Liberty & Justice…?

Once upon a time, a long, long time ago, I was a very naive person. In my sweet, sheltered, fantasy land, law enforcement was always right. Judges were always fair. Lawyers always did the right thing in working for their clients.

I didn’t have to grow up very much, however, to learn for myself that none of those things were always true. Sometimes law enforcement officers are bullies. Sometimes they profile people and harass them. Sometimes they’re just straight up tired and take shortcuts just to get a case done. Judges have egos, and personality flaws, and again, are just straight up human and don’t always get it right. And lawyers….let’s not even go there.

I support the work of the Innocence Project. They are an organization around the country that represents people on claims of actual innocence who have been wrongfully convicted. It happens. Sometimes out of racism. Sometimes because law enforcement just wants to get a distasteful case out of the way. Sometimes because a prosecutor wants a conviction to get support for re-election (and a big reason why I DO NOT think county prosecutor, or judges, should be elected officials.)

In real life, people get railroaded and wrongfully convicted. I’ve seen it close to home; I’ve seen it close to me. I had a domestic client who was wrongfully convicted (I did not represent him in his criminal case, btw–I’m not qualified for that type of criminal defense). His case was overturned on appeal, but not before he spent 3 years in state prison and was practically unemployable on release. You can read his case here, from the Utah Appellate Court (the State Supremes declined to hear it, because they felt the Appellate court got it right.)

Chris Tapp. He was 22 when he was convicted. That’s his entire adult life gone, folks.

And then there’s this case…Chris Tapp. Chris grew up in and now lives in Idaho Falls, Idaho. He was wrongfully convicted of rape and murder, and spent nearly 20 years in prison before his conviction was over turned and he was released. The Innocence Project, and a local public defender, worked his case tirelessly–because he didn’t do it. Sadly, however, when you erase 19 years of a person’s life, they can’t just come back out and pick up where they left off.

So not only do I support the Innocence Project, I support compensation for the wrongfully accused and convicted. It’s the least the community can do, after it’s ripped a person’s life to shreds.

To support the Innocence Project’s work, go to their website, www.innocenceproject. org, and see what you can do to help.

College of Law Ranked Best School for Practical Training and Best Value Law School

My alma mater, yet again, rising to the top!

University of Wyoming College of Law

prelaw ad spring 2020The University of Wyoming had another successful academic year earning distinction as a Best Law School for Practical Training and a Best Value Law School by PreLaw and The National Jurist Magazines. The College of Law has garnered recognition in both categories for six years running.

The 2019 fall edition of PreLaw and the National Jurist Magazines highlighted the UW College of Law as a best value law school. Under the methodology used to determine rank, the College of Law proved that graduates have excellent chances of passing the bar and getting a legal job without taking on a ton of debt. In addition to the obvious factors of tuition costs, costs of living, and average debt load upon graduation, the ultimate bar passage (two-year pass rate), and employment rates were also taken into consideration.

The College of Law has remained dedicated to keeping the cost of attendance affordable…

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It's the End of the World As We Know It…

*Updates to the courts procedure while we’re going through this COVID-19 thing can be found at this link, which is to the Utah Courts webpage for updates.

Ok, so not really. It IS the end of the world as we know it for at least a few weeks to months. I’m avoiding Facebook, etc., myself, because I had been before (depression + Facebook=kill me now, most of the time) but it’s even worse now. My family is basically prepared. When the store shelves cleared immediately of toilet paper and water, I had a dozen and a half or so rolls, and kept wondering who these weird people were who thought a pandemic was the equivalent of an earthquake, and that our city water would suddenly become contaminated and undrinkable.

That’s not how pandemics work, ya’ll. That’s how earthquakes work (which as a sidenote, actually happened this morning early in the Salt Lake Valley, so maybe those folks are glad they bought up all the water…more about THAT here.).

Anyway. The beauty of my job is that I really CAN do it anywhere there’s an internet connection, and on Monday, I dragged my desktop home from my day job, and got myself set up to work from home for the next few weeks. I love working from home. As an anxious depressive, getting out of bed in the morning is excruciating, especially knowing I’ll have to, like, put on pants and makeup and not look like a slob and stuff. These past couple of days, I have literally dragged myself out of bed, put on my bathrobe, and sat down at my computer at 8am. No makeup required. No pants required. That’s straight up perfection, my friends.

