QDRO has been approved and filed but ex-spouse's attorney has not sent it to the plan admin. Participants benefits have been suspended since July.

[Amhatch]

This is really a screwed up mess.  When I say 'he' I am referring to the employee spouse and 'she' will be referring to the non-employee spouse.  Anyone else I refer to, I will try to be clear about who I am talking about.  The plan is a multi-employer defined benefit pension plan through a union.

After a 20 year separation, she agreed in Court to her portion being one half of the 'earned amounts' from the time of marriage to the separation. The earned amounts for each of those years were read in Court from a pension statement from that time period, by his attorney, so everyone understood she would not be getting her portion based on the current rates, but at the rates as of the separation.  The Decree left out the amounts for those years, but it does say 'earned amounts'. 

When he turned 60, his disability from his pension was to convert to regular pension, but the QDRO was not in place.  She said she did not have the money to get the DRO drafted.  He then went to her attorneys office to pay the amount she told him it would cost.  He did this in April, trying to keep his benefits from being suspended. 

Two weeks later, he called that office to see if it had been drafted.  The paralegal drafted it at that time, using an example she found on the plan website and plugged in the information.  The DRO that was submitted used the formula which will calculate her portion using the 'current' rate x 1/2 of a fraction, the numerator being the number of months of credited service from marriage to separation and the denominator being total number of months of credited service.  Which is understandably the normal way of calculating the AP's portion.  However, the agreement was half of those earned amounts that were read aloud in Court.  She would receive that amount each month for the rest of her life. 

The Decree left out other vital information, including whether she would receive her portion as a shared payment method or a separate interest.  The QDRO states that the method is a separate interest.  I believe it sounds like it should be a shared payment method because the monthly amount is basically already determined, but I definitely don't know enough about pensions and QDRO's.

After it had been approved and he realized the current rates are used, entitling her to around $300 more per month than what she agreed to, he told the paralegal it was wrong (his attorney in the divorce action would not respond to pleas for help, and when he did finally respond, he said "just let her have it all and when she dies, get it back", so he communicated directly with her attorney's office  pro se). The paralegal was making minor corrections to send it back to the plan admin for approval again, then all of the sudden, the paralegal told him that they were spending too much time on something they had not been paid for and that what he had paid was their client's balance that she owed from the Hearing. 

The paralegal then sent it to the Judge for signature, just as it had been approved, and for it to be filed.  It did not have signatures of either of the two parties. 

He never received a filed marked copy and neither has the plan administrator.  Recently, after many ignored attempts to find out why it had not been sent to the plan administrator, the paralegal finally told him that they sent it to the her to obtain the identifying information information on him (they already had that), along with hers and for her to send it to the plan administrator herself since she refused to give that info to them. 

That was shortly after it had been filed on July 3 and she has been sitting on it ever since.  Who does that? 

So even if he agreed to the terms of the QDRO, he is still going without his money because of her and her attorney.

We don't know if the Order would even qualify if amended to state the actual terms of the agreement.  The transcript proves what was agreed to. Her attorney would not order the transcript, so he did.  Both divorce attorney's obviously had a lack of experience in pensions and QDRO's. 

Are there any provisions in the laws that afford him any rights to proceed with applying for benefits, without her portion being considered, because she is the reason his benefits were suspended in the first place.

This could go on forever!  Seems like there should be something he can do to start receiving his benefits. 

I apologize if some of this is off topic.  A little back story was necessary.  Any advice would be much appreciated.

 

[Effen]

Thank you, interesting story.  What is your role in all of this? 

From the Plan Administrator's (PA) perspective - they only review the DRO as provided and determine if it is "Qualified".  Being "Qualified" has nothing to do with the separation agreement, or divorce decree, or what is said in court.  It only relates to - is the split determinable and does it increase the plan's liability.  I specifically tell my clients NOT to read the divorce decree or get involved of any of the "he said, she said", or probably now, "they said".  None of that stuff matters in determining if a DRO is a QDRO. 

The Plan should have a QDRO Procedure that is available to the member.  Something the member might want to request and read.  It sounds like the attorney submitted a draft to the PA for preliminary approval, but the PA said it needed additional information. So they have a DRO, but not a QDRO.  The QDRO procedures will define what will happen, but typically, if nothing new comes in for the PA to approve, they will move forward and just ignore it.  The Participant will receive full payments until a new DRO is submitted.  At that point, the APs only option will be a shared interest QDRO on a future payment stream.  

