By Jennifer M. Paine
Attorney, Cordell & Cordell, P.C., Detroit office
In most states, once parties have negotiated and entered into a settlement agreement that the divorce court then incorporates into a decree, the court cannot modify the agreement absent fraud, duress or mutual mistake. So, what can you do to avoid 10 common mistakes made post-divorce? Here are some suggestions.
Mistake #8: You Never Got Your Share Of The Retirement Account
If you are entitled to a share of your spouse’s retirement account and the account is ERISA-covered, do not rely on your settlement agreement or your decree to effectively divide it. ERISA applies to private tax-qualified pension, profit sharing, and stock bonus plans, including defined benefit pension plans, 401(k) plans, money purchase pension plans, and employee stock ownership (ESOP) plans, but not government and church plans unless those plans elect ERISA coverage. If ERISA applies to the account, then the plan administrator cannot alienate and divide the account unless and only as provided in a qualified domestic relations order (QDRO). A QDRO is a court order that creates or recognizes the existence of an alternate payee (the other spouse)’s rights to receive all or a portion of the account benefits. The QDRO must also include, at a minimum, the name and the last known address for the payee and the alternate payee, the amount or percentage to pay the alternate payee, the manner of payment, the number or duration of payments and each plan to which the order applies. This may seem simple, but the key is the phrase “at a minimum.” Under ERISA, plan administrators may reject a proposed QDRO even after the court has signed it as an order if it does not comply with ERISA or the administrator’s requirements. As a matter of federal preemption, the plan administrator holds this power over your state court judge. It is common for attorneys and plan administrators to go back-and-forth, for months, revising the QDRO to the administrator’s liking. To avoid the time lost and fees incurred, be sure your attorney has contacted the administrator early in your case. Request sample QDROs from the administrator. Investigate all of the plan benefits. Are there early retirement benefits, for example, and will you be entitled to them? If so, what language do you need to include in your QDRO? Ask your attorney whether a QDRO preparation service will be more efficient and less costly than the attorney’s work to prepare the QDRO. If possible, have the administrator review and pre-approve the QDRO before you submit it to your court for signing as an order. If you do not have an attorney, you will be responsible for these tasks. Ideally, you will have an approved QDRO ready contemporaneously with your divorce decree to avoid second trips to the courthouse.
Mistake #9: Your Awards Are Unsecured
You negotiated a solid payment schedule, and your soon-to-be-ex has paid child support regularly throughout your case. As soon as you divorce, poof, finances turn for the worst, and your ex files for bankruptcy. What used to be reliable income has vanished. The problem is, you did not secure your awards. What can you do? If you are already divorced and your ex-spouse is bankrupt, be sure to protect your rights as a creditor in the bankruptcy case. Under the latest version of the federal Bankruptcy Code, child support, spousal support and property settlement obligations are non-dischargeable in bankruptcy. See 11 USC 523. Furthermore, there is usually no need to file a motion in the bankruptcy court to protect your rights to payment. However, the new laws will not stop a sneaky spouse from trying to discharge other debt (e.g. a joint credit card), which may have a financial impact on you. Be sure to speak to a bankruptcy attorney as soon as you learn of your ex-spouse’s filing to determine what, if anything, you should do. If you are not yet divorced, negotiate other payment security options. These may include purchasing a life insurance policy on your ex-spouse as adequate security for child or spousal support in the event your spouse dies prematurely, a perfected security interest in personal property, a mortgage on real property or a lien, which, as a secured creditor, you can pursue when your ex-spouse defaults in a payment. If you choose one of these options, be sure to describe the security (including legal descriptions and model numbers, if appropriate) and default terms (including any opportunities to cure and liability for deficiencies, if appropriate) in detail in your settlement agreement and your decree.
Mistake #10: Your Decree Is Ambiguous
A mindless flick of the pinky finger so “party” reads “parties.” An extra click with cut/copy/paste. Mislabeled parties (“plaintiff” for “defendant”). Or just poor wording. These are all excuses for an ambiguous divorce decree. You and your ex-spouse might understand what “you really meant,” but do not rely on your agreement now to resolve any disputes in the future. Third parties might disagree with you, and years from now so might your ex. If your decree has a typo or is in any way ambiguous, fix it immediately, while the case is still fresh in your and your judge’s minds. If your ex-spouse agrees with you, then you should submit a stipulated amendment to your decree, properly worded and with both of your signatures, for your judge’s review and signature. If your spouse does not, then you will have to prepare a written motion (with a brief of the law, if appropriate) to explain to the judge why you think the decree has a typo or is ambiguous and what you think the decree should really provide. The burden of presenting evidence to support the revision is on the party seeking the revision, so be sure to have ample evidence to support your position. Copies of your settlement agreement and any writings from your ex-spouse confirming or acting on the agreement are helpful. See, e.g. ER Brenner Co v Brooker Eng Co, 301 Mich 719; 4 NW2d 71 (1942).
I know of an attorney who recommends clients trust their attorneys and take time to rest and relax during the divorce process. Plan a trip, he says. You should trust your attorney, but you should also trust that Murphy’s Law is true. Mistakes can happen. A trip to the Bahamas is tempting but a BIG MISTAKE. Thorough planning and repeated review of your settlement agreement, your decree, and all of the related documents until the ink from your signature dries blue are essential to avoiding these common mistakes.
Once made, they are difficult to undo. Instead of having money for your trip to the Bahamas, you could end up indebted to your ex and embarrassed in court for trying to wiggle out of a bad deal.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.