Feels like straight up Magic, actually...

It’s also really fantastic that most of us really DO have technology literally at our fingertips that allows for all kinds of communication without having to be WITH anyone. My smartphone has face to face calling (Facetime because it’s an Apple, but Skype and Facebook Messenger do the same thing). I can text if I don’t feel like talking. I can receive and send email from my phone as well. And so can 95% of the world’s population (that’s totally a guess. I have no data to support that percentage.)

The population that I’M speaking to now, though, you folks in Utah, you who are scared or confused about the legal system, who are afraid to leave your homes, but afraid to not be able to leave your homes, I’m still here for you. I’ve been doing a lot of family law legal consulting. For those who would qualify for CAPSA’s services, I do it for free. For those of you who actually CAN pay some legal fees, I charge $75/hr, which I can take through Venmo or Paypal or Square on a credit card. You CAN still talk to a lawyer–I can Facetime/etc with you. Or you can email.

The point here is this: Don’t feel like you’re stuck in a situation that you don’t want to be in because you don’t have access to any legal counsel. I’m available virtually by appointment (which you can make by emailing me–see my About tab at the top of this page). Or you can just email if you have a specific question. A lot of your FAQ’s are already answered on my blog here…just go to the “search” box at the top right of the page, and type in a keyword you need info on, and everything I’ve written about that topic will come up. Hell, if push came to shove, the courts are still open, and I can e-file any case documents for a legal case I’m working on, without having to leave my home office. (I actually HAVE completed entire cases without ever traveling to a courthouse.)

So keep that in mind. Don’t panic. It may be the End of the World as We Know It, but You Can Still Feel Fine ;).

For your listening pleasure…Never lose your sense of humor, folks 😉

Family and Child Legal Advocacy Clinic: Impacting Lives Inside and Outside the Courtroom

The clinics at UW Law Rock! More news from their neck o’ the woods…

University of Wyoming College of Law

Students in the Family and Child Legal Advocacy Clinic have been hard at work throughout the academic year, navigating the daily grind. While the perception that many cases are not always glamorous, for the people whose lives they are affecting, they are everything. Students in the clinic have thrived under the high stakes, high-pressure issues for their clients, and proven that they can hold their own both inside and outside the courtroom.

Some stand out student performances in the clinic have covered bench trials, settlements, and everything in-between.

In September of 2019, third-year law student Heidi Reeves-Messner, who serves the student director of the clinic, tackled two bench trials back to back, and achieved positive verdicts in both cases.

The first trial was argued in the District Court of Wyoming for the First Judicial District in front of the Honorable Catherine Rogers (J.D. ’97). Reeves-Messner argued in a Guardian…

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Mental Illness and Working on a “Broken” Brain.

I haven’t posted for a very long time. And it’s not for lack of ideas for blog posts. I’ve actually got a sticky note attached to my computer with a couple of awesome ideas…I just haven’t had the capacity to put words together. Or maybe I just couldn’t muster the massive amount of energy it takes to put words together.

I’ve written before about my anxiety and depression. The last few months it’s gotten really bad–worse than it was when I closed my law practice just about 5 years ago now. But a lawyer can’t just drop out of life and crawl into a hole and sleep, even when that feels like the best possible solution (I’ve got BILLS, ya’ll). Especially when that lawyer has a regular 9-5 corporate gig. So I decided I needed to be proactive and get on top of it. Back in October I went to my primary medical care provider and discussed options, but had also looked into TMS therapy. At my appointment with my primary care, we decided I’d bump up the dosage on my anti anxiety maintenance medication, and bump up the dosage on the benzo I was taking as needed when I’m in a bad place, but hold off on trying another antidepressant. I wanted to wait and see what happened with TMS.

TMS stands for Transcranial Magnetic Stimulation. You can read more about it here: https://www.mayoclinic.org/tests-procedures/transcranial-magnetic-stimulation/about/pac-20384625. It’s not necessarily covered by insurance. There was some hoop jumping to get my insurance to cover it, but they did end up doing so on a one-off basis. My treatment protocol is 20-30 minutes at a time; I’ve been going during my lunch hour at work, every weekday less holidays, since the beginning of December. The clinic I’ve been doing it through shows excellent results in most people. Like, 86% respond favorably, 66% go into complete remission of their depressive symptoms.

