QDRO never filed, divorce finalized 12 years ago

[Denise050512]

My husbands first marriage ended in divorce and finalized on 3/2/10.  His ex wife never filed a QDRO in Pennsylvania and now has contacted an attorney to start the process.

 

Because of her untimeliness, what are my husband's rights?

[QDROphile]

While ERISA is based in equity, and it may be possible to asset a defense of latches, I suspect the question will be answered in the domestic relations court based on the applicable domestic relations law.  If that court issues a domestic relations order, I do not think the plan will entertain any objection because of timeliness. However, if circumstances have changed, the plan will refuse to qualify an order that requires the plan to take an action or provide a benefit that the plan is not designed to do.  Sometimes it is impossible to implement the exact original terms because of a change in record keepers or other loss of original relevant data, such as plan balances at the time of the divorce. A domestic relations judge might not look kindly on having to reformulate the order to effect the approximate original terms when the responsible party was dilatory. As a rough approach to the question, I would ask why shouldn’t the original award be implemented, even if 12 years later? What about the settlement and award is now improper or unfair?  Many QDROs do not have an actual effect or payment until years after a “timely” entry and qualification.

[fmsinc]

There are two issued.  First is whether the trail court will enter a QDRO 12 years after the entry of the divorce?  Second is whether or not, even if the QDRO can be entered, can benefits be lost due to the delay? 

There are some states that impose a statute of limitation on how long you have to submit a QDRO after divorce. 

There are some states that adhere to the doctrine of laches mentioned by by QDROPhile where there is a delay by one party that causes hardship to the other party. 

There are some states like my home state of Maryland that treat a QDRO as an enforcement tool, like a garnishment or an attachment, and there is no limit to when a QDRO can be entered.   

There are some states where the ability to file a late QDRO depends on whether or not the Judgment of Divorce reserved jurisdiction for the entry of QDROs.  

Aside from all of that, if the Plan involved falls under the Federal Law ERISA that covers most private company plans, and if you and your husband married and he then retired, then notwithstanding the entry of a QDRO, the survivor annuity benefits will not be enforceable since you, the new wife, will be entitled to such benefit.  See See the 1997 decision of the US Court of Appeals, 4th Circuit,  in  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:

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. 

Depending on the nature of the Plan the former spouse may have lost survivor annuity benefits by reason of remarriage prior to a certain age, often 55 as in the Military and FERS and CSRS . 

In some plans, like the Military, the failure of a Former Spouse to file certain paperwork - DD-2656-10 - within 12 months after the divorce will result in a loss of survivor annuity benefits. 

Some plans may have failed and been taken over by PBGC where the amount of benefits is will be reduced.  

In come cases, if the Plan Administrator (OPM for example)  knows about the Judgment of Divorce awarding pension benefits, even through no Order has been filed, the Plan will not start to Pay pension benefits to the Employee until the matter is resolved.  The divorce is often communicated to the Employer as the reason for the Employee cancelling his health insurance coverage.   

We have approximately 175,000 pension and retirement plans in the USA, 163,000 are under ERISA and another 12,000 or so are under various Federal, State, County, City Municipal and International plans.  They don't all have uniform rules and procedures.  Federal law normally preempts state law, but not always.

So to give you a more accurate answer, your lawyer will need to know the exact plan involved and have a detailed timeline. 

BTW, the ex-wife's lawyer is guilty of malpractice almost everywhere.    

Good luck.