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What date is QDRO calculated from?


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I just found out my Ex has recently been collecting a pension, that he conveniently neglected to reveal to the court during our divorce proceedings, and i have several questions. First is- who do I go to for a QDRO? A financial person that has pension knowledge, or a divorce attorney or ????

Second- would my benefit (50%) be calculated upon receipt of the QDRO request or from the time HE started receiving the pension (that is when I would have become eligible also)?

Third- the pension QDRO guidelines provide options for monthly payments, which appear to end when either of us dies,  a Shared Interest approach and a Separate Interest approach. Can you explain the difference?  Not sure if these are common options or just THIS pensions options. 
 

any incite into this situation would be helpful. 
thank you

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First - what BG said

Second - generally, your marital portion is based on the value of the benefit earned during the time of marriage. 

Third - If he already commenced payments, your only option will probably be a shared interest QDRO, however, you said "which appear to end when either of us dies".  Are you saying he elected a joint and survivor annuity with you as beneficiary?  

Shared interest - you are paid a portion of the benefit he is receiving, which is based on his lifetime.  You are simply receiving a portion of the benefit that is payable to him.  If he dies, you may or may not receive death benefits depending on what option he selected.  When you die, generally the piece you were receiving reverts to him.

Separate interest - the portion of his benefit that is payable to you is converted to a benefit payable over your lifetime.  If he dies, no change in your benefit.  If you die, not change to his benefit.

The material provided and the opinions expressed in this post are for general informational purposes only and should not be used or relied upon as the basis for any action or inaction. You should obtain appropriate tax, legal, or other professional advice.

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I have no particular quarrel with what is posted above, But the responses other than from Bill Presson presume that you are just dealing with the substance of a domestic relations order to divide the pension.  To get there, you have to re-open or start a new domestics relations proceeding to capture the marital asset that was left out of the original proceeding. That requires expertise in state domestic relations law and the omission may affect what the court would be willing to award you as a supplement to the original property division.  Your original lawyer might be the person you need, or you may wish to engage someone else, in addition to the QDRO expertise mentioned above.

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QDROphile states my thoughts much better than I could.  As corollary (and his implication), there may be action against the EX for failing to disclose.  For example, check your property settlement (maybe not divorce agreement, maybe not QDRO) for language something like (emphasis added):

Quote

Both parties acknowledge and agree that prior to and at the time of the division of properties as more particularly set out in this Separation Agreement, each has made a full disclosure and each has been fully informed of the financial affairs, assets, and income of the other, and that both know and are satisfied that each, respectively, has substantially accurate knowledge of the total assets, income, pension, retirement benefits, and insurance policies of the other and the respective sources of same, including accurate knowledge of those assets which constitute marital property and those assets which constitute the “separate property” of each respectively, whether same is jointly held property or is otherwise titled in the sole name of one of the parties only...

Ya know, judges don't like it when people tell lies.

I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice.

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I agree with all of the above.  You may have a "missed asset" meaning the pension was overlooked in your Judgment.  In CA at least, if there is a marital/community interest in the pension at all then it applies to all pension payments (including those already received by your ex).  Unless the plan has been withholding a portion of the benefit because they were on notice of a pending QDRO, you are probably stuck with a post-retirement shared interest order.  You have no payment options in that case and you are stuck with whatever he elected at retirement.  It is possible to value the past payments you may be due and roll them (actuarial adjustment) into the future division.  You definitely need an attorney to review if your current Judgment required your ex to elect a survivor benefit for you, etc and then present to the court to determine how the pension should not be divided.  Once you have that sorted and the court has made a ruling on the division of the pension then the QDRO will be relatively easy to draft.   Just my two cents!

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29 minutes ago, JM said:

I agree with all of the above.  You may have a "missed asset" meaning the pension was overlooked in your Judgment.  In CA at least, if there is a marital/community interest in the pension at all then it applies to all pension payments (including those already received by your ex).  Unless the plan has been withholding a portion of the benefit because they were on notice of a pending QDRO, you are probably stuck with a post-retirement shared interest order.  You have no payment options in that case and you are stuck with whatever he elected at retirement.  It is possible to value the past payments you may be due and roll them (actuarial adjustment) into the future division.  You definitely need an attorney to review if your current Judgment required your ex to elect a survivor benefit for you, etc and then present to the court to determine how the pension should not be divided.  Once you have that sorted and the court has made a ruling on the division of the pension then the QDRO will be relatively easy to draft.   Just my two cents!