Hell on Earth, actually.

Sadly, my depression is really secondary to my anxiety and panic disorders…and TMS is less effective for people like me. In my case, I’m in that 14% that it’s not been effective for at all, and I only have 5 treatments left out of 36. However, going through TMS DID put me under the care of an awesome psychiatrist I wouldn’t have gotten into otherwise. I started new medications (there actually ARE meds I hadn’t tried before!!) just over a week ago. And thankfully, the new anxiety med has completely knocked my anxiety down. Which means that my depression is now manifesting more than the anxiety, because it takes at least a month for antidepressants to reach therapeutic levels in the brain.

So now I feel like Nothing. Flat. I have little to no interest in anything, and I’m exhausted. But after being in a state of near constant panic for the past 4 months, it’s kind of a relief to have my brain not revved in fear 24 hours a day. Because that’s what anxiety feels like to me–my brain is in a continuous state of dread, worry, panic, and stress, like I’m hanging on by my fingernails, and constantly on the verge of tears. I don’t sleep well, and when I do sleep, I wake up in the middle of the night for no reason at all and can’t go back to sleep, or because I’m having horribly graphic violent nightmares that have scared me awake and then I can’t go back to sleep. To say it’s exhausting and distressing is an understatement similar to those warning signs that say “Warning: 900 degrees Fahrenheit is Hot. It will burn you.” Duh.

I was thinking about this this morning and remembered an incident from way back in the day, when my Grandpa Tanner was still alive, but was in a nursing home with Alzheimer’s disease. He’d fallen and broken his hip, but kept trying to get out of bed. Alzheimer’s causes its sufferers to “time travel,” if you will, and hallucinate that they are living at some time in their past. My grandpa regressed to his younger years when he was a cowboy in Jackson Hole, Wyoming, and had to go feed and herd cows. He kept trying to get out of bed because, in his mind, he needed to go to work. The nurses didn’t know what to do with him, so they called my folks to help. My dad was talking to him, trying to convince him he needed to stay in bed with his broken hip. Finally, Daddy said to Grandpa, “Dad, you wouldn’t make a horse work on a broken leg, wouldja?” And Grandpa thought about it for a beat and said, “No. I wouldn’t.” And he calmed down, and quit trying to get out of bed.

That’s my Grandpa Tanner, second from the right, back in the day.

And so it is with those of us with broken minds–because mental illness IS all in my head, just like asthma is all is the lungs, and scoliosis is all in the spine. I have a chemical imbalance. I likely always will. I’m going to be realistic about what I can do, and do all that I can, but not beat myself up over what I can’t do but think I “should” (terrible word, that “Should”). I’m going to treat my mental illnesses, and stay on top of them, but stop expecting myself to “work on a broken leg”…because even an old cowboy will tell you that you don’t work anyone on a broken leg. You gotta get that thing healed.

I can be taught.

UW College of Named Top Law School for Family Law

I worked in this clinic (then the Domestic Violence Legal Assistance Project) my last 2 semesters in law school. It was a fantastic practical experience, as well as an honor to work with Dona Playton at that time. I could not be more proud of her and the University of Wyoming College of Law, my alma mater, and the best law school I could have gone to.

University of Wyoming College of Law

Badge-Best-Family2019-goldThe University of Wyoming College of Law was recently recognized by PreLaw Magazine and the National Jurist as a Best Law School for Family Law. This accolade comes after the recent, permanent hire of Dona Playton as an Associate Professor of Law and the Faculty Director of the Family & Child Legal Advocacy Clinic.

Graduating for the UW College of Law herself in 1993, Professor Playton returns to the College of Law in a tenure-track position. Playton began teaching at the College of Law in 2002 as a Senior Lecturer after serving as a Supervising Attorney at the Wyoming Coalition Against Domestic Violence and Sexual Assault. It was then that she founded the Family and Child Legal Advocacy Clinic.

