Monthly Archives

July 2016

Qualified Domestic Relations Order_ Domo arigato, Mr. QDRO, for helping me escape just when I needed to, domo….domo.

By | Family | No Comments


What is a QDRO?  Well, the correct use of a Qualified Domestic Relations Order (“QDRO”) allows a person to divide a pension or 401(k).    In the Federal Code, ERISA § 206(d)(3)(B)(i); IRC § 414(p)(1)(A),  a “qualified domestic relations order” (QDRO) defined.  Feel free to look it up.

Long story short, you divide the retirement without having to pay taxes on it.  That’s the whole point, right?  There should be no income tax to be paid when the retirement is divided.    No, instead the QDRO takes a portion of the retirement and turns it into your own personal retirement account to do with what you will.

QDROs should generally be completed prior to the divorce being final.  The divorce is final when the Court signs and enters the final decree into the record.   Before that happens, a proposed QDRO should be completed and offered to the plan administrator (the person in charge of managing the retirement account.)   Once approved by the plan administrator, the Court may enter the QDRO by signing it and entering it into the record.   At that point, the parties should feel comfortable that the process is final and can go ahead and enter the final decree of divorce.

On the other hand, if a QDRO is not completed before the divorce is final, there can be BIG problems.  One party may drain the account, or one party may receive more than they were otherwise entitled.   Sometimes, there is difficulty getting the QDRO completed.  It takes information from both sides to complete the QDRO, and the plan administrator generally needs cooperation with the employee, a.k.a. the Ex.

If the Ex will not cooperate, the only option is more contesting in court. That means a Petition to Enter, service of citation, a hearing.  Essentially, your going back to court for a mini-divorce.   Your attorney should discuss this issue and make sure you are aware of the necessity of a Qualified Domestic Relations Order, and why it is important to handle it before the divorce is final.   Not only does it assure that your QDRO is processed most efficiently, but it also assures that the correct language was included in the final decree of divorce.





Juveniles That Must Register As Sex Offenders For Life

By | Juvenile | No Comments

452058003If a child is adjudicated for committing a sexual offense, the youth may be required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure.  This could last into his or her adulthood in many circumstances.   However, there are options.

A juvenile court may enter an order, during or after disposition of a case, excusing compliance with the registration requirements after conducting a hearing to determine whether the interests of the public require sex offender registration. The hearing may be held regardless of whether the person is under 18. (§62.351(a), C.C.P.)

After a hearing, the juvenile court judge must enter an order excusing compliance with the registration requirements if the court determines that:
• the protection of the public would not be increased by registration; or
• any potential increase in protection of the public resulting from registration is clearly outweighed by the anticipated substantial harm to the child and the child’s family that would result from registration. (§62.352(a), C.C.P.

Another option for the juvenile court is to enter an order, again after conducting a hearing or under a plea agreement, deferring the decision on registration until the child has completed treatment for the child’s sexual offense as a condition of probation or while committed to TJJD.  The court retains discretion to require or excuse registration at any time during the treatment or on its successful or unsuccessful completion. During the period of deferral, registration may not be required.
Following successful completion of treatment, registration is excused unless a hearing is held on motion of the state, and the court determines the interests of the public require registration. Not later than the 10th day after the date of the child’s successful completion of treatment, the treatment
provider must notify the juvenile court and prosecuting attorney of the completion. (§62.352(b) and (c), C.C.P.)
A third option, also after a hearing or under a plea agreement, is for the juvenile court to enter an order requiring the child to register as a sex offender, but to provide that the registration information is not public information and is restricted to use by law enforcement and criminal justice agencies and public or private institutions of higher education.  Information obtained in this manner may not be posted on the Internet or released to the public. (§62.352(d), C.C.P.). However, a
juvenile court judge still has the authority to require full registration, including publication of the juvenile’s name and photograph on the Internet, although information about a juvenile registrant may not be published in a newspaper. (§62.062, C.C.P.)

Sealing a Juvenile Record

By | Juvenile | No Comments


Juvenile Records are documents about an encounter with the state that can become part of your juvenile record. This record may include:

• Basic information about you (date of birth, address, etc.) • Records of your arrest or detention and what you were charged with • Court documents from your trial • Your sentencing or disposition, including probation • What programs you were assigned to (treatment programs, schools, etc.)

When a juvenile record is “sealed,” it’s treated like it doesn’t exist. You are allowed to deny that anything described in this record ever happened. Tex. Fam. Code § 58.003(j). If a judge, lawyer, or police officer is asked about you, they are required by law to respond as if anything related to your record never existed. It is also removed from the Criminal History Database, so your name will not come up if someone searches for you on it.

If juvenile records are not sealed, anyone with a “legitimate interest” in accessing your records will be able to see them. This often means that potential employers, college admission offices, or landlords can see your arrest record. Getting your record sealed can be an important step in successfully finding a job, going to college, and finding a place to live.

Texas does have a system called “Automatic Restriction of Access to Records,” which automatically makes juvenile records harder to access once you turn 21, if you haven’t been convicted of anything else since you turned 17. But this does not seal your records. Most criminal justice agencies can still access these records, and use them against you if you are charged with a crime as an adult.

In order to have a record sealed, the applicant must file a petition in the same county where the original proceedings took place. Tex. Fam. Code § 58.003(p). After the court receives the application, a judge will decide whether or not your juvenile record should be sealed. The judge does not have to hold a hearing if you waive the right to a hearing in writing and the court and the prosecution consent.

The Judge must grant your request if:

  • If you were found not guilty at your adjudication hearing, or the matter was dismissed, the court should have immediately ordered all files and records sealed.
  • If you successfully completed a drug court program, the juvenile court may order your records of either a misdemeanor or felony offense sealed immediately.
  • If your juvenile offense was a misdemeanor, a court MUST seal your record if:
    •  It has been two years since your final discharge from the juvenile system, and
    •  During those two years, you have not been convicted or adjudicated of anything else, and no charges are pending against you.
  • If your juvenile offense was a felony, the court does not have to seal your record, but it MAY seal it only if:
    • You are 21 years of age or older; AND
    •  You have not been convicted of another felony after turning 17.

If the judge decides to seal your record, they will issue an Order for Sealing of Files and Records.  After a judge orders a juvenile record sealed, any agency or official who has a copy of the record must send it back to the court by the 61st day after the date the order is received. There is no time limit on sealing your record. But to get the maximum benefit you should seal it as soon as possible.  I’d be more than happy to help.