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QDRO


Guest needhelp2

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Guest needhelp2

April 1996 my husband's ex-wife filed for a DRO before he even knew he was getting a divorce. The Plan had approved it 8/1996. His final divorce judgement was 1/1997 which then it was made a QDRO. The problem is that his lawyer did not discuss with him the DRO or what was included in it. What he thought the QDRO was a written section in the final judgement which was a calculation(denominator, numerator, years married) with regards to his pension. Not a thing was mentioned regarding survivor benefits or any other benefits in the final judgement. In the judgement it referred to QDRO with only the calculation of his pension. He was only married 9 years. He had specifically told the lawyer he did not want his ex-wife to have survivor benefits. The only signatures on the QDRO was his ex-wife's, her lawyer and his lawyer. We had the legal services of the company he worked(retired after 31 years) for look at both documents this month. We were told the QDRO does not "fit" with the final judgement for divorce and we could motion the court to amend the DRO. Unfortunately we can not use the free legal services provided by the company because it was a conflict of interest for them. My husband had not known about the any of the specifics of the QDRO and like I said he thought the calculation for his pension benefits in the final judgement was the QDRO. In the divorce judgement it was written that except for the QDRO mentioned above(which was the calculation of pension) that my husband had rights to any life insurance, supplements etc. Basically all other rights were his with regards to his retiree benefits. The only way he found out about the QDRO with regards to survivor benefits, alternate payee, etc. was because he called the retiree benefits to see what I would be receiving. We were in the process of gathering information for our Wills. Before he retired in 2006, he made me the surviving spouse/ beneficiary for all of his benefits. No one informed him at this time either that his ex-wife was the survivor for his pension. After he was told the QDRO was part of the final judgement and it was a separate written document, we obtained a certified copy of the QDRO and the Final Judgement. Is there anything we can do to get the QDRO amended and what are the chances the court would amend the QDRO? We know the time frame is a factor, yet he truly did not know there the QDRO specifics were a separate document. We also know that there is a 2 year time frame after the divorce for misrepresentation of his lawyer. Any advice, would be welcomed. I do not know if I explained it well enough so if you need more information please let me know. Thanks.

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Where are you located? There may be low cost or zero cost legal services available in your area that are focused on women. For example, in the Los Angeles area you can find (www.hbcfl.org/) the Harriett Buhai Center for Family Law. Maybe there is something similar in your area that you can contact.

As I'm sure you understand by now, the Plan has to follow the terms of the QDRO, until the QDRO is modified, even if the QDRO is inconsistent with the settlement agreement. Hence, the first thing that somebody working for you will determine is whether what the plan thinks is a valid QDRO is, indeed, a valid QDRO. If it isn't, and you convince a court to that effect, then you are back at square one. Even if it is a valid QDRO it can still be amended if your lawyer thinks it is different enough from the marital settlement agreement to convince a judge that it should be modified. Nobody can give you a percentage chance of that happening without reading both documents and asking a bunch of questions.

Good luck.

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The QDRO is the document that the plan administrator approves to divide up the participant's benefits. Marital property agreements or divorce decrees do not include all of the special nuances of how the retirement benefits are to be divided in the DRO and division of the pension benefits is left to the negotiation between the parties and their counsel. Once the court signs off on the DRO it is a valid court order which is submitted to the plan adminstrator to be aproved as a QDRO. There is no requirement that the participant's signature be on the DRO that is approved by the court.

Just because the participant instructed his lawyer not to provide a survivors benefit to his ex spouse doesnt not mean that the court could not order the survivor benefits to be paid to the ex. Some states mandate what benefits will be provided to the ex spouse or give the court discretion to order survivor benefits to be provided to the ex. There was similar discussion on this board with a disgruntled participant over benefits that had been awarded to the ex spouse over the objection of the participant which turned out to be required under state law.

Going back to court to convince a judge that the QDRO is inconsistent with the divorce decree is an expensive proposition and will be difficult to prove there was an error if the court had discretion to award the survivor pension benefits to the ex spouse under state law. You need to discuss this matter with counsel.

