Responsibility For Obtaining QDRO

[Guest Freeatlast]

I am covered under a Defined Benefit Plan and I have a rather unusual situation. My date of separation is Sept. 1988...yep...twenty years ago tomorrow. I filed for dissolution of marriage in pro per in 1992. At some point in the process my husband filed a motion to quash because he felt he didn't have enough info re my pension plan. He was given the info he requested by the plan administrator after which he filed for a court date to make the pension an issue. I was improperly served according to the court clerk and his request for a hearing was denied until such time as he executed proper service, etc., which he never followed through with.

During this time my son had been ill for 4 years and subsequently passed on in January of 1993. I been so emotionally drained by all this that I hadn't the energy to resume the divorce issues and my estranged spouse had moved out of the state and deliberately kept his whereabouts concealed from me. I did see him at our son's funeral but naturally there was no discussion of the pending dissolution at that time. Very late in 1993 the estranged spouse contacted me and requested I send him detailed info on my pension plan.

I obtained an actuarial statement and mailed it to him. Sometime in 1994 he called again to discuss the report and to object to the amount of his community portion. I suggested he obtain his own report if he had further issues. From that conversation in 1994 until this past May, 2008 I never heard another word from him and had no idea as to his whereabouts.

During 2003 I became eligible to collect my pension and have been receiving a monthly benefit since then. This past May my plan informed me that the spouse surfaced, filed a Joinder against my benefit and they were required to reduce my benefit by 50% until such time as he was able to come to some kind of agreement with me or obtain a court order/QDRO.

There is a court hearing coming up next month...he filed an Order To Show Cause...he asking for spousal support and attorney fees (we're both in pro per) as well as a share of my pension. We are still NOT divorced.

I'm leaving lots out in an effort to shorten the story but one of the issues we're having now is he is demanding I pay for having a QDRO drawn up as well as threatening to sue my former employer, the plan and me with fraud due to the fact I was allowed to receive my benefit. I know this is an unusual situation but I'm feeling that the responsibility for securing his share of the pension was his. I didn't give too much thought to him over the years but he always knew where I worked, he'd been in touch many times with the plan administrator, etc., yet never made an effort to file a Joinder or obtain any other kind of court order in all those years until this past May.

I would so appreciate any input anyone might have or recommendations of where I can obtain citations re similar cases involving responsibility of alternate payees in these types of matters. Thank you so much.

[J Simmons]

Did you represent to the defined benefit plan when you began taking benefits that you were single? Or are the payouts on a joint and survivor basis with your estranged husband as the second life?

[david rigby]

It may be an obvious statement, but the postings in this Message Forum could provide you some useful background. Also, this summary from the DOL may provide soem assistance: http://www.dol.gov/ebsa/Publications/qdros.html

[QDROphile]

Word "joinder" suggests you are in California, so all bets are off. That said, the division of marital property is part of the proceeding, which is a joint responsibility. Traditionally, the alternate payee (not the pension participant) takes on drafting the domestic relations order, but genereally there is no rule and the the court can decide whose responsibility it is and who pays for it no matter who does the drafting.

I hope that your plan administrator is not a pansy, but I fear the worst (remember, you are in California). The suspension of your full benefit payment pending resolution of has limits on it, both as to amount and as to time. Unfortunately, the amount of time will seem very long. You will be told 18 months, even though that is not really the right answer.

If you are in for a fight, you should try to get an experienced lawyer to help. Most domestic relations lawyers are not up to the task, especially since you might need to take on your plan administrator if matters get drawn out with your spouse. Interview and choose carefully. The court will not help in making sure you get fair treatment. The judges do not understand QDROs even thoguh the California Supreme Court says that they do.

I hesitate to do anything to encourage you to take this on without experienced professional help, but the Department of Labor has a QDRO book on its website and available in hard copy upon request. It is a good resource, but is laking in many ways. And remember, the DOL has challenged the California domestic relations procedures as applied to retirement plans and failed. Perhaps it had someting to do with trying to resolve matters in courts in Califiornia.

[Guest Freeatlast]

Did you represent to the defined benefit plan when you began taking benefits that you were single? Or are the payouts on a joint and survivor basis with your estranged husband as the second life?