Get the QDRO Procedure - you answer should be there.

[Amhatch]

My role in this is trying to help my boyfriend who I have lived with since 2008 to figure out what he has to do in order to start receiving his benefits.   He did get a copy of the procedure when the PA approved the DRO.  It was then when he realized that the QDRO was giving his ex spouse much more than what she agreed to and the PA was going to place it on hold while waiting for another corrected DRO, but that hasn't happened because we haven't found an attorney to represent him.  The Judge has already signed and filed the one that has been approved.  We thought her attorney was holding it up, maybe waiting for payment.  However, we found out that when her attorney asked her for the personal identifying information, she refused to give it to them.  Her attorney sent her the signed and file marked copy to her and basically told her if she wanted her money, the rest was up to her.  So she has held it up since July. The PA won't even send the application for benefits until they receive the certified QDRO, therefore he can't begin receiving benefits.  Is there a legal way to get around this?  The PA is now telling him she needs the QDRO or an amended one right now, so we have printed the signature page for him to sign in front of a notary, along with the file marked copy of the QDRO, but we don't have his ex spouse's signature page to send with it.  Will the PA reject it because it hasn't been signed by the ex spouse? 

[Effen]

I am confused.  Are you saying a QDRO exists - court approved and PA approved, but now your SO doesn't like the wording and wants to change it.  

If a QDRO already exists, it will be very difficult to change as you might be finding out. 

Not sure why the PA is holding up payment.  Either there is a QDRO or there isn't.  If there is, the PA should follow the terms of the QDRO and pay the appropriate benefits.  .  However, if no QDRO exists, then there is no QDRO and the PA should pay the participant the full benefit.  

2 hours ago, Amhatch said:

The PA is now telling him she needs the QDRO or an amended one right now,

Or what?     

[Amhatch]

Welcome to our world where confusion is the norm.  First of all, the Decree omitted vital information regarding the Agreement.  The DRO was drafted using an example QDRO from the plan website and was submitted to the PA. It contains all the necessary info, but not the correct info.  It was approved and sent to both  parties and his ex's attorney along with the procedures.  He and the Paralegal were were making corrections to resubmit for approval.  The paralegal got tired of messing with it and told him she was going to send it to the Judge exactly how it had been approved.  The Judge's signature was stamped on it and it was filed.  They did this without the signature pages and knowing it wasn't right.  That's when he was told that he didn't pay for the QDRO, but rather, paid his ex's past due balance.  She was responsible for all of that but he paid the amount she told him the QDRO was going to cost and the attorney's office did not,  at the time, tell him any different. They never sent it to the PA, but instead, threw it in his ex's lap, who never does what she is supposed to do, obviously.  Otherwise, it would have been in place when he turned 60 and he would not have been tricked into paying her attorney's fees just trying to get the ball rolling.  But that is beside the point.  Bottom line is, yes, there is an actual QDRO that has been filed.  It just hasn't been sent to the PA to be administered.  Now, he has decided to let it fly like it is in order to start getting his money and is going to send it to the PA himself, but he doesn't have her signature to go along with it, because it was filed without either one of their signatures.  She is too lazy to get the signature page notarized and unwilling to follow through even though she is getting much more than she agreed to.  The QDRO entitles her to things that weren't even addressed at the hearing such as a separate interest, when it probably should have been the shared payment method since the amount per month was already determined at the hearing.  Her attorney would not order the transcript that proves that.  Again, that is all beside the point too because as you stated, none of that matters to the PA.  We just don't know why her and her attorney hold all the power over his pension and if there are any clauses in ERISA or any other laws that might disqualify her from getting her share because of her not doing what she was supposed to do.  I'm sorry to ramble on like that.  If you only knew what all has taken place over the 20 year separation, you would completely understand, but that's not why we are here and you don't have that kind of time, I feel sure.  I do appreciate you taking the time to read and reply though.  I think this is destined to end up back in Court but without money, that is nearly impossible.

[Effen]

"The DRO was drafted ... and was submitted to the PA. ... It was approved and sent to both  parties and his ex's attorney along with the procedures."  