Q1 You mentioned that your husband retired in 2006. Is he collecting pension benefits under the plan in which his ex is entitled to survivor benefits after his death?

Q2 did you marry your husband after the QDRO was accepted by the plan?

mjb

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  • 1 month later...
Guest needhelp2
The QDRO is the document that the plan administrator approves to divide up the participant's benefits. Marital property agreements or divorce decrees do not include all of the special nuances of how the retirement benefits are to be divided in the DRO and division of the pension benefits is left to the negotiation between the parties and their counsel. Once the court signs off on the DRO it is a valid court order which is submitted to the plan adminstrator to be aproved as a QDRO. There is no requirement that the participant's signature be on the DRO that is approved by the court.

Just because the participant instructed his lawyer not to provide a survivors benefit to his ex spouse doesnt not mean that the court could not order the survivor benefits to be paid to the ex. Some states mandate what benefits will be provided to the ex spouse or give the court discretion to order survivor benefits to be provided to the ex. There was similar discussion on this board with a disgruntled participant over benefits that had been awarded to the ex spouse over the objection of the participant which turned out to be required under state law.

Going back to court to convince a judge that the QDRO is inconsistent with the divorce decree is an expensive proposition and will be difficult to prove there was an error if the court had discretion to award the survivor pension benefits to the ex spouse under state law. You need to discuss this matter with counsel.

Q1 You mentioned that your husband retired in 2006. Is he collecting pension benefits under the plan in which his ex is entitled to survivor benefits after his death?

Q2 did you marry your husband after the QDRO was accepted by the plan?

Trying to figure out how to reply so I hope this works. I live in Michigan is the answer to the first person who wrote. To your questions.. Yes he is collecting pension benefits under the plan. Yes I married my husband after the QDRO. We hired a lawyer and he consulted another lawyer who is an expert in QDRO's. According to the expert lawyer the QDRO does not "fit" the final judgement and according to her in 1996 when the QDRO was implemented "the Michigan law was the alternate payee can not be the surviving spouse". We also talked with another divorce lawyer too. She had said the same thing as the "expert" lawyer. Letters have been sent out to both lawyers involved in the divorce and his ex-wife with regards to the information along with copies of the final judgement and QDRO. It was clearly written in the letter the ex-wife would not lose her part of the pension as alternate payee, yet if all parties did not agree then will we will proceed with motioning the court to amend the QDRO. The problem is proving my husband did not know about the "separate" QDRO and only thought the final judgement was the QDRO because of the wording in the final judgement. Our lawyer is going to wait a month for a response from all involved and if there is none he is going to proceed with the case. Thank you both for your input. I appreciate all the help we can get. Maybe I should become a lawyer with all the researching I have done. lol Many hours.. and what the expert lawyer and the divorce lawyer had informed us is exactly the same conclusion I had. I just need a degree behind my name. :) I am a Registered nurse, but not a lawyer.

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  • 4 months later...
Guest purcelljoanna

Goodness we are faced with exactly the same issue as you and your husband. My husband and first wife separated in1992. In the legal agreement she was to get one-half of the pension which had accrued to the date of separation. The amended QDRO stated that she was to be the surviving spouse of his ENTIRE pension when he dies. After the divorce my husband continued to work for 12 more years during which time we married. We have been married now for 13 years. In Feb. he was diagnosed with a deadly brain cancer and has only months to live. Unfortunately I will not be entitled to any of the years I was vested in his pension as it will all go to his ex because of this QDRO that protects her but not me. How unjust is that!! I think these QDROs are lame and don't consider the future lives of pension holders and their current wives... I too have spent hours on research and have a pension lawyer working with us to resolve this. It may be that we have to hand over a chunk of money to get her to give back soemthing we feel is not morally hers... please let me know how you are doing with your situation... because these QDROs are so complex I also think it's criminal that lawyers do not sit down both parties and discuss the future ramifications attached to a QDRO that doesn't follow the legal agreement.. They certainly get enough money for their services.

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