Is court order enough?

[Teetee]

If one is awarded half of retirement account and QDRO but it is not with the benefit administrator of the spouse and he quits his job and takes all the money, can one sue the spouse for her portion?

[ESOP Guy]

Are you saying the DRO was never submitted to the plan?   If so, the DRO was never a QDRO.  

Please clarify if the DRO was never submitted to the plan to determine if it was qualified and thus a QDRO.  

[MoJo]

One can always ask the court to enforce it's order against the offending spouse - but as ESOP Guy says, unless the order is submitted to the plan and determined to be a "Q"DRO, it can't be enforced against the plan.

[Teetee]

Thank you so much. Yes the order was never submitted to the plan. 

[Effen]

in that case, there is no QDRO so the plan did nothing wrong.  However assuming the divorce decree awarded you half of the participants account balance, you will need to contact your lawyer and sue the participant to get it back.  Just like if the court awarded you the car, but your ex jumped in and drove away.  

[fmsinc]

1st.  Sue your lawyer if you had a lawyer.  It is his/her obligation to finalize the QDRO for you and that means to serve a certified copy on the Plan Administration in a timely fashion or to give a Notice of Adverse Interest/Claim (see below).  Attached find some articles that set forth what has become the standard of care almost everywhere in the US, but I obviously don't know about your state law. The lawyer's malpractice insurance carrier may reimburse you for your loss.

2nd.  Your ex-husband still owes you your share of the money. The QDRO is just a collection mechanism like a garnishment or an attachment.  It is not evidence of your agreement or the court's ruling that you receive your share.  The QDRO is not the document that creates the obligation.   Hire a good lawyer and sue your ex-for contempt.  Ask that he be incarcerated until he pays you. And that he be fined $10,000 a day for any delay in paying you.  Ask for a judgment to be entered that you can use as a basis of attaching and garnishing his other property to satisfy the judgment. Ask for pre- and post judgment interest on the judgment at the official judgment rate.  

3rd.  The type of retirement account is important.  It sounds like a 401(k).  In most plans there is no requirement that a Participant get the consent of, or give notice to, his spouse or former spouse to withdraw the money from his 401(k) when he leaves his job, but that is not the end of the discussion.  Different plans (sponsored by private companies, Federal, state, county, municipal, union and church plans, may have provisions that require such consent or notice.  The Plan may be off the hook, but due diligence by a competent attorney means finding out for sure.  AND, you may just find that they do have such a requirement and that your ex- forged you name to a consent.  It happens more often than you can imagin. You never know when you will find a pearl in the oyster.  See below.

4th  If the Plan had actual notice that he is divorced or that there is a court order that might impact his 401(k) Plan, the Plan documents or their normal cautionaly procedures may provide for notice to the former spouse, or for the consent of the former spouse, or they just may just refuse to release any money until they receive direction from the Court or unless the parties agree.  The preferred practice would have been for your attorney to have sent a Notice of Adverse Claim/Interes to the Plan as soon as the Separation Agreement was signed or as soon as the judge ruled on your entitlement, normally in the Decree of Divorce.  Here are 3 applicable cases on the subject. 

Note that Plan Administrators have a fiduciary duty not only to the Plan and to the Participant, but to the Alternate Payee (that's you).  

 See the 2020 case, Liccione v. Moea Goron-Futcher, No. 3116, September Term, 2018, Court of Special Appeals of Maryland (2020) that you can find at -

       https://scholar.google.com/scholar_case?case=9037414859326378600&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:12484640753426065479:AAGBfm1agvHLwT5aWZ_N6PDZrK7iWFqV8A&html=

        In re: Marriage of Baker, 251 Cal. Rptr. 126, 204 Cal.App.3d 206 (1988)- 
       https://scholar.google.com/scholar_case?case=16441361013389152593&q="notice+of+adverse+interest"+QDRO&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1

        In re: Marriage of Gowan, 54 Cal.App.4th 80 (1997) -
       https://scholar.google.com/scholar_case?case=1596374749324836669&q="notice+of+adverse+interest"+QDRO&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1

Good luck. 

David 

 

JLG Article - It Ain't Over.pdf Malpractive - Lawyer Liability in QDRO Cases - Willick.pdf Shulman QDRO Handbook Table of Contents 2020.pdf Shulman Treatise Table of Contents 2013.pdf Top-QDRO-Mistakes-Attorneys-Make-and-How-to-Avoid-Them (1).pdf

[QDROphile]

Beware looking at any legal authority from California.  California has a very troublesome approach to QDRO procedures and matters that make what happens in California almost useless in other states and the object of contempt from ERISA practitioners and the DOL. The DOL was unsuccessful in challenging California procedure in a “federal” court in the sovereign nation of CA. But the DOL is really weak in QDRO law generally.