Frequently Asked Questions

How much will this cost?

Our retainer estimates are based on the total number of QDROs or other court Orders needed to divide your and/or your former spouse's retirement plans. We may also include an additional retainer for tracing calculations or the completion of additional court documents, like Joinders, that may be required to complete the objective.

All retainer estimates are based on the information that you, your counsel, or opposing counsel has provided to us. They are not flat fees - if the fees run over retainer, the parties are billed on a monthly basis for the additional fees incurred. In over half our cases, we finish under retainer and issue a check to the parties refunding the remaining retainer balance.

Please be aware that you will end up paying whatever amount it actually cost for our office to complete your case, so the initial retainer does not determine your total cost and is not a promise, but an estimate.

Retainer quotes include all court fees. Clients are not charged for copying, long distance telephone, or postage costs. They also include storage of your file for seven years or earliest retirement age of the participant, to ensure that we can be there to assist you in the unlikely event that you have problems when you are retiring.

The base fee for one QDRO is $1,000. Usually, this fee is split between the parties , which means that each person pays $500. All fees are then split equally between the parties each month.

We prorate the retainer estimates for clients who require more than one QDRO.
Joinder preparation is a flat fee of $200/Joinder.

Tracing and other calculations are billed hourly at Ms. Strasen's $300/hour fee. A conservative estimate is one hour of Ms. Strasen's time representing tracing over 3-4 years of marriage.

Our goal is to finish your case at or around retainer. We are proud to offer refunds to the majority of our clients. We are willing to accept monthly payments, and we do not charge interest or give late fees.

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How long will this take?

Usually, QDROs can be drafted and circulated to the parties within 1-2 weeks of our office receiving all of the necessary information. It can take longer if you are also hiring Elizabeth Strasen to perform tracing calculations, or if only part of the information needed is submitted to our office.

Full execution (transfer of assets) generally takes between 3-7 months. We have completed cases as quickly as ten weeks. Contention between the parties has caused rare cases to remain open for several years.

Here are the steps generally necessary to complete a QDRO:
1) All information is gathered from clients (names, addresses, dates of birth, SSNs, date of marriage & separation, statements, copies of divorce settlement or relevant court orders, etc.)
2) QDRO is drafted and circulated to attorneys and/or clients for them to review. Resolution is reached on a single draft that all parties approve.
3) Agreed-upon draft QDRO is sent to the company's plan administration for a pre-approval
4) Plan administrator reviews QDRO. Revisions required by plan, if any, are made. QDRO is circulated to parties for signature.
5) Fully signed QDRO is sent to court clerk by our office for filing & endorsement
6) QDRO is returned to our office by the court clerk. We send the court endorsed QDRO to the plan administrator for execution, and provide all parties with copies for their records
7) Plan administrator receives QDRO as final court order, and executes QDRO within 30-60 days. This is when they wi ll mail out final paperwork and transfer funds (if applicable)
8) Once our office confirms that the QDRO has been executed, we close our file and issue a refund of any remaining retainer funds. Files are kept in storage for seven years or until earliest retirement age of the participant (if longer).

Please see our About QDROs section for an explanation of terms used in this list and more on QDROs in general.

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Why should I hire a QDRO attorney?

Unless your divorce settlement included ownership of real estate (and many times, even including real estate), retirement assets usually represent the single largest asset that must be divided when you divorce. Since California is a community property state, each party is entitled to 50% of the total retirement benefit accrued during the marriage, unless an alternate agreement is reached. It seems strange, then, that most marital settlement agreements don't spend more than a few sentences on the division of retirement benefits worth tens of thousands, hundreds of thousands, or millions of dollars.

The reason for this is generally that divorce attorneys and mediators do not consider themselves proficient enough in this area of law to advise on the subject.

Even self-help legal guides will defer you to a specialist when it comes to advising on the division of retirement benefits. Why? This area is hugely complicated by the variations from plan to plan, from federal to state and local laws, and because the involved values are tied to the financial market. The laws and the plans themselves are constantly changing. See our About QDROs section for more information.

