Legal Question in Family Law in Oregon

In a word, NO. A QDRO is NOT a "neutral� or impartial document (and this is true even if prepared following a judge�s decision in a contested trial). In sum, the QDRO is a vehicle that results in a portion of one spouse�s interest in a pension or retirement plan being taken away from that spouse (the �participant� spouse) and being transferred to the other spouse (the �alternate payee� spouse), something that would not occur but for the QDRO.

Generally, at least in theory, the participant spouse would like to keep for himself as much of his pension/retirement interest as he can. And, at least in theory, the alternate payee spouse would like to get as much of the pension/retirement interest as she can. Just exactly how the QDRO is worded will have a lot to do with this.

When I called on to draft a QDRO, the first question I ask is: �For which party I am drafting the QDRO. In other words, who is my client?� The answer to that question will directly affect the wording of the QDRO. The lawyer who drafts a QDRO can easily slant it so as to be more favorable to one party and less advantageous to the other. (For example, is the Alternate Payee to be treated as the participant�s surviving spouse for pre-retirement survivor benefits or is she not? If I am representing the Alternate Payee, the required �magic words� will be included. If I am representing the participant, I will explain the situation to him and then do as he directs, as my legal and ethical obligation is to protect his financial interests. In that situation, the Alternate Payee is not my client and I have no duty to look out for or protect her interests.

Further, given the purpose and function of a QDRO, it ought to drafted by a lawyer who is hired by the �receiving party (the Alternate Payee) and will be obligation to protect her financial interests. (Keep in mind that, presumably, she wants to maximize the amount of the pension/retirement interest that she ultimately receives. To the extent that that is not done, it remains in the pocket of the other spouse.)

Whenever a QDRO is drafted, there inevitably are choices and technical decisions regarding terms and provisions that must be made (and that are not specifically addressed in the divorce decree). So do you make those decisions in favor of wife and against husband? Or do you make them in favor of husband and against wife? Well, it all depends on WHICH SPOUSE the QDRO drafter is representing. In other words, for whose benefit is the QDRO being drafted?

There are some lawyers who will tell you that they can and will �do the QDRO� for the benefit of BOTH parties. That�s really a bunch of hooey, and simply shows the lawyer�s ignorance (and greed as well). You would be well-advised to stay away from such lawyers.

When I am called on to draft a QDRO (a regular part of my practice), I want to know up-front which party it is that I am representing. I don�t mind the parties sharing in the cost (each party paying one-half, for example), but that does not mean that I am working for both parties. Legally and ethically, I can only represent one party or the other, but not both. And this is true even if both parties are in total agreement with one another and both parties are equally paying for my professional fees.

More info needed? Give me a call and we can discuss.

LAWRENCE D. GORIN

http://ldgorin.justia.net/index.com

Law Office of L.D. Gorin

521 S.W. Clay St., Suite 205

Portland, Oregon 97201

Telephone: 503.224.8884

Fax: 503.226.1321

E-mail: [email protected]