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Answers are provided by Darren J. Goodman, Esq. of QDRO Prep
Can I get 50% of my ex-spouse's pension payments going back two years?
(Posted August 25, 1999)
Question 1: I recently learned that my former spouse retired and has been receiving monthly benefit payments from his company's pension plan for nearly two years. My Judgment of Dissolution states that I am entitled to 50% of every payment made to him. What must I do to begin receiving my share of benefits? Is there any way I can reclaim 50% of the amounts paid to him for the last two years?
Answer: Although the judgment clearly awards you 50% of your former spouse's monthly benefit, the pension plan has no obligation to distribute your share of benefits until it is served with a Qualified Domestic Relations Order (QDRO).
A QDRO is a judgment, decree or a separate court order that relates to the division of marital property, or the payment of child support or alimony. The judgment, decree or order must meet certain requirements under federal law. If your judgment does not contain the necessary provisions to satisfy these specific requirements, it does not constitute a QDRO.
To begin receiving your 50% share of benefits going forward, you must obtain a QDRO and serve it on the plan administrator. If you were represented by an attorney in your divorce, I suggest contacting that individual immediately. You should also contact the plan administrator and request a copy of the plan's QDRO procedures and sample QDRO language, if any. These materials will be useful in preparing the QDRO.
The answer to your second question is a bit more complicated. Keep in mind that the pension plan has no obligation to pay you anything unless and until it receives a QDRO. Assuming that the judgment was never sent to the administrator, the administrator would have had no duty to separately account for your share of plan benefits. This means you will have no recourse against the plan for the payment of benefits retroactive to the date your former spouse began receiving his pension. Arguably, your former spouse is responsible for restoring these "lost" benefits to you. Whether or not you can recover these "lost" payments from your former spouse will depend on the domestic relations laws in the state where you were divorced.
Answers are provided as general guidance on the subjects covered in the question and are not provided as legal advice
to the questioner or to readers. Any legal issues should be reviewed by your legal counsel to apply the
law to the particular facts of this and similar situations.
The law in this area changes frequently. Answers are believed to be correct as of the posting dates shown. The completeness
or accuracy of a particular answer may be affected by changes in the law (statutes, regulations, rulings, court decisions, etc.)
that occur after the date on which a particular Q&A is posted.
Copyright 1999-2008 Darren J. Goodman