What Is a QDRO?

What Is a QDRO  Family Law Attorney  Fresno CADivorce can be a difficult situation for anyone, especially if you’re dealing with complex assets like retirement accounts. A qualified domestic relations order (QDRO) can ensure that you get your fair share of any retirement benefits that were acquired during your marriage. But what is a QDRO, and how can it benefit you?

Understanding How a QDRO Works

A QDRO is a legal order that divides a private retirement plan in a divorce. It allows both spouses to get a fair share of a retirement plan that was contributed to during the marriage.

The spouse who originally earned the retirement benefits is called the “participant,” and the other spouse who will receive part of the benefit is called an “alternate payee.” A QDRO generally awards part of the retirement account benefit to both the alternate payee and survivor benefits in the event that the participant dies.

A QDRO isn’t automatic in California divorces. It must be requested as part of a property settlement during a divorce. It is a federal law that these retirement plans must be divided by a QDRO issued by a state court. The divorce decree or agreement between the parties is not enough to divide a retirement plan. Spouses can make an agreement regarding finances that do not include retirement accounts.

What Types of Retirement Plans Does a QDRO Cover?

A QDRO generally covers any private retirement plans that are covered by the Employee Retirement Income Security Act (ERISA) of 1974. This includes the following:

  • Private pension plans
  • IRAs
  • Thrift plans
  • Profit-sharing plans
  • Money purchase plans
  • 401(k), 403(b), and 457 plans
  • Employee stock ownership plans
  • Tax-sheltered annuities
  • Business/corporate defined benefit plans

Retirement plans associated with public job, such as military and government pension plans, are not typically addressed by a QDRO.

What Happens When a QDRO Is Made?

If you obtain retirement funds through a QDRO, then the court order will be signed by the judge and it will be sent directly to the pension or retirement plan administrator. It must be completed accurately for the court to sign it and for the plan administrators to carry through with the directions of the QDRO.

In some cases, when you are already at retirement age, the benefits will begin paying out immediately. In other cases, when you are not yet of retirement age, you will have to wait for retirement funds to begin paying out.

Amounts Payable to the Alternate Payee

Unless the QDRO specifies a specific amount that is payable to the alternate payee, the QDRO preparer will use a formula to tell the plan administrator how much should be paid to the alternate payee. The formula can allow for adjustments to be made in the benefit over time.

Some QDROs allow for lump sum payments to the alternate payee, and others offer payments much like a retirement benefit. Lump sum payments may be rolled over into a personal IRA or other eligible plan. Monthly installments may be made over a period of time.

Speak to a Fresno Family Law Attorney About Preparing the Order

Because the QDRO will go directly to the court and requires in-depth legal knowledge, it should be prepared by an experienced Fresno family law attorney. Call the Law Offices of Rick D. Banks today.

Court Ordered Child Support Not Being Paid — What Can You Do?

Court Ordered Child Support Not Being Paid Fresno Child Support LawyerBoth parents have an obligation to support their children financially and emotionally. However, when is court ordered child support not being paid a problem? If payments are missed, they can negatively impact the life of a child and the ability of a custodial parent to fully provide for them. A child support lawyer can help you enforce a child support order or file a motion against the non-paying parent.

Enforcing Child Support

If you have a child support order, the court can help you enforce nonpayment and collect overdue payments.

Seeking a Motion for Contempt

A court order for child support demands that the noncustodial parent pay money to the custodial parent. If they fail to do that, they may be considered “in contempt” of court. That means the noncustodial parent failed to obey a court order.

A contempt order may be criminal or civil. If a parent who has not paid child support is held in criminal contempt, they may face fines on top of the amount of money they owe to the custodial parent. They may also have to spend time in jail if they do not pay the child support. If a contempt order is civil, a person may also go to jail, but they will be released as soon as the past due support is paid. Penalties may be a combination of civil and criminal contempt.

In order to obtain a contempt order, the parent seeking enforcement of child support must file a motion, or written legal request, for contempt. The motion for contempt should be submitted in the county where the child lives and where the custodial parent is supposed to receive child support. In some situations, the local DCSS office will file a motion or another person acting on the child’s behalf. A child may also file a motion on their own behalf.

There is a time limit, or statute of limitations, on bringing a motion for contempt for nonpayment of child support in California. You only have three years from the date the payment was due to file a contempt action. Thus, if a parent does not pay child support for six years, you can only file a contempt motion regarding the last three years’ worth of payments.

Court Orders to Collect Support

If you file a motion for contempt against a parent who has not paid child support, the court will hold a hearing. If it is determined that they willingly refused to pay, the judge may order a number of penalties, including:

  • Fine of up to $1,000 and up to five days in jail
  • Up to 120 hours of community service for a first or second contempt or up to 240 hours for a third contempt
  • Payment of the custodial parent’s legal fees and costs
  • Selling of delinquent parent’s property to pay child support
  • Lien on real property
  • Wage garnishment to pay child support
  • Bank account garnishment
  • Garnishment of other benefits or accounts

If a parent can prove they don’t have the ability to pay child support, the court will not hold them in contempt.

