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QDRO used to “attach” disability pension for spousal support NOT as community property

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I was granted disability retirement in 2000 by Marin County, Ca. Then married in 2008. And divorced in 2019. The court ordered spousal support be attached by QDRO which I opposed and basically had no choice and they pushed it thru. The order never signed by me, went to administrative person and they approved it without a dollar amount or percentage to be paid or the number of payments or time period to which the order applies  which are required. The ERISA specifically spells that out. Did the plan administrator unlawfully qualify this DRO? If so what can I do? They never even sent a joinder in person to my court appearance. Just submitted a letter at the last hour on the last day. I feel like the plan administrator dropped the ball on this and qualified a DRO that did not meet the requirements set forth by ERISA. This has basically made me homeless and is pretty disgusting. Thanks for reading . 


The Shaft

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QDROphile is correct that most state, county and municipal plans are not covered by ERISA, the Federal law that normally covers pension and retirement plans adopted by private employers in the US.  But I have seen some state, county and municipal plans that have adopted ERISA qualified Plans in order to facilitate ease of administration either in-house or by third party administrators.  You used the acronym DRO and QDRO.  The "Q" in QDRO stands for "qualified" under ERISA.  So your first task is to see if ERISA even applies to your disability pay.  If you didn't work for Marin County, and just mentioned Marin because that's where the Court is located, then you started off on the wrong track. 

Keep in mind that the purpose of the DRO in you case is not to allocate "marital property" or "community property" between you and your ex-wife.  It is intended to pay your ex-wife alimony (spousal support).  If you are under ERISA this is a legitimate use of a QDRO.  However, the question is whether or not under California law disability benefits can be the subject of a DRO at all, or can it exclude spousal support.  My my home state, Maryland, disability benefits can be accessed to pay child support and alimony, even if they could not be divided as property.  See Riley v. Riley, 82 Md.App. 400, 571 A.2d 1261 (1990). 

And in the Supreme Court case of Rose v. Rose, 481 U.S. 619 (1987) - 

the question was whether a state court has jurisdiction to hold a disabled veteran in contempt for failing to pay child support, where the veteran's only means of satisfying this obligation is to utilize benefits received from the Veterans' Administration under 38 U. S. C. § 314 as compensation for a service-connected disability that cannot be divided as "property".  The Supreme Court held that such disability payments can to accessed for child support.  It is clear that the same outcome would apply to payments of spousal support. 

Also keep in mind that a DRO/QDRO is an order entered by the Court and enforced by the administrator of the applicable plan.  The administrator is authorized to do only what the Court has set forth in the DRO/QDRO.  The administrator doesn't prepare the DRO/QDRO.  Your comments about the plan administrator are just not logical.    

All Court orders that are intended to attach assets via a garnishment or via a DRO/QDRO must state the amount or percentage of payments to be collected from the garnishee or Plan Administrator and the duration of such payments.  Often the duration is "pending further order of the Court."  There is something you are missing and the fact that you obviously did not have a lawyer representing your interests led to your problems.    


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Yes, County of Marin was my employer , no attorney obviously, not sure on disability rule for state but being homeless sucks, getting my only source of income “attached” for $1900 per month to pay her from MY disability while she claims she is disabled yet doesn’t have an income from her own failure to apply for it isn’t right. Marin County Board members granted me disability retirement for getting severely injured and now she can come along and just attach it is just criminal. I had to cancel my County health insurance which I can never get back just to survive. At this point I’m not living, just merely existing , miserably. Thanks. Me being Homeless is something I never thought of. But here I am living the dream. 

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