Playton Professional PhotoPlayton briefly left the College of Law when she served as Director of the Honoring Families Initiative at the University of Denver Institute for the Advancement of the American…

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Scars

Barely visible now, but it sure hurt when I got it at 12…

**I owe the idea for this blog post to another “quintessential mom” I had the privilege of talking to this past week. Thanks for giving me new things to think about ;).

I got thinking about scars a few days ago. I have a few…There’s one on my right shin that I got sticking up for my little sister–the boys who had thrown her bike into the ditch pushed me in on top of it when I went in after it, cutting my shin on the fender. Another one on my right thigh is from a dog bite when I was 7 or 8. I have the faintest ever scar on my left arm, up high, from a smallpox vaccine I got when I was a baby, before my family moved to the Philippines where my dad was stationed in the Air Force. Smallpox is a live vaccine; I got one pock as a result of that. I always thought it looked kind of like a flower.

This one, from a mandolin slicer, is just a faint line with stitch marks now.

I have scars from bug bites that I had bad allergic reactions to, and a scar on my face from a staph infection that developed in what I thought was just a monster zit. It ended up having to be cut open and drained repeatedly for over a week. My hands are a map of scars, from things like cat scratches, or scrapes you get in the course of living life. And my stomach is a ridiculous mess of stretch marks–scars I got from having my first pregnancy be with twins at 22.

My twins ended up with permanent scars themselves–the older one had surgery on his skull at 6 months to open up the prematurely fused growth plate on the back right side of his head. That’s quite the scar, going from ear to ear, in a bit of an S-shape. His younger twin brother had surgery on his spine at 17; that’s a helluva scar, running from the base of his neck, almost to his waist.

Scars from surgery, as well as horizontal scars/stretchmarks that evidence the underlying issue surgery corrected.

My twins’ scars will NEVER go away, unlike some of mine. I was in a car accident at 15, and split my forehead open in a couple of places. You’d never tell by looking at me at this point, though, because as I grew, those scars grew with me, and are now somewhere up above my hairline. The passage of time Healed me of those scars, like it’s faded some of my other scars.

But these that I’ve mentioned are just physical scars. There are other types of scars that last a lot longer–emotional scars. The loss of dear ones can permanently scar those left behind. Anything that cuts into our souls and hearts can, and often does, leave a scar that may never fade.

The beanie and all this hippy hair hides my son’s ear to ear skull scar.

It’s September again. I hate September, and it’s because of the emotional scars I’ve incurred through about 15 years worth of Septembers. Hard, painful, life-changing things seem to happen in September for me, scarring me physically AND emotionally.

Saturday morning I opened up Instagram, and the first post on my feed was about the LOTOJA race. LOTOJA is a 3 state, 206 mile, one day bike race, that starts in Logan, Utah, runs through Idaho, and ends in Jackson Hole, Wyoming. Fifteen years ago, in September, I rode that ride with 4 of my best friends. It was the culmination of a year’s worth of training, and it was one of the best days of my life, even while it was crazy hard. And the next day, my biking was over, and my sanity went into a tailspin. It was the beginning of the end of my marriage; I was divorced by the end of March 2005.

You can read other of my blog posts to find out how my divorce went for me. Suffice it to say, the emotional scars are still with me. Even after all these years, those pains are still very real, very raw–hardly healed at all, it seems. Every year when the LOTOJA comes around again, I am reminded of that scar. The bruise is still there; it still hurts to touch. That was one of the really crucial things I learned in law school working with victims of domestic abuse–the physical pains, the physical scars, they healed faster than the mental and emotional ones. Those ones linger; they stick with the victims. The hurts are deep, and the scars are permanent.

I participate in a free legal clinic at CAPSA, our local domestic violence shelter. I consulted with a woman at my last clinic who reminded me how little so much of my emotional scarring has healed. Her divorce is scarcely final; mine was final 14 years, 5 months ago. Mine still hurts like hell. So I cried with her. Big, ugly painful tears. Maybe someday those emotional scars will have grown up, out of sight, like some of my physical scars have.

I can only hope.

