point. However there has been some inconsistency in this case law. To play it safe it is my personal opinion that you should always include a reservation of jurisdiction for such occasion. This is especially important if you represent the non-employee spouse who typically has more to lose because of such circumstances.

Categories: Family Law