This is another part of the *long story*. In 1988 when I left him, I removed him as beneficiary from my health & welfare and pension plans and named my son as beneficiary. I was able to do that because there were no restrictions at that time requiring the insured/plan participant having to receive permission from a spouse in order to do so. When my son died 5 years later I named two family members and they are the current beneficiaries. Again in 1993 one did not have to get spousal permission. When I applied for my benefit in 2003, all the documentation I received included nothing about a spouse. Thus I began to receive the benefit. Now that all this has cropped up I was told that because nothing had been filed with the plan by him throughout the years they were within their rights to pay me. I did not say I was *single* when I applied. It's a strange situation because of the length of time of the separation as well as there not being any restriction on me as to who I could name as beneficiary way back in 1988 and 1993.

So, no I did not voluntarily bring him up as at the time I needed to collect my benefit in order to live and I didn't want to have to search for him. I'd just come off a nearly three year drought of no income. During those years my family helped me survive until my pension benefit came through. Also there were/are other issues involving him. In 1992 under duress he convinced me to sign a quit-claim to our home. He stayed in the family home after I moved out in 1988. At that time he was attempting to obtain a 3rd mortgage on our property and because I was not living with him I refused to go along with that and my wages were already being attached by a Chapter 13 plan as well as the IRS due to previous financial problems brought on because he was self employed and not filing/paying taxes. Even though he made ten times the money I did, those agencies said that because I had a *job* they could attach then I was *it*. Ultimately my wages were attached for 5 years. Thus my refusal to go along with him.

When we discussed the quit claim he assured me that it was *only* for his convenience in handling matters involving the property and that when the property was sold I would still get my share. Well, he lied. Some months later my son informed me that on a visit to the home to see his dad, he stumbled onto an interesting scene. My spouse was in the process of removing all the property from my home (community as well as personal) and had *sold* the home and bought himself a new big rig with the proceeds...and was leaving California. I was crushed, angry, you name it. Sadly my home had been inherited by me, my brother and sister when our mother died in 1977. My siblings let me buy out their interest. So what he did was especially cruel under the circumstances.

Throughout the marriage there had been extreme physical and emotional abuse (he's an alcoholic) and I valued my life more than anything at that time and even though I'd left him, he was constantly making threats on my life to my son and others. In a nutshell, this is why I was not inclined to mention he existed if I didn't have to when it came time for me to collect my pension.

Essentially I let him get away with everything he did because at the time I couldn't reason with him...he's very difficult to deal with, has a trigger temper, makes threats, won't listen to anyone, doesn't believe anything he's told even by experts, etc. I was emotionally drained and feared for my safety. At this time, I have no such fears and I am not going down without a fight if necessary. I was appalled that he even had the nerve to surface after getting a pass from me all those years but I do understand there are laws and he has rights to my plan regardless of my personal issues with him.

Even with all this history I was more than glad to do as my plan administrator suggested and try to work with him. I do want this resolved and I felt that maybe twenty years might have changed him. During these past 4 months he's been attempting niceness and willingness to cooperate but it's all a farce. My last conversation with him consisted of him screaming at me for an hour and a half about various and sundry issues he's hung onto all these years and threatening to lie in court regarding the improper disposal of my home and property. He says I can't prove anything. He's right, I can't prove anything, I can't prove he sold the home without my knowledge, I can't prove he didn't share the proceeds of the sale with me, I can't prove he didn't inform me where he sent the contents of a three thousand square foot house, which by the way he put in storage and then didn't pay the fees thereby all my belongings were sold by the facility. I can't prove anything but I told him I was certainly going to bring it up in court if he has the gall to charge me, my pension plan and my former employer with fraud.

I'm sure what triggered his drastic change in his attitude is that my plan administrator sent him notice two weeks ago that the Joinder must be lifted and my benefit restored because as of today he has not provided them with a QDRO. He was told that if a QDRO is received in the future, they can pay him on a prospective basis only, without interest. So it's really simple on his part to comply but he feels entitled to more than he was told he was entitled to...essentially wants back pay to when I first started receiving my benefit in 2003.

Sorry, I told you this was a long story and the rabbit hole goes even deeper than this. I know the obvious advice is *get an attorney* but I have no means to pay an attorney to deal with this mess. I've already inquired and because so many years have passed since I left him and I truly can't prove certain things, everyone says the case would be considered *complex* and would be very expensive to handle. No legal aid type of organization will touch this either. In the end, it really is financially prudent for me to just let him walk away with his community share. I have two defined benefit plans and the second one will not become effective for another five years so I'd like to include it in whatever QDRO is drawn up as well and not have to revisit all this in the future.

