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Thinking of Handling Your Own Divorce?

More and more people are trying to use online forms to handle their own divorce.  A person has an absolute right to represent his or her self.  The issue is not whether you can do it, but rather, should you do it.  First, let me state that I no longer handle divorce cases, so I don't have a financial interest in whether or not you do it yourself or hire an attorney.  Use of do-it-yourself forms and kits is suggested only for those parties with no property and no children.  It is hard to get into much trouble under those circumstances.  You are viewing my web site because you may be dividing a community property retirement plan.  If so, then you not only have property, but a retirement plan or plans is very often the most valuable single asset of the community estate.

The QDRO that is used to divide the retirement plan must conform to the terms of the Decree of Divorce and the terms of the Decree must be drafted very carefully or you can cause great financial harm to yourself.  Different division language must be used for a defined contribution plan than is used for a defined benefit plan.  Many of the form Decrees I have seen either award 100% of the benefits to the participant (which means the benefits are not being divided and the non-participant spouse gets nothing) or states that the parties will divide the retirement benefits at a later date.

I have seen too many cases where a party comes to me to prepare a QDRO to divide the retirement plan only to find out the form Decree they used did not make a division or put off the division to a later date.  At that point, the party is compelled to hire an attorney to divide an undivided asset (no online forms available for that one!) before I can prepare the QDRO.  The cost for that is almost always more than if the party had hired the attorney to do the divorce correctly in the first place.  Further, you risk loss of the benefit if your ex-spouse terminates employment and cashes-out before you can fix it.  On some federal plans, if the employee retires after the divorce but before a division order (similar to a QDRO) is entered, OPM will not honor the division order and will pay all benefits to the ex-spouse employee.  Do not put off making the division.

Although I have provided sample decree language for the division of retirement plans on this web site, it is intended only for attorneys who know which sample to begin with and how to tweak the language to fit the particular facts of the case.

Another common error is that the do-it-yourself decree makes a division that won't be allowed by the plan.  For instance, attempting to award a lump-sum dollar amount from the Teachers Retirement System, which is another common thing I see.  TRS won't allow a lump-sum award and won't allow an immediate distribution.  There are so many ways to mess up the wording of the Decree and you will be required to fix it before you can proceed with the QDRO and actually receive your portion of the retirement benefit.  Again, that means hiring a lawyer since your attempt was not correct and it is doubtful you will be able to correct the problem yourself.

There is much price competition between attorneys these days and several attorneys that will only prepare the appropriate petition and decree, with you handling the court appearance, all at a surprisingly reasonable fee.  Please check around and spend the money to get this done correctly the first time.  Retirement plan benefits are simply too important and valuable to risk in order to save a few hundred dollars for the cost of a divorce attorney.