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MESSY QDRO CASE


Guest babyspider555

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Guest babyspider555

In January of 2005 my ex husband died. We were divorced about five years ago.

I received a letter from his annuity department asking me to sign a waiver for death benefits because I had signed a prenup. I signed the prenup four days before our wedding without legal council. Obviously I started the QDRO process.

The QDRO is about to be finalized. I recently received a letter from opposing council asking me to appear in court as the children of the deceased are contesting the QDRO. He participated in three plans. The plan has recognized me as the alternate payee. What are my chances of winning. Can I send someone to represent me in court. I filed the QDRO with a QDRO firm as opposed to going to a lawyer. This was a very costly process. The court date is scheduled in another state than I live in now. I really dont want to appear in court. I feel very uncomfortable in front of the family.

If I dont show up in court I dont see why this would decrease my chances for

winning this case. Arent ERISA laws on my side.

Please advise so confused.

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Can I send someone to represent me in court.

Yes. An attorney.

This subject is not for amateurs. Don't mess around with them.

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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Guest b2kates

find an attorney but make them aware of the hurwitz v kerr case, prenup signed does not constitute a waiver as only a spouse may waive survivor benefits. believe hurwitz was a NY case.

what is a qdro firm?

if it is valuable enough to fight for, why is it not worth spending the money to find local counsel and appear in the local court?

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I signed the prenup four days before our wedding without legal council. Obviously I started the QDRO process.

Did you start the QDRO process at the time of divorce or at the time of death?

I filed the QDRO with a QDRO firm as opposed to going to a lawyer.

I have never heard of a "QDRO firm", but I thought you had to be a lawyer to practice law? I would assume the QDRO firm has lawyers. If not, this could be a problem. Just because it was expensive, doesn't mean it's worth something.

Arent ERISA laws on my side.

Assuming you have a valid QDRO and are entitled to a portion of the death benefit, you will get what you are entitled to. This may be less than the entire benefit. QDRO's typically only assign a portion of the benefit earned during the time of marriage to the alternate payee. If your marriage was relatively short, this can be significantly less than the total death benefit.

You have a very complex case and I strongly urge you to seek out a lawyer who has good ERISA counsel.

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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Short answer to this mess is that prenuptual agreements waiving benefits under a plan subject to ERISA, e.g., a plan maintained by a private employer, are invalid under IRS reg 1.401(a)-20, Q 28. Therfore you have rights to benefits under the plans as his spouse. You need to find an attorney to appear in court on your behalf. Contact the local bar association for the county in which the court is located to get the name of an attorney who handles divorce and QDROs. Most Bar asociations provide free referral services. When you were divorced 5 years ago didnt your attorney prepare a QDRO regarding the benefit issues? Why not contact him/her?

mjb

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Guest babyspider555

The firm that drew up my qdro is a legal firm. Excuse my ignorance as I am new to the qdro process. They will be going to court for me as they are ERISA experts.

Yes it is definitely worth spending the money to finally come to a conclusion in this case. When I first started this process I decided to go to a legal firm that had expertise in drawing up qdros and who are ERISA experts. When I first started the qdro process I started researching the subject on the internet. Many lawyers do not have qdro expertise and have to hire a firm like this to draft the qdro.

When I signed the prenuptial it was four days before our wedding. I did not have legal council only my ex husband did. Unfortunately at the time when your in love you do not think of these things. A qdro was not entered when we originally divorced. This is the first qdro. It turns out that my ex participated in 3 plans

he was in a very strong union. I have basically educated myself on qdros. I have been reading and reading. From what I read the prenuptial agreement is a state

document and a qdro is federal. I am assuming (and I use that word lightly)

that the prenuptial does not take presedence over federal law.

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Guest babyspider555

From what I am understanding the firm that drafted my qdro is submitting it in the next ten days. The reason why I had my qdro drafted with this firm is that they are erisa experts fully educated in erisa laws, prenups, post mortem qdros etc.

Opposing council for the children is obviously contesting it but what can they really do. I have done alot of research on this topic to the point that I am blue in the face...lol and I do not feel my prenuptial agreement meets with Erisa laws.

According to meet with Erisa laws you must sign a waiver either in front of the plan administrator or a notory while you husband and wife waiving benefits.

I did not do this. No qdro was entered when we were divorced. Obviously my ex husband undermined my intelligence never thinking he was going to die at the age of 55.

Anyone who wants to comment please jump in my mind is like a sponge these days absorbing everything and anything as they say knowledge is power. :D

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You are not going to get any answers on this board. You will get questions or tidbits that may or may not be relevant or helpful. Your situation is too complicated both factually and legally for anyone to reach a reliable conclusion that applies to you. If you enjoy the topic or the exposure, have at it, but you should be getting your information from your lawyer(s) and this is no place for a second opinion.

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Guest babyspider555

I am not looking for any answers on this board. I am well aware of my situation

and have an attorney handling the case. I simply posted the situation just to see what the feed back would be.

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Go back and read your original post and then tell us again that you are not looking for answers.

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Guest b2kates

thought you might enjoy this older article:

Under ERISA the spouse of a retirement plan participant is automatically treated as the participant's beneficiary unless the beneficiary consents to the waiver of his or her rights in a writing that specifies the new beneficiary and is notarized, etc. Along come Toni and Charles, relatively long-term employees of the telephone company and participants in its 401(k) and ESOP plans and relatively long-term partners in a living arrangement they wish to convert to the marital state. Toni is worried because she intended to have her plan benefits be available to pay for her father's care in the event of her illness or death. Not to worry, Toni and Charles go to a lawyer's office and have a prenuptial agreement drawn up in which each agrees that the other can have sole possession of his or her pre-marital property, including interests in retirement plans. There is no question that the agreement was intended to ensure that Toni's benefits would be available to provide for her father. To seal the deal, the document was duly notarized.

A year after the marriage, Toni becomes incapacitated with "mad cow" disease. Charles takes charge of matters by obtaining Toni's power of attorney, which he uses to name himself as sole beneficiary of Toni's retirement accounts. Toni dies and there is a dispute over whether Toni's father or Charles is the proper beneficiary. The court dutifully notes that under ERISA Charles, as spouse, is the presumed beneficiary but that he can waive his rights if certain formalities are observed. Toni's father and her estate pull out the prenup agreement as proof of Charles' waiver. The court agreed that Charles clearly intended to waive his rights and this is what the prenup states. However, it noted that ERISA permits only a spouse to waive spousal benefits and Charles was not a spouse when he signed the prenup. When he was a spouse he never made a waiver; in fact, he obtained a power of attorney and named himself as beneficiary, a clear intent, as a spouse, not to waive spousal benefits. Hence, he wins the lot. It is not clear why the courts are sometimes strict constructionists and other times not. But this court follows the virtually unanimous decisions of others who have looked at the same issue and concluded that a prenup is not a valid spousal waiver for ERISA purposes no matter how clear the intent. You gotta be a spouse before you can waive a spousal right. Hagwood v. Newton, 282 F.3d 285 (4th Cir. 2002).

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Maybe someone could clear up what doesn't make any sense to me about this case:

The man died unmarried. There is no spouse. Shouldn't the death benefit go to whomever he designated?

Isn't the wife's claim based on the divorce? If she is successful in attaining a QDRO, then wouldn't whatever she gets be hers in her own right, not as a beneficiary?

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