Full question:
MY husband's ex-wife insist that she is entitled to some or half of my husband's pension when he retires. They were married 5 yrs. from 1975 to 1980 when they got a legal separation which became their divorce agreement. It is not mentioned in their agreement that she is entitled to his pension. We live in New York State. If she is, is there anything we can do now to prevent this or can we try to get some of her pension?
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: New York
Answer:
Generally, the pension is only subject to the claims of an ex-spouse when the divorce decree says so. If the asset wasn't concealed during the divorce and the decree contains no provisions for a QDRO regarding the pension, then the other spouse wouldn't have a claim on the pension. ERISA defines a QDRO as a domestic relations order that creates or recognizes the existence of an alternate payee's right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a pension plan.
There would likely need to be some type of fraud or special circumstance involved to waive the statute of limitations for an appeal. Some of the factors that may be considered include whether the omission of the pension from the property settlement agreement was intentional, whether a mistake was made and the other spouse did not receive a fair share of the pension, whether the lawyer overlooked the distribution of the husband’s pension, or whether the ex-spouse gave up her share of the husband’s pension in return for receiving other marital assets? We are prohibited from giving legal advice, as this service provides information of general legal nature. We suggest you consult a local attorney who can review all the facts and documents involved if you are unsure of the terms of the divorce decree.
The answer will depend on the terms of the property settlement in the divorce decree, whether there are any QDRO provisions, and id so, whether the QDRO order has been filed with the plan. A court that renders a dissolution decree generally retains the power to enforce the property division made in the decree. The court may render further orders to enforce the property division made in the dissolution decree to assist in the implementation of or to clarify the prior order. The court may specify more precisely the manner of effecting the property division, as long as the substantive division is not altered or changed. The court has at its disposal a variety of methods to enforce the property division, including a clarification order, an order to deliver specific existing property, a money judgment, an order enforcing an award of the right to receive installment payments or a lump-sum payment, and enforcement by contempt.
A qualified domestic relation order (QDRO) is a court order in a domestic relations case that orders pension or retirement plan benefits to be used to provide alimony or child support, or to divide marital property in a divorce. ERISA is the primary federal law governing pension plans of employers. ERISA was amended in 1984 by the Retirement Equity Act. One of the provisions of the 1984 amendment created an exception to ERISA's preemption provisions for a qualified domestic relations order. ERISA defines a QDRO as a domestic relations order that creates or recognizes the existence of an alternate payee's right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a pension plan, and that includes certain information and meets certain other requirements. Under federal law, the administrator of the pension plan that provides the benefits affected by an order is the individual (or entity) initially responsible for determining whether a domestic relations order is a QDRO. Under ERISA, there is no statute of limitations for the entry of a QDRO. Many attorneys wait months or years before filing the final Order with the Plan during which time the Participant may die, remarry, re-divorce (in which case another QDRO/DRO might be filed), or may make irrevocable retirement elections which cannot later be changed. These may affect all or part of the Alternate Payee's interest.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