Hiring an experienced attorney like Elizabeth Strasen is the best way to manage risk for both parties. When considering the total monetary value involved, our retainer is a small investment to protect a large sum of your money, and to ensure that the amount that is being transferred is accurate and exercises your full rights under the law.

There are many other services that process QDROs in some form. While some are legitimate competition, many will offer low retainers up front and then quickly run through their original estimate and end up costing you much more. We are proud to offer refunds to over half our clients. Other services offer one-time fees to draft the QDRO, and then leave you to figure out all of the other steps. Only an attorney can file the QDRO with the court on your behalf. And only an attorney specializing in this field is able to thoroughly answer your questions and counsel you through any choices you need to make. Our office serves the final QDRO on the Plan, and actively pursues confirmation that the final QDRO was executed.

When considering our requested retainer, please also consider the total value of your retirement benefits and your potential tax risk. QDROs can't be put into place retroactively to reverse an assessed tax penalty.

Full service of the QDRO, from start to finish, means we take care of it so you don't have to. And having an attorney who takes responsibility for her work will give you peace of mind. We will store all of your documents for seven years or until the participant reaches retirement age - whichever is longer. If you have a question or a problem in the future, we'll be there for you.

Hiring an expert is a smart choice. We do our best to make it an affordable choice, too.

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My company provides a QDRO form. Why wouldn't I just use that instead?

Unless you understand everything written in the form QDRO, and are sure that nothing is missing, you shouldn't use one.

Businesses have no requirements to provide a fair QDRO. Their perspective is one of minimizing losses. Businesses and other institutions who sponsor retirement plans need to pay someone (usually, a lot of someone's) to review and execute QDROs, which takes substantial recordkeeping, paperwork, etc. Likewise, QDROs generally take money out of the Plan by making a distribution to the alternate payee. So from the business perspective, they are many times having money they had invested taken away, and in all cases paying staff and/or contract fees to have it taken.

Model QDROs are very often written to meet the best interest of the Plan sponsor, not your best interest. They will usually have instructions for the Plan to be divided via the easiest method. However, it's not all about what model QDROs have. It's also about what they don't have. They usually do not include language that should be written to protect you from the potential for the plan or your ex-spouse to take advantage of you. Some model QDROs even use language that is directly against your interest, such as forgoing an available retirement option that you may prefer, or electing for certain fees to be your responsibility when the could be split between you and your ex-spouse, instead.

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Do I need to be divorced to get a QDRO?

Usually, no. In our experience, it is ideal to have the QDRO process run parallel with the overall divorce process. That being said, the divorce should be far enough along that a draft of the marital settlement agreement is underway, as the final settlement should lay the foundation for the terms of the QDRO. Involving our office early on means we will be available to counsel the parties on their Judgment language, if desired. This also provides more opportunity to discuss and settle any issues that may arise while your counsel is fully engaged.

Most QDROs can be executed whether or not the final Judgment has been filed with the court. However, there are a small number of plans (a few pension plans, IRA companies, and municipal/federal plans, for example) that will not execute the final QDRO until they receive a copy of the final Judgment. Some even require a certified copy of the final Judgment. In most cases, these plans will hold all of the final QDRO paperwork pending receipt of the final Judgment.

QDROs generally revolve around two dates: the date of marriage and the date of separation. If you have already established a date of separation, then the clock could be ticking for your QDRO(s). Any contributions into the plans after the date of separation, and gains/losses on those contributions, are the separate property of the participant. However, the plan won't necessarily calculate them out. Alternate payees also can feel pressured to have the QDROs completed, as they will not have control over or access to their portion of the retirement benefit until the QDRO is done.

If you are interested in having a QDRO completed, but you think that termination of status will not occur for some time yet, let us know. We can discuss your options and whether or not this could be an issue for you.

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Why should I pay for this?

Deciding who should pay the retainer to divide retirement plans can be contentious. But refusing to pay can put you at risk for violating your court ordered divorce settlement. Although it may not seem like it initially, both the participant and the alternate payee have very good reasons to invest in a professional to perform this service.

