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Can QDRO be amended after divorce has been finalized?


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After searching extensively for an answer online, I apologize in advance if this has been answered here and I wasn't able to locate it.

My husband and his ex divorced in 2010.  At that time, his ex was awarded the following:

- their house (just purchased the year prior for $430,000)

- their travel trailer

- a used vehicle

- 1/2 of his 401k and 1/2 of his PERS retirement accounts (1/2 of the total amount for the time they were married which equates to a large sum).

My husband was awarded the following:

- he had to sell the house to her for $1.00 (which she paid off in 2013 w/ her new husbands money)

- he had to sell the travel trailer to her for $1.00

- he kept their boat that he had to sell (worth under $15,000)

- a used vehicle

My husband did not have an attorney, she did, paid for by her then boyfriend, now husband.  My husband, had he been allowed to keep all of his PERS retirement or most of it, could be retired at this point.  When they got divorced, she quit working and hasn't had a full time or even part time job since.  My question is this:  Can his QDRO be amended, now several years after the divorce has been finalized, to be more fair and equitable?  Not only did she get everything listed above, we also found out after having a retirement plan review w/ the administrator, that in the QDRO, her attorney got the court to approve she will be the "spouse" listed when he retires for the 50% joint spousal designation for when he passes away.  This designation also means he cannot list myself, his wife, as his 50% joint when he retires.

I have my own retirement so while the latter is rather upsetting, I know at least I will have my own retirement to help take care of us when I can retire.  However, my husband, quite literally, got screwed.  I just want for him to be able to retire.  He's worked very hard to reach this point and there should be no reason why he cannot.  If anyone has any knowledge of an amendment being done for this reason, I am grateful for any advice you can give.

Thank you,

BK

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Your husband's first mistake was not having his own attorney. Second mistake, your husband not having his own attorney.  While you may want him to retire, he may not be able to from a financial standpoint. Seems he just rolled over and didn't take an interest in what was going on. I don't think it can be amended now just because you don't like the terms. It doesn't seem that a mistake was made, other than him not having his own attorney and paying attention. Neither does it seem that it went against your divorce agreement. He can try to negotiate with his ex to get the QDRO amended, but good luck with that!   

4 out of 3 people struggle with math

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Can a QDRO be amended years after it was entered and accepted by the plan?  Yes.  Will the court agree with you and allow an amended QDRO to go through?  Probably not if the only thing you present to the Judge is that you now think it was unfair (and that is why having an attorney is so critical).  But, if you can get the judge to agree to put an amended QDRO through then yes it can be amended.  Changing survivor beneficiary designations may or may not be allowed but generally speaking if your husband hasn't retired yet then you can probably change that as well.   The existing DRO probably has a reservation of jurisdiction over the retirement should an amendment be appropriate..but that will be a hard sell in my opinion.

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Just to embellish JM's elegant answer, whether or not you can get an amendment is a matter of state domestic relations law.  As stated by JM, it unlikely that a state court will approve an amendment, especially if the amendment is not by agreement of the parties.  Whether or not an amendment (if ordered by the state court) will be implemented depends on circumstances, and to some degree on policies of the plan.  A "PERS rtirement" suggests a government plan. Government plans are not subject to most of the ERISA/tax requirements that apply to private pensions, although there tends to be some similarity in design and policy.  The division of government plan benefits is governed by state law, so it is difficult to predict what you are likely to encounter from the ERISA perspective that most of us bring to this board.

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In those states where a QDRO is deemed to be just an enforcement tool, like a garnishment or an attachment, a QDRO can be amended.  But that's not what you are asking for.  You want the underlying judgment of divorce allocating his pension benefits to be modified by the court.  That may not be permissible on many grounds depending on state law, for example, the statute of limitations, the doctrine of laches, res judicata, collateral estoppel, or Rules of the Court that limit the time within which a party can ask the court to reopen and modify it's award. 

I cannot tell where you live because PERS are located in Oregon, Mississippi, California, Nevada, Ohio,  New Jersey, Washington,  Montana, Alaska, and more. 

So THIS TIME he needs to hire a lawyer since it can be worse.  

The 50% joint and survivor annuity you described is the normal way pensions are allocated since survivor annuity benefits are normally considered as  marital property.  But maybe in your PERS plan if the ex remarries prior to a certain age she loses the survivor benefit.  And maybe your husband needs to name you as the back-up survivor beneficiary if the ex does marry before that certain age, or if she dies before your husband dies.  And maybe you need to check and see is the PERS plan has a pop-up feature that would restore the full annuity to him if the ex dies, and thereby and make it available to another beneficiary - you.

This is why competent lawyers spend their lives trying to understand the rules and people like husband who didn't hire a lawyer will always lose out and look to blame everyone but themselves. 

David          

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Thank you all for your responses and feedback. First and foremost my husband didn’t have the funds at the time for an attorney and his main focus was “getting out”. Which I understand but at the same time, being involved with it now makes me wish I had been in his life at the time to help him understand the importance of not getting screwed over. I assumed there most likely would not be a way to amend the QDRO pertaining to PERS unless his ex agrees to it as well, which I doubt will occur.  Her and I have very differing opinions on what is owed to an ex spouse after divorce.  We have the ability to have an attorney now so with all of your feedback I think it’s at least worth broaching the topic with one to see if there’s any chance of amending.

 

Thank you all very much!

BK

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Rich folks eat steak and lobster.  Poor folks eat hamburger and Span.  Sad but true. It you don't have the money to hire a competent lawyer you get screwed.  That's just the way life is.   You probably can't fix it 11 years later.  

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BK, the court has the authority to put an Order through without the parties signing it (making it an Order vs. a Stipulation and Order), and pretty much any retirement system will execute the order because all that matters is that it is an order of the court (provided it complies with the terms of the plan, etc), but if the former spouse does not agree and you enter an RFO (Request for Order), you still have to prove to the Judge that this is really a justifiable claim and not just something you feel is unfair.  As an expert witness in pension valuations and QDROs, I will say that it takes A LOT to convince a court that a set aside of a prior court order is appropriate vs just one side realizing they had previously agreed to a crappy deal.  I would advise you talk to a family law attorney to be sure but I still am with the belief that the ship has sailed.

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JM

I unfortunately agree you are most likely correct. I don’t understand how a judge could look at everything he lost vs what she gained and see it as fair and just compensation. But I have no doubt a lawyer will tell us there is nothing that can be done. Especially this long after the fact. And it wouldn’t matter if it were my husband or anyone else, my opinion of the situation would be the same. No one should lose half of their retirement savings to someone who didn’t do the work and doesn’t incur the trauma.  She didn’t work the crime scenes, she didn’t take the interviews with the kids who were just molested or the family members who's loved ones were murdered. But that’s beside the point isn’t it. And I’ll step off my soap box. I very much appreciate the listening, reading and responding by all with your input. It has helped, maybe not in the way I had hoped, but it has. 

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Of course this is going to be very dependent on which state you are in and the precedent there, BK, but I think you would have to convince the court that there had been fraud, undue influence, or something similar.

Luke Bailey

Senior Counsel

Clark Hill PLC

214-651-4572 (O) | LBailey@clarkhill.com

2600 Dallas Parkway Suite 600

Frisco, TX 75034

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