Bankruptcy and No QDRO in place

[Guest MJAnderson]

I have a question for anyone who might be able to help. 2 people divorce. Court orders percent of PP to ex-wife. Her and attorney sends in DRO and the PA declines it and gives them X amount of months to re-submit. Ex and her attorney do nothing. Ex goes and files for bankruptcy 1 year later

(after divorce) and does not file exemption on her portion of pension?

12 years later, ex is back in court and wants the state judge to amend or modified DRO.... How would that work out? Can she still do that? What about not claiming exemption on bankruptcy? Would this fall under Anti-alienation provision in the fact that :

ERISA states this:

One of the very few exceptions to ERISA's Anti-alienation format was provided by congress in the 1984 amendments to ERISA known as the retirement equity act, and codified as 29 U.S.C 1056 (d)(3)(A). This exception established Qualified Domestic Relations Orders, called QDRO's.

The section distinguishes between NON-Qualified Domestic Orders WHICH ARE NOT EXEMPT from anti-alienation under ERISA, and Qualified Domestic relations orders, which are exempt.

If Not What do you do with the fact that there was no QDRO... (and still isn't) Ex filed Bankruptcy without exemption of her portion of pension....and now wants a judge to reinstate a new order?

Thanks in Advance

[QDROphile]

You are being too clever by half, as the Brits would say. The pension is protected from creditors, so the pension was not affected by the bankruptcy. The failed or tardy domestic relations order is irrelevant to the bankruptcy and vice versa. Separately, the failed domestic relations order did not provide an interest to the former spouse under the pension, except a right to amend in a timely manner, which did not occur. If the former spouse wants to take another run at it years later, the former spouse will have to get through the state court first, and state courts do not always keep the door open forvever, especially when someone is dilatory. If the new or amended order gets through the state court, the plan administrator should be indifferenct to the delay and should follow the order if it qualifies. However, if things have changed, such as the participant has remarried or retired, the former spouse has to deal with the new circumstances at the time of the order and may be more limited in what is available under a QDRO compared to the time of the divorce.

[Guest mjb]

I have a question for anyone who might be able to help. 2 people divorce. Court orders percent of PP to ex-wife. Her and attorney sends in DRO and the PA declines it and gives them X amount of months to re-submit. Ex and her attorney do nothing. Ex goes and files for bankruptcy 1 year later

(after divorce) and does not file exemption on her portion of pension?

12 years later, ex is back in court and wants the state judge to amend or modified DRO.... How would that work out? Can she still do that? What about not claiming exemption on bankruptcy? Would this fall under Anti-alienation provision in the fact that :

ERISA states this:

One of the very few exceptions to ERISA's Anti-alienation format was provided by congress in the 1984 amendments to ERISA known as the retirement equity act, and codified as 29 U.S.C 1056 (d)(3)(A). This exception established Qualified Domestic Relations Orders, called QDRO's.

The section distinguishes between NON-Qualified Domestic Orders WHICH ARE NOT EXEMPT from anti-alienation under ERISA, and Qualified Domestic relations orders, which are exempt.

If Not What do you do with the fact that there was no QDRO... (and still isn't) Ex filed Bankruptcy without exemption of her portion of pension....and now wants a judge to reinstate a new order?

Thanks in Advance

12-13 years is a long time for an employee to remain employed (unless he is in a government job) and he may have cashed out his pension benefit, retired, remarried and maybe even got divorced again, all of which would have an effect of ex spouse's ability to claim the benefits ordered in the divorce. In addition state law may prevent modification of the court order after such an extended delay.