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Mily2008 · May 10, 2009, 01:03 AM

The judge told my fiancée that he needs a joinder of an employee retirement/pension plan to finalize his DISSOLUTION STATUS only.

He had a 401(k) of about $2000

However in the FL-328-INFO it says that a joinder is not necessary.

We are very confused.

Your help is very appreciated.

stevetcg · May 10, 2009, 04:27 AM

If the judge told you that you need it, you need it. What is the confusion?

cadillac59 · May 10, 2009, 09:48 AM

For a status only judgment (even though you didn't say, I know you are in California because of your question) you now have to have a QDRO or interim QDRO in effect to protect the non-employee spouse at the time the judgment is entered. As far as joinder of the plan is concerned, the judge can (and judges usually do) require joinder. But Family Code 2337 says that the court must order joinder unless they are precluded or made unnecessary by federal law (ERISA). ERISA applies to private retirement plans and does not require joinder so in the case of private plans I don't think joinder is an absolute necessity under 2337--but the interim QDRO is (this is a fairly new rule, I think effective 1-1-08).

JudyKayTee · May 10, 2009, 09:54 AM

Originally Posted by cadillac59

For a status only judgment (even though you didn't say, I know you are in California because of your question) you now have to have a QDRO or interim QDRO in effect to protect the non-employee spouse at the time the judgment is entered. As far as joinder of the plan is concerned, the judge can (and judges usually do) require joinder. But Family Code 2337 says that the court must order joinder unless they are precluded or made unnecessary by federal law (ERISA). ERISA applies to private retirement plans and does not require joinder so in the case of private plans I don't think joinder is an absolute necessity under 2337--but the interim QDRO is (this is a fairly new rule, I think effective 1-1-08).

Legal question - whether it's required, if a Judge orders "something," isn't getting that Order set aside the only way to not comply?

I've seen some strange Orders, particularly in divorces -

cadillac59 · May 10, 2009, 10:00 AM

Originally Posted by JudyKayTee

Legal question - whether or not it's required, if a Judge orders "something," isn't getting that Order set aside the only way to not comply?

I've seen some strange Orders, particularly in divorces -

Yes, you are correct. Getting an order set aside would be the only way to avoid compliance. Any court's orders are presumptively valid and would always require another order to terminate or supersede them. The only exception I can think of would be in the case of a blatantly invalid or illegal order but the general rule is that an order is an order is an order.

cadillac59 · May 10, 2009, 10:13 AM

The rule on having a QDRO in place for a status-only judgment is to avoid the problem that so often comes up with people getting marital status terminated and then forgetting about the rest of their case for 10 years or never doing anything. Sometimes I think it's fine just to do a status-only and forget about the rest of the case (it's a lot easier), that is, if there is no property or debt to deal with and no kids, or if you've already got orders on kids and support that everyone is happy with. But oddly enough, you can still have a regular disso judgment entered without a QDRO and the problem of the non-employee spouse being at risk of losing his or her interest in the retirement is still there. But as far as joinder goes, I usually don't do those if I've already got or am going to get a QDRO done. Federal law doesn't require them and I don't see the point of joinder in many cases.