".... should NOW be divided....."

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  • 1 month later...

In most states the law provides that a final Judgment of Absolute Divorce (whether it incorporates a written agreement of the parties or not) cannot be reopened unless there is "fraud, mistake or irregularity".  The "fraud" must be extrinsic fraud and concealment of assets is classified as intrinsic fraud and reopening the case is therefore barred by concepts of res judicata and collateral estoppel.  "Mistake" only applies to a jurisdictional mistake and, as above, concealment of an asset is not deemed to be a jurisdictional mistake so reopening the case will be barred by res judicata and collateral estoppel.  (Note that all of the foregoing is Maryland law.)   Irregularities warranting the reopening of the case most often involve a judgment that resulted from a failure of process or procedure by the clerk of a court, including, for example, failures to send notice of a default judgment, to send notice of an order dismissing an action, to mail a notice to the proper address, and to provide for required publication.  Such irregularities do not include concealment of assets, and once again res judicata and collateral estoppel present the reopening of the case.  Note that in all states there are time periods after the entry of the Judgment of Absolute Divorce that a party can go back and ask for a correction, but these normally range from 15 to 90 days, after which the "fraud, mistake and irregularity" rules apply

If you cannot reopen the case you cannot have the court enter a QDRO and cannot collect your share of pension from the Plan itself.  But as noted by another contributor, many Plans will accept a written agreement of the parties incorporated into the Judgment of Absolute Divorce, or the Judgment of Absolute Divorce itself, as a QDRO if it contains all of the information necessary to satisfy IRC 414(p)(2) that sets forth the information that needs to be provided to make it a Domestic Relations Order: 

"A domestic relations order meets the requirements of this paragraph only if such order clearly specifies—

(A) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order,
(B) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined,
(C) the number of payments or period to which such order applies, and
(D) each plan to which such order applies."
Even if you cannot obtain a QDRO, and even if the JAD cannot qualify as a QDRO, the obligation of the Participant does not disappear.  In most jurisdictions a QDRO is considered to be an enforcement tool, like a garnishment or an attachment.  You can always file suit against the Participant and ask the court to order that he make the payments directly to you.  Unfortunately there is no way to restore the survivor annuity benefit if that was the intention of the parties.  
Depending on state law, if you were awarded modifiable alimony, you may be able to ask the court to modify the alimony to include the amount of pension benefits that you cannot receive from the Plan itself. 
It is pretty hard to hide pension and retirement benefits.  Once you know the name of the Participant's employer your attorney can go to  https://www.efast.dol.gov/portal/app/disseminate?execution=e1s1 and type in the employer under Sponsor and find every ERISA qualified pension and retirement plan sponsored by that employer and the Form 5500 required to be submitted with respect to each plan to the Department of Labor, Employee Benefits Security Administration. 
Note that Federal, state, county, municipal and other local plans will not be found at this link, nor will International plans (e.g. World Bank, IMF, United Nations) or any plan that is not "qualified" (e.g. stock options, deferred compensation, etc. 
If and when the court enters a QDRO you will submit a certified copy to the Plan and they will implement its terms.  If you wife has retired it is highly unlikely that you can get a "separate interest" share of her Plan benefits.  Most likely you will receive a "shared interest" allocation whereby you will receive a percentage of each payment if, as and when she receives her share.   
If you were still married when she retired, and if she participated in an ERISA qualified plan or a Federal Plan (FERS, CSRS or Military), she was required to name you as the beneficiary of a Qualified Joint and Survivor Annuity unless you affirmatively waived it.  If she retired after the divorce was final, they she was not required to name you as beneficiary.  But this general does not necessary apply to state, county and municipal plans. 
Bottom line. Find an experienced family law attorney who is knowledgeable about the allocation of pension and retirement plans.        
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