For the participant, our retainer is an investment in ensuring that your plan is properly and fairly divided. The participant is the party who would assume all tax penalties. Hiring an attorney who specializes in this field is the best way to manage that risk. Elizabeth Strasen will also be able to discuss what exactly you are signing, how it impacts your plan going forward, and will be there to stand behind the QDRO if needed.

For the alternate payee, our retainer is an investment that will pay itself back many thousands (if not tens or hundreds of thousands) of times over. Without a properly completed QDRO, the money will never be put into the alternate payee's name, which means they can't control it or spend it. Alternate payees can lose all right to the money if the participant dies after termination of marital status, but before completion of a QDRO. Alternate payees many times must make elections within the QDRO, because the benefit is being transferred into their name for the first time. Elizabeth Strasen is able to answer questions or concerns you may have, so you truly understand what you are agreeing to, as many of the decisions the alternate payee makes within the QDRO are irrevocable.

For about 80% of our cases, the fees are split equally between the parties. This means each party pays half of our total requested retainer (for a $1,000 retainer, each party would pay $500). Each party is responsible for of the total billed to the trust account each month. If fees run over retainer, each party pays of the additional fees incurred. If we finish the case and there is a positive balance in the client's trust account, the remaining retainer balance is split equally between the parties and refunded via check in the mail.

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I'm not going to retire for a long time. I really do not want to deal with this right now. Why should I?

Unfortunately, it is often true that clients who delay getting their QDRO done for more than a year after the date of separation (not the same as the date that your status as married terminated) incur higher fees to complete their QDROs.

People can move away, remarry, become ill, shift money, invest poorly, forget their agreements, lose their paperwork, get fired, or take out loans. Companies are bought, go bankrupt, change their plan terms, or change their record keepers. The more time goes by, the higher the potential for something weird to happen that then creates a complication. It's best to get your QDRO done now, so you never have to revisit the issue again.

Here is an example for a participant: Your date of separation was in June of 2007. Your divorce settlement included equal division of your 401(k), but you and your ex-spouse had already spent so much money on your divorce that neither of you wanted to deal with it yet. Since then, your 401(k) plan changed record keepers from JP Morgan to Fidelity. This occurred on December 31, 2009. Fidelity administers your 401(k) plan now, so we need to prepare a Fidelity QDRO. But Fidelity doesn't have any plan records prior to December 31, 2009. You make contributions every quarter, but the QDRO can't have a valuation date prior to December 31, 2009. How are you going to get credit for your contributions (plus investment gains/losses on those contributions) between June 2007 and December 2009? Fidelity wouldn't call up JP Morgan and ask them for your records. It would be up to you to obtain the records, then you and/or your ex-spouse would need to perform or hire someone to perform tracing calculations to determine the community property portion of the account as of a current date. That amount would then be used in the QDRO. You don't have the old statements, you don't have the time to call around trying to get them, and you don't want to pay hundreds or thousands of dollars to hire someone to take care of it for you. You can't just give half of the current Plan's value to your ex-spouse and lose all those hard-earned contributions, but if you just come up with a number on your own, you doubt that your ex will take your word for it. Plus, you'd still need all of the old statements to come up with an amount. What a mess!

Here is an example for an alternate payee: Your date of separation was in June of 2007. Your divorce settlement included an award to you of 50% of your ex-spouse's 401(k) plan. In 2007, the account had around $100,000, so you estimated you were owed about $50,000. However, when you decide to get the QDRO done a few years later, your ex-spouse is pretty reluctant. Eventually, your ex-spouse provides statements for the account showing a current account balance of $45,000 total. Apparently, the account had some very bad investment losses in 2008 (perhaps exacerbated by your ex-spouse taking up day trading for a while - you certainly didn't think they were the type!). You don't think the 50% in your original divorce settlement included gains or losses, especially since you aren't responsible for your ex-spouse's bad investments. Your ex-spouse does think gains or losses should be included, and they won't sign unless the QDRO includes them. Now you're faced with going back to court after all these years, or accepting far less than you originally planned on. And even if the Judge awarded you 100% of the account value, you'd still be short $5,000 (plus legal fees). What a mess!

