Full question:
I am receiving alimony after a marriage of 27 years. I will be eligible to start receiving my share of my ex husband's pension in a few months. When if start collecting the pension, will I lose my alimony?
- Category: Divorce
- Subcategory: Alimony
- Date:
- State: California
Answer:
The answer for when alimony terminates will depend on the terms in the divorce decree. Generally, receipt of funds ordered to be paid under a qualified domestic relations order (QDRO) from a pension plan does not extinguish the right to alimony. Alimony may be periodic, lump sum, rehabilitative or reimbursement type. A court may award permanent or temporary alimony or both to either party. Judges have discretion when ordering the duration of alimony.
If the ex-spouse has failed to comply with the terms of the divorce decree, it is possible to file a motion for contempt. A court that renders a dissolution decree generally retains the power to enforce the property division made in the decree. The court may make 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. We suggest you contact a local attorney who can review all the facts and documents involved.
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.