"she ...send it to the Judge exactly how it had been (originally) approved.  The Judge's signature was stamped on it and it was filed"  

So, the original DRO you mentioned in your 3rd sentence was ultimately submitted to the judge for approval, ignoring the changes the participant wanted, and the court approved it.   However, the court approved QDRO has never been sent back to the PA because the AP won't sign it.  Is that correct? 

"We just don't know why her and her attorney hold all the power over his pension and if there are any clauses in ERISA or any other laws that might disqualify her from getting her share because of her not doing what she was supposed to do."

Others may chime in with more legalistic responses, but as I have said before, the answer s/b in the QDRO procedures.  The PA is not required wait indefinitely for the final QDRO to appear and they have no right to hold back the participant's portion.  In other words, her failure to sign should not be impacting his ability to receive his portion of the benefit.

You may find this DOL material helpful  https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf especially Section 2 which discusses the PA's responsibilities.  Section 2-11 states, "during any period in which the issue of whether a domestic relations order is a QDRO is being determined (by a plan administrator, by a court 19 of competent jurisdiction, or otherwise), ERISA requires that the plan administrator separately account for the amounts that would be payable to an alternate payee under the terms of the order during such period if the order had been determined to be qualified. These amounts are referred to as “segregated amounts.” During the period in which the status of a domestic relations order is being determined, the plan administrator must take steps to ensure that amounts that would have been payable to the alternate payee, if the order were a QDRO, are not distributed to the participant or any other person. The plan administrator’s duty to separately account for and to preserve the segregated amounts is limited in time. ERISA provides that the plan administrator must preserve the segregated amounts for not longer than the end of an “18-month period.” This “18-month period” does not begin until the first date (after the plan receives the order) that the order would require payment to the alternate payee.  It is the view of the Department that, in order to ensure the availability of a full 18-month protection period, the 18 months cannot begin before the plan receives a domestic relations order. Rather, the “18-month period” will begin on the first date on which a payment would be required to be made under an order following receipt by the plan. See Questions 2-12 and 2-13, which discuss how benefits should be treated when determinations on qualified status are made either before or after the beginning of the “18-month period.” [ERISA §§ 206(d)(3)(H), 404(a); IRC § 414(p)(7)]

Seems to me that the PA has a DRO, but they have not "qualified" it because it isn't properly signed.  Therefore, they should segregate payments for 18 months - paying the participant his share and holding the APs portion.  I would expect they would notify both parties this was happening, (but you said they already provided their QDRO procedures so if it is in there, maybe they wouldn't need to notify again).  If no final DRO appears within the 18 months, they should release the AP's portion to the participant.  Has the participant made a formal request to commence his payments?  If the AP is holding them up, ask them what authority they have to withhold his entire retirement benefit?

[Wacko in Winnebago]

On 11/3/2023 at 7:12 AM, Effen said:

Has the participant made a formal request to commence his payments?  If the AP is holding them up, ask them what authority they have to withhold his entire retirement benefit?

The way I read her posts, the PA refuses to even send the Participant an application for benefits until they receive the certified DRO. Ergo, he isn't receiving ANY benefits (even those he would still be entitled to under the DRO's terms) because the PA won't even let him APPLY for them. 

[Amhatch]

Wacko in Winnebago- that is correct.  It will be a conversion from disability to regular pension.  The PA has stated they  cannot proceed with the conversion until they have the filed order, but it seems like all she would need is to know that she is not waiting for another DRO and the amounts can be segregated based on the approved DRO.  The 18 month period can begin and the AP would need to submit the certified copy within that time as it is her responsibility to do so.

The time for him to file a motion to vacate or modify it is up, so unless the Court considers it a clerical error,  I don't think he can file anything nunc pro tunc in that Court.  The overall amount the AP is going to get IS a clerical error, but there is so much wrong with the DRO/QDRO that I'm afraid it would be considered a judicial error, which would not qualify for a nunc pro tunc judgement.  However, I know even less about law than I do about pensions and QDRO's.

Am I understanding this correctly?  When received by the Plan, it is a proposed DRO.  When approved by the Plan, it becomes a DRO.  The DRO then becomes a certified DRO once it has been signed by the Judge, filed with the Court and received by the Plan.  Then the PA makes another determination before it is a QDRO???  Or is it a QDRO once filed in Court?

I thought it would be rejected if it doesn't have the required info such as the addresses and social security numbers, but I read from the very helpful link Effen gave me, that it doesn't disqualify it if that information can be easily acquired by the plan with a simple phone call.