bad QDRO please help!

[Guest kai2]

I am on an industrial disability pension. My attorney and my spouses attorney decided on a QDRO and a QDRO drafter; both sides split the cost. Mistake.

The drafter sent a copy of the DRO to the Plan Administrator without my counsel even having seen it. Suffice to say it's all worded for my spouse and not for me (although a memo provided me and my spouse by the drafter would make you think otherwise)... and written so vaguely that my Industrial Disability might be taken. Granted, there is plenty of California case law against this happening, but Judges here haven't been using that case law until appeals!

So, I'm in a pickle. What do I do? Can I contact the Plan Administrator myself and give them the memo/DRO summary that I got from the drafter of the QDRO that clearly shows the intent of the QDRO was to divide my service retirement and not my IDR? If only that memo was what the drafter actually put in the DRO!

I fear there was collusion behind the scenes.

What can I do?

[Mike Preston]

What does your attorney say?

[J Simmons]

Has the DRO been signed by a state court judge?

[Ron Snyder]

The remedies for this may involve going after your attorney for malpractice.

[Guest Sieve]

If, in fact, your counsel has not seen the DRO, then on what basis is it a QDRO? As implied by John a few posts ago, a QDRO has to start with a DRO that is made pursuant to a state domestic relations law, and I don't know how there can be such an animal without a judge's OK (which would almost always require both parties to agree to the DRO's terms).

[Guest kai2]

Sorry for the terminology issue...

The issue is not about a QDRO... yet. The DRO has been sent to the Plan Administrator, but it has not yet been approved by the PA.

My attorney has said that we will meet to talk in person later in the week. What will happen then? Anyone's guess...

Am I correct in thinking that a DRO is usually at least shown to a client before it is sent to the PA?

This DRO was written exactly as the Plan instructed me it shouldn't be written if we were to deal with my IDR correctly (using state case law). The summary of the DRO seems to adhere to that case law, but not the DRO itself. In one line the DRO says my IDR is community property and in the second line it says Disability Pension is not; I'm praying this possible discrepancy gets the DRO rejected by the PA.

This is what I've heard from other people who have retired in my pension system... A DRO is written that cuts IDR 50%... in this state, there is case law saying that shouldn't happen (Stenquist), but no written statute... the DRO gets to the PA... since there is no written law about IDR, the DRO is accepted by the PA... the pension cuts the monthly check in 1/2 until the case is "judged"... the "member" on IDR does not sign the DRO because it doesn't follow Stenquist... the non-member spouse finally takes the DRO to a Judge and gets it signed under the guise the "member" spouse is being unreasonable and agreed to the DRO.

What a mess.

[GMK]

Writing on a paper isn't a DRO until it's signed by the judge. It is common (and generally wise) to send a draft of the proposed DRO to the Plan to find out if the Plan finds anything in the draft that would prevent it from being qualified, so you can fix it before taking it to the judge. The Plan determines if a DRO (signed by the judge) is qualified, that is if it is a QDRO.

Instead of meeting with you, your attorney should meet with or write to the Plan Administrator to clarify that the IDR is not to be split. And she/he should see to it that a new draft DRO is written in accordance with the terms to which you agreed.

QDRO's can be frustrating, but hang in there. Good luck.