Hernsberger QDRO Law August 2019

August 2019

QDRO Law Experts for Your Law Firm

Cracked Mirror Syndrome JUDGE LOVES A CLEAN DIVORCE DECREE

When I was on the bench, we called them “cracked mirror cases.”

Take heed, because words matter, especially the words you use in a divorce decree. Many lawyers refer to the Texas Family Law Practice Manual (TFLPM) when drafting a decree. The retirement language in the TFLPM almost always cracks the mirror!

A cracked mirror case occurs when the QDRO has terms that differ from the divorce decree.

Here’s a simple example from a legal malpractice case in which I qualified as an expert at trial. The decree awarded 50% of a defined benefit pension to the wife. The decree used the standard language from the TFLPM. The husband was 62 years old and still working. The wife was 49 years old with a life expectancy 20 years greater than the husband. The entire pension was community property. The decree made no mention of a survivor benefit. Neither party submitted a QDRO.

At its core, a QDRO is an enforcement order. It enforces the division of a retirement made in a divorce decree.

“The terms of a QDRO must mirror the terms of the divorce decree.”

I can still see my family law professor: the classic Professor Kingsfield wannabe (Google

it). He’d slam his fist on the table and scream, “The terms of an enforcement order must always mirror the terms of the order it seeks to enforce. Period. No exceptions.” If they don’t mirror each other, then the lawyer cracked the mirror. Texas Family Code 9.007(a) codifies the cracked mirror syndrome: “A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce …” A QDRO cannot add to, take away from, or change the terms of the divorce decree. They must mirror each other. Period. No exceptions. Texas Family Code 9.007(b) describes the result of a cracked mirror case. The judgment is void, not voidable. It’s void ab initio . It does not depend on another court to establish its emptiness. “An order under this section that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable.”

The husband remarried two years later at age 64 and designated the second wife as the beneficiary of his retirement. The first wife finally submitted a QDRO that awarded her survivor benefits. The husband responded that the issue of survivor benefits was res judicata , an already judged matter. The divorce decree was final; the plenary power had expired. The husband did not dispute that the first wife should receive her part of the annuity if, as, and when the husband retired. But survivor benefits were not awarded in the divorce decree. The court could not add survivor benefits in a QDRO two years later, he alleged. The first wife’s divorce lawyer lost twice: once for omitting survivor benefit language from the decree, and twice for not timely filing the QDRO. The terms of a QDRO must mirror the terms of the divorce decree. I have good news. You need not rely on the defective language of the TFLPM. We can help. We supply custom-drafted decree language that mirrors the terms of your QDRO. And our defined benefit QDROs pay special attention to survivor benefits. All QDROs we prepare come with mirrored decree language at no extra charge. The husband prevailed. The court refused to break the mirror.

Call us. We’ve got your back.

–Judge Stephen Hernsberger

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