Divorce can be a difficult process, and dividing assets like retirement plans can add another layer of complexity. If you or your spouse have a retirement plan, you may need to obtain a Qualified Domestic Relations Order (QDRO) to divide the plan benefits. Many people, exhausted from a lengthy or contentious divorce, wait to pursue a QDRO for years, or even decades, after the divorce is finalized. However, after all that waiting, what happens if you cannot locate your former spouse?
In such cases, obtaining a QDRO can be challenging. Here are some tips and challenges that you may face when one party cannot be located:
- Try to find your ex-spouse’s current address
The first step is to try to find your ex-spouse’s current address. You can use various methods like online databases, social media, mutual friends, relatives, or former employers to track down your ex-spouse. You may also hire a private investigator or a skip tracer to help you locate them.
- Serve by publication
If you cannot locate your ex-spouse’s address, you may be able to serve them by publication. This means that you publish a notice of the QDRO in a newspaper or a website that is likely to reach them. However, this method may not be accepted by some courts, and it may be costly and time-consuming. Check the rules of your local jurisdiction before taking out an ad in the paper. Many people find the self-help (also called “facilitator”) office at the courthouse to be great resource when figuring out service by publication requirements.
- File an affidavit of diligent search
If you serve your ex-spouse by publication, you may need to file an affidavit of diligent search with the court. This document, which may be called something different in your state, such as an affidavit of due diligence or affidavit of service by publication, shows that you have made reasonable efforts to locate your ex-spouse and that you have been unable to do so. You may need to provide details of your search efforts and the results.
- Appoint an elisor
If you serve your ex-spouse by publication, you may also need to have the court appoint someone to sign on your ex-spouse’s behalf. This person represents their interests in the QDRO proceedings. In California, for example, this is called an “elisor.” In other states, your ex-spouse’s signature may not be required, such as in New York, where only the judge’s signature is technically required (though if the parties also sign, the court is more likely to approve the proposed QDRO without delays).
- Challenges in obtaining the QDRO
Even after serving your ex-spouse by publication and appointing an elisor, you may still face challenges in finalizing the QDRO. Some plan administrators may object to a QDRO that does not have both parties’ signatures, even if the court has signed, though they should eventually accept the order with some convincing. Some courts may require a hearing before approving the QDRO. Some plans may have specific rules, forms, or procedures for dealing with missing parties.
- Risks of losing retirement benefits
If you cannot obtain a QDRO because of your ex-spouse’s absence, you may lose some or all of your rights to their retirement benefits. For example, if your ex-spouse dies before the QDRO is issued, you may not be entitled to any survivor benefits on a pension and/or a 401(k) may have already been distributed to your ex-spouse’s heirs or estate. If your ex-spouse withdraws or transfers their retirement funds before the QDRO is issued, you may not be able to recover them as well.
If you cannot locate your ex-spouse, it is important to act quickly and diligently in obtaining a QDRO, even if it means hiring an attorney or using your best internet detective skills to track him or her down – hesitating could cost you greatly if the plan is cashed out or your ex dies before you finalize the QDRO. You should also keep records of your search efforts and communications with the court and the plan administrator.
In the meantime, consider preparing a draft QDRO using a service such as ours – which allows you to preview the documents before you pay and to draft the order using flexible options that fit most divorce agreements – so that if you locate your ex, you have an order ready to sign. You can also submit the order as a rough draft to the plan for review (called “pre-approval”), which may result in a hold on the plan so that it cannot be cashed out while you pursue a QDRO.
