Can You File a QDRO Without an Attorney?
“Filing” a Qualified Domestic Relations Order (QDRO) entails submitting a final proposed order to the county or court clerk, and is a relatively easy, late step in the process of dividing retirement benefits during or after a divorce. While you do not need an attorney for this simple step, you should seek legal guidance for the much more important drafting stages that must occur prior to “filing” the order, to ensure the order divides the benefits correctly.
An Introduction to How to File a QDRO Without an Attorney
As discussed in “Understand the QDRO Process from Start to Finish,” there are many steps to obtaining a final QDRO that divides retirement benefits.
Most of the early, crucial steps in the process relate to analyzing the plan and the circumstances of the parties to the divorce, in order to determine what benefits are available and how they should be divided. Because those steps require technical expertise about the legal requirements for retirement plans, in our experience it is advisable to use legal counsel to negotiate and draft the order.
Once the order is drafted, reviewed, and preapproved by the retirement plan, the final steps to the QDRO process are more “procedural” than substantive, and might be able to be handled by the parties themselves. This article focuses on the late “filing” stage of the QDRO process.
Crucial Steps to Filing a QDRO
Technically speaking, when someone says they want to “file” a QDRO, it can mean one of two things: they have a final proposed order and it needs to be signed by the judge, or the judge has already signed the order and they must “file” it with their county or court clerk and serve it on the opposing party in the divorce. Both of these steps require submitting the order to a county or court clerk for “filing” in the divorce case.
There are at least two, and sometimes three, steps in the process of “filing” a QDRO:
Sending a final proposed order to the appropriate clerk to be “filed” and forwarded to the judge for signature, on notice to your ex-spouse or his or her attorney, and receiving the signed order back from the court;
Sending the signed order to the appropriate clerk, usually a county clerk, to be “filed” in your case, and receiving that filed order back from the clerk; and
Resubmitting the filed, signed order to the clerk with a request for a certified copy to be sent back to you, again on notice to all parties.
Sometimes the second and third steps can be done as one step, but you must check with your local county clerk and/or the court to see what they require and the fees they charge for filing and certification.
Note that “filing” is a late stage in the process of obtaining a QDRO, but it is not the final stage. We can break this down a bit more so it’s clear what comes before and after “filing” a QDRO.
What is a “final proposed order” and why do you need one before “filing” your order?
By the time your order is ready to be sent to the judge for signature (“filed”), it has hopefully gone through a thorough vetting process with your QDRO attorney, and been reviewed by your spouse, or his or her attorney. You would also want to have that proposed order “preapproved” by the retirement plan so that, once signed by the judge, it will be accepted by the plan.
Briefly, this means you or (better yet) your attorney has already:
Requested and reviewed the plan documents to understand what type of plan will be divided;
Examined whether there are outstanding loans or other encumbrances against the benefits;
Analyzed whether the plan has special features, such as a cash component to a pension plan, or death benefits (which are different than survivor benefits) that should be included in the division;
Reviewed any other plans at stake to consider if it makes more sense to offset benefits against each other rather than divide each plan in half;
Negotiated the division and then put it in writing either in a separation agreement or in a draft order attached as an exhibit to any stipulation terms read in court; and
Submitted the draft order to the retirement plan for pre-approval.
After these steps are done, you or your attorney would submit the proposed order to the county or court clerk (depending on your local procedural requirements, which can vary by county) requesting the judge sign the order. Your judge may want to review your separation agreement before signing the order, to ensure the order gives the same rights you and your ex-spouse agreed upon.
As noted above, after the judge signs the order, it likely will be sent back to you (or your attorney) for filing (again, but as a signed order) and “service” on your ex-spouse or his or her attorney. After (or simultaneous with) filing the signed order, you or your attorney would request a certified copy of the order. The certified copy is required by most retirement plans in order to “qualify” the order.
Are there important steps to take after filing the order with the court and clerk?
The short answer to this is a resounding “yes.” You do not have a QDRO unless and until the retirement plan receives the certified copy, reviews it, and sends a letter stating that the order has been “qualified” by the plan. Under federal law, only the retirement plan administrator has the power to deem your order “qualified,” which makes it a QDRO, rather than just a “DRO.”
This last point is worth repeating: it does not matter what your separation agreement says, or what the judge has signed--you do not have a QDRO until the retirement plan administrator says you have a QDRO. If you do not take this final step and receive written confirmation from the plan, you will not receive benefits. Period.
Recap of How to File a QDRO Without an Attorney
Although you may “file” a QDRO at any point with the county or court clerk, more important steps in the process of obtaining a QDRO must occur prior to filing. Once these steps are complete, you should check your county or court clerk’s procedures for submitting and filing the order in your case.
Once the order is signed and filed correctly, you must typically obtain a certified copy of the order to submit to the retirement plan for the “qualification” of the order. You should expect a written acknowledgment that the order is acceptable, that is, it has been “qualified” and your division can occur.
If you have not taken care in first examining the plan at stake, drafting the order, and having it pre-approved, the plan may reject your order because it violates some provision of the plan or federal law. In that case, you will need to redraft the order; if that occurs you should submit it to the plan before sending it back to the judge for signature, to ensure it meets the plan’s approval.
If you are unsure how to draft or file a QDRO, contact McKain Law, PLLC to see if we can assist in the process.