Do It Yourself Divorce Trap: Retirement Accounts

I received a call this week from a couple that handled their divorce without attorneys.  They had a mess.

They intended to divide the husband’s 401(k) retirement account as a part of the divorce.  However, they did not know that dividing this kind of account requires a special legal document called a Qualified Domestic Relations Order or “QDRO”. 

So, they obtained their divorce.  They then contacted the 401(k) administrator to divide the funds.  Only then did they find out that they needed a QDRO. 

Unfortunately, it will be far more complicated for them to divide this retirement account now.  What would have cost them less than $1,000 if they had involved attorneys in the beginning will now cost them several thousand dollars or more.

They called me to find out whether the account could be divided, whether a court could enter the QDRO now, and how much it would cost.  Needless to say, they were upset that their efforts to save money would cost them much more in the long run.

This just one real life example of why it is smart to consult a lawyer to handle the legal intricacies of divorce from the beginning.

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Why Family Law is Different

Family law cases are different.  They cannot be handled like a typical business law, personal injury or criminal case.  But, these differences arise not so much from the technical aspects of a case as the practical aspects.  From a technical standpoint, the rules of civil procedure and evidence apply to family law cases, as with other cases.  Like other types of cases, there are statutes and case decisions that impact family law matters.

But, practically speaking, family law cases are very different.  I am compelled to be a family law attorney because of this difference.  As I see it, the following factors make family cases truly unique among legal practice areas:

1.  Emotion:  Emotion is present to some extent in every kind of case.  But, emotions run incomparably high in family law cases.  Emotion is often the driving force behind family law litigation (as opposed to negotiated cases).  Family law attorneys spend large amounts of time sorting through and managing emotions.  After all, it is rare for a business owner to cry when discussing a contract violation; but, family clients frequently cry when discussing a divorce.  This only makes sense; most people are far more emotionally tied to spouses and children than to a business or money.

2.  Ongoing relationships:  Most types of legal matters do not involve ongoing relationships.  Businesses are happy to part ways when a deal goes bad; injured people never need to see the defendant again; victims and criminals don’t need to talk on the phone.  But, in most family law cases, maintaining and building the relationship between clients is crucial.  Parents cannot effectively co-parent if they hate each other.  Relationships with former in-laws, friends, and church families can be destroyed if the parties to a case sacrifice their own ability to communicate with each other.  The need to preserve these relationships makes family cases unique.

3.  Children:  A divorce can shake the bedrock of children’s lives.  If the two most important people in a child’s life wage war on each other, then the child suffers the most.  This curtails the parties’ ability to launch unrestrained attacks on each other.  This is almost never a factor in other types of cases.  But, the potential impact of the case on children is an omnipresent consideration for family law attorneys. 

The realities of family law and families require that these cases be handled differently.  Unlike other types of cases, “scorched earth” strategies typically do more harm than good.  Not every lawyer is equipped with the skills, intuition and heart necessary to effectively handle these matters. 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, alienation of affection, criminal conversation, parentage, guardianship and other family related matters.  He is skilled in litigation, mediation, collaborative divorce, arbitration and traditional negotiation.