Thank you all for your input. I appreciate it so much. You've been very helpful.

[GBurns]

Try the large local law schools for some help. I have heard that some law schools or professors like to have actual cases for training. Choose carefully even if free and it may be better than no legal advice.

You seem much too accomodating, so I suggest that you stop it. If he wants to get his hands on the money let him do the work. Stop doing it for him and stop giving up things just because he says so.

[david rigby]

... I removed him as beneficiary from my health & welfare and pension plans and named my son as beneficiary. I was able to do that because there were no restrictions at that time requiring the insured/plan participant having to receive permission from a spouse in order to do so. When my son died 5 years later I named two family members and they are the current beneficiaries. Again in 1993 one did not have to get spousal permission.

I don't think this is correct, at least as far as the pension plan. Is it possible your pension plan is sponsored by a governmental agency or church (which may be exempt from spousal permission requirements)?

[Guest Freeatlast]

Try the large local law schools for some help. I have heard that some law schools or professors like to have actual cases for training. Choose carefully even if free and it may be better than no legal advice.

You seem much too accomodating, so I suggest that you stop it. If he wants to get his hands on the money let him do the work. Stop doing it for him and stop giving up things just because he says so.

I appreciate your candor and you are so right-on. I've been told throughout the years that I am *too nice* and that he should be in jail. I think the *accomodating* stems from wanting to get on with my life. The past twenty years have been peaceful even though not easy. Being drawn back into this mess is very disturbing and uncomfortable yet I feel the monster's come out of the closet now and I just want him gone. But you are right, I will let him do the work...actually I decided to do just that a few days ago.

The law school idea is great and I'll start looking into that ASAP.

Thank you so much.

[Guest Freeatlast]

... I removed him as beneficiary from my health & welfare and pension plans and named my son as beneficiary. I was able to do that because there were no restrictions at that time requiring the insured/plan participant having to receive permission from a spouse in order to do so. When my son died 5 years later I named two family members and they are the current beneficiaries. Again in 1993 one did not have to get spousal permission.

I don't think this is correct, at least as far as the pension plan. Is it possible your pension plan is sponsored by a governmental agency or church (which may be exempt from spousal permission requirements)?

My pension plan is the Western Conference of Teamsters Pension Plan and during the years I mentioned, we were able to change beneficiaries whenever we chose. I distinctly remember receiving notification of that not being an option anymore but I need to locate info on the actual effective date but it was definitely after I'd removed him as beneficiary. Nonetheless my requests for change of beneficiary were accepted by the plan with no objection.

[GBurns]

Don't Teamsters members have a legal plan as a members benefit ?

[david rigby]

I'm not aware of an exception to the spousal signoff rules for plans like the Teamsters plan, and the years in question should not be relevant.

Probably reinforces the advice from QDROphile to get legal advice from someone who has (much) more than a passing knowledge of ERISA and QDRO's.

[Guest mjb]

Freeatlast;

1. Since you are not divorced your spouse is entitled to survivor benefits from your plan. Are your receiving benefits as if you were single?

2. If you are receiving benefits as a married participant then you are entitled to receive your full benefit from the plan until you die. Your spouse is only entitled to recieve a benefit after you die. What the plan is telling you is correct. Since your H has not obtained a Domestic relations order he is not entitled to any part of your benefit from your plan until you die. However he could recieve a portion of your pension benefit prospectively if it is awarded by a court as part of a divorce decree. You need to retain consel to repesent you in the QDRO proceeding. I am not going to disucss your rights to his pension.

3. Under a change to federal law effective in 1985 your spouse is automatically entitled to survivor benefits from your pension plan payable after you die unless they were waived by him in writiing. Did he ever waive such benefits before you broke up? It would not be possible for you to remove him as a benefiicary of the pension plan in 1988 if he did not waive the benefit in writing. You could remove him from your health and welfare plans without his consent. His right to survivor benfits could be cancelled in a QDRO.

4. Did a court ever determine that you have been abandoned by your spouse?

[Mike Preston]

Wow, I stop visiting for a while and come back to THIS!

The OP really, really needs somebody to help her through this.

