Question: At the time of our divorce eight months ago, my husband had been employed by a large national employer for nearly 25 years. The judge awarded me half of his pension when he retired and half of his 401k plan in cash. My lawyer prepared the divorce decree - which included alimony and property division - and told me that he would have to prepare what he called a "qualified domestic relations order" that would be necessary for me to get the 401k plan cash and my share of the retirement benefits. For eight months, I heard nothing from my lawyer, even though I continued to bug him about protecting my interests. When I found out that my husband had remarried and retired and told my lawyer, he scrambled around and prepared an order that the family judge finally signed. Six weeks later, my ex-husband's former employer refused to honor the order, telling my lawyer that they will give me no interest in the pension. My lawyer tells me we will have to sue the employer to get my money. What do I do in the meantime?
Answer: Pray. And save room next to you for your lawyer. According to a recent court decision - the first of its kind in the country -- where the qualified domestic relations order (QDRO) was not prepared and submitted until after the divorce was final and the former spouse remarried and retired before submission, the QDRO was found to be unenforceable - meaning that the former wife could not collect surviving spouse benefits from her ex-husband's pension.
This type of problem can arise either (1) when a dependent spouse does not get a share of the pension at the divorce and later seeks one after the employee-spouse fall behind in his alimony payments, or (2) where the pension is divided at divorce, but the lawyer lets the divorce become final before the QDRO is final.
Your situation is the latter, but in either, the employee-spouse could retire or remarry quickly in order to deprive the former spouse of the pension share because, once remarried and retired, the surviving spouse benefits vest in the new spouse and you, as a former spouse, can not claim them.
Based on this decision, it appears that suing the company may just be a waste of time and money because, according to at least federal court, a QDRO can be used to split the pension only if the benefits are payable to a "participant" of a pension plan. Once survivor benefits become vested in the new spouse, they are no longer payable to you as a "participant," and therefore they couldn't be divided. The benefits vested in the new spouse when the employee retired, not when he died.
Your interest in the surviving spouse benefits could have been protected simply by your lawyer obtaining a QDRO at the time of the divorce decree or in a timely fashion thereafter -- before the your husband retired. Although we can not understand why you and your husband could not wait until a QDRO was put in place to get divorced, your lawyer should have told you about this potential problem and the necessity of securing the QDRO from the court before the divorce was final. At a minimum, your lawyer should have gotten a temporary QDRO to provide survivor benefits while the regular QDRO process was ongoing and/or a temporary restraining order prohibiting your spouse from retiring until the QDRO process was completed.
Bottom line: If a divorce is allowed to become final before a Qualified Domestic Relations Order is approved, the employee-spouse can defeat the spouse's rights to pension benefits. That's why it's very important for lawyers to put these orders in place before the divorce in order to avoid, as here, the problems that could otherwise occur.
The decision we discuss is Hopkins v. AT&T Global Information Solutions Co., No. 96-1363, filed by the U.S. Court of Appeals for the 4th Circuit on January 24, 1997.
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