Texas Divorce Attorney Blog
When retirement accounts are an issue in a Texas divorce, the court will generally issue a Qualified Domestic Relations Order (“QDRO”). A QDRO is an order that creates, recognizes, or assigns rights of an alternate payee to receive benefits from another person’s retirement plan. Although a QDRO is often issued during the divorce, in some cases, a court may enter a post-judgment QDRO. A former wife recently challenged a post-judgment QDRO, arguing it was void.
The parties had been married around nine years when the wife petitioned for divorce. The trial court awarded the wife all sums, increases, proceeds, and other rights related to her employee retirement accounts, except $10,000 from her Teacher Retirement System (“TRS”) account went to the husband. The divorce decree was signed on March 27, 2019 and the divorce was effective October 31, 2018.
Husband Seeks QDRO
The husband filed a proposed order on June 3 in the divorce case seeking a QDRO but did not serve the wife. The court entered an order a few days later designating the husband alternate payee of the wife’s TRS plan and stating he was not to “receive more than a total of $10,000 plus interest. . ..”
The wife claimed she was unaware of the QDRO until she received a letter from TRS rejecting the order the husband had sent. The wife filed a motion to vacate, arguing that the trial court’s plenary power expired before the QDRO was signed, that the QDRO denied her due process rights, and that the QDRO was unenforceable because it improperly changed the property division. She asked the court to vacate the order and enter a new one that conformed to the decree. The husband argued the wife’s motion would deny him interest on his award.
The trial court found the wife’s motion to vacate was untimely and that it had continuing, exclusive jurisdiction to enter the QDRO. She appealed.
The wife argued her motion was not untimely, that the QDRO was void, and that she should have been awarded attorney’s fees.
Motion to Vacate Was Timely
Generally, a final judgment may be collaterally attacked on the ground it was void even after expiration of time to appeal. A judgment is void if the court that rendered it did not have jurisdiction. The wife in this case did not appeal the QDRO, but moved to vacate it on the ground it was void because it was signed after the trial court’s plenary power had expired. The appeals court therefore concluded the trial court erred in determining the wife’s motion was untimely.
The wife also argued that the trial court erred in denying her motion because it did not have the authority to enter the QDRO after expiration of its plenary power.
QDRO Was Void
Post-decree QDROs are permitted to effectuate payment of benefits awarded in a previous decree. A QDRO is void if the court did not have jurisdiction. Pursuant to Subchapter B of Chapter 9 of the Texas Family Code, a trial court has “continuing, exclusive jurisdiction” to enter a QDRO if it did not enter a QDRO with the final decree or other final order, or to correct or clarify a QDRO to effectuate the property division the court ordered.
The appeals court noted the QDRO was not rendered in the final divorce decree and there were no post-judgment motions that extended the court’s plenary power. To request a post-judgment QDRO, the husband was required to comply with Tex. Fam. Code § 9.102. Tex. Fam. Code § 9.102 provides that a petition for a post-judgment QDRO is governed by the same Texas Rules of Civil Procedure that apply to filing an original lawsuit and that the proceedings are to be conducted in the same manner as other civil cases. Additionally, each party is entitled to receive notice by citation.
The appeals court noted the husband did not follow these procedures. He did not file a petition, but instead filed a proposed order in the divorce case more than two months after the decree was signed, and therefore outside the court’s plenary power. Furthermore, the wife was entitled under the rule to receive notice.
The appeals court concluded the trial court did not have jurisdiction to enter the QDRO.
The appeals court reversed and rendered judgment declaring the QDRO void, but denied the wife’s request for attorneys’ fees.
Obtain Skilled Legal Counsel
The QDRO in this case was determined to be void because the required procedures were not followed. This case illustrates the importance of knowing and following procedural requirements for QDROs and other divorce matters. If you are considering divorce, contact the experienced Texas divorce attorneys at McClure Law Group at 214.692.8200.