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LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 37855
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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I live in Westchester, NY my wife is staying with one of our

Customer Question

I live in Westchester, NY my wife is staying with one of our children in florida. We have agreed to a legal seperation so we can obtain a QDRO. Do I need an attorney or can I complete an applicaion. If I need an attorney, what will the fee be?
Submitted: 4 years ago.
Category: Family Law
Expert:  LawTalk replied 4 years ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. Are you aware that NY does not have a "Legal Separation" law---that you may only enter into a separation agreement?
2. What is your purpose in wanting to have a QDRO prepared at this early time?
3. Do you intend to seek a divorce as soon as possible?


Customer: replied 4 years ago.

The reason for the QDRO is that I have two IRA annuities with substantial value and want to transfer money to her that would be tax free until she withdraws.I don't know if the court will accept a non legal separation.

Expert:  LawTalk replied 4 years ago.
Good morning,

Thank you for the additional clarification.

The problem with your plan is that federal law dictates that only on a divorce may the court issue a QDRO for the division of marital retirement accounts, such that there is no penalty associated with the transfer of the funds.

While in the few states that do allow a Legal Separation, finalized through the court just as a divorce is, may issue the QDRO, NY is not one of those few states.

The QDRO may not, under federal law, be issued until your divorce decree.

Additionally, you inquired about the cost of having a QDRO prepared. The QDRO is by far the most complicated document that is prepared in a divorce. So complicated that the majority of family law practitioners do not prepare them but rather have specialists prepare the documents for their clients. The cost for the document preparation runs about $1,000 to $1,500, and it will not be signed by a judge until the time the decree is entered or at some time thereafter.

At the present time, if you wife has to have the money to live on, all that you can offer her is that you will withdraw the funds, pay the penalty and the taxes on the money that you take out, and give her what remains from the withdrawal. Unfortunately that will be a very expensive way to get money, and you would be better off taking a loan, or co-signing for her to take a cash loan. I'm sorry.

I wish you the best in 2013.

I understand that you may be disappointed by the Answer you received, as it was not particularly favorable to your situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so.

You may reply back to me using the Reply to Expert link if you have additional questions.

Kindly take a moment to rate my service to you based on the understanding of the law I provided. Please understand that I have no control over the how the law impacts your particular situation.

Thank you,

Customer: replied 4 years ago.

One last question. is Florida one of the states that you can obtain a QDRO with a legal separation. You have been very helpful and I will comment on your valuable input.

Expert:  LawTalk replied 4 years ago.
Good morning,

Thank you for your additional inquiry.

While Florida will allow a separated spouse to sue for spousal support and child support, there is not the formal legal separation (that I mentioned is available on some states), with the complete distribution of marital assets, the division of marital debt, and the award of child custody, child support and spousal support envisioned by the feds such that the QDRO may be prepared.

So, no, a FL judge will not be able to issue a QDRO before a divorce decree either. i am sorry.

Thank you for your kind words. They are appreciated. Please keep in mind that until you rate me highly for my service, I will not be credited with helping you.

Thanks again.

Have a great day,