Modify QDRO

[QDRO help free]

Modify QDRO 20 years later before retirement.  Shared interest was used in previous QDRO.  Participant married 18 years ago and current wife has survivors benefits. Ex spouse  now wants separate interest so she can have survivors benefits on her portion of pension. Ex-wife was not awarded survivors benefits in divorce or property settlement.  Is this legal to do under Erisa? Does the case Boggs versus Boggs come into play?  This is a defined benefit pension plan. 

[My 2 cents]

A  shared interest QDRO could provide for survivor benefits for ex-spouse.  Did this one?  That would be independent of divorce or property settlement.

It would not surprise me if the ex-spouse would be permitted to at least seek to revise the order. I don't think there are any time limits.

Is the participant still alive?

[QDROphile]

As a matter of federal law, a QDRO can be modified or replaced as long as neither the alternate payee nor the participant has started benefits* or died before the change, subject to terms of the plan or the written QDRO  procddures that protect the plan against adverse selection.  State law is another matter.

*Perhaps add the participant has not reached normal retirement age in a pension plan.

Some may disagree.

[QDRO help free]

 Survivors benefits were not awarded to ex-wife. Lawyers on both sides say survivors benefits  belong to current wife.  They only way for ex-wife to have survivors benefit is to modify QDRO to separate from shared. 

 Participant is still alive and has not retired. 

 

[david rigby]

Similar to many other answers here: what does your attorney say?  (I know, the original poster is trying to get free advice.  Just remember, it's worth what you pay for it.)

But seriously, the original post is fraught with confusing shorthand and grammar problems, so I might not understand the main point(s).  Could it be this?

• The post refers to the participant, who was divorced about 20 years ago, remarried about 18 years ago, and is not yet retired? 
• The original QDRO was silent on whether the ex-spouse is entitled to a QPSA?  The original poster (who might be the participant or the ex-spouse or someone else) seems to believe the ex-spouse is not entitled to QPSA and (therefore) the current spouse is entitled?
• Is this about the QPSA or the QJSA, or both?

As mentioned above, a QDRO can be modified by the court, but (maybe) the court will be reluctant to "re-open" the previously agreed terms?  The court might have no qualm about changes if agreed by both parties, but it's unclear why the participant would agree to give up something?  How about whether the plan (technically, the Plan Administrator) has opined on what it thinks about the QPSA and/or QJSA under the existing QDRO?

Note to original poster: you do not have to post the actual terms of the QDRO on this message board, but you should have a discussion with an attorney who is familiar with QDRO's.