"lost" QDRO

[Guest DaveR]

I've read this forum as best I can and appreciate all the time and effort some of you have taken. I have not found another incident similiar to the one I find myself in.

My wife divorced her 1st husband in 1990, a DRO was drafted and sent to his pension. In May of 1991 A QDRO was entered with court. Wy wife recieved a copy of the signed stamped order and letters from her attorney to both the plan administrator and opposing counsel. In his letter to her he states...."please find enclosed a conformed copy of the QDRO which has been signed by the Judge. Please be further advised that we have sent the pleading on joinder of the pension Plane via certified mail to Primerica. We arealso sending a conformed copy of the QDRO th the plan administrator".

My wife's ex husband died of cancer last November and when she went to inquire about her half of the pension she was told that the pension plan had no record of her QDRO. She forwarded a copy of the QDRO and was sent back a form letter saying "Domestic Relations Order Reciept Denial Attachment" with the reason that the participant has commenced the pension benifit and there is no further benifit from the plan.

The funds were rolled into a trust and the trustee acknowledges he has the funds but states my wife needs to go get a court order. The attorney who handled her case says he did everything right and that going to court is a better and cheaper recourse then sueing the pension plan. He is checking since he's not a probate attorney who if anyone you could serve since the ex husband is dead. My understanding (please correct me if I'm wrong) is that the pension has a clear ERISA violation if they did in fact receive a valid QDRO. As a former trustee in a pension plan I know the penalties for violations are not small.

Thank you for any and all who read this, thoughts and suggestions are appreciated. It will take a minimum of $5,000 or so to get the requested court order. Assuming valid service is possible is this a worst case or would litigation ensue even here. My concern on "proof of service" is that apparently this dragged on from the May, 1991 QDRO until April of 1992. Is is possible her attorney "dropped the ball" or is this ongoing exchange proof enough? To further complicate things the ex father in law was an officer of the company in question and personally visited the plan administrator to faciiltate getting a finalized QDRO (this is documented).

We know the funds are in a trust and assuming we have valid proff of service can we compell the pension fund to reclaim the funds from the trust or compell the trust to release the funds using the current (assumingly valid QDRO). What is the best way to check if the QDRO we have is valid or see if it was ammended/challenged after May 1991?

[Effen]

This may be a stupid question, but why doesn't your wife or her attorney have a copy of the approved QDRO? If neither of them do, is it possible the although the DRO was discussed, it was never "qualified" by the Plan Administrator?

Typically the DRO is signed by both attornies and the judge, then forwarded to the PA for approval. The PA generally sends a letter to both attornies either stating that the DRO is "qualified" or stating that it is not and provides the reasoning. Is it possible that the DRO was sent to the PA, but the PA never responded?

My wife's ex husband died of cancer last November and when she went to inquire about her half of the pension she was told that the pension plan had no record of her QDRO. She forwarded a copy of the QDRO and was sent back a form letter saying "Domestic Relations Order Reciept Denial Attachment" with the reason that the participant has commenced the pension benifit and there is no further benifit from the plan.

Was her ex husband receiving a benefit when he died? Was he receiving benefits at the time of their divorce? Did she ever request her payments to commence under the terms of the QDRO she thought was in effect?

[Guest DaveR]

This may be a stupid question, but why doesn't your wife or her attorney have a copy of the approved QDRO? If neither of them do, is it possible the although the DRO was discussed, it was never "qualified" by the Plan Administrator?

Typically the DRO is signed by both attornies and the judge, then forwarded to the PA for approval. The PA generally sends a letter to both attornies either stating that the DRO is "qualified" or stating that it is not and provides the reasoning. Is it possible that the DRO was sent to the PA, but the PA never responded?

My wife's ex husband died of cancer last November and when she went to inquire about her half of the pension she was told that the pension plan had no record of her QDRO. She forwarded a copy of the QDRO and was sent back a form letter saying "Domestic Relations Order Reciept Denial Attachment" with the reason that the participant has commenced the pension benifit and there is no further benifit from the plan.

Was her ex husband receiving a benefit when he died? Was he receiving benefits at the time of their divorce? Did she ever request her payments to commence under the terms of the QDRO she thought was in effect?

The "QDRO" I have is signed by both attorney's, both parties and the judge and entered into the court record as a QDRO. My understanding is that the PA did respond and changes were made to the original DRO. I'm not sure if what I have is the original DRO or the finalized version. The QDRO was drafted by the husbands attorney. My wifes attorney says that any blame if things were not done correctly is his reponsibility. So far he has produced no documentation beyond the original copy of letter to the plan administrator he provided my wife in 1991.

Danny died in his 50's. My wife asked him if he was retiring when he the cancer reappeared. He told her he needed to keep working to keep[his benifits for treatment. My wife was a bit naive obviously and this was the one area I stayed away from. Her atorney had told her that under the QDRO he was the only one who could initiate benifits and her funds were segregated by the QDRO. The truth is that he removed the funds and rolled them into a different account (trust fund) as soon as he hit 55.

right now it appears my wife and I have 3 avenues to pursue....

1) The funds are in the trust, can we seek recovery?

2) Is this a failure to administer the QDRO?

3) Did my wifes attorney drop the ball? He has corespondence from the PA on the DRO/QDRO. I just dont know if the PA ever accepted the order. The DRO stipulates that the funds be seperated if there is any issue.

My wifes attorney is now billing us for help on resolving this and focusing us on the trust. He has initiated no contact with the citigroup (current PA) at all. I originally contacted him for "proof of service" on the QDRO since citigroup claims they have no record of it prior to my wife sending it. what obligation (if any) does he have to help us redress this issue?

[Guest mjb]

Since you wife is a beneficary under the plan a simplier, cheaper route is to file a claim for benefits under the plan's claims procedure and attach a copy of the QDRO. The plan will review the claim and either approve or deny the claim. If the claim is denied the Plan admin must provide the reason under the under the terms of the plan. Submitting a claim merely requies sending a letter to plan admin. stating the reasons why the benefit should be paid. The reason for denial can be appealed to a court if it conflicts with the terms of the plan.

[Effen]

good answer!

[Guest DaveR]

Since you wife is a beneficary under the plan a simplier, cheaper route is to file a claim for benefits under the plan's claims procedure and attach a copy of the QDRO. The plan will review the claim and either approve or deny the claim. If the claim is denied the Plan admin must provide the reason under the under the terms of the plan. Submitting a claim merely requies sending a letter to plan admin. stating the reasons why the benefit should be paid. The reason for denial can be appealed to a court if it conflicts with the terms of the plan.

Thats exactly what we did, the claim was denied. The "ex" withdrew the funds and the pension denied the claim on that basis. They did/do not acknowledge any contact prior to late 2006. Basically they said no QDRO is on record from 1991. The attorney for my wife filed a pleading for joinder via certified mail to Primerica and copied the plan administrator. The plan (Citigroup{hewitt}) is simply refusing any/all involvement beyond the initial denial (you cant even get a person on the line).

My understanding is that if a true QDRO is in place then an ERISA violation exists with regrad to administering the QDRO. If in fact no DRO was qualified then the ERISA statute has expired. At this point I'mconsidering legal action against the pension fund, attorney and estate of the ex-husband and let the court resolve things.

[Effen]

The DRO could not have been a QDRO unless the Plan Administrator said it was "qualified". Do you have anything that states the DRO is actually a QDRO?

It sounds like you have copies of the DRO and you are trying to prove it is a QDRO. Is that correct?

[Guest DaveR]

I'm not an attorney. It is very possible that the attorney involved is not well versed in the realities and that he failed to adaquatey protect my wifes interests. He believes he has a valid QDRO, based on my understanding that may or may not be true. He says verbally he has a letter from the PA agreeing to a revised DRO. I have not seen that documentation, based on how he's handled things currently I am not certain that the DRO was actually ever qualified. I'm in the process of securing the case documents for review. If in fact he has a qualifying letter from the plan I'm at a loss why he hasnt pursued the matter with the plan....or forwarded a copy to us.

[Effen]

I'm not a lawyer either but if the attorney has a letter from the PA agreeing to a revised DRO, this would seem like a fairly easy claim on your wife's part. If nothing else, it would prove that the plan at least knew a DRO existed prior to 2006.

[Guest DaveR]

I'm not a lawyer either but if the attorney has a letter from the PA agreeing to a revised DRO, this would seem like a fairly easy claim on your wife's part. If nothing else, it would prove that the plan at least knew a DRO existed prior to 2006.

I think the attorney has a letter from the PA denying the DRO as written. He has indicated to me two points that appear to be factually incorrect....

1) his believe that the burden is on the PA and that her response is "proof of service". My understanding is that the burden lies with him. The PA has final authority on "qualifying" the DRO. I have no proof as of yet that the pension was actually "joined" or that a qualifying letter was ever issued by the PA.

2) his contension that since the other attorney drafted the "QDRO" he has final responsibility for any errors or omissions. My understanding is that as attorney for the AP he has full responsibility for protecting her interests.

While he does have proof that the PA did in fact receive the "original QDRO" I dont know if that creates any grounds for action under ERISA if in fact he didnt follow thru.

[Mike Preston]

From what you have described, it sounds like your wife's attorney "assumed" certain things and the assumptions were incorrect. He may have more information than what you have indicated. Certainly your claim with the company would have been better served had that information, if it exists, been forwarded with your claim. Should you appeal, you should ensure that all information favorable to the claim be submitted. For him/her to be billing you now to clean up the mess it appears that he might have created by assuming a DRO he forwarded to them would be accepted even though he has no proof that they not only received it but opined as to its acceptability as a QDRO seems a bit weird to me. Perhaps you can come to an agreement with him as to the issue at hand before you render payment? If he is uncooperative, it may be that you will need independent counsel.

[Guest DaveR]

From what you have described, it sounds like your wife's attorney "assumed" certain things and the assumptions were incorrect. He may have more information than what you have indicated. Certainly your claim with the company would have been better served had that information, if it exists, been forwarded with your claim. Should you appeal, you should ensure that all information favorable to the claim be submitted. For him/her to be billing you now to clean up the mess it appears that he might have created by assuming a DRO he forwarded to them would be accepted even though he has no proof that they not only received it but opined as to its acceptability as a QDRO seems a bit weird to me. Perhaps you can come to an agreement with him as to the issue at hand before you render payment? If he is uncooperative, it may be that you will need independent counsel.

My attorney here (PHX) feels this is clearly malpractice. His perspective is that the attorney in question did not meet the minimal professional standard in representing my wifes interests as the AP. If the situation was beyond the scope of his knowledge of the law he had to bring in suitable expertise or withdraw from representation in that regard. The fact that he clearly represented to her that this portion of the case was "concluded" when in fact he had actually not even received an initial response from the PA demonstrates his lack of understanding of the complex issues. I'm currently discussing the issues with a CA attorney with expertise specific in this area.