What happens if there is no QDRO

[FredFlintstone]

Several years ago a Mississippi Chancery Court judge ordered in a divorce decree a QDRO, as a separate interest stating, "Counsel for the defendant is directed to draft the QDRO in compliance with federal requirements. The parties shall cooperate in the drafting of the QDRO and in its approval process by the plan administrator in a timely fashion."

Points of note:

1. The counsel for the defendant has to date (5 years later) not drafted the QDRO as directed.

2. The separate interest concerns interest in the plaintiff's Mississippi PERS account. He has not yet retired. PERS membership handbook states,  "Your right to your benefit is exempt from levy, sale, garnishment, and attachment; and is not assignable. Furthermore, PERS has no authority for recognizing, implementing, administering, or enforcing the provisions of any domestic relations order or other actions decreed by a court in a divorce settlement." 

So a couple of questions arise:

1. If counsel for the defendant does not draft a QRDO prior to the plaintiff retiring can that be done after he retires or is the door closed?

2. As the MS PERS states they will not recognize or enforce and thus not qualify the DRO is the plaintiff still responsible getting to the defendant their "separate interest" when there is no QDRO?  This is assuming that another court would find that the judge in the decree ordered something that is not legally possible thus the counsel for the defendant cannot be held at fault for there not being a QDRO but as the judge did find that the defendant does have a special interest in the PERS as a marital asset the amount is still owed. 

Any thoughts from anyone?  

[Larry Starr]

1 hour ago, FredFlintstone said:

Several years ago a Mississippi Chancery Court judge ordered in a divorce decree a QDRO, as a separate interest stating, "Counsel for the defendant is directed to draft the QDRO in compliance with federal requirements. The parties shall cooperate in the drafting of the QDRO and in its approval process by the plan administrator in a timely fashion."

Points of note:

1. The counsel for the defendant has to date (5 years later) not drafted the QDRO as directed.

2. The separate interest concerns interest in the plaintiff's Mississippi PERS account. He has not yet retired. PERS membership handbook states,  "Your right to your benefit is exempt from levy, sale,
garnishment, and attachment; and is not assignable. Furthermore, PERS has no authority for recognizing, implementing, administering, or enforcing the provisions of any domestic relations order or other actions decreed by a court in a divorce settlement." 

So a couple of questions arise:

1. If counsel for the defendant does not draft a QRDO prior to the plaintiff retiring can that be done after he retires or is the door closed?

2. As the MS PERS states they will not recognize or enforce and thus not qualify the DRO is the plaintiff still responsible getting to the defendant their "separate interest" when there is no QDRO?  This is assuming that another court would find that the judge in the decree ordered something that is not legally possible thus the counsel for the defendant cannot be held at fault for there not being a QDRO but as the judge did find that the defendant does have a special interest in the PERS as a marital asset the amount is still owed. 

Any thoughts from anyone?  

Sounds like the judge was blindsided by the attorneys who did not explain that this is NOT an ERISA plan and therefore is NOT subject to the QDRO rules.  Many government plans have their own equivalent to a QDRO and do require a court order.  Has anyone checked with the plan to see if they have any alternative means of splitting up the benefit in the event of a marriage dissolution? That language you quoted is pretty dire; sounds like they just don't give a rats patoot about the issue. If not, then the property settlement needs to be re-looked at to see how else the judge's intent can be met.  The 

[Peter Gulia]

Many governmental retirement plans have no provision for following a domestic-relations order.

 

That Mississippi PERS has no responsibility to pay the non-participant might not preclude a court’s order that a retiree pay the non-participant.

For one example, see https://courts.ms.gov/Images/Opinions/CO96560.pdf

 

The non-participant might want advice from a lawyer knowledgeable in Mississippi domestic-relations law and courts’ procedures, including chancery practice.

[david rigby]

Maybe it's just me, but I find it interesting that the court ordered the legal counsel to do something.  No mention of who pays for it, which could have a bearing on the lack of any draft so far.