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How to Identify and Avoid Post-Divorce Pitfalls

Avoiding Post-Divorce PitfallsYou finally did it! You’re officially divorced. You made it through the arduous, emotionally taxing, and at times seemingly never-ending legal proceedings, have reached the light at the end of the tunnel and can finally wash your hands of this whole debacle… right?

You and your ex-spouse thoroughly negotiated a settlement agreement memorializing all terms relevant to your divorce, and the document was incorporated into a final order of divorce. All that’s left to do is move on with your life… right?

Unfortunately, you may stand to encounter a bevy of post-divorce issues and pitfalls, which could require months or years of work beyond the date of your final order of divorce. Some of the most common of these issues are as follows:

Vague Separation Agreement

Perhaps your Separation Agreement—also known as a Property Settlement Agreement or Marital Settlement Agreement or (“MSA”)—wasn’t as precise or explicit as it needed to be. Ideally, your MSA should contemplate and address all issues relevant to your divorce. Vague terms contained in the MSA can lead to protracted post-divorce litigation, if the parties are forced to take the agreement back to court to clarify what their intent actually was. Vague provisions in an MSA on custody, visitation, support or division of other marital assets (bank accounts, retirement accounts and debts) are ripe for confusion and conflict.

Example 1. Imagine your MSA simply states that the parties will list their marital residence for sale, through an agreed-upon realtor at an agreed-upon listing price, and will equally contribute to any necessary repairs to the residence prior to the home being listed, but doesn’t include any timeframe within which this must all be done. Under such a provision, the process for sale could begin immediately or could take place years later. Without a specific timeframe provided in the MSA, neither party is under an obligation to make the sale a priority, and either of them might intentionally slow down the process.

Example 2. Throughout the marriage, you’ve had serious concerns about your spouse’s drinking problem. However, while you were still married, you felt confident that you could protect the children from any adverse impact upon the children of your spouse’s drinking. So you didn’t think it was necessary to include a provision in the MSA requiring the parties to refrain from alcohol consumption during their custodial time with the children. Soon after the divorce is finalized, you find out your now ex-spouse is regularly and heavily drinking alcohol during most of their time with the kids. While other steps can be taken to protect your children from such a situation, had the above-mentioned provision already been included in your MSA, your path to legal recourse would be much simpler, as the drinking would amount to a clear violation of a court order.

Lack of QDRO

Perhaps you didn’t get a Qualified Domestic Relations Order (“QDRO”) filed and entered with the court simultaneous with or immediately following the entry of your divorce order. The QDRO is a court order many retirement plan administrators require prior to dividing certain retirement accounts, such as 401(k)s (defined contribution retirement plans), pensions and annuities (defined benefit retirement plans), military retirement benefits, or federal and state government retirement benefits (Thrift Savings Plans, FERS, and CSRS benefits). These QDROs facilitate the transfer of the above-mentioned retirement funds from one party’s account to another without the normal early withdrawal costs and penalties.

While QDROs can often take a while to process by the plan administrator, this is especially true if you delay getting them drafted, signed, entered by the court, and submitted to the appropriate retirement plan administrator. This can make your post-divorce financial situation all the more difficult to navigate. These QDROs can be very nuanced and complicated to draft properly. If not done according to the specifications of the particular retirement plan, the plan administrator will reject them and you’ll have to start all over again.

Example 1. One party in a divorce was the primary breadwinner throughout the marriage. Accordingly, that party’s retirement account or annuity is quite robust, and the account is entirely marital, meaning that his or her ex-spouse will get half. Without preparing and promptly filing the appropriate QDRO with the court so it can be immediately submitted to the retirement plan servicer, the party in the more vulnerable financial position can be without access to those funds for additional months or years beyond the date of divorce.

Example 2. Post-divorce, you and your ex-spouse decide that you would be fully capable of drafting, filing, and submitting the requisite QDRO without attorney assistance, and you proceed accordingly. Not knowing you’ve made some mistakes along the way in your drafting of the document, you submit the entered QDRO to your retirement plan administrator for implementation. Several weeks or months later, you receive correspondence from the plan administrator notifying you that the QDRO was rejected, but no particular reason was provided. Now you’re back at square one and several months delayed in gaining access to those retirement funds.

Unknowing Violation of Divorce Order

Perhaps you weren’t fully aware of the particular provisions of your final order of divorce (and any MSA incorporated therein), particularly those requiring you to comply with certain timelines or take certain actions. Not being intimately familiar with these provisions can lead to inadvertent violations of a court order or overlooking your ex-spouse’s own violations.

Should you violate, unknowingly or intentionally, any part of your final order of divorce, you could subject yourself to the risk of being held in contempt of court, which can result in attorney’s fees to defend against such a claim, as well as the payment of your ex-spouse’s attorney’s fees. And if your ex-spouse is the one in violation and you’re unaware of it, your failure to notice and take action divests you of the opportunity to force compliance.

Ultimately, in order to avoid these and other unforeseen pitfalls that only arise after your divorce has been finalized, be sure to consult with a knowledgeable attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg, Manassas, and Fredericksburg, representing clients throughout Northern Virginia. Contact us to schedule a consultation today.