FAQs

If your former spouse’s retirement plan is maintained by a private company, the plan is governed by federal law. Namely, the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC). Both statutes require a specific type of court order called a “Qualified Domestic Relations Order” (QDRO) to assign or transfer retirement benefits to a spouse or former spouse of the employee/participant. Unlike your Judgment which may only contain general terms concerning your right to the retirement plan, the QDRO contains detailed provisions required by ERISA and the IRC—and additional provisions regarding taxation, distribution start dates, payment upon death of either party, etc.

A QDRO is a term under ERISA which is federal statute that applies to private sector retirement plans. Depending on the employer, governmental plans are established under other federal, state or local statutes that do not use the technical term QDRO. Although these governmental plans do not require QDROs, the governmental plan in your case is subject to similar rules and guidelines regarding the transfer of retirement benefits in a divorce or legal separation. In other words, you will need court order that directs the retirement plan to assign/transfer retirement benefits that is tailored to the retirement plan in your case.

The union plan requires a QDRO to assign you benefits to which you are entitled under the foreign judgment. A QDRO, by definition, is an order issued by a court of competent jurisdiction—which refers to a U.S. state court. To obtain a QDRO in your case, the divorce decree from Canada must be registered in a state court which will give the U.S. state court the authority to issue a QDRO.

It is not too late to obtain a QDRO. In your case, you may still obtain a QDRO to receive your share of future benefits. You may, however, have lost the right to make an election to receive payments over your lifetime—meaning that payments may terminate based on your former spouse’s retirement election. With respect to back pay—the particular facts and circumstances of your case will determine whether and to what extent you can receive back pay—either directly from your former spouse or from the retirement plan in the form of an increased share of the pension.

If the Judgment does not address a marital asset – the asset is considered an unadjudicated or omitted asset. The Court has continuing jurisdiction (authority) to divide unadjudicated or omitted assets at anytime. The first step is to determine whether and to what extent the pension that is payable to your former spouse was earned during your marriage. If so, you likely have a claim a portion of the pension payable—which can be secured by a QDRO or DRO.

We have helped many individuals in this situation secure their rights to pension benefits. Our knowledge and experience with countless companies/entities and their retirement plans give us a great start in gathering information that will enable us to “find” pension assets that have a community property interest. We will seek information through subpoena or otherwise in an effort to locate the plan or plans that can divided; and then take any and all steps necessary to complete the division.

To answer this question we will need to value the community and separate property interest in the various accounts/plans. Once we arrive at values for each plan/account, we will present our findings and recommendations which typically offer multiple options to divide the various accounts/plans. In doing so, we take into consideration the features and characteristics of each plan so that the parties are fully informed as to the consequences of their agreement. For example, two plans may have the same marital value but one may provide “better” survivor benefits—such that a simple trade off could produce an inequitable or undesired result.

Perhaps. This is a somewhat common fact pattern. Of course, it works the other way too—where a current spouse is designated as beneficiary to receive a greater share of survivor benefits to the exclusion of a former spouse who was married to the employee for the bulk of his/her career. These are often contentious (or at least, sensitive) issues but in many cases there are ways to work out an resolution between the parties. The end result will depend on the facts of the case which require analysis and often creativity.

Generally, yes. A QDRO may provide for payment of marital property, spousal support, and/or child support. The use of a QDRO for spousal support or child support is not limited to on going (current) support and may be used to effectively reimburse you for amounts owed. QDROs for support (whether arrears or current) present unique issues but are quite effective to capture past amounts owed due for support.

Yes. You have the right under In re Marriage of Gillmore to compel your former spouse to pay you directly the amount that you would receive from the pension if your former spouse retired now. This right stems from the Gillmore case and is known as a Gillmore Election. You may only exercise the Gillmore election if your former spouse is eligible to receive his/her share of the pension. There are pros and cons in making a Gillmore election and if spousal support payments are being made—consideration must be given to the impact a Gillmore election has on support payments. Gillmore Elections always begin with determining the amount payable and consideration of all facts and circumstances in your situation.

How generous of you. You may certainly hire our firm to assist you with your decision whether or not to waive your rights to the pension. If you decide to waive your interest, we will need to prepare a court order (not a QDRO) that vacates or voids the existing QDRO so that your claim to benefits under her pension plan is released.

Perhaps. Your mother has been presented with a legal document that will impact her retirement benefits. It is extremely important that the QDRO protect her rights and provide for an accurate division. It is also important she understands fully what she is signing. We can do everything from reviewing the QDRO and providing her with our comments and suggestions; to engaging in negotiations with the attorney threatening to return to court and seek sanctions; to representing your mother in litigation, if necessary.

This is precisely what distinguishes our services from other QDRO preparation services. We have encountered just about every issue and many personalities in the course of our representation. In cases where there are valid points of contention, either through ambiguities in the Judgment or law, we present the client with as much information as possible so that they can decide whether to open the doors to negotiation or whether to move forward with litigation. We regard litigation as a last resort and make every attempt to resolve issues before recommending litigation.