Originally published by Francesca Blackard.
A court generally may not amend or change the property division made in a Texas divorce decree. The court may issue an order to enforce the property division, but such an order may only clarify the prior order or assist in its implementation. If a court improperly amends or modifies the substantive property division in the final divorce decree, it is acting beyond its power and that order is unenforceable. Tex. Fam. Code Ann. § 9.007. Qualified Domestic Relations Orders (QDRO) are separate orders that set forth the distribution of retirement plan assets. They are considered a type of enforcement or clarification order and cannot change the property division made in the divorce decree.
In a recent case, an ex-wife sought an additional QDRO years after the divorce was finalized. The couple divorced in 1995, and the parties have been in litigation for the past several years regarding the husband’s retirement accounts.
The divorce decree awarded the ex-wife 50% “of any and all sums … related to any … retirement plan, pension plan, … or other benefit program existing by reason of [ex-husband’s] past, present, or future employment, including without limitation, [ex-husband’s] Retirement Fund, Provident Fund, and SPIF Fund with Shell Oil Company per Qualified Domestic Relations Orders …” The trial court signed a QDRO awarding the ex-wife half the funds in the ex-husband’s Shell Provident Fund on the date of the divorce. The court found the total community property interest in the Shell Provident Fund was the total amount of contributions, interest, and earnings made or accrued by or on behalf of the ex-husband into any of the Shell Provident Fund accounts. The QDRO stated the ex-wife was “divested of all right, title, and interest in and to any balance remaining in any account of the Shell Provident Fund…” and that the fund would be discharged from all obligations to her when full payment was made pursuant to the QDRO. It also said it would become an integral part of the divorce decree.
The ex-wife received the funds from the QDRO. In 2015, the ex-wife petitioned for another QDRO and the court signed it, with a valuation date of July 15, 2015. The husband said he was not given notice of the hearing and that neither the petition nor the QDRO were on file with the court before the hearing.
The ex-wife did not receive the funds from the 2015 QDRO. She filed an amended QDRO in April 2016 with a 2015 valuation date, but the trial court did not sign it. She filed a petition to enter an amended QDRO the following month, with the 2015 valuation date and amount.
In April 2017, the husband filed a petition for bill of review of the divorce decree. He asked the court to clarify that the retirement benefits were to be divided as they existed on the date of the divorce. He argued the court did not have jurisdiction to sign the 2015 QDRO because it conflicted with the divorce decree and the 1995 QDRO. The ex-wife then filed another amended petition to enter a QDRO. After a hearing, the trial court granted the bill of review, modified the decree, and set aside the 2015 QDRO.
The ex-wife filed a response, arguing the bill of review had been untimely. The court then signed a “Court’s Rendition,” in which it denied the bill of review, set aside the reformed decree and QDRO, and reinstated the original decree.
The ex-wife then filed another proposed QDRO, but the trial court did not enter it due to a missing signature. She filed a “Motion to Sign QDRO.” The docket entry indicated that the motion was not properly served, and the hearing was rescheduled. The husband’s attorney argued the 1995 QDRO divested the ex-wife of all interest in the fund. The trial court denied the motion, finding the 1995 QDRO awarded the wife half the funds as of the date of divorce and that she was not entitled to anything else from the fund.
The trial court denied the wife’s motion for a new trial. She appealed, arguing the divorce decree had awarded her half of the fund through the ex-husband’s last date of employment. The ex-husband argued that the proposed QDRO was an impermissible collateral attack on the 1995 QDRO.
The appeals court noted that a QDRO is a final, appealable order. A party who does not appeal a QDRO may not collaterally attack it through a separate proceeding. The appeals court found that the ex-wife’s motion to enter a new proposed QDRO filed so many years after the divorce was such a collateral attack.
The court also noted that the 1995 QDRO awarded the ex-wife half of the fund as it was valued on the date of the divorce and divested her of any further interest. The QDRO she sought to have entered would have awarded her a share of all amounts contributed on behalf of the ex-husband “in the past, present, and future.” The ex-wife received the funds she was awarded in the 1995 QDRO in 1995. Her proposed QDRO sought to avoid the effect of the decree and the 1995 QDRO, making it a collateral attack.
The appeals court also rejected the ex-wife’s argument that she was entitled to QDROs awarding her half of the ex-husband’s other benefits and employer-based savings plans through his past, present and future employment. The court found she was also barred from collaterally attacking the division as to these benefits as well.
The appeals court affirmed the trial court’s denial of the motion to sign the QDRO.
Although this case is procedurally complex, it illustrates the importance of addressing issues promptly through the appropriate procedures. If you think your marriage may be ending, a skilled Texas divorce attorney can help you through the difficult process. Schedule an appointment with McClure Law Group by calling 214.692.8200.