QDRO...Ex won't sign

[Macmamma]

I submitted my prepared(draft) QDRO to the pension plan administrator and received a letter from them stating that the order "qualifies" as a QDRO. MY EX WON'T SIGN IT!. A 50% division of his pension plan for the length of our marriage( 23 years) was a stipulation in our divorce settlement 10 years ago. He has not remarried, and he is not collecting benefits yet.

What will happen if I submit the QDRO to the court for the judge to sign without my Ex’s signature? Someone advised me to file a request for order to have the judge appoint a Elisor to sign it in my Ex’s behalf. I’m hoping I don’t have to go back to court to get something that was already agreed on in the settlement. It's my understanding that I need to have the judge sign it off before sending back to the plan for final approval.

[ETA Consulting LLC]

Off hand, I think there is a confusion (which may be nothing more than a matter of semantics). If you submitted a prepared (draft) to the Plan Administrator, then where is the actual Domestic Relations Order (DRO) from the court? I guess my question is what did that Plan Administrator "qualify". I'm trying to ascertain what an ex-spouse would be required to sign when a court has issued a Domestic Relations Order to the Plan Administrator. I would imagine that anything needing to be signed by the ex-spouse would've been signed by then.

Good Luck!

[Macmamma]

Basically the plan required me to send them a “proposed domestic relations order" to be reviewed by the plan administrator before submitting to the court for the judge to sign. I sent this to them, and they sent me a letter saying that they have determined that proposed domestic relations order I sent them qualifies as a QDRO. They informed me to provide them with a conformed copy of the filed order. There is a page that has a place for my Ex and myself to sign. There is also a place that says “It is so ordered” followed by a place for the judge to sign. Hope this makes sense.

[QDROphile]

You are asking a question that is answered by state law and court procedures and the terms of the documents in your divorce proceeding. The matter is also complicated by the 10-year delay in addressing the resolution of the assignment of an interest in your former spouse's pension. It is not possible for you to get a definite answer from this board. You would best be served by some assistance from a competent lawyer. If you are determined to handle this yourself, you could submit your proposed domestic relation order to the court and with the assertion that the substance of the order has already been resolved in the earlier proceeding, as shown by the rulings that have been adopted already, and the proposed order simply satisfies the formalities for qualification as required by federal law (and as accepted by the plan). If the court refuses to issue the order, it is likely that the judge will explain why not and what may be required to get the order issued.

PS: You did not state if the line for the former spouse signature is from a sample from the plan or from a court source. If it is only from the plan, delete it before you submit to the court with a request to the court to issue the order "ex parte," which means without the participation of your former spouse. Usually court clerks will help with the procedures for submitting an order for a court's consideration. Signature of the participant is not a legitimate requirement for qualification as far as the plan is concerned. It is another matter with respect to the court. Courts prefer to take action in accordance with the agreement of both parties. You may be in for a rougher ride if your former spouse contests something about the order, even if only the10-year delay.

[Macmamma]

Delete what? The signature line? It is a sample from the plan. I mailed it to my ex and he has acknowledged receiving it. He just keeps saying he hasn’t had time to get to it. I know, I know I should have done this earlier, but after a nearly 6 year divorce battle I just wasn’t up for it. Not too sure if I am now. It’s dredging up old hassles that I’ve tried to bury, but we did agree on it and I’m not getting any younger. The marriage was 23 years, and like I said it was stipulated in the divorce judgement.

Thanks for replying.

[QDROphile]

If he is not going to sign, then delete the signature lines. You are either going to court with a request in which you both agree to issuance of the order in the form presented (sometimes called a "stipulated order" because both of the parties have stipulated that the order is acceptable) or you are going by yourself without assent of your former spouse. With assent of both parties, the court will almost certainly approve without further consideration. Without the assent of both parties, the court may inquire into the history and terms of the the prior judgments and orders in the domestic relations proceeding and my require formal notice to the former spouse and opportunity for him to appear to contest the proposed action.

The deletion of the signature lines is not a big deal if he is not going to sign. Having a form with the appearance of unfulfilled requirements or unfinished business just asks for questions and is unsatisfying.

This is all about court procedure and nothing about the substance of the order or the fine points of form of the order, except for the court's inherent curiosity about whether or not the terms of the order are proper in light of the terms of the property settlement. Assent by both parties resolves the question. The retirement plan has no knowledge about the court procedures and considerations. Most of the plan's model document involves matters that have nothing to do with qualification of the order or following local court rules and procedures.

You should press on. If he remarries or dies before your interest in the plan is secured by a QDRO, that interest may be compromised. And that reminds me to warn you that the plan's model document may not be adequate to provide you with the expected benefit under the plan. Fifty percent of the benefit seems like a simple concept, but there are other important matters to address, especially under pension plans. The plan's model was not drafted for your benefit. If anything, models tend to favor participants. I repeat my recommendation for competent legal help, even if the idea of paying again is painful.

Addendum: The model QDRO is probably OK if nothing unusual happens: You get the QDRO squared away before the participant dies remarries, retires, or dies, and you do not start benefits before the participant retires early with a subsidy. On the other hand, unless you hire a lawyer who is competent with respect to these matters, the lawyer will not understand the technical aspects of these concerns and will do you no good. The average divorce lawyer is not competent with respect to pension plan QDROs. You might be losing nothing or not much if the the unusual matters are not addressed properly, or you might lose everything. For example, if the participant dies before you start your benefit and the order does not expressly award you an interest in the plan's death benefits, you could get nothing from the plan. And this has nothing to do with signing the order.