Archive for April, 2013

Why Is a Qualified Domestic Relations Order (QDRO) Important in a Texas Divorce?

Friday, April 19th, 2013

When couples go through the process of divorce, they typically have significant concerns about their financial future.  The breakup of a marriage may mean less household income available to each spouse, higher expenses associated with dual households and less value in marital assets available to each party.  The resolution of these monetary issues can have a substantial impact on the ability of a party to a divorce to start over with a firm financial foundation to build upon.  The division of the retirement assets often will constitute the most valuable marital assets of a married couple so it is extremely important to understand how retirement accounts like 401K plans, individual retirement accounts (IRAs), pensions and annuities are handled in divorce.

Regardless of which spouse’s name is on the retirement account, it will be a marital asset subject to community property distribution under Texas family law.  Even if contributions to the retirement account began prior to marriage, contributions made during the marriage and any appreciation in value resulting from such contributions will be community property.  It is important to have legal advice when dealing with the division of a retirement account because depending on the type of retirement asset, specific federal and state laws may impact the plan.  Whether a retirement account is a defined benefit plan or defined contribution plan will determine the present value or potential value of the retirement asset.  Tax consequences must also be considered because the timing of tax consequences may impact the spouse’s differently if a substantial disparity in income exists between the parties.

One of the biggest mistakes made by parties who try to handle their own divorce is the failure to prepare a qualified domestic relations order (QDRO).  This is the primary tool used in marital dissolutions to ensure that the retirement plan is divided appropriately and that the spouse of the named beneficiary actually receives their share of the retirement plan funds.  Even if the divorce judgment specifically divides the retirement between the parties, the administrator of the retirement plan will typically pay all of the proceeds of the plan to the named beneficiary if no QDRO is served on the plan administrator.

While a party may have recourse against the beneficiary spouse if the named beneficiary receives the entire retirement because no QDRO was filed, this can be a difficult and expensive course for obtaining one’s share of the retirement plan.  QDROs have the additional benefit of avoiding adverse tax consequences that might accrue from early withdrawal or transfer of funds from certain retirement accounts.

Although QDROs often are indispensable tools for dividing a retirement account during a Texas divorce, they must be drafted according to very specific rules that are promulgated by the plan administrator so it is important to seek legal representation to ensure that your rights are not compromised.  Texas divorce attorney Alex Tyra offers a free consultation during which he can advise you about division of retirement plans and QDROs.  We invite you to contact us in our Longview office at 903-753-7499 or visit our website and submit a case contact form.

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U.S. Supreme Court Considers Whether to Authorize Warrantless Blood Tests in DUI Cases

Friday, April 5th, 2013

The U.S. Supreme Court will soon issue a decision in a case heard early this year about the right of law enforcement to forcibly take a blood sample for blood alcohol concentration (BAC) testing of the volume of alcohol in your blood.  In the case of Missouri v. McNeely, the nation’s highest court is weighing whether the risk of DUI evidence being lost justifies a warrantless infringement of the Fourth Amendment right against unreasonable search and seizure.

When police pull over drivers in Texas suspected of driving under the influence (DUI), the officer has the option of requesting that the driver submit to BAC testing of blood or breath.  While you can refuse both forms of testing, the police officer may seek a warrant to compel production of a blood test sample if the officer has probable cause to believe that you were driving under the influence of drugs or alcohol.  Although you may be able to challenge the validity of the blood test later if the officer did not have sufficient evidence to constitute probable cause, you can be forced to submit to a blood test to determine BAC if the officer has obtained a search warrant.

However, the current case pending before the Supreme Court would authorize warrantless blood tests in DUI cases.  The McNeely case involved a trucker who was pulled over by an officer for exceeding the speed limit.  The driver exhibited a lack of coordination, odor of alcohol on his breath, and red eyes.  After failing field sobriety tests (FSTs), he refused to submit to chemical BAC testing.  The police officer drove McNeely to the hospital and had his blood taken without obtaining a warrant or consent.

The government is contending that the exigency exception to the warrant requirement should apply because of the risk of the loss of evidence.  In the area where the DUI occurred, it takes approximately two hours to obtain a warrant so a driver’s BAC may fall below the legal limit by the time a blood sample is drawn.  While it is unclear how the Supreme Court will rule, Justice Roberts characterized the prospect of someone being handcuffed while his or her blood is forcibly extracted as a “pretty scary image.”

Justice Sotomayor expressed concerns that sticking a needle in the arm of a suspect and taking blood seems far more intrusive than a breath test.  McNeely also argued that new technology has sped up the process of obtaining warrants in many areas of the country allowing officers to seek warrants either through an electronic or telephonic application.

A suspect arrested for DUI in Texas should assert his or her right to an attorney and avoid talking to the police.  Texas DUI attorney Alex Tyra offers a free consultation during which he can advise you about your legal rights and potential strategies for avoiding a DUI conviction.  We invite you to contact us in our Longview office at 903-753-7499 or visit our website and submit a case contact form.

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