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I think my case is very straightforward, but you're telling me it has complications. Why?

A very important part of our job is to give our clients the opportunity to understand what the actual implications of the QDRO will be. In certain situations, clients are surprised or dismayed to learn that the results they want from the QDRO will not be achieved automatically. The most common problem is giving accurate credit to the participant for separate property contributions.

Here's an example: if you have separate property in your account from either pre- or post-marital contributions, your company's plan does not necessarily give you credit for this automatically. And it isn't just a question of the total value of the contributions, because those contributions continue to incur gains or losses on a daily basis. People can change jobs and roll money into different accounts, receive annual contributions from companies when their date of separation was mid-year, or take out loans. Companies can go bankrupt, change their plan contract, or change their financial record keeper. All of these complications are much more likely to occur if the retirement benefits are not divided as part of or directly after the divorce. While it may be possible to draft a QDRO that ignores any issues involved in your case, this will end up resulting in either a failed QDRO or a QDRO that executes a division that is inequitable.

That being said, some cases really are very straightforward. If your case is simple, then the total billed to you will be lower. There is no minimum cost, so you'll only end up paying for as much work as your case requires. Likewise, if you discover that your case has complications and you don't want to invest in having an attorney like Ms. Strasen calculate the community property in your plan(s), we can refer you to an actuary, or draft a QDRO to execute whatever alternative agreement you and your ex-spouse come to on your own.

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Do I need an attorney to represent me through the QDRO process?

We do not require our clients to be represented legal counsel. Whether or not your attorney needs to represent you through this process is a personal decision between you and your attorney.

About half of our clients are not represented by an attorney, while half our clients choose to continue to work with their divorce attorney.

For contentious situations, please be aware that Elizabeth Strasen does not litigate. She does not perform financial discoveries, subpoena documents, or file motions. Our ability to complete QDROs is dependent upon cooperation from both parties. If you believe that your ex-spouse will not be willing to provide statements, sign off on the QDRO, or otherwise cooperate with the QDRO process, then you should be aware of the potential need for you to retain separate legal counsel. Even if your ex-spouse is uncooperative, there are many ways to complete a QDRO. In some instances, Elizabeth Strasen is retained to represent one party and advocate for their cause only. These cases are accepted on an individual basis.

Elizabeth Strasen also reviews and writes opinion letters on outside QDROs, gives depositions, appears as an expert witness in trials, and provides consultations.

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Besides preparing and processing QDROs, what does Elizabeth Strasen do?
What does she not do (what areas are outside her practice)?

What she does:

Lots of things! See our About Us page.

Elizabeth Strasen is kept busy giving consultations, writing reviews of outside QDROs, appearing as an expert witness, and giving depositions. She is the third-party plan administrator of Stanford University's retirement plans. She also gives talks on various aspects of this area of law throughout the bay area, and travels within several counties for meetings with attorneys and clients. Ms. Strasen is also an original member of the QDRONEs, a national group of QDRO attorneys.

Areas outside of our practice (what we don't do):

Elizabeth Strasen does not litigate.

Elizabeth Strasen is not an actuary, CPA, or forensic accountant. She does not value pensions or other defined benefit or hybrid plans. Generally, she will not perform tracing over more than 15 years of marriage and/or more than five separate plans. If these types of calculations are needed for your case, you are welcome to contact our office for a referral to an actuary. Generally, actuaries are a more cost-effective solution to this type of accounting work, anyway.

Elizabeth Strasen does not perform financial discoveries. She is not authorized to obtain statements for anyone's account unless the participant has completed an Authorization for Release of Information form. She does not subpoena companies to obtain statements.

Elizabeth Strasen does not offer tax or financial advice.

If you will need assistance with one of these areas in addition to QDRO processing, please notify us initially and we will coordinate with our network of professionals to meet your needs, if possible.

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