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Question: My ex wife and I have been divorced for 15 years. In the original divorce decree, she signed off on not getting any money from my pension. 

Recently she filed a QDRO (Qualified Domestic Relations Order). Can she get anything after signing not to?

 

Answer:

The federal Employee Retirement Income Security Act (ERISA) of 1974, as amended, governs many retirement plans. I say many because not all plans qualify for ERSIA treatment; for example, ERISA does not apply to most plans for public employees and certain small business plans. Plan participants interested in learning more about ERISA and whether ERISA governs their plan may search online at www.freeerisa.com and www.dol.gov/ebsa.

A Qualified Domestic Relations Order (QDRO) is an order approved by a retirement plan administrator to divide the benefits in certain ERISA-governed plans between a spouse (the payee) and a former spouse or other family member (the alternate payee) according to the terms of a state order. The order becomes “qualified” when the plan administrator approves it. The plan administrator may disapprove it even if the court enters it as a DRO because, as a matter of preemption, federal law controls where state laws or orders are to the contrary. If the state order does not contain all of the information ERISA requires in the format the plan administrator requires, the plan administrator may disapprove it.  Parties often find themselves submitting multiple orders (and paying attorneys to draft them) before the order satisfies the plan administrator. Therefore, it is important to have a plan administrator review any draft order before submitting it to the state court for entry. 

As sometimes happens when federal and state laws intertwine, state courts have become increasingly technical (and at times sloppy) when dividing rights to retirement accounts. For example, Michigan compartmentalized retirement benefits. In Quade v Quade, 238 Mich App 222; 604 NW2d 778 (1999), the Michigan Court of Appeals held that a Judgment of Divorce that awarded fifty percent of the spouse/plan participant’s “pension” awarded no early retirement benefits because those were a “separate right.” Common parlance would suggest the word “pension” included them. (Fortunately, the decision has since been overturned by statute). 

For you, your ex-wife’s proposed QDRO may be clearly contrary to your decree; it may be, similar to Quade, that your ex wants a share of unmentioned benefits; it may be that your ex wants to divide a different pension. Review the proposed QDRO carefully, compare it to your decree, and raise any concerns with the court and the plan administrator immediately to avoid premature division.

ERISA law is complex, and only an attorney skilled in the area of the law who can review your actual order and your ex’s proposed QDRO can assist you. I suggest contacting an attorney immediately because there are timing requirements, some as short as 7 days, to challenge a court order.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Illinois. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information and legal representation. Cordell & Cordell has many attorneys licensed and located in Illinois

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.


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