QDRO/Disability

[Guest onesassyone@peoplepc.com]

Hi, I'm new here and appreciate the chance to ask some questions.

My husband has an ex-wife. At the time the court issued the Final Divorce Decree, the Judge divided the pension (Defined Benefit) based on the fact that he began receiving a full pension at 51 due to disability. Since this is California, she ruled that the portion above what he would have received if he had retired early was his separate property. We tried from 2004 until Jan. 07 to get ex and her attorney to issue a correct QDRO but they kept sending a model obtained from the Union that divides the benefits earned during the marriage equally. We have tons of letters to the ex and her attorney explaining the problem and one from the attorney for the Union explaining how the pension should be divided based on the court order but we had no luck getting a QDRO issued that properly divided the pension according to the court order.

In Jan. 07, we were in court (she now wanted spousal support but was not successful as it's been nearly 10 years) and at the end of the hearing, her attorney said my husband was refusing to sign the QDRO. Without reviewing how she had divided the pension and without reading the QDRO, the Judge signed it. HUGE SHOCK! Particularly because this Judge has always seemed pretty reasonable. Of course, the ex sent it to the Union and they immediately began withholding the entire 1/2 earned during the marriage from his pension because even though it doesn't follow the court order, it does qualify. This has been going on for months but so far we have been able to get the Union to segregate the monies until the court rules on this as we filed an OSC in July. Unfortunately, her attorney got a continuance until later tihs month.

We supplied the court with all the documents showing both the ex and her attorney knew the QDRO did not divide the pension correctly in the OSC and we wondered how they were going to explain this to the Judge. Instead, we received a Points and Authority response from her attorney that says it's a "Reconsideration" of an order made in January and that according to CA law, we only had 10 days to ask for a reconsideration. It is our understanding that since the court retained jurisdiction over the pension indefinitely that we can go back at any time over issues related to the QDRO. Are we wrong?

This is the last issue in a very prolonged and expensive divorce. Fortunately, my husband has had custody of his now 18 year old son all this time due to issuesI don't need to go into here. Unfortunately, even though she bankrupted $49,000 in attorney fees to her attorney, he is back representing her and he is not reasonable at all. He has a rep for dragging his cases out for years, which we have learned from experience is true. He did not even respond to the issue of the QDRO being issued incorrectly (we have asked the court to vacate it and start over) but says my husband is in violation of CCP 1008 and wants sanctions based on CCP 128.7.

Obviously, we do not have an attorney. We spent more than $100,000 on this case and can no longer afford one. However, I worked closely with my husband's attorney (even assisting him during trial with exhibits since I put the exhibit books together) and I'm pretty good at reading and understanding the law for some weird reason so we've been doing okay on our own. I have written many briefs that were checked by the attorney and okaye but I recognize I am not an attorney. Now we're wondering if we have made a huge mistake because we didn't file a request for reconsideration within the 10 days.

We are also wondering if we have any basis to ask the court to revist the issue of the pension and how it was divided because we believe the disability is not early retirement but is meant to compensate him for pain and suffering and future loss of earnings until he reaches age 62 or normal retirement age. We'd like to see the court give the ex 1/2 once he reaches 62 and nothing until then. I understand about the cases the court used to divide the pension (Stenquist and Justice) but a case involving a CA pension in North Dakota made it all the way to the ND Supreme Court in late 2004 and they ruled using CA pension law that disability is not early retirement so it is the separate property of the P and does not become a longevity pension until the P reaches normal retirement age and is then community property (In re Striefel). This is not a CA case, of course, so it may not matter but any opinions as to whether we have any chance of raising this issue with the court?

My biggest question is what is means when the court retains jurisdiction over a matter such as the pension. Are there statutes or caselaw we can refer to that will offset the ex's claim that we are asking for reconsideration? I've searched and searched under jurisdiction to find out how to proceed but come up empty. Any suggestions?Thank you!