How to obtain a QDRO from overseas?

[floepie_1]

What is the name of your state (only U.S. law)? New York

Spouse and I are getting divorced after having moved to Europe. We have been here for approximately 4 years after having lived and married in NY State. What is the best way to obtain the QDRO necessary for splitting the 401k in my spouse's name? Is it simply enough for the judge here in Europe to rule that 50% of a pension plan be allocated to me as a result of the divorce? And, once that occurs, the divorce decree becomes translated, "domesticated", and registered in the US? Will this require the services of a NY lawyer, or can this be handled remotely by either my lawyer in Europe or myself once I have the papers? Are the available "online" QDRO sites who guide you through the process to generate the paperwork advised? Thanks in advance for any feedback or answers!

 

[adjusterjack]

The first thing you have to do, and likely the most critical, is ask the custodian (company) of the 401(k) account if a US court order is required or is a foreign court order acceptable. The custodian (company) is likely to have a legal department that can answer that question and I'm betting that the answer will be a US court since 401(k)s are regulated by the US Government.

Next, try to get a sample QDRO form that's acceptable to the custodian. Unfortunately (my experience) a QDRO is not one-size-fits-all.

Once you have a sample form you can probably do it yourself. I did my own.

If you get a sample online, submit it to the 401(k) custodian before completing it for the court so you can make sure the format is acceptable.

I did that and had to tweak mine a bit to conform to the needs of the account.

If you have to hire a US lawyer to draft the QDRO make sure you hire one who can demonstrate experience with QDROs. My experience, again, is that some lawyers know how to do them and some don't.

 

[davew128]

I think its fairly certain that the foreign court order needs to be domesticated before any administrator would accept it as valid.

 

[floepie_1]

OK, thanks for the replies! On paper things look fairly straightforward. What is unclear to me is the timeline. Is the QDRO to be filled and filed based upon a decision by the court in the divorce proceedings only after the judgment? In other words, does the QDRO step follow the actual divorce and decree of division of property? Or, is the QDRO required before the court declares divorce and issues judgment regarding the division of property?

Also, when you speak of a US or foreign court order to split the 401k, is the court order in this case another term for a "court-approved" QDRO? If so, I would need a US QDRO to be submitted to the court here in Europe before the result is handed down by the court, correct?

 

[Bali Hai]

OK, thanks for the replies! On paper things look fairly straightforward. What is unclear to me is the timeline. Is the QDRO to be filled and filed based upon a decision by the court in the divorce proceedings only after the judgment? In other words, does the QDRO step follow the actual divorce and decree of division of property? Or, is the QDRO required before the court declares divorce and issues judgment regarding the division of property?

Also, when you speak of a US or foreign court order to split the 401k, is the court order in this case another term for a "court-approved" QDRO? If so, I would need a US QDRO to be submitted to the court here in Europe before the result is handed down by the court, correct?

The 401k is part of the property settlement and the division date is usually the date of the commencement of the divorce action in NY. You need a court order to execute the QDRO.

If the 401k is invested in stock or stock mutual funds subject to market fluctuations, be sure to divide the shares and not the dollar value of the account as of the date of the commencement of the divorce action. If you split the dollar value on a certain date and two years later the divorce becomes final for instance, the account may have lost significant value leaving one party unhappy.