How do I keep my ex-wife from receiving half my pension if the judge awarded it?
Full Question:
Answer:
We believe that you are referring to a qualified domestic relations order
(QDRO). A QDRO is a special order that allows pension plans to be divided. It
orders direct separate payments to each of the divorced or separated
marriage partners. QDRO’s are governed by Federal law and are subject to
the approval of the pension plan administrator. A QDRO is a technically
sophisticated order. Such an order can not be “reversed” and can be
modified in extremely rare cases.
The IRC § 414(p) provides that a "domestic relations order" is any
judgment, decree, or order (including approval of a property settlement
agreement) that is made under a state domestic relations law, including for
this purpose a community property law, and provides for child support,
alimony payments, or marital property rights by a qualified plan payment to
an "alternate payee" (a spouse, former spouse, child, or other dependent of
a participant). To be a "qualified" domestic relations order, the order must
(1) specifically identify the alternate payees, the benefits payable to them,
the period of payment, and the plan involved and
(2) may not require any
form or amount of benefit not otherwise provided by the plan.
The determination of whether or not a domestic relations order is a QDRO is
made by the plan administrator within an 18-month period beginning with
the date on which the first payment would be required under the domestic
relations order. Code § 414(p)(6)(E). If the plan administrator identifies
deficiencies in a domestic relations order that must be rectified to make the
order a QDRO, such modifications are typically made during the 18-month
period. Intervening events, however, such as the participant's death,
retirement, or bankruptcy, may cut off a spouse's right to have a domestic
relations order made into a QDRO. Among other recent developments
discussed below, a number of recent judicial decisions have modified what
had appeared to be a rigid set of rules preventing the qualification of
domestic relations orders when such intervening events occur.
The Ohio Court of Appeals clarified the jurisdiction of a court to enforce
agreed-to amendments to property division judgments in a case in which
the divorce judgment had provided that husband would receive 50 percent
of the marital portion of wife's pension. When the first QDRO prepared
pursuant to this judgment was rejected by the plan administrator because of
uncertainty as to the portion of the pension that was marital, the parties
signed an amended QDRO which gave husband a full 50 percent of the wife's
total pension. Wife sought to amend that QDRO, claiming that she never
intended to relinquish her premarital interest in the plan and that she had
misread the amended QDRO. The trial court vacated the amended QDRO,
finding that without the wife's intended consent to the amended QDRO, it
lacked jurisdiction to have entered it.
The court of appeals reversed. While the court did agree that the trial court's
jurisdiction to enforce a post-decree modification depended on the
agreement of the parties, the court concluded that there was no evidence to
support wife's claim that she did not agree to the amended QDRO, as she
conceded that she had given her attorney authority to sign the QDRO. The
court pointed out that "The attorney-client relationship is considered to be a
limited agency. The attorney has no implied power to do more than relates
to the proper conduct of a suit, and cannot, without specific authority, bind
the client. However, it is beyond question that a duly authorized attorney
may enter into an agreed judgment entry the terms of which will be binding
on his or her client. " Thus, wife was bound by her attorney's actions and
the trial court had jurisdiction to enter the order. To the extent relief was
available for her mistaken agreement, it would be under Ohio’s relief from
judgment rule to have the original order set aside.
