Plan admin didn't follow quadro

[Qwerty]

Thank you all

[Effen]

Many unknowns here, so it is hard to tell what happened.  One thing you said peaked my interest, you said, "I did receive my 50 percent share in 2013, while he was alive".  Did you mean, you received 50% of his benefit from 2013 while he was alive, then it stopped when he died?

Can you tell if your QDRO was a "separate interest" or "shared interest".  Does it state that you will receive a portion of his benefit, or does it say that the portion of his benefit assigned to you will be converted to an annuity payable over your lifetime?  In other words, were you just receiving a portion of his benefit (shared interest), or were you supposed to receive your own life annuity, independent of his elections (separate interest).

What you described sounds like a shared interest QDRO.  Did it explicitly state that he was required to elect a Joint and Survivorship annuity on the piece that was assigned to you?

Without seeing the QDRO it is hard to determine if anything was wrong.  It is possible the administrator screwed up, but it is also possible your attorney screwed up when they drafted the QDRO.  Don't let the PA tell you it was your ex's fault.  It is the PA's responsibility to ensure the terms of the QDRO are followed.  The fault is either with the PA, or your attorney, but likely not your ex.

[QDROphile]

The PA screwed up, but not the way you think.  The PA should have either determined that the order was not qualified or stated as part of the determination that the PA would not enforce the provision about the election, which should have resulted in amendment of the Order by the parties.  PAs are required to follow plan terms and cannot interfere with participant elections provided by the plan.  Someone will argue with this assertion, and I will not engage in the argument.  The direction in the Order for the participant to elect a form benefit and designate a survivor is enforceable by the state court, through its powers of contempt, which is an inappropriate and usually ineffective approach to achieving desired division of the benefits.  This points to a possible mistake of the drafter of the Order (someone’s lawyer?).  One would need to know more about the plan, the terms of the Order, and the facts, but it may have been impossible at the crucial time for the alternate payee to have been named as survivor, which leads back to a possible mistake by the PA in determining qualification.

[rocknrolls2]

You should sue the plan and the employer to protect your rights under ERISA.

[Luke Bailey]

On ‎12‎/‎22‎/‎2019 at 10:59 AM, QDROphile said:

The PA screwed up, but not the way you think.  The PA should have either determined that the order was not qualified or stated as part of the determination that the PA would not enforce the provision about the election, which should have resulted in amendment of the Order by the parties.  PAs are required to follow plan terms and cannot interfere with participant elections provided by the plan.  Someone will argue with this assertion, and I will not engage in the argument.  The direction in the Order for the participant to elect a form benefit and designate a survivor is enforceable by the state court, through its powers of contempt, which is an inappropriate and usually ineffective approach to achieving desired division of the benefits.  This points to a possible mistake of the drafter of the Order (someone’s lawyer?).  One would need to know more about the plan, the terms of the Order, and the facts, but it may have been impossible at the crucial time for the alternate payee to have been named as survivor, which leads back to a possible mistake by the PA in determining qualification.

Spoken like a true Quadro Pro.

[fmsinc]

A little knowledge is a dangerous thing.  So with that preface:

>>It may be that the Participant had retired before the Plan received the QDRO and had elected a single life annuity.  That is permissible in many non- ERISA qualified plans (e.g. all Maryland State Retirement and Pension System Plans) and the subsequent QDRO would not have been able to award a QJSA.   I am purposely being loose with the language since in Maryland it would have been a Eligible DRO and the way to implement a survivor annuity would have been to select one of 4 statutory options.  

>>It may be that the Participant remarried and then retired before the QDRO as approved and his new wife became irrevocably vested in the survivor annuity benefit.   There are plenty of cases on that situation.  See, Hopkins v. AT&T Global Information Solutions at
http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9

followed by the 5th Circuit in 1999  Rivers v. Central and South West Corporation at   http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9:

        “This Circuit agrees with the Fourth Circuit's decision in Hopkins and adopts its rationale. Rivers failed to protect her rights in Franklin's pension plan by neglecting to obtain a QDRO prior to Franklin's retirement date. Consequently, Franklin's pension benefits irrevocably vested in Mrs. Franklin on the date of his retirement and Rivers is forever barred from acquiring an interest in Franklin's pension plan.”

    To the same effect see Dahl v. Aerospace Employees’ Retirement Plan, a 2015 case from the U.S. District Court for the Eastern District of Virginia (and cases cited therein) - 
https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1

    Other cases following Hopkins are collected at:
https://scholar.google.com/scholar?start=0&q="Hopkins+v.+AT%26T"&hl=en&as_sdt=20000006

    See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue.  And the 2015 case of Dahl v. Aerospace Employees’ Retirement Plan, 
 No. 1:15cv611 (JCC/IDD), United States District Court, E.D. Virginia, Alexandria Division. 

>>It may be that the Participant was a police office, firefighter or corrections office in one of many plans where survivor annuity benefits are not available for FORMER spouses....only to current spouses.  

But if the QDRO was entered by the Court, and if a certified copy was received by the Plan, and it the Plan "qualified" the QDRO, that is, approved it (as they must have done since you received a portion of his retirement annuity) , and if none of the foregoing sort of problems existed, and if the Plan did not implement a QJSA for you, then you need to find a lawyer who can sue the Plan on your behalf.  It is the job of the Plan to follow the instructions in the QDRO.  The instruction to the Participant to elect a QJSA is tantamount to a direction to the Plan to make that election on his behalf. 

