can a QDRO be included in a bankruptcy ?

[kolabok]

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

Can an open case in court that still has a Qualified Domestic relations order in play, could it be included in a personnel bankruptcy Ch. 7?

1. divorce granted several years ago
2. QDRO never submitted to local court for closure and to this day, still is open
3. I have no fidelity to the former employer of which this employer's annuity/retirement has already been disbursed to me.
4. Former wife's' attorney basically letting this thing die in limbo
5. want to repurpose this into a fund for child of former wife and self for academic pursuit

Can it be included in bankruptcy?

thank you

 

[FlyingRon]

Well, you should definitely INCLUDE it. All obligations are required to be included.
The question I think you really want to know is if it is dischargeable. Unless it has been approved by the court, it is dischargeable. Once they are mandated by the court, QDRO and support orders and the like are not dischargeable in bankruptcy.

 

[HRZ]

AT least as posted by OP there is no qdro in place and seemingly the retirement funds have already been disbursed to OP .....I'm not sure what happens next but I would not want to be in ex wife's shoes

Ordinarily as I understand it, once a QDRO is issued the spousal share vests with spouse ....but that does not seem to be happening here?

 

[FlyingRon]

Again, if the two of them have signed an agreement, then it is an obligation and he should list it in the bankruptcy.

As you have realized, absent a court approval of the QDRO, the ex is in trouble as the QDRO arrangement doesn't have any immunity from being invalidated by a bankruptcy discharge.

 

[adjusterjack]

According to the US Bankruptcy Code the following debts are not dischargeable:

(5) for a domestic support obligation
(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;

https://www.law.cornell.edu/uscode/text/11/523

I believe that the obligation incurred in the divorce decree is not dischargeable in spite of somebody dropping the ball on the QDRO.

 

[FlyingRon]

According to the US Bankruptcy Code the following debts are not dischargeable:



https://www.law.cornell.edu/uscode/text/11/523

I believe that the obligation incurred in the divorce decree is not dischargeable in spite of somebody dropping the ball on the QDRO.

The problem is that it didn't get made under a court of record, which has been my point. The poster said the two parties agreed to the QDRO but it was never submitted/issued/approved by the court. It's not protected.

 

[kolabok]

wow ! thanks for the serious responses, thank you. On the matter of the one poster, the QDRO has not been rubber stamped by the courts blessing in the good old commonwealth of VA. But I am going to the courthouse tomorrow and see if it is an open or closed document. My understanding is, it is not closed and therefore open. By virtue of unruly timing, my employment was terminated before the QDRO was approved by my employers retirement system manager (county government is the employer) and the opposing attorney, (spouses') did not change the language as was dictated by the retirement manager. So in effect, it is still an open document, even thou divorce was granted , the document (QDRO) still remains in stasis. And will do so until the end of time as I understand it. This beast is a product of the IRS as well and trickles down to local counties.

So What I gather here, is, this could potentially be included in a personal bankruptcy ? Funny, the attorney I went to didn't mention the possibility of doing such, even when mentioning it. Though I did say to him that I had basically deposit the whole amount so I could at least survive to work another day, perhaps. I definitely need to ask the bankruptcy attorney what are the options.

One thing that sticks out is, even though it has not be approved by the court and closed, the fact I do not work ,(at present) and my former employer basically cut me a check and absolved themselves of any legalities' from this transaction, is, what recourse could the opposing side take in the matter to seek relief? Civil suit?
I doubt very seriously my e-wife will spend anymore money to dig the hole deeper for me. The fact that between us both, we have spent in excess of 6ok for a 12 page book from the idiots guide of divorce. Divorce is insidious and, well all the other hoops and hurdles to navigate to safety...

appreciate the dialog, any more info is great

 

[adjusterjack]

The poster said the two parties agreed to the QDRO but it was never submitted/issued/approved by the court.

That's not exactly what the poster said.

All the poster said was:

1. divorce granted several years ago
2. QDRO never submitted to local court for closure and to this day, still is open

Granted, I'm assuming that the disposition of the retirement fund was specified in the decree, which is the obligation (to which I refer) that is not dischargeable even if the QDRO wasn't drafted and filed.