Just so you know…

Be Brave…Report

If you are the victim of sexual assault, and you have the courage to go to a hospital and ask to have a rape kit collected, PLEASE know that law enforcement will be more concerned with the fact that you are a victim of a horrible violent crime, and NOT with the fact that you’re under 21 and have alcohol in your system. Or that you’re in a state where pot is illegal (or you don’t have a green card) and you have marijuana show up in your system. Yes, the hospital may tell the police you tested positive for some illegal substances, but it is SO MUCH MORE IMPORTANT to get a rapist prosecuted that it is for the police to hassle you over so much less terrible things!

…and if you’re in Cache County, Utah, and you DO get charged with one of these minor things after you’ve been tough enough to do the super difficult, invasive, important thing of getting a rape kit taken and reporting a rapist to law enforcement, get ahold of me. I’ll represent you in your justice court case for free. Because it is important enough to ME that you do what you need to to get a rapist off the street.

Don’t think this is just a women’s issue either. Men are also victims of sexual assault, though they report less often than women.

But that doesn’t mean it’s not happening to them…

And just in case you were wondering, there is no statute of limitations in Utah on rape. Here’s a little more info on that. Keep in mind, though, that it’s much harder to prove in court that a rape occurred if you wait too long.

Be brave. You’re not alone.

If you or someone you know needs help, call the Rape & Sexual Assault Crisis Line 1-888-421-1100, or you can contact CAPSA in northern Utah/southern Idaho, at 435-753-2500.

Back to School!

Who are YOU hoping not to get in a fight with??

I’ve been divorced over 14 years now. My baby was 2 when I stopped living with him; my ex moved away from where I’d lived with my kids, into different school boundaries, 3 or 4 years later. My children went from going to schools where the staff knew me, and knew who I was, to schools that didn’t know my ex was even divorced.

What difference does that make anyway? Well, for starters, there are all these forms that parents fill out at our annual school registrations/Back to School nights, or when they register kids in a new school for the first time. Included in the information a parent provides is the name/identity of both parents. Divorced parents typically have to provide evidence that they have physical custody of kids, and that the parent is entitled to enroll the kids in that school.

But what if the district doesn’t KNOW the parents are divorced? What if the custodial parent represents to the school that a step parent is a legal guardian/legal parent/The Mom (specifically in our culture with how we give kids dad’s last name), and doesn’t mention the other legal parent at all? The school likely will not know that there IS another parent who is entitled to information about the kids, or to pick the kids up at school, or Any of That.

Tell me junior high isn’t awkward enough already...

Let me just tell you right now, up front, before school registration stuff has happened, how to avoid a fight and be a Decent Human who co-parents appropriately:

  1. Do not list your new spouse as the other Parent on the registration forms. Unless your new spouse has legally adopted your children, they are NOT a legal “parent” such that they are entitled to be listed as a Parent. They can be listed as an emergency contact, as an Other individual who can get information about the kids, but they are not the Parent.

    To break that down into super-understandable language: “Mom” on the form is the Mom who was the Mom listed in the divorce; “Dad” on the form is the Dad who was the Dad listed in the divorce. That’s who you put in those spaces on the registration form. Period.

    This is ESPECIALLY true if the other parent has joint legal custody of your child(ren). “Joint legal custody” means that even if the kids don’t live full time with that parent, that parent is STILL a legal guardian, entitled to information about the kids from the school, the doctor, the church, whatever, without having to go through you.

  2. As the super intuitive follow up to #1, DO list your ex spouse as the other Parent on the form when you’re filling it out. Put their name, address, email, phone number, all of it. This way the school is aware of who they are, and can provide that parent information directly (in the case of shared legal custody), rather than going through you, when asked for it.

  3. Provide the school with a copy of your custody order that shows who has legal and physical custody of your kids.

  4. If you have sole legal AND physical custody of your children, STILL put the other parent in the “dad” or “mom” spot on the form, but make note that the other parent is not entitled to info, etc., without your permission… and provide a copy of your custody Order to back up that assertion. You can then put the step parent in the space of Other contact, as someone who can pick up the kids at school, get info from the school, etc., on your behalf. You are doing this because even if you have sole legal custody of your kids, your new spouse is NOT a legal guardian of those children. You can delegate these types of parenting duties, depending on your state/jurisdiction, but simply marrying a Dad doesn’t make you The Mom, and vice versa.