And if someone else is receiving the survivor annuity that you should have received, then you can sue that person under a number of theories including constructive trustee.  See, e.g., Andochick v. Byrd, 709 F.3d 296 (2013), and a recent California case, In re: Marriage of Stine, No. A154972, Court of Appeals of California, First District, Division One, - Filed November 22, 2019, and  Hennig v. DIDYK, Tex: Court of Appeals, 5th Dist., No. 05-13-00656-CV, (2014).   

Good luck.    

[fmsinc]

You need a lawyer familiar with  QDRO matters.  In what state was the divorce granted and the QDRO issued? 

[Qwerty]

Pa.  I do have a lawyer, he was my divorce lawyer,  also filed with EBSA.  Thank you for your input.. was trying to get judge to enforce order,. I can't get a hearing... 

[Bill Presson]

14 hours ago, Qwerty said:

Pa.  I do have a lawyer, he was my divorce lawyer,  also filed with EBSA.  Thank you for your input.. was trying to get judge to enforce order,. I can't get a hearing... 

You might want to talk to someone else. You would be shocked how many divorce lawyers don't know what they are doing when it comes to QDROs and ERISA law.

[fmsinc]

Sun Life Assurance Company v. Jackson, Case No. 3:14-cv-41, United States District Court, S.D. Ohio Western Division (September 19, 2018) available at - 
https://scholar.google.com/scholar_case?case=1364917141727116905&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AAGBfm2dXJvPo0nUQKlDLqIPUBXxyXMitw
An excellent case dealing with the guidelines for an award of attorney fees against an ERISA qualified Plan to a participant, beneficiary or fiduciary. Also, a good discussion of pre-judgment interest. 

You have a right to sue the Plan. A fiduciary such as the Plan Administrator owes an obligation to both the Participant and to the Alternate Payee as a beneficiary under 29 USC 1002(8).

    Under 29 USC 1132(a)(1)(B) a Participant or an Alternate Payee (who is classified as a beneficiary), can sue "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;"

    Under 29 USC 1132(e)(1) it states that: 
        "(e)Jurisdiction
        (1)Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 1021(f)(1) of this title. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section."  (Emphasis supplied)

    A 2008 case from the US Court of Appeals for the 1st Circuit, Geiger v. Foley Hoag LLP Retirement Plan, held as follows: 
    

    "Geiger [the party complaining about the QDRO] argues that state courts do not have jurisdiction to determine whether domestic relations orders are QDROs . . .Geiger cites no cases in support of his position. Instead he relies on what he calls the "unambiguous language" of ERISA, specifically, 29 U.S.C. §1132(e)(1), which provides that federal courts "have exclusive jurisdiction over civil actions under this subchapter brought by a . . . participant," with the exception that state courts have concurrent jurisdiction over actions brought to recover benefits or enforce or clarify rights under a plan. 29 U.S.C. §1132(a)(1)(B). In Geiger's view, this is the beginning and the end of the inquiry. His view, however, has been rejected by several courts. See e.g., Scales v. Gen. Motors Corp., 275 F. Supp. 2d 871, 876-77 (E.D. Mich. 2003) ("tate courts have concurrent jurisdiction regarding the interpretation of QDROs . . . and are fully competent to adjudicate whether their own orders are QDROs."); In re Marriage of Oddino, 939 P.2d 1266, 1272 (Cal. 1997) (action to qualify domestic relations order is an action to "obtain or clarify benefits claimed under the terms of a plan," and thus within state courts' jurisdiction); Robson v. Elec. Contractors Ass'n Local 134, 727 N.E.2d 692, 697 (Ill. App. Ct. 1999) ("tate and federal courts have concurrent subject matter jurisdiction to construe the ERISA provisions relating to a QDRO . . . ."); Eller v. Bolton, 895 A.2d 382, 393 n.6 (Md. App. 2006) ("State and federal courts have concurrent jurisdiction to review a plan's qualification of a state domestic relations order . . . .")."

        "Geiger acknowledges the one-sidedness of the caselaw, but argues that the rationale set forth by those decisions both violates ERISA's plain language and is "logically senseless." We do not agree. In our view, it is significant that Congress has expressly exempted QDROs from ERISA's general preemption of state law. 29 U.S.C. 1144(b)(7). We are further persuaded that, "separate litigation of the QDRO issue in federal court presents the potential for an expensive and time-consuming course of parallel litigation . . . in the two court systems." Oddino, 929 P.2d at 1274-75. And finally, we share the view of the Oddino court that: Congress, having given state courts the power to issue orders determining and dividing marital rights in retirement plans, would require a separate federal court proceeding to decide whether the order is a QDRO. This would cause undue hardship, expense and delay to the affected party, and impose an unnecessary workload on already overburdened federal courts."

Similar decisions came from the 9th Circuit - Mack v. Kuckenmeister, 619 F. 3d 1010 (9th Cir. 2010); Langston v. Wilson McShane Corp., 776 N.W.2d 684, 693 (Minn. 2009), Jones v. Am. Airlines, Inc., 57 F. Supp. 2d 1224, 1232 (D. Wyo. 1999), and see Turner, Equitable Distribution of Property, §6:19 n.11. 

If you attorney's head spins around like Linda Blair in The Exorcist, find another attorney.

Bottom line:  File suit in the nearest court of general jurisdiction or in the US District Court if it is reasonably close by, and, among other things, ask that the Plan pay 100% of your attorneys fees and costs of litigation.  If your description of the situation is accurate, you should prevail.  The concern of every lawyer is that you may have inadvertently left out some important little fact that will turn a good case into a loser. 

Tell me what city in Pennsylvania the divorce was granted and I will see if I can find someone for you to talk to.  

DSG
 

[Qwerty]

Thank you