QDRO From Hades

[david rigby]

I think the $14K was from the 401(k) plan and the ~$5K applies to the pension plan. In keeping with Mike's interesting suggestion, remember that a QDRO can cover more than one plan, so your legal counsel may be able to deal with both plans, both amounts in one order.

[Guest papillon]

(snip)

But there is another alternative you can consider. And while this may not be something you look forward to doing, it may be in your best interest. YOU might be able to go into court and get a combination order: first, a QDRO which is payable from the plan to your ex-spouse for the amount that she is theoretically still due ($~5,000); second, an order from the court indicating that you should be awarded that money in partial recompense for the existing order that you have.

( snip)

Mike - we think along the same lines. I had wondered if I could get a combo order to assign the proceeds of a Pension QDRO to me. But I don't think that I can do anything until I can serve her with process.

My lawyer - to his credit - seems reluctant to take anymore of my money for judgements that can't be enforced. This is after he recieved $14,000 for the divorce, motion to modify, Order and Judgement of Contempt (QDRO) and too many Orders of Protection to count. At this point, much of what I'm considering is Pro Se - given the relatively low risk / reward.

You're probably right about her popping up at a later date. 15 years from now - I'll recieve notice that a QDRO has been executed against my Pension without any notice, and $150,000 was incorrectly disbursed. :-) I would think it impossible, but...

In any event, I've filed an application with the Division of Child Support Enforcement requesting a Locator service and Motion to Modify Support. (They advise a minimum 12 month turn around.) If I get her located, I can consider filing (Pro Se) a garnishment regarding the judgement - or attempting to get a law enforcement agency to execute one of the several warrants she has. You'd be surprised at how reluctant the police are to execute a non-felony warrant in Missouri.

Largely, I'm trying to move on. This is a non-productive part of my life - and I need to resolve myself to the likely fact that she stole a chuck of my 401K that will never be returned, and she will never contribute to her son's support. I struggle with AT&T, Fidelity and the Judge's role in this - but there's nothing to do about that either.

And for those of you that can appreciate it... Celebrating more positive news - I just ran a 2:02:57 Half Marathon here in St. Louis. (Giving myself pat on the back.)

[Chaz]

I'd be interested to learn whether there is any update to this saga.

[Guest papillon]

I'd be interested to learn whether there is any update to this saga.

I'd be interested to learn whether there is any update to this saga.

Chaz - I'll bet your're the kind of person that stops to look at car accidents too... (Just kidding)

Strictly regarding the QDRO - the following occurred:

Fidelity denied my ERISA claim - arguing that they had merely qualified a court order signed by a judge. And that the fraud by Ms. Davis or lack of adequate judicial oversight did not create a liability on their part. Furthermore, their obligation to provide notification was limited to putting the letter in the mail. Failed deliver did not create a liability. I generally agreed with this response. Pretty esoteric arguments could be made that they were not particularly prudent in their practices - but I doubt that a Federal judge would have sustained my arguments.

Subsequently, out of spite - I lodged a judicial complaint against the Circuit Judge who signed the fraudulent order - alleging that his conduct constituted a pattern of negligence. (I think I used the phrase "witless execution") After some back and forth, the MO Commission for the Retirement Removal and Discipline of judges agreed that the Judge had made several judicial errors. The judge accepted and signed an order unsigned by any of the parties in violation of Missouri Civil Procedures. The judge did not note or think odd that a party represented by counsel would hand deliver a drafted of a DRO without the presence of either counsel - something that just doesn't happen in Family court in St. Louis County. However, the Commission ruled that the Judges errors were not of a frequency or severity to justify official action. This was an expected outcome - but I did have the satisfaction of calling a Judge witless without serious and immediate consequences. My attorney did get a call from the judge privately though - poor Lee...

Finally, Ms. Davis was found guilty of Civil Contempt and Ordered to pay $18,000 back at $450/month or be jailed for contempt. She paid approximately $1000 and then discontinued payments. She was arrested at her employer and spent 5 weeks in jail. Over the course of the 5 weeks, the judge successively lowered her bond from $18,000 down to $2,000. Her family eventually paid the $2,000 bond - and Ms. Davis then fled the state of Missouri. The $2,000 just covered my attorney's expenses in the Contempt proceedings.

A year or so later, Ms. Davis (from whereabouts unknown) did fax to the court another unsigned, self drafted DRO for a disbursement of my Pension. However, Judge Siegel, a more competent instance of a family court judge, notified all parties and refused to sign the document until all attorney's had first signed it. We never saw any other action on this matter.

Finally, I just last month accepted new employment with a pharmaceutical company. As a result of this transition, I'll be rolling what's left of my 401K and Pension into a roll-over IRA. Technically, Ms. Davis may still have a marital interest in a portion of the Pension; however, after the rollover - it will be impossible (I believe) for her to qualify any DRO against a disbursed Pension / 401K. She'd have to go back to court - something that would probably not go well for her.

It would be worth noting that in the LARGER context - the following happened.

