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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5 Strategies to Protect Your Building According to the FBI, a burglary occurs every 20 seconds. We tend to focus on protecting our homes from invasion, but in 2016, over 460,000 nonresidential buildings were
Let there be light. Unless you have Batman patrolling your city streets at night, nighttime is when criminals are most likely to strike. Install motion detector floodlights in prime areas around your building, including entrances, exits, gates, garages, in your landscaping, and near ground-level windows. A sudden burst of light can scare offwould-be intruders and potentially alert anyone nearby of trouble. Invest in parking security. The Bureau of Justice Statistics reports that 11% of property crimes and more than 7% of violent attacks occur in parking facilities. If your building has a parking facility, make sure this area has ample security. Determinewho’s in charge. When reviewing building security, it’s important to determine who is responsible for keeping security up to date. Should the building owner or property manager maintain security, or does it fall to the tenants? Answer this question and make sure the person responsible is following all agreed-upon security protocols. There’s no one-size-fits-all strategy for security. Depending on the nature of a business or building, you will have specific security needs. You should periodically assess potential risks, make sure your building’s needs are met, and make repairs as needed.
burglarized. And after one successful break-in, your building is more likely to be targeted again. Here are a few crucial strategies to improve the security of your building. Smile for the camera. Let’s start with the basics: If you don’t already have CCTV surveillance, install a system right away. Position these cameras in common areas with good lighting, and make sure they’re visible. The sight of security cameras may deter criminals from making your building a target. Some property managers try to cut corners by using fake cameras to scare off criminals, but this can backfire in the event of a break-in. Use real cameras and service them regularly so you can review the tapes whenever you need to. Don’t neglect your landscaping. Never let overgrowth overtake your property. Criminals view unkempt trees, bushes, and grass as a sign that you’ve been neglecting your property. This implies you may be neglecting other areas, too — your security system, for example.
Security Breach!
QDRO Case Studies:
International QDROs
Jeremy Love works at the American Embassy in Bucharest, Romania. That’s a long way from Georgetown, Texas, where he grew up.
Jeremy and Anita, a Bucharest native, fell in love and married in a church ceremony. All went well for the international couple — until it didn’t. Jeremy and Anita divorced in Romania years later. As an employee of the State Department, Jeremy accrued benefits in a pension plan. Jeremy and Anita negotiated their divorce pursuant to Romanian law. By agreement, Anita received half of the pension benefits earned during the marriage.
Here’s the rub: OPM is the plan administrator for Jeremy’s pension, and OPM will not recognize an order from a Romanian court. So how will Anita get her money?
The Goal
Step 1: We needed to have the Romanian documents translated into English, so we contacted a certified translator, and they converted the documents to English. Our expert paralegal then formatted the translation into Texan.
Our goal was to enable Anita to receive her money in Romania.
The Approach
We took a multi-step approach:
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SUDOKU
Just Do It
When you don’t do the QDRO, your client doesn’t get her money.
When your client doesn’t get her money, her ex-husband empties the account.
When your client’s ex-husband empties the account, she sues you.
When your client sues you, you lose everything.
When you lose everything, your wife runs off with your best friend.
My, how you miss him.
Don’t lose your best friend.
Be Inspired
Do the QDRO.
Step 2: We filed suit in a Texas district court to register the Romanian divorce documents. We were fortunate that both parties agreed with the procedure.
Step 3: We submitted the court order acceptable for processing to the court for approval.
Finally, we sent a certified copy of the signed court order acceptable for processing to OPM. We included the Texas and Romanian documents in the packet we sent to OPM for approval.
The Results
OPM took 13 months to approve the court order acceptable for processing. You read that right: 13 months. Justice moves slowly in the federal system. But the good news is that OPM approved the order.
Jeremy is several years away from retirement. Anita won’t receive monthly benefits until Jeremy retires, but that day will come.
In the meantime, we’re proud that we contributed our small share to world peace. And we did a good thing in securing the financial security of another human on the other side of the world. As divorce lawyers, it’s nice to feel good about ourselves.
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INSIDE This Issue
Cracked Mirror Syndrome PAGE 1 Can You Trust Your Security System? A Look at a Case: Going International PAGE 2 Just Do It PAGE 3 Your Ego Is Holding You Back PAGE 4
‘Ego Is the Enemy’ GET OVER YOURSELF AND FIND SUCCESS
Once in a while, a book comes along with a truly transcendent message. “Ego Is the Enemy” by Ryan Holiday is one such work. This book is not just for business owners, athletes, or those trying to lose weight; it’s a guide for everyone. By digging into the root of the human condition, this instant bestseller examines the single greatest threat to our own success: ourselves. This ambitious premise shouldn’t come as a surprise if you’re familiar with the author. Dropping out of college at 19 to be mentored by business strategist Robert Greene, Holiday has become one of the most trusted advisors of our time, working with brands like Google,
roadblock and a pitfall: Those with low self-esteem get stopped by doubt, while those with inflated egos often trip over their own arrogance. Those who unshackle themselves from their own personal narratives, however, can find lasting success. “Ego Is the Enemy” is rich with examples of this concept in action as it explores the lives and contributions of often overlooked historical figures like Katharine Graham and Howard Hughes. These powerful individuals remain relatively obscure thanks to their tendency to put their work before self-promotion, yet their impact on global events is undeniable. Pulling from history, literature, and the latest psychological findings, Holiday weaves an argument as engaging as it is thought-provoking. At times contemplative and other times combative, “Ego Is the Enemy” holds up a mirror to readers and asks them to challenge what they see. For those willing to attempt conquering themselves, this book is a worthy companion.
Taser, and Complex. His other bestseller, “The Obstacle Is the Way,” tackles the difficulties of the creative process and our natural tendency to avoid necessary steps toward our success. “Ego Is the Enemy” dives deeper into the latter concept, highlighting ways we sabotage or deceive ourselves. For Holiday, ego is defined loosely as our perception of self. Some may have a poorer outlook on themselves than others, but, as the book’s title suggests, ego hurts us regardless of which end of the spectrum we fall on. Holiday argues our self-perception can act as both a
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