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?