It appears to me that there are a couple of facts that need to be pinned down and I apologize to the OP in advance for sounding a bit condescending.

1) The OP really needs to check the paperwork that was signed when the benefit commenced. I find it a bit unusual that the plan wouldn't have asked her to certify as to her marital status. In fact, a lot unusual. Having a beneficiary designation on file is not enough. Plans will routinely insist that the information be certified to when the benefit commences.

2) The OP needs to get all of the beneficiary designations and scour them for the exact wording which allowed the naming of anybody other than her spouse. As mjb points out, what she is looking for is evidence that he waived his rights to a death benefit and that he did so permanently. But that isn't good enough. Some courts have held that even a permanent waiver is given only with respect to a specific form. So she will want to look not only for the right to name somebody else, but also the right to name somebody other than the person being named (that is, a really permanent waiver).

The above is a discussion of the death benefit that may or may not be payable to the spouse. A bigger issue for the OP is the retirement benefit.

3) If the plan erred by providing a benefit that is larger than it would have provided had they properly taken into account the spouse as beneficiary, then the plan is entitled to recover those "over payments".

4) Notwithstanding whether the plan has overpaid in the past, the plan has now been put on notice that there is a spouse and that there is the potential for that spouse to be awarded a share of her pension. This is the part of this "battle" where the OP has the most to lose, in my opinion. As has already been indicated, the courts won't care very much who gets what. If she leaves it to her spouse to put together an updated report, she is leaving herself open to manipulation. At the very least, she should insist that somebody she hires reviews the report. As has already been mentioned, I think, it is not, technically, her responsibility to have the QDRO drafted. That would typically fall to the non-participant spouse. But as has also been mentioned, the court can order the participant spouse to have it done. In my experience, she is better off just going ahead and getting it done (or updated), paying for it herself and asking the court to have the spouse pay for 1/2 of it. If she walks into the court hearing with that document and the spouse has no report, she stands a 1/2 way decent chance of the judge just saying that her report is the way to go. In the meantime, she might consider authorizing the plan to provide any information to the spouse that is requested by him or his advisors, and make sure he gets a copy of that letter.

And with all that said, since nobody (especially me) knows all the facts, she really needs lawyer to look at this and decide what is the best course of action for her to follow, since the best anybody can do without knowing all the facts is general statements that may help, but may not!

[Guest Freeatlast]

Don't Teamsters members have a legal plan as a members benefit ?

Yes they do but I left teamster employment in 1996 and lost membership status.

[Guest Freeatlast]

Freeatlast;

1. Since you are not divorced your spouse is entitled to survivor benefits from your plan. Are your receiving benefits as if you were single?

2. If you are receiving benefits as a married participant then you are entitled to receive your full benefit from the plan until you die. Your spouse is only entitled to recieve a benefit after you die. What the plan is telling you is correct. Since your H has not obtained a Domestic relations order he is not entitled to any part of your benefit from your plan until you die. However he could recieve a portion of your pension benefit prospectively if it is awarded by a court as part of a divorce decree. You need to retain consel to repesent you in the QDRO proceeding. I am not going to disucss your rights to his pension.

3. Under a change to federal law effective in 1985 your spouse is automatically entitled to survivor benefits from your pension plan payable after you die unless they were waived by him in writiing. Did he ever waive such benefits before you broke up? It would not be possible for you to remove him as a benefiicary of the pension plan in 1988 if he did not waive the benefit in writing. You could remove him from your health and welfare plans without his consent. His right to survivor benfits could be cancelled in a QDRO.

4. Did a court ever determine that you have been abandoned by your spouse?

1. I am receiving what is called a benefit adjustment option whereby I receive a certain amount to age 65 then the benefit is reduced for life.

2. I understand completely what you're saying here. In answer to your last sentence, he has no pension plan. I was the only one covered by pension plans during the entire 22 years 9 months prior to our separation.

3. No, he did not waive anything and I wasn't aware that he had to. The plan administrator allowed me to make the changes. Today I requested information from the administrator as to what the rules were, regarding beneficiaries, when I made those changes. I'm looking forward to their response.

