Who is required to file a QDRO and when ?

[galakelady]

Need help with legalize of QDRO .. my spouse divorced 19 yrs ago in his divorce degree  he was to give 1/2 pension to his first wife.  At time of divorce no QDRO was filed.  We married 3 months ago and now she is asking for her share of his pension which he began drawing in 2011.  She wants her 1/2 now and what she feels is due from 2011.  If my research is correct the 1/2 pension would only began when the Plan receives a QDRO and no back payments should be granted.  She is stating it is my husband's responsibility to file the QDRO now for her .. and I believe she should incur the legal fees not us. and yes this is probably a revenge thing since the pension amount she will receive monthly is under 250.00 per month.  Thanks for any help.

[QDROphile]

The practical answer is that the one who wants the benefit needs to take the action.  However, as part of the divorce proceeding it may be agreed or ordered that a particular person has the responsibility for carrying out the formalities of implementing the division of the retirement benefits.  Common practice is that the alternate payee prosecutes the QDRO.  See sentence #1.

[Patricia Neal Jensen]

I suggest she look to her lawyer if fault is to be found.  (Smiling)

[david rigby]

… but first, read the divorce order to see if it directs anyone in particular to take action.

[galakelady]

1. thanks all for the quick response.. My husband's attorney passed away within weeks of his divorce in 2000.  Divorce states only that QDRO will be filed ..no direction as to by whom.  In 2008 she came after 1/2 of his 401K  granted in divorce and QDRO filed and money was received.  One could argue why second DRO not filed for the pension at that time ..but no action was requested so none taken by any party.  Her attorney was and is same from 2000 for divorce, QDRO for 401K, and now for the request for pension, although he has retired from actively practicing. We are going back and forth with attorney letters and making them richer from all the correspondence.  We draft a proposal to our attorney he sends to her attorney , she rejects and sends back her proposal ect.  Our offer is cash settlement for back pension (lesser than would actually be - but based on fact no QRDO filed when he retired in 2011, and no action taken on her part asking for 1/2 of the pension, it is a fair offer.) Do we continue keeping the attorney's busy with emails and letters , or do we just go to court and have a judge decide how much she is due or fair ?  My 2 years of paralegal school didn't prepare me for this .. and no I only took the course and I never became a paralegal...  thanks

[JamesK]

5 hours ago, galakelady said:

Our offer is cash settlement for back pension (lesser than would actually be - but based on fact no QRDO filed when he retired in 2011, and no action taken on her part asking for 1/2 of the pension, it is a fair offer.)

I think you are being generous.  Very generous.  If your attorney is not experienced with DROs, then consider a change.

At the least, you have the former spouse over a barrel and are not taking advantage of it.  The equitable defense of laches comes to mind.  This defense applies when there has been an unreasonable delay in making claim.  Arguably, the settlement only provides her rights vis a vis the plan.  And I think that's a pretty strong position.  Therefore your husband really has nothing to do with the plan's failure to make payments on a claim she did not pursue.

In any case, she doesn't need your husband's approval to submit a DRO to the plan (although cooperation is always nice).  I would consider not wasting any more money on your attorney and let her waste her time and money arguing about this with the plan.  If she decides to pursue the matter further, then you can consider the cost of settlement (if she has a claim at all) taking into consideration that there is likely a statute of limitations in GA for such claims.  

In case it hasn't been mentioned, the plan will inform your husband that a DRO has been lodged with the plan and it will explain any appeal rights he with respect to the plan's determination.

It's nice to be nice.  But it just doesn't pay very well.

[fmsinc]

1.  Some states have statutes of limitations with respect to submitting QDROs. 

2. Some states have statutes of limitations that don't apply if the Judgment of Absolute Divorce reserves jurisdiction to enter QDRO.  

3.  In an ERISA defined benefit plan if the Participant remarries and retires, the new spouse will receive the survivor annuity benefit and the former spouse will lose that benefit.  Hopkins v. AT&T Global Information Solutions at 
http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9
followed by the 5th Circuit in 1999  Rivers v. Central and South West Corporation at   http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9: 

“This Circuit agrees with the Fourth Circuit's decision in Hopkins and adopts its rationale. Rivers failed to protect her rights in Franklin's pension plan by neglecting to obtain a QDRO prior to Franklin's retirement date. Consequently, Franklin's pension benefits irrevocably vested in Mrs. Franklin on the date of his retirement and Rivers is forever barred from acquiring an interest in Franklin's pension plan.”

To the same effect see Dahl v. Aerospace Employees’ Retirement Plan, a 2015 case from the U.S. District Court for the Eastern District of Virginia (and cases cited therein) - 
https://scholar.google.com/scholar_case?case=11696898122265878951&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt

Other cases following Hopkins are collected at:
http://scholar.google.com/scholar?q=%22Hopkins+v.+AT%26T%22+divorce&btnG=&hl=en&as_sdt=20000006

 See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue.  

There are multiple outcomes depending on the state  where the Judgment of Divorce was entered.  In Maryland, for example, a QDRO is an enforcement tool, like a garnishment or an attachment and can be entered at any time.  

It  if blatant malpractice for the attorney for the Alternate Payee not to submit the QDRO to the court at the time of the final hearing and to make sure it is entered and a certified copy sent to the Plan Administrator immediately after the divorce is granted.  

[Luke Bailey]

galakelady, you need to hire your own attorney.