And there you have it–how to be a Good Co-Parent, and not get in a fight on the first day of school (or after, when it’s found out that you did something creepy, mean, and underhanded to your ex, that’s NOT in the best interest of your kids).

If you are the non-custodial (or less than sole custodian) of your kids, and if your ex is a SHITTY co-parent, and refuses to provide the school with your name and status as a parent, this is what can be done to remedy the situation:

  1. Go to the school office during school hours. Ask to speak with the principal or a school counselor. (Pro-tip: Call ahead and make an appointment so they’ll be there, ready to talk to you, when you show up.)

  2. You will bring with you: A copy of your court-signed custody order showing you have joint custody of some sort; your drivers license; your children’s birth certificates; AND if you’ve changed your name, you should also bring a copy of YOUR birth certificate, AND a certified copy of your court order for your legal name change.

  3. Explain to the principal or counselor that you are a legal guardian of your children, and request that they provide information to you as needed to help you support and parent your children. You’ll provide them with copies of all the documents you brought so they can keep those in the kid’s file(s) at school and know going forward how your situation works.

Repeat this process at every school any of your children attend–the elementary, the junior high/middle school, the high school. The schools don’t necessarily communicate amongst themselves, even in the same school district, and as long as you’ve already got everything collected in one place for the process (and probably already took time off work, etc), you might as well get it done all at once. Besides that, then the school administrators have met you in person, they know you’re on the up and up, and they will be more likely to help you help your kids in the future.

And this is the part where I IMPLORE PARENTS TO BE GOOD CO-PARENTS AND NOT JERK AROUND THE OTHER PARENT JUST BECAUSE YOU’RE A JERK. My kids have had a stepmother for 14 of the 14 1/2 years I’ve been divorced. I totally get how the dynamics of a blended family work, and how divorced parents interact. Your children are better off with ALL of their parents–legal and step–working together. Don’t cut out the other legal parent for the sake of your own ego, or because you don’t think they’re important. They are… Just ask your kids.

Let’s not make it anymore traumatic than it has to be, mmkay?

The QDRO:  NOT the Horror Story You Think It Is

*At the outset, I should say that QDRO’s CAN be a tricky, but only insofar as there are rules that have to be followed, and they don’t actually apply to all the different types of retirement plans that are out there.  And if you have a lot of different financial assets, or a bunch of different retirement accounts, or have a super complicated algorithm you’ve agreed to to calculate how much each person is getting, you’ll be dealing with a much more involved process.  But for the rest of us, the thing that MOST affects the complexity is waiting for years to file one.  But let’s not get ahead of ourselves…

~~ALSO–This article is not intended to substitute for legal advice. It is for information ONLY. Consult with an attorney in your jurisdiction for legal advice.~~

TheBlob
THAT is a horror story…

“QDRO” is an acronym for the term Qualified Domestic Relations Order.  If you’ve been through a divorce where a retirement plan was divided as property, you’ve probably heard the term (though you may not have known what it meant.)  Federal law was enacted decades ago to prevent a worker’s retirement funds from being garnished or otherwise taken away from that person, strictly because it diminished the person’s financial security after they retire (and could lead them to being dependent on government programs.)  That law is found at Title 29 of the United States Code, Chapter 18.  It’s called ERISA (Employee Retirement Income Security Act).  Under ERISA, certain plan retirement accounts cannot be garnished, assigned, or otherwise “alienated” from the person who owns the account under the plan.  EXCEPT.  Except when there is a division of the account in a divorce, and ONLY if a Qualified Domestic Relations Order has been entered.

There is a difference between a “Qualified” Domestic Relations Order and a Domestic Relations Order.  QDROs only apply to ERISA retirement plans.  I don’t want to get into the weeds too much on what makes a retirement plan ERISA qualified (mostly because that’s really not my area of expertise).  But as a general statement, the types of plans that are covered under ERISA are non-government pension plans, profit sharing plans, 401(k) plans, and certain employee stock ownership plans.  The one most people will be dealing with is the 401(k).