Speak to a Fresno Child Support Lawyer

Court ordered child support not being paid? Contact a child support lawyer at the Law Offices of Rick D. Banks as soon as possible.

How to Stop Supervised Visitation

How to Stop Supervised Visitation Visitation Lawyer Fresno CASupervised visitation may be imposed when the court is concerned that a noncustodial parent may not be able to properly care for a child during their visitation time. In that case, visitations may be supervised by a third party. However, these types of visits can make it difficult for noncustodial parents to truly engage with their children and build meaningful relationships. Below, we discuss how to stop supervised visitation, and how a child custody attorney can help.

Can Your Supervised Visitation Order Be Overturned?

The court may order supervised visitation for a number of reasons, and some of those reasons automatically prevent the noncustodial parent from ever being alone with a child ever again.

The most common reason for a permanent supervised visitation order is when the child is a sexual abuse victim of the parent. Even if the noncustodial parent has completed their term in prison, they will likely be required to adhere to visitation with a third party nearby.

In some states, a sexual assault conviction on any minor will result in a permanent supervised visitation order. For example, in Missouri, visitation rights would be granted if they were in the best interest of the child, but the time would be limited and someone else must always be in the room.

The court may also refuse to overturn a supervised visitation order where there was severe abuse or neglect of the child, where the noncustodial parent was the abuser or is still with the abuser and mental health issues are unaddressed.

Proving That You Are a Fit Parent

A supervised visitation order was put into place because the court felt you were a danger to the child. When determining how to stop supervised visitation, you must first prove to the court that you are now a fit parent. You will need to provide evidence that the issues that deemed you unfit have been resolved.

For example, if you were ordered to adhere to supervised visitation because you were addicted to alcohol, then you should show that court that you have been clean for a period of time. That may include a letter from a rehabilitation center and drug tests showing you do not have alcohol in your system.

How to Stop Supervised Visitation

You will need to file a motion with the court to modify your custody/visitation order. Although these forms are generally available online or from a court clerk, you will need to know exactly what type of information to present to the court to prove that your supervised visitation order should be overturned. This is best done by an attorney.

A hearing will be scheduled after you submit all necessary paperwork. During that hearing, you will present your own testimony and the court will review evidence that you are now a fit parent. If the court determines that you are no longer a danger to your child, then your supervised visitation order will be overturned.

It’s important to note that the custodial parent can object to changes in the supervised visitation order. However, they will have to present counterproof that you are not a fit parent. When submitting proof that your supervised visitation order should be overturned, you should anticipate any submissions by the custodial parent and address those early.

Contact a Fresno Child Visitation Attorney to Learn More

For more information about how to stop supervised visitation, contact a Fresno child visitation attorney at the Law Offices of Rick D. Banks.

Reasons a Judge Will Change Custody

Reasons a Judge Will Change Custody Fresno Child Custody LawyerWhat are reasons a judge will change custody? The judge’s primary concern is doing what is in the child’s best interests. However, the needs and interests of a child, as well as each parent’s ability to meet them, may change over time. Thus, a change in custody may be necessary at some point.

If you are considering asking a judge to modify custody of your child, an experienced family law attorney to walk you through the process. Below, we discuss some factors the court will consider in child custody modification cases.

Emotional and Physical Stability

A parent’s ability to provide a child with stability is a critical factor in custody proceedings. Children do best when they know what to expect and can count on their parents. If a parent’s life is constantly chaotic, the court may see this as a reason to change custody. Examples of this include:

  • Frequent moving
  • Emotional instability
  • Drug or alcohol abuse
  • Frequent new relationships or marriages
  • Frequent job changes or unpredictable work hours
  • Failure to make the child available for visitation with the other parent

You must be able to prove that something has materially changed since the original custody order in order to get a judge to modify custody. One material change may be a substantial change in the custodial parent’s living environment.

Child’s Academic, Emotional, and Physical Needs

Included in reasons a judge will change custody are significant changes to a child’s school performance or emotional or physical health. If a child is receiving failing grades in school, then the court may think the other parent is a better fit. That parent may live in a school district with better access to resources that can help support the student’s academic struggles.

Similarly, if a child is frequently hospitalized for untreated illness, a noncustodial parent may be awarded physical custody, especially if they have better access to health care. One poor grade or recurrent ear infections likely aren’t enough to warrant a custody change, but the court will consider the ability of each parent to meet the child’s academic, emotional, and physical needs.

Relocation of a Parent

A noncustodial parent may also use the relocation of a custodial parent as an argument to change custody. Such a move may drastically reduce the noncustodial parent’s time with the child or their relationship with siblings. However, the court will still consider what is in the child’s best interests.

Preferences of the Child

If a child is emotionally mature, then the court will likely consider their preferences in where they would like to live. A child will not likely testify in a custody case, but their wishes may be indicated from an appointed person, such as a guardian ad litem.

Abusive and Violent Situations

If a child is in an abusive or violent situation with a custodial parent, the court will remove them immediately. A parent can file an emergency motion to modify custody and address the situation right away.

Call a Fresno Child Custody Lawyer Today

To learn more about reasons a judge will change custody, call the Law Offices of Rick D. Banks.