 

[HRZ]

OP....if the divorce / intended QDRO entitled your ex to say $XYZ of the,distribution then the honorable and equitable thing might be to deliver her her full share now and get a written satisfaction of performance for your records ....perhaps cheaper than reinventing the wheel with two lawyers ...?

 

[kolabok]

OP....if the divorce / intended QDRO entitled your ex to say $XYZ of the,distribution then the honorable and equitable thing might be to deliver her her full share now and get a written satisfaction of performance for your records ....perhaps cheaper than reinventing the wheel with two lawyers ...?

doesn't make the QDRO go away and still remains open until kingdom come. I assume, since I was granted a divorce legally and only the QDRO (part of divorce decree) still remains open in the court system ( I'm checking court records tomorrow to ascertain, but am convinced it is still an open document and quite conceivably remains that way forever. Quite odd wouldn't you'll say, judge/court could care less if I lose money forever, but you better bet that they would go after any one that owes them time, money, etc...

So I get a 50/50 opinion as to whether or not this situation would qualify for a dischargeable debt?

(15)to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;

reading the link to the Cornell Law School. number 15 seems to indicate, I could not, but it doesn't clearly spell out if the case is open or closed, just a court of record.

anybody else have a thought?
one thing worth mentioning, my e-wife and I could legally agree to an amendment to the decree, sign, seal and deliver to the court and be done with the money pit, is that an option?

 

[HRZ]

I would think that if you deliver her hard cash in a sum equal to the amount that would be due her if the QDRO were completed that a court would bless same ...but I'm a mere layman.

I think you are thinking backwards...a QDRO once in place vests the spousal share with the spouse as if it was their own separate pot...it's not in your pot and you have no further debt on that matter hence nothing to discharge .

Are you looking for an excuse not to pay her the full amount due her...I'm sure there are some out there but I'm not inclined to help that adventure.

 

[latigo]

According to the US Bankruptcy Code the following debts are not dischargeable:



https://www.law.cornell.edu/uscode/text/11/523

I believe that the obligation incurred in the divorce decree is not dischargeable in spite of somebody dropping the ball on the QDRO.

You point has no point. It is true that any debt to a spouse or former spouse incurred in the course of a divorce, separation of separation agreement is not dischargeable in bankruptcy. (Subsection (15) of Title 11 USC Section 523)

But that provision of the Bankruptcy Code has nothing whatsoever do with a QDRO which prescribes the respective property rights of husband and wife in a retirement or pension plan. It does not represent an obligation owed by one spouse to the other.

 

[kolabok]

interesting about the language of definition. I also did not see the QDRO equivalency language per say, but that doesn't mean a inference can't be made and associated with it ?

to the other poster. I simply am unemployed, in late 50's and getting no traction in the job market in what I do. If I had a choice, I would not pay out. She has enough and already screwed my family. Besides we are talking 35-40k. If I can right it off in bankruptcy, so be it. I've had a good run of bad luck of late, like to turn it around. fresh start is what the doctor ordered.

so just to clarify, is it 50/50 can/cannot ?
thanks to all, very informative

 

[HRZ]

THis is not about your views of how well off she is...the point is you were ordered to pay her XX out of your pension account and somehow you got distribution of the entire account made to you.

AS a practical matter it may make no sense to issue a QDRO to the administrator of a now empty pot ...but the intent of the order is clear...you owe her let's say $40,000 and some judge might not be amused at your games.....as an extreme example some bright guy in the Philadelphia area made his divorce payment money disappear...the judge said go get it, the guy said I cannot find it, the judge threw him in jail for DECADES on contempt ...and for technical reasons it is hard to set aside or appeal a nonfinal order , it was decades before he got out.

I suppose you could recreate a retirement account to replecitate her share ...but I suspect that's one heck of a lot of legal and tax work, if the law even allows for same .

Why not just pay her in full ? Get over your sour grapes.

 

[HRZ]

Correction..Mr Chadwick served a mere 14'years...got out at age 73 .