So what are the Magic Legal Words you have to use to make a QDRO actually “qualified”?  In a nutshell:

  • The Order must clearly state the name and last known mailing address of the plan participant AND the name and last known mailing address of the Alternate Payee.  And you MUST use that term—Alternate Payee—to describe the person who is getting a portion of the account funds.
  • It must state the amount of money that’s being awarded to the Alternate Payee, OR
  • It must clearly state how that amount is to be determined. (For Example: One half of the funds that existed in the account as of the date of divorce, or one half of the value of the account, less amounts that existed in the account as of the date of the marriage, with the date of marriage provided in the QDRO.)
  • The Order must state how many payments are to be made to the Alternate Payee, or what time period the Order applies to.

And

  • It has to specifically state what plan the Order applies to (Like “ABC Company 401(k) Plan”).

Notice that if the Order is making a division based on a calculation that you don’t have to actually do the math in the Order.  The plan administrator does that for you; you just need to be totally clear on how it’s to be calculated.  This is generally stated in the divorce decree, so you’d just need to copy the instructions from the decree into the QDRO document.

ALSO—to be “qualified,” the Order MUST NOT

  • Require the plan to distribute any benefit that wouldn’t actually be available to the plan participant under the plan (like, it can’t say that the alternate payee gets payments from the plan before the participant would be allowed under the terms that already exist.)
  • It can’t require the plan to pay out more money than it’s actually valued at (for instance, it can’t give someone $10,000 if the account is only worth $7,000.)

And

  • It can’t assign benefits to a new alternate payee that were already assigned to a DIFFERENT alternate payee (think: second marriage/divorce, and the retirement account was already divided with the first wife…second wife doesn’t get ½ of the total, because ½ of the total is already first wife’s.  Second wife could only get ½ of the husband’s portion that’s still in the account.)

It’s also a good idea to include the last four digits of the plan participant’s and alternate payee’s social security numbers and/or birthdates, just to clarify WHO these people are.  And you need to state that the QDRO is being entered pursuant to a domestic relations order that was entered in a court with jurisdiction to make the division, and what the date of divorce is.

14e2d7841bbcf8665a0be533471c98b7
Because you DO want this to be you one day, right?

So you’ll need to wait to finalize the divorce before you prepare your QDRO, but you should NOT wait too long.  See, that’s one of the things that really makes these more complex.

Let’s say that you’re divorced on October 1, 2019.  The divorce says you’re entitled to ½ of the value of the account as of the date of divorce.  So what happens if you wait 5 years file your QDRO, and in the meantime, the plan participant took a loan against the account, and now the total value is less than your half would’ve been as of the date you got divorced?  You are still entitled to your half of the account as it existed on October 1, 2019, but how do you expect to get it?  OR, you’re entitled to ½ of the value of the account as of the date of the divorce, plus any losses or gains that it’s experienced up until the date the account is divided….but the account has lost half of its value by the time you file the QDRO 10 years later (like when the market crashed in 2008, for example.)  You just lost a huge chunk of what you’d have been entitled to but for your taking a decade to get the QDRO done.  Or if there were gains…calculating the gains would be as to your portion only, not your ex’s.  See?  Much less straightforward.

So as far as actually preparing the QDRO goes, it’s not rocket science.  Here’s an example of some basic language that would work to make your “domestic relations order” a “qualified” one (The Magic Legal Words):