4. We've never been to court. I left him. I filed for dissolution, he blocked it, requested a hearing, served me improperly and the court denied his request until such time as he corrected the improper service. He never followed through with the corrections then soon after, he moved out of the state, I never heard from him and had no idea where he was. I discovered this past May that he filed for dissolution this past January 2008..obtained a new case number etc., as the one I'd filed originally in 1992 was too old to resurrect. We go to court for the first time next month for me to show cause why he shouldn't receive spousal support and attorney fees and costs. I imagine he's requesting spousal support because he knows his Joinder has run its course.

[K2retire]

You said earlier that you can not afford an attorney. With spousal support and your pension as things that you already know he's trying to take (plus your 1/2 of your house, cars, etc. that will no doubt come up later) you can't afford NOT to have an attorney.

Keep in mind that all of those things he's requesting go both ways. So if he now has a pension, a house, etc. you should be asking that they be considered in the property settlement. And you may be entitled to support payments as well.

By the way, how have you managed to file tax returns all these years without knowing his whereabouts or his income? California has some really unusually laws about how to treat income and expenses when you are married, filing separately.

[Guest Freeatlast]

I just wanted to give an update to all who were kind enough to give me feedback last year...maybe someone else can use the info to help with similar situations.

The Teamsters Pension Plan decided that ultimately my benefit had to be re-structured and re-calculated based on the Joint & Survivor option instead of the Life Only/Benefit Adjustment option that I chose. My benefit suspension was in effect for one year in order for the plan to collect the overpayment. So we're back to square one as if I'd informed them of a missing spouse from the beginning. According to them they would not have instigated any kind of search for him, they just would have had me file taking the J&S. The bottom line is I'm forever forced to keep him covered by the Benefit to Spouse option which means he gets one half of my monthly benefit if I predecease him as well as the share he gets due to the divorce. It's costing me $100+ per month to provide this coverage.

In the meantime at the court hearing in October 2008, the judge said one of us had to obtain the QDRO's...the estranged spouse said he couldn't afford to do it...so I retained the services of a QDRO expert. Between October and today, the estranged spouse has filed motion after motion to hold both my plan administrators responsible for him not being notified that I commenced collecting my benefit (from one plan) in 2003 and is asking for tens of thousands of $ in damages and still requesting spousal support as well as attorney fees even though he is in pro per, etc. The judge has repeatedly denied his motions and among other things is trying to encourage him to get on with his life and settle this. It's been nearly 21 years now.

Both pension plans approved the QDRO's and when my QDRO attorney sent them to the estranged spouse for his signature, the spouse altered them and refused to sign. We then went to court again...judge asked him why he's refusing to sign and his excuse was that they're slanted in my favor.

Judge asked us to meet and confer and the outcome was that the spouse does not want his portion of one of the plans to revert to me if he dies before me...claims that's why he won't sign. He's also requested the teamsters plan reinstate suspending my benefit until this is settled which I don't think they're going to do because now they consider his constant filing of ridiculous motions bordering on harassment. My other DB plan administrator has told him that they'll bring charges against him if he continues the nonsense of accusing them of fraud, etc.

It's a real circus attempting to deal with someone who is totally unapproachable, uncooperative, and by his own admission in documents he sent to the court, is receiving total disability benefits from SS based on psychological as well as physical issues,etc. He's literally screamed at the QDRO attorney's legal assistant during a phone conversation...so now they don't want to talk to him. The attorney suggested I ask the judge to *compel* the spouse to sign the QDRO's...I did that and the judge said he 'd reserve comment on that option until he personally read the documents. As of this moment the judge should have the QDRO's in his possession because I had my attorney submit them directly to the court without the spouses signature due to his lack of cooperation (he's been given two chances to sign). Hopefully we'll know very soon what the judge decides and I certainly hope that the judge will not award him spousal support and attorney fees on top of what he'll get from both pension plans.

[Guest Freeatlast]

Update #2:

The judge signed the QDRO's a few months ago. The estranged spouse still hasn't starting receiving his share as AP because we still aren't legally divorced. I understand that until such time as he presents the plan administrator(s) with a bona fide divorce decree, he will not receive any $$. I'm not sure why he, as the petitioner, has not proceeded with request for final dissolution but that ball is in his court and I have no intention to help/encourage him to do anything. For now I'm still receiving my full benefit minus the J&S. I know he's furious about not being able to obtain back-pay...to the date my benefit became effective but by him neglecting to secure QDRO's and allow the divorce to proceed twenty years ago, he pretty much created this problem for himself.