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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102506
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My husband and I are residents of Texas and have lived here

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My husband and I are residents of Texas and have lived here all our lives. We have been married 27 years. My husband works for the Department of Criminal Justice Bureau of Prisons (government job). After 23 years, he will retire at the end of this year on Dec. 31, 2013. I know Texas is a community property state. How can I protect my rights to his retirement? I have heard of some stories where wives have been left out in the cold, and I don't want this happening to me. We are scheduled to meet this month with a financial consultant provided by his employer to sign paperwork, but I am not familiar with this and don't know where to turn for advise. Thank you.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation.

How can I protect my rights to his retirement?

By taking proper steps. Allow me to explain.

While Texas is a community property state, retirement is still shared. Ergo, you are entitled to HALF of his retirement for the time that you and he have been married.


He has been accruing pension for 30 years, and puts in $5 per year. So he would have $150 now.

You are married 27 years, and in that time, he has accrued $135. You get half of that, which is $67.5.

If you should decide to divorce, one has to force the issue. If he does not agree to share the pension per the default rules (or whatever you agree upon), then you can ask the Court. It is common for parties to agree to 95% of the divorce, but then ask the Court to make a decision in regards XXXXX XXXXX 5% that cannot be agreed upon.

The number one issue that hurts ex-spouses is the improper filing of a QDRO. Allow me to explain.

The QDRO is a Qualified Domestic Relations Order. This order is normally filed with the decree of divorce and is signed by the Judge. The QDRO reflects specifically the splitting of the pension as reflected in your agreement that is incorporated into the divorce decree, or, the decision made by the Judge and incorporated into your divorce decree. The QDRO is sent to the party's employer who holds the pension.

At the time of distribution, half (or whatever the percentage that you are to get) is then sent to you.

Often, attorneys do not file a QDRO. There is just the divorce decree. However, the company overseeing the pension needs a QDRO to split your part off. That is when the parties run into an issue, as they scramble and to go back to Court.

Ergo, if you get a divorce, make sure that your attorney drafts and filed a QDRO, gets it signed by the Judge, and sends it off to the Department of Criminal Justice Bureau of Prisons' HR department so that your share would be taken out at the proper time.

I hope this helps and clarifies. Good luck.

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Customer: replied 4 years ago.

Should a lawyer to file a QDRO even if I decide not to divorce?

Hello friend,

If you decide not to divorce, then there is no need to file a QDRO. However, should something happen to your husband (worst case scenario), you would have to file probate to get the payout from the pension, which is not hard to do.

Provided you are still married when he receives his retirement, then there is no law that forces him to give you any money. However, if you divorce later, anything left from retirement is STILL subject to division and you'd get half.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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