After Ms. Davis fled the state - approximately 9 months went by without any contact with her son. She ultimately turned up in California and asked to have a visit with him. After much wrangling - and the offering of assurances - I permitted the visition. This was an unfortunate choice - as she did then refuse to return him from California.... The police were unsuccessful in negotiating his return and requested a Felony Interference of Custody Charge from the St. Louis County Prosecutor. A week or so later - perhaps at the direction of counsel - Ms. Davis returned our son.

Over the next year - I petitioned for a motion to modify that would require supervised visitation and child support. Ms. Davis retaliated with a flurry of pro se paper. She filed a motion to vacate the several year old Order and Judgement of Contempt on the grounds that it wasn't fair. She filed a petition for a Domestic Violence TRO in California - on the grounds that my actions were harassing her and she should be given custody of Ethan in California.,. She opposed my motion to modify on several grounds. I presume she was the author of an anonymous complaint to DFS alleging physical abuse.... On and on.

I spent about $5000 getting my Motion to Modify through and another $5500 defending against the frivolous TRO petition in California and other actions. I have prevailed in all actions involving Ms. Davis - and am no better for it. One cannot win against an indigent litigant content to file pro se petitions frivolously.

Presently, Ms. Davis still owes about $18,000 on the Order and Judgement of Contempt and $1800 in back child support - which continues to accrue at $450/ month. She has multiple misdemeanour's warrants for bounced checks and failure to appear and my attorney will remove the stay in the Contempt Order in October - resulting in another warrant. (The Police dropped the Felony warrant after Ethan was returned.)

Key Lessons:

1) Obviously - marrying the wrong person can be a life changing event.

2) ERISA's reliance on the state judiciary to supervise DRO's is troubling. In St. Louis county - Judge's rely almost completely upon attorney's to draft orders and ensure that everything is correct - as attorney's have liability to the Bar and through malpractice. An indigent pro se litigant has no liability and no interest in maintaining the integrity of the court. Judge's need to be minimally aware of their surroundings...

3) Indigent Pro Se Litigants / Frivolous litigation can be a curse. In some States - after an excessive amount of litigation - a party can be labelled a Frivolous litigant and slowed a bit. Missouri is not one of those state.

My strategy moving forward is to continue to pile up judgements and warrants - in the hope that Ms. Davis will simply move on to whatever else interests her - and leave me and my son alone. I'm not terribly hopeful - but its the best strategy that I can imagine - under the present circumstances.

Cheers,

Papillon

[Mike Preston]

Thanks for the update. You have, no doubt, the collective sympathies of everybody here.

Be aware that every financial institution has their own rules regarding the disposition of IRA monies. And while an ERISA-based Qualified Domestic Relations Order should be limited to qualified plans such as 401(k) plans, it is quite possible that a financial institution would "honor" such a document. Even if they say they won't today, there is the distinct possibility that the rules which govern qualified plans could be extended, someday, to IRA's on a national level. So, whether or not the financial institution you select makes it seem that history cannot repeat itself, you still might want to put them on some kind of notice.

[Guest papillon]

Thanks for the update. You have, no doubt, the collective sympathies of everybody here.

Be aware that every financial institution has their own rules regarding the disposition of IRA monies. And while an ERISA-based Qualified Domestic Relations Order should be limited to qualified plans such as 401(k) plans, it is quite possible that a financial institution would "honor" such a document. Even if they say they won't today, there is the distinct possibility that the rules which govern qualified plans could be extended, someday, to IRA's on a national level. So, whether or not the financial institution you select makes it seem that history cannot repeat itself, you still might want to put them on some kind of notice.

Mike - thanks for the advise.

Best Regards

Bjorn

[K2retire]

MIke, while your point is valid, hopefully she won't ever learn what financial institution to contact!

[mbozek]

Thanks for the update. You have, no doubt, the collective sympathies of everybody here.

Be aware that every financial institution has their own rules regarding the disposition of IRA monies. And while an ERISA-based Qualified Domestic Relations Order should be limited to qualified plans such as 401(k) plans, it is quite possible that a financial institution would "honor" such a document. Even if they say they won't today, there is the distinct possibility that the rules which govern qualified plans could be extended, someday, to IRA's on a national level. So, whether or not the financial institution you select makes it seem that history cannot repeat itself, you still might want to put them on some kind of notice.

What benefit would be gained by imposing the cumbersome procedures of QDROs on a plan where there is no fiduciary, in place of the procedures in IRC 408(d)(6) which permits the IRA owner to authorize a transfer of IRA funds to the spouse on a non taxable basis? The custodian of the IRA as a non fiduciary merely follows the direction of the IRA owner and the divorce decree and a records the transfer as non taxable event creating an IRA interest in the spouse. The custodian would never agree act as a fiduciary to determine the validity of the DRO unless it received a substantial fee for the work involved which would be paid from the IRA.

[david rigby]

What benefit would be gained by imposing the cumbersome procedures ...

Are you kidding? "Cumbersome" is irrelevant. This is the very essence of Congressional legislation!