Читать книгу Rightfully Yours - Gary A. Shulman - Страница 21

A QDRO must include all of the required information in a manner that can be easily interpreted by the plan administrator of the pension plan. However, when Congress enacted the federal QDRO provisions of the law in 1984, they granted the power of reviewing and approving QDROs to the pension plan administrators themselves, rather than to the courts. As a result, most QDROs are rejected by plan administrators even though they have been signed by the judge. Imagine that. There are not many areas of the law where someone could look at a certified court order signed by a judge and respond, “Sorry, Judge, we don’t like it. Try again.” Because of these QDRO technicalities and the ability of the pension plan administrator to make the life of a divorce attorney miserable, many attorneys (perhaps even yours) are intimidated by QDROs and federal pension laws. And whether it’s intentional or not, this is why many attorneys forget to draft QDROs in the first place.

Unless your divorce attorney is diligent in following through with the QDRO process (and most of them aren’t), you will never see any portion of your ex-husband’s pension benefits. For many attorneys, it’s just a race to retirement: they hope they retire before the case they handled for you blows up (when your ex-husband retires and you find out that a QDRO was never prepared or approved by your ex-husband’s employer). As adversarial as divorce attorneys are by nature, virtually every one in the country will agree to one thