Fighting a QDRO from overseas

[Guest toshie_5@hotmail.com]

My ex-husband and I lived, married and divorced in California. We both now live in Australia (me for the past 10 years). The divorce was handled when we were both living in other countries and there was no official 'marital property agreement'. No argument about property or kids, and an unofficial trade-off for my retirement plans for his sale of the business. Ten years later I get notification that my ex is now going after my 3 plans with my employer in California. I receive in the mail (out of the blue) a copy of a "Notice of Appearance and Response of Employee Benefit Plan" from a QDRO consultants company employed by the employer, stating that the plans are incorrect but providing the correct way to apply. A copy has been sent to exhusbands attorney in California. This is my only asset and I am the sole carer for a disabled 20 year old son who will always live with me. I was counting on this for when I get too old to work, I am now 51. Is the plan now on notice and I cannot move it to Australia quick-smart? I am currently trying to get an attorney in California to help, but I would appreciate any advice from this forum. The plans were worth about 75,000 at the time of divorce and are now worth 140,000. Can he do this after 10 years? Can I move this to Australia? What can I tell the PA to allow me to move it? Help.

[david rigby]

Make sure your attorney is well-versed in QDRO's. The postings on this Message Board may also be useful.

[Mike Preston]

I'm going to challenge your statement that there was no "property agreement." The divorce was finalized with some official writing. That writing might be meager, but if there is nothing else then that writing IS your agreement, as sanctioned by the courts. It might just have a phrase or two that makes it clear that your benefits were to remain yours.

So it is in your best interest to dig up that document and see what it really has to say.

With that said, you of course need legal representation and you need it badly. For you to be out of the country and so far away puts you at a significant disadvantage. But with proper representation that disadvantage should be neutralized.

Once you get a lawyer, see if s/he agrees that you might want to give her/him whatever you have that support your contention that the official, but not documented, agreement was for your ex- to walk away from your retirement assets. I would be surprised if s/he said it wasn't necessary or helpful, but then again, this depends on the actual court order, which might, in and of itself, prove your case.

Good luck.

[Guest toshie_5@hotmail.com]

Thanks for the replies. I'm looking at the divorce papers right now and it says: 'The parties intend to enter into a marital settlement agreement that will confirm all separate assets and obligations'.

I'm sure I have never signed any property agreement. I have contacted the law firm that processed the divorce just to confirm. Never signed anything about the children either but that was never an issue - I knew I would not get child support if he was living overseas. Ex was in the Netherlands and I was still in Calif when divorce went through, and I left for Australia four months later.

California being a community property state, can the court make up a qdro without me signing it?

If I haven't signed anything, can the plan process a qdro?

Can I get the plan to let me move the funds to a retirement plan in Australia (which I was going to do soon anyway) or are they on notice that there is a dispute?

I'm liking the discussion of the doctrine of laches as a defence (at my ripe old age I am getting a law degree). If ever anyone was prejudiced due a late application it is me. Anyone know any San Francisco attorneys?

Cheers

[Mike Preston]

California being a community property state, can the court make up a qdro without me signing it?

Yes.

If I haven't signed anything, can the plan process a qdro?

Yes.

Can I get the plan to let me move the funds to a retirement plan in Australia (which I was going to do soon anyway) or are they on notice that there is a dispute?

I'm not sure that them being on notice means anything in this regard. That is, I'm not sure you can ever move retirement plan assets from a US domiciled financial institution to an Australian one. Maybe there exists a special tax treaty that allows it, but it isn't something that is generally known.

Anyone know any San Francisco attorneys?

There was a list of attorneys posted here just the other day. Have you looked for it?

[Guest toshie_5@hotmail.com]

Yes, there is a treaty. I would pay tax in Australia using some complicated formula based on the amount the plan made while I was in Australia. Fortunately I have an accountant here who is well-versed with rolling US funds into Australian benefit plans. The issue for me I think is whether the plan is already on notice that there is an upcoming dispute and won't release it. As far as I know only a joinder notice has been given to the plan, and they replied that there was no such plan but gave information about how to apply correctly. Can a plan participant change plans in the US in this situation? That is, move from a US plan to another US plan if the plan is on notice of a dispute. If so, I should be able to move it into an Australian plan (maybe)?

By the way, I searched for the SF attorneys, but couldn't find them.

Cheers.

[Mike Preston]

Here's a link to the post. I have no idea whether the information on the list is current or not. It also appears to be a list of attorneys that specialize in litigation, rather than QDRO's. I suppose there are some in there that overlap.

http://benefitslink.com/boards/index.php?s...st&p=152793

I wouldn't limit yourself to attorneys in San Francisco. Anybody in California can deal with anybody else in California as easily as the next.

Your fears are justified. A plan can, and most likely will, delay distribution of your funds once they are aware that there are multiple claims against the money. They would be kind of silly to do otherwise. Nonetheless, they may not. So it is in your best interest to see if they will or won't as soon as possible. I suppose you could just request your distribution. Or, you could recognize they are already on notice and ask them for a copy of their "QDRO procedures" which they should be willing to send you and which may give you guidance on what they will or will not do. As an alternative, you could just ask for a current copy of the Summary Plan Description and, if you are lucky, it will have a copy of the plan's QDRO procedures in there.

Of course, you might want to engage an attorney before doing ANYTHING so that you can be as sure as you can be that you aren't doing something that will jeopardize your ability to get your money.

I don't think there is any one course of action which stands out as THE correct thing to do at this point. That is a two edged sword, of course. It means that you need to decide which one is best and then do it as quickly as you can. Only in consultation with an attorney can you decide which of the options you have available is best.

Good luck.