When pensions are divided in a divorce, the attorneys must understand all of the specific provisions of the plan they are dividing. For example, retirement plans can have different provisions when it comes to dividing the “survivor benefit,” which determines who gets what when the employee dies after he or she has already retired, or the pre-retirement benefit which determines who gets what if the employee dies before he or she begins to receive his or her retirement. In certain plans, the pension is lost to the spouse if the employee dies before retirement. Life insurance for the spouse or “former spouse” must be considered in these cases. All of these specific aspects of the plan(s) must be fully understood and fully negotiated pre-trial or brought to the attention of the Judge during trial in contested cases. Some plans are subject to federal law, and others are not, which can also significantly impact how these plans are divided, and what the Court Orders need to specify in order to be effective.
Most pensions are divided by a document known as a “Qualified Domestic Relations Order (a QDRO)”. This is an Order prepared by the attorney for one of the parties which is signed by the Judge and presented to the plan administrator of the pension asset. However, some pensions cannot be divided by a QDRO, so-called, they require a military Qualifying Orders, Civil Service Court Orders Acceptable for processing dividing FERS or CSRS, municipal plans, Police and Fire, or State pensions. To protect their clients, the attorneys at The Law Office of Howe and Garside consult regarding the division of the retirement assets at the negotiation stage. This is done in order to assure the issues are raised and addressed before rights are lost. It is also possible to assist attorneys outside of Rhode Island to address the division of retirement assets, and merely tailor the QDROs to the particular state where the case is pending. It is important that the attorney who negotiates the case and prepares the QDRO or other corresponding document understands the provisions of the plan completely and the law regarding these documents so that the Agreement of the parties or the Order of the Court is implemented correctly. There are critical deadlines which must be met in some types of pensions and rights can be lost of the documents are not filed within the required time period.
We at The Law Office of Howe and Garside, LTD. have lectured frequently to other attorneys regarding these documents and we recently co-authored the Pension chapter in the Rhode Island Family Law Practice Manual.