QDRO was never done and it's been 14 years. What to expect now?

[Rokablly]

I am an Orange County California employee and I plan to retire in 3 years with 25 years of service. I have a defined pension plan where I can retire after a certain number of years of service, at a certain age, with a certain income history and I'm eligible for a lifetime annuity (2.7% of my top 3 earning years times each year of service). I started this job 3 years into marriage (2001) and we divorced 10 years later (2011). My top 3 earning years were long after the divorce. 

I remember being told by my attorney that we needed to hire a QDRO attorney but that was never done. I also remember calling the County retirement and being told the divorce had been reported to them and that I would not be able to collect my pension until the QDRO was complete. 

I have read online that my ex may not be entitled to any portion of my pension if I remarry, or if I remarry before I retire, or if I retire before the QDRO is complete. I'll be engaged next month and I do plan on remarrying before I retire. Can anyone please confirm any of this for me, is it true, and that simple?

If not true or that simple, can someone please explain what I can expect or should do in this situation (never did a QDRO, it's been 14 years since the divorce, and I plan to remarry)? She will not need any portion of my pension as she has done very well for herself these past 14 years, 17 years when I retire, and I will need it all. She has not remarried, if that matters. 

Thank you 

[fmsinc]

See my comments in bold type.

 

"I am an Orange County California employee What is your job description? and I plan to retire in 3 years with 25 years of service. I have a defined pension plan where I can retire after a certain number of years of service, at a certain age, with a certain income history and I'm eligible for a lifetime annuity (2.7% of my top 3 earning years times each year of service). I started this job 3 years into marriage (2001) and we divorced 10 years later (2011). My top 3 earning years were long after the divorce.  This does not matter. See Foundation Theory Memo attached. 

I remember being told by my attorney that we needed to hire a QDRO attorney but that was never done. I also remember calling the County retirement and being told the divorce had been reported to them and that I would not be able to collect my pension until the QDRO was complete.  Your former spouse should have hired an attorney to prepare a QDRO, have it signed by the Judge, and sent a certified copy to the Plan Administrator.  If your former spouse did not do so, and 14 years have elapsed, that there are various outcomes.  In some cases the entry of the QDRO will be barred by the statute of limitation or by the doctrine of laches (waited too long).  In other cases the court may no longer have jurisdiction to enter a QDRO.  Many Plans will accept a QDRO no matter when it is entered, and, as they did in your case, will not allow you to start taking your pension until the matter is resolved by a court either by entering a QDRO or by holding that it's too late.  ERISA plans will allow a QDRO to be entered after your death.  

I have read online that my ex may not be entitled to any portion of my pension if I remarry, or if I remarry before I retire, Not likely.  It is common for a former spouse to lose an interest in your survivor annuity if SHE remarries prior to a certain ago. or if I retire before the QDRO is complete.  I'll be engaged next month and I do plan on remarrying before I retire. There is law that says that if you remarry and then retire, your new spouse will be entitled to the survivor annuity and your former spouse will lose that right.  Can anyone please confirm any of this for me, is it true, and that simple?  The problem is that there are about 40,000 defined benefits plans (pensions) governed by a Federal laws known as ERISA, the REA and the PPA.  (You don't need to know what these acronyms stand for.) Other Federal plans cover FERS and CSRS pensions.  Another Federal law covers Military pensions.  Another State Department employees.  In addition, States, Counties, Cities, Municipalities and other political subdivisions will have pensions governed by other laws.  The outcome is not uniform.  So you need to know how the  rules of your plan that seems to be https://www.ocers.org/

You didn't say what you job was for Orange County, but in many jurisdictions if you are a law enforcement officer, a firefighter or a correctional officer, you former spouse is not entitled to survivor annuity benefits - only a current spouse. And your marital settlement agreement, if you have one, or if not , the Judgment of Divorce, may not have mentioned survivor annuity benefits at all and there are states that hold that if you don't mention it in you agreement and the court doesn't order it, the former spouse doesn't get it. .

Note that I have spent a lot of time talking about survivor annuity benefits since that is where the most problems occur.  You former spouse's share of your retirement annuity it divisible  by a formula known as the "time rule" -

Your gross pension payment/2 multiplied by a fraction (the coverture fraction) where the numerator if the number of months of creditable service performed during the marriage and the denominator is the total number of months of service at the time of your retirement. 

It looks like you were married while in the Plan for 7 years - 84 months.  And you will retire with 25 years =300 months.  So if your pension is $6,000/month, the formula would be $6,000/2 - $3000 x 84/300 $840 a month as her share.  The Plan Administrator will be able to give you a more accurate estimate. 

 Here is a form of  QDRO published by OCERS - https://www.ocers.org/sites/main/files/file-attachments/model_dro_a_-_active_or_deferred_members_-_prior_to_retirement_fillable.pdf?1731944789

If not true or that simple, can someone please explain what I can expect or should do in this situation (never did a QDRO, it's been 14 years since the divorce, and I plan to remarry)? She will not need any portion of my pension as she has done very well for herself these past 14 years Sorry. Doesn't matter. The pension is community property and if she was awarded a portion she will get it.  17 years when I retire, and I will need it all. She has not remarried, if that matters.  There are no simple answers. I have been preparing QDRO for 38 years and every plan the is governed by a different law and difference regulations has different rules.

I would he happy to read your Agreement and Judgment of Divorce and try to provide some insight,* but you are going to want to find a lawyer in your area using this website -  https://www.aaml.org/find-a-lawyer/   to find out what you need to do.  AAML lawyers have a high level of expertise.  Get every publication that the Plan Administrator has before you see the attorney. There are actually about 175,000 different pension (defined benefit) and retirement (defined contribution like a 401(k))  plans in the US and they work in mysterious ways.   

*marylandmediator@gmail.com or Fax to 301-947-0501. 

David

Foundation Theory.pdf

[Rokablly]

David, thank you so much for taking the time to provide all that information. I sincerely appreciate it! 

As for my job with the County of Orange California, for almost 20 years I was an Animal Control Officer (not a sworn peace officer position), rising up to a Supervising Animal Control Officer. However, a little over 2 years ago I Y-rated (stepped down) to a Staff Specialist. 

The divorce papers say the following:

RETIREMENT

A stipulated Qualified Domestic Relations Order (QDRO) shall be prepared dividing the community property interest in petitioner's Orange County Employee Retirement System benefits plan equally between the parties with the date of marriage being March 14, 1998 and the date of separation being January 3, 2012. Both parties shall equally bear the cost associated with processing and obtaining said stipulated QDRO.

That is all it says and it is not mentioned anywhere else.

The OCERS says I am under Plan J General Members (Plan J: (General Tier 2) 2.7% at 55) but I could not find any other information on their website so I will need to call them to get the rules and regulations for the plan.

My girlfriend, soon to be fiancé, are planning on obtaining an attorney. Do you recommend doing that asap, after we get married and/or closer to when I plan to retire? 

 

UPDATE:

I called OCERS to obtain the rules and regulations and was informed that 50% of my pension will be held until they have the QDRO. There is no statute of limitations or remarry clause. My ex will get what she gets unless the order from the court itself is amended and I was told by an attorney that is next to impossible so a waste of time and money.