Warning: Before retaining someone to draft your order pay careful attention to the contract you sign. Do not give any lawyer permission to make decisions on the amount to be divided. If he/she does it wrong you can always come back and change it to conform to what you agreed or the court ordered because the QDRO is an enforcement mechanism to the final judgment. Self v. Self, 907 So. 2d 546 (Fla.2nd DCA 2005) If you agree to give that right to the lawyer you lose it and some people that signed the contract lost the right to challenge a QDRO that added hundreds of thousands of dollars not contemplated by the final judgment.
Early in the 90s Mr. Reiss emerged as the number 1 expert doing QDRO's (See testimonials in this website). He no longer offers drafter services except for clients that retain him in significant other ways because most divisions have problems because required valuations were not done while the parties were married and he will not encourage problem divisions.
These days he is kept busy testifying why previous QDROs do not comply with the Final Judgment and these errors are serious enough to warrant litigation and he seldom fails in court.
Instead he offers QDRO review services because so many divisions are problematic. Oftentimes valuations issues were bifurcated left for another day and are at the heart of a 50% marital division. What makes matters so much worse are the following:
1) So many drafter ignored the court order and either draft them to serve the side that paid or draft them to what they thought the order should have been instead of what the court ordered or the parties agreed.
2) A well known young lawyer who drafts QDRO's brags that he alone decides how the order should have been rather than how it actually reads and decides issues that only a court should decide. He is not alone but the only one who openly admits it.
3. Prior elections were not factored in which may represent marital or non-marital property but go to the other spouse, because they could have or should have been valued before divided. Whether it can be done post-judgments depends on a variety of factors, including the specific language the court or parties used in the division. Other matters like failure to tax-affect is fatal unless it was specifically reserved in the Final Judgment.
General Information About QDRO's
All retirement benefit plans and many deferred compensation plans contain a non-assignment clause. Its purposes is to protect the benefits earned from attachment by creditors. A court awarding a spouse a percentage of these benefits has to deal with this non-assignment clause. They often overcome this problem by dividing the benefits with a QDRO or a QDRO-like order. The QDRO or QDRO-like mechanism used to divide the perk is based on federal or state laws that allow a family law court to award the benefit through an assignment. The state or federal law authorizing exceptions to the non-assignment clause limits them to spouses involved in matrimonial litigation. These enabling statute were first created in TEFRA, 29 USC 1056(d)(3).
But even before these statutes earlier case law found that spouses were not creditors but were actually part of the protected group from garnishment.
There are special problems with dividing municipal plans because our case law erroneously interprets the non-assignment clause to interfere with division. Few states interpret the non-assignment clause to specifically bar spouses from a direct division of benefits making it even more important that valuations are done long before the property is divided.
He wrote one of the earlier bar journal articles on the subject. Jerry Reiss & A. Matthew Miller, Drafting QDRO’s: A Malpractice Waiting to Happen, Parts I and II. Part II is available at Lexis and Westlaw and both parts will be emailed to you ipon request.