  1. Parties: The parties hereto were husband and wife, and a divorce action is in this Court at the above case number.  This Court has personal jurisdiction over the parties.  The parties were married on [DATE], and divorced on [DATE the court signed the Decree].
  2. Participant Information: The name, last known address, social security number, and date of birth of the plan “Participant” are:  [Name], [Address]; [social security number]; [birthdate].
  3. Alternate Payee Information: The name, last known address, social security number, and birth date of “Alternate Payee” are:  [Name], [Address]; [social security #]; [birthdate].
    1. The Alternate Payee is the spouse or former spouse of the Participant. The Alternate Payee shall have the duty to notify the plan in writing of any changes in mailing address subsequent to the entry of this Order.
  4. Plan Name: The name of the Plan to which this Order applies is the [Name of the 401(k) plan] (hereinafter referred to as “Plan”), administered by [Company].
    1. Any changes in Plan Sponsor or name of the Plan shall not affect Alternate Payee’s rights as stipulated under this Order.
  5. Effect of this Order as a Qualified Domestic Relations Order: This Order creates and recognizes the existence of an Alternate Payee’s right to receive a portion of the Participant’s benefits payable under an employer-sponsored defined contribution plan that is qualified under Section 401(k) of the Internal Revenue Code (the “Code”).  It is intended to constitute a Qualified Domestic Relations Order (“QDRO”) under Section 414(p) of the Code and Section 206(d)(3) of ERISA and the Retirement Equity Act of 1984, P.L. 98-397.
  6. Pursuant to State Domestic Relations Law: This Order is entered pursuant to the authority granted in the applicable domestic relations laws of Utah.
  7. Provisions of Marital Property Rights: This Order relates to the provision of marital property rights as a result of the Decree of Divorce between the Participant and the Alternate Payee.
  8. Amount of Alternate Payee’s Benefit [this paragraph should be customized to reflect the Decree as ordered in the parties’ case.]
  9. Commencement Date and Form of Payment to Alternate Payee: If the Alternate Payee so elects, the benefits shall be paid to the Alternate Payee as soon as administratively feasible following the date this Order is approved as a QDRO by the Plan, or at the earliest dated permitted under the terms of the Plan Benefits will be payable to the Alternate Payee in any form or permissible option otherwise available to participants under the terms of the Plan, except a joint and survivor annuity.
  10. Alternate Payee’s Rights and Privileges: On and after the date that this Order is deemed to be a QDRO, but before the Alternate Payee receives a total distribution under the Plan, the Alternate Payee shall be entitled to all of the rights and election privileges that are afforded to Plan beneficiaries, including, but not limited to, the rules regarding the right to designate a beneficiary for death benefit purposes and the right to direct Plan investments, only to the extent permitted under the provisions of the Plan.
  11. Death of Alternate Payee: [It’s a good idea to address what happens to the alternate payee’s portion if they die before all the funds are distributed].
  12. Death of Participant: [Spell out who gets the funds if the participant dies before they’re all distributed].
  13. Savings Clause: This Order is not intended, and shall not be construed in such a manner as to require the Plan:
    1. to provide any type or form of benefits or any option not otherwise provided under the Plan;
    2. to provide increased benefits to the Alternate Payee;
    3. to pay any benefits to the Alternate Payee which are required to be paid to another alternate payee under another order previously determined to be a QDRO; or
    4. to make any payment or take any action which is inconsistent with any federal or state law, rule, regulation or applicable judicial decision.

_____________________________________________________________________________________

I recognize that that language probably looks like just so much Gibberish to some–which would seem to make QDROs super hard to put together.  HOWEVER, in my practice, I found that a LOT of companies that had employee retirement plans that could be divided by a QDRO already had their own QDRO template that they liked to use.  I could contact the company’s plan administrator and ask them to email me a copy (or in the Bad Old Days, mail me a hardcopy I could then copy and type up), and it would have all of this information in it already, with all the Magic Legal Words & Phrases.  I just needed to put in the specifics of the case I was working on.  Generally they’d want to get a copy of the court-signed Divorce Decree before sending me the template, which is another reason you need to wait until the divorce is finalized to prep your QDRO.

Obviously there’s more to QDROs and separating out retirement accounts that exists in practice.  But truly, if you use the terms required (or the template the plan administrator sent you), and get it done soon after the divorce is final, you’ve won half the battle.  If your attorney tells you that they’re going to charge you a ton of money for a QDRO for a super-basic, one ERISA qualified retirement account division, maybe give it a try yourself.  You don’t have to be an attorney to get the Magic Legal Words included in the Order…You just need to know what they are.

P.S.

To Note:  NOT covered under ERISA are state and federal retirement/pension plans, military retirement, severance package type private employer benefits, and IRAs (Individual Retirement Accounts).  YOU DO NOT USE A QDRO TO DIVIDE THESE NON-ERISA PLANS.  They have their own types of forms/Orders, so don’t try to use a QDRO to divide them.  I found that the State of Utah had a packet with information and a template to give instructions on dividing their state retirement plans, so again, it doesn’t have to be a horror story.

PPS.

For a bit more information on this topic, check out the IRS website, here:  https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-qdro-qualified-domestic-relations-order 

and from the Department of Labor, herehttps://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/qdro-overview.pdf

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