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Splitting a firefighter pension during a divorce

Going through a divorce is tough. Having a full-time job that demands as much out of you as a firefighter does can make the process even tougher. Do you want to know what's even tougher than that? Accomplishing goals during a divorce. A lot of people talk about making it "through" a divorce which implies that survival is the number one goal. While it can feel like that at times, I would offer to you that it is not the most important part of your case- not even close.

The most important part of a divorce is having goals and being intentional about accomplishing those goals. Do you have kids? Then you'll want to make sure that your custody and conservatorship orders are in their best intentions while also providing you with the best opportunity to grow in your relationship with them. If you have property (like a pension or other retirement) then you will want to be very intentional about how you approach this subject as well.

Developing goals during a divorce case isn't easy. Then again- if you are a firefighter or other first responder, you are accustomed to doing what other people shy away from. You're not one to back down from a tough situation, are you? Well, divorce is certainly tough. You can show what you're made of by approaching this case with a determined attitude and a spirit of togetherness with you, your children, and your support system. You can do it- and the Law Office of Bryan Fagan can help you.

The Law Office of Bryan Fagan is uniquely equipped to be able to stand by your side and fight the good fight. We are proud of our history representing first responders, military servicemembers, and veterans. Talk to any one of our team of lawyers and they will tell you about the great experiences that they have had working alongside and serving those who serve our communities. It is one of the best parts of our job- being able to walk alongside people just like you who need our help.

A free-of-charge consultation with one of our experienced family law attorneys is only a phone call away. We offer these consultations in person, over the phone, and via video. We have three Houston area locations to better serve you and your family. Read today's blog about firefighters and divorce and then see if you have any questions. If so- give us a call or stop by one of our offices today.

Pension division in a Texas divorce

If you have filed a petition for divorce, then you need to begin to take action regarding your pension. You should contact your employer or whoever handles matters related to your pension as soon as you file for divorce. Your plan administrator or human resources contact will talk to you about your benefits and how a defined benefit plan works. They will begin to provide you with paperwork that will go a long way towards helping you divide the pension and what that entails.

Make no mistake your pension counts as property of some sort, possibly both separate property of yours and community property owned by you and your spouse. The separate property portion would be any part of the pension that was accumulated before your marriage. The community property portion would be the contribution made during your marriage. It is that community property portion that is subject to division in the divorce. How much is subject to division depends largely upon the length of your marriage.

The default outcome in a Texas divorce is to divide community property right down the middle with you receiving half and your spouse receiving half. It does not matter that your name is on the pension and not your spouse's name. In Texas, your spouse has just as much a right to that money as you do. This means that your spouse's retirement that was contributed during the marriage, if any, is also subject to division in the divorce. Your ages, health, jobs, and other considerations will all be factors to consider when determining how to divide up your pension.

Your pension is not divided up according to the terms of the pension itself, your employer, or the folks that oversee the administration of the pension. Those people have nothing to do with how your pension is divided. Rather, it is a family court judge that would technically have the final say in determining how your pension is divided. However, it is more likely that the judge only signs off on whatever agreement you and your spouse came to in settlement negotiations on how to divide up community property like your retirement savings.

The process of dividing a pension is…not fast

One of the first questions that people tend to ask in your position is when the pension is sliced up. Meaning, would your spouse be able to get their “cut” of the pension as soon as your divorce is over? The answer to that question would be, no. Your spouse would have to wait until you retire to pay out those benefits. A quick payday is not something that goes hand in hand with pensions.

The same can be said with a divorce in general. Even a "fast" divorce will probably not feel that way to you. Time is relative and if you are going through something as unpleasant as divorce it can feel like the whole process is dragging on and on when it could be moving relatively quickly. Even in a situation where you and your spouse agree on most all the issues, a divorce in Texas can take at least 60 days to complete. The 60-day waiting period is referred to as a “cooling off” period where your spouse and you can figure out if you do want to get divorced. If not, you can pause the divorce and seek counseling or even jointly ask the court to dismiss the case.

Whatever you end up doing be sure that it is what is in your best interests and most importantly in the best interests of your children. Sometimes we can confuse what we want and what is best for our kids. It may take you until the end of the divorce to figure out that those things are not always the same. If you can focus on that from the beginning of your case and try to be as intentional as possible then you can be in a really good position to leave the case in a great position relative to your children and your finances.

The other reason why there is a minimum length for a divorce is to provide you and your spouse with a period where you can work together to try and settle your case. Many people assume that the divorce always ends up before a family court judge. However, it is much more likely that you and your spouse will settle issues related to the case rather than leave it up to a judge. Not only do you two know more about the relevant issues than anyone else, but the process encourages settlement due to all the "downtime" in the case. What you are left with is a circumstance where everyone benefits from being able to work together to settle the case rather than leaving it up to a family court judge. This saves you time, the court time and saves everyone involved a significant amount of money.

What can you and your spouse agree to when it comes to your pension?

As we mentioned a moment ago, there are a lot of factors to consider when it comes to dividing up a pension. However, you and your spouse will ultimately be able to determine together how to divide up the retirement savings. In some circumstances, both you and your spouse will have significant amounts of retirement benefits in your names. If that is true, and if the amounts and benefits are similar, then you two may decide to just leave your retirement accounts alone.

Another situation that you could find yourself in is if you and your spouse decide that your pension benefits should not be divided due to your being willing to give up another portion of your community estate that is a similar value as your pension. There are a lot of ways to divide up your community estate. The only real limitations in doing so relate to a lack of creativity and experience in performing these types of acts. Fortunately, the attorneys with the Law Office of Bryan Fagan possess both important qualities.

What should you say in your Divorce Decree about pension benefits?

Depending upon what you decide to do with your pension you may not have to say much of anything about your pension with the final decree of divorce. If you decide to leave your pension alone, as in not dividing the pension, then you should simply state that all the pension benefits are awarded to the member or the holder of the pension. Once you come to this determination you should contact your pension and let them know that the pension will not be divided. This way they can know ahead of time and will not have to set into motion any processes on their end that would have occurred had the pension been divided.

Qualified Domestic Relations Order

A Qualified Domestic Relations Order is the method by which your pension will be divided because of your divorce. It is not enough to state in the divorce decree how the pension will need to be divided. You will need to have a Qualified Domestic Relations Order (QDRO) created to have your pension make direct payments to your spouse, otherwise known as the alternate payee. This order will be signed by the judge preferably at the same time he or she signs your final decree of divorce.

The division needs to be one that your pension plan can follow through with. Therefore, we recommend that you contact your pension plan early in the divorce and then keep them updated with your plans regarding how the pension will be divided. The wording of the QDRO will need to be specific and in line with the requirements set forth by that pension plan. Deviating from the language that they require or adding in additional information can be a major mistake and put you all in a situation where the pension rejects your QDRO. This means you would have to start over with the QDRO process even after the rest of your divorce case is done and over with. This is not something that is going to make anyone very happy, least of all your spouse.

What happens at that point? You will need to file a motion with the family court judge to enter another QDRO. That means going to a hearing, paying your attorney to come with you, and then explaining to the judge why the new order needs to be signed. As I mentioned a moment ago, this is not going to make anyone happy. Please make sure that you and your attorney have worked with the pension plan early in the case to at least inform them that a division of the pension may be upcoming. They will tell you what the QDRO needs to say in a specific language to divide up your pension properly.

How to get help from your pension plan early in the case

To position you and your spouse as well as possible regarding the possible division of your pension plan you should ask the provider if they have a form that they prefer attorneys utilize when drafting a QDRO. It may be that they do, and getting that form sent to you early in the process can go a long way towards ensuring that you don’t make preventable mistakes later in the process.

Before the judge signs anything you should make sure to at least send a draft copy to your pension plan so that they may review the QDRO. There may be small changes that need to be made which can save you time and money down the road. Otherwise, once the judge has signed the QDRO you or your attorney should send a certified copy of the QDRO to the pension plan along with a regular copy of your divorce decree. This needs to be a certified copy from the clerk of the court rather than a copy of the certified copy.

The pension plan will then review the certified copy of the QDRO once it is received by their office. The criteria set forth by the pension plan will be reviewed alongside your QDRO to ensure that all their requirements are met. The tricky part of this is that your order will like to say that it is a "QDRO" at the top even though it is the pension plan itself that review and then "qualifies" the domestic relations order. It can be confusing for sure, but just know that in the end, it is the pension plan that is the final arbiter of whether the pension division will be approved.

The QDRO can be approved much faster by the pension plan if it is based on their QDRO form. If you do not use their form, then the review can take longer to complete. During the review process if any amounts that would be payable to your spouse according to the domestic relations order will not be paid to you but will be set to the side pending the final review of the QDRO you sent them. Once the QDRO is approved those payments will be sent to your ex-spouse.

What happens in the event of a remarriage?

If you and your ex-spouse end up remarrying, then the QDRO does not automatically go away. Rather, a judge would have to dissolve the QDRO. You should speak to an attorney at that point but you will likely have to file a motion to dissolve the QDRO and then appear for a hearing before the judge to do so.

Otherwise, dividing up a QDRO is as much a process as anything else in your divorce. There are steps that you need to follow and the failure to do so can result in delays and other bad results. Working with the pension plan early in the case is critical. So is working with an experienced family law attorney throughout the process. Many small details can arise in a divorce that pertains to your specific circumstances that we could not get into here. That is why it is so important to contact and hire an attorney who can guide you and provide you with the information you need to succeed in your divorce.

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