Amended QDRO

[CADMT]

Will attempt a short story. State of California

Jan 09 Petitioner negotiates, prepares, and submits QDRO to court. QDRO excludes salary increases post separation for calculation of Petitioner's share of benefit

May 09 Plan (U.S. Office of Personnel Management) accepts QDRO, performs calculation and begins making payments

Jan 10 Petitioner declaration affirms post separation salary exclusion

Jun 10 During trial on other matters, expert witness testifies that former spouse was entitled to enhanced benefit under California law (time rule)

Jun 10 Judge rules that spouse did not negotiate away entitlement to enhanced benefit (which includes post-separation salary increases in calculating FAS) and rules that Petitioner is entitled to enhanced benefit

Aug 10 Petitioner prepares amend QDRO to modify original QDRO, with exclusion deleted. Judge is about to enter the order

Am prepared to appeal on grounds that Petitioner waived post-separation salary increases before and after original QDRO was entered and that QDRO was in place and in force for over a year without complaint or objection by Petitioner

Additional fact: Unlike many ERISA plans, federal employees are required to continuously contribute to the plan throughout their employment.

Questions:

1. Did the judge err in ruling that Petitioner is now entitled to enhanced benefit?

2. Was the negotiated QDRO and the declaration affirming the exclusion sufficient documentation of the Petitioners waiver?

3. Does their seem likely grounds for appeal based on the record as stated above in the summary

Collateral Questions

Is there any means to shift the jurisdiction to another state since I live on the East Coast and cannot find competent counsel in California from 3000 miles away?

Any recommendations for attorneys who can support an appeal in Alameda County, California?

Thanks for the comments.

[mbozek]

Will attempt a short story. State of California

Jan 09 Petitioner negotiates, prepares, and submits QDRO to court. QDRO excludes salary increases post separation for calculation of Petitioner's share of benefit

May 09 Plan (U.S. Office of Personnel Management) accepts QDRO, performs calculation and begins making payments

Jan 10 Petitioner declaration affirms post separation salary exclusion

Jun 10 During trial on other matters, expert witness testifies that former spouse was entitled to enhanced benefit under California law (time rule)

Jun 10 Judge rules that spouse did not negotiate away entitlement to enhanced benefit (which includes post-separation salary increases in calculating FAS) and rules that Petitioner is entitled to enhanced benefit

Aug 10 Petitioner prepares amend QDRO to modify original QDRO, with exclusion deleted. Judge is about to enter the order

Am prepared to appeal on grounds that Petitioner waived post-separation salary increases before and after original QDRO was entered and that QDRO was in place and in force for over a year without complaint or objection by Petitioner

Additional fact: Unlike many ERISA plans, federal employees are required to continuously contribute to the plan throughout their employment.

Questions:

1. Did the judge err in ruling that Petitioner is now entitled to enhanced benefit?

2. Was the negotiated QDRO and the declaration affirming the exclusion sufficient documentation of the Petitioners waiver?

3. Does their seem likely grounds for appeal based on the record as stated above in the summary

Collateral Questions

Is there any means to shift the jurisdiction to another state since I live on the East Coast and cannot find competent counsel in California from 3000 miles away?

Any recommendations for attorneys who can support an appeal in Alameda County, California?

Thanks for the comments.

This is question involving Cal. law and federal retirement benefits for which I dont know the answers to Q1-3. I dont know if OPM accepts modified DROs. In 2007 the DOL issued reg 2530.206(b) which provides that a DRO issued after a QDRO has been issued will be valid as a QDRO if it meets all of the provisions that apply to a QDRO under ERISA. I dont think you can divest the CA court of jursidiction over this matter by moving to another state. The CA court would issued a DRO which is valid under CA law which would be submitted to OPM.

You need to determine if the revised QDRO would be accepted by OPM because it accepts revised QDROs which are valid under the above reg.

[K2retire]

Once again the Federal government exempted themselves from the rules that apply to the rest of us. They do not have QDROs. But they will acknowledge something that is very similar if you follow their rules. I don't remember exactly what they called it, but located relatively easily on their web site a year or so ago. It may be necessary to know if you're talking about FERS or CSRS.

[J Simmons]

1. Did the judge err in ruling that Petitioner is now entitled to enhanced benefit?

That's a matter of California domestic relations law. OPM will NOT accept a modified order (don't title it as a QDRO--that is ver boten under OPM's rules). So whether the judge erred or not, it will not affect the payments that OPM has calculated and is now making.

2. Was the negotiated QDRO and the declaration affirming the exclusion sufficient documentation of the Petitioners waiver?

Again, a matter of California domestic relations law.

3. Does their seem likely grounds for appeal based on the record as stated above in the summary

Thrice: a matter of California domestic relations law.

While OPM will not recognize an amended order or implement it, California domestic relations law might allow the judge to do an offset against other assets for the enhancements he cannot order OPM to make to the share awarded to the spouse.

Better question: how the heck did you get OPM to recognize the order in just 4 short months?

[CADMT]

Better question: how the heck did you get OPM to recognize the order in just 4 short months?

I have over 30 years of government service. I know how OPM thinks and acts. Even though they did it in 4 months they did it wrong and it took me a year to get them to do it right.

Also, OPM will accept the use of the term QDRO in lieu of COAP as long as it substantially looks like a COAP and complies with TItle 5 USC. If the order uses ERISA as the basis it will not be accepted.