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Effect of bankruptcy on QDRO
Mark:
Look at 541(b)(7), which excludes certain retirement plan assets from the
estate. Assuming the 401k is not property of the estate and it is a
community property asset, the division of the retirement via the QDRO would
not be attempting to collect a debt under 362(a)(1), but would still my fit
the other portions of 362(a)(1). If I were her counsel, I would advise that
a MFRS is needed unless there is case law to the contrary.
Also note that QDROs can be used to get at the participant's half of the
401k for payment of other obligations arising in the divorce, including past
due support, attorney fee orders and an equalizing payment, which is
different from the division of the asset which your facts address. This
would not be a violation under 362(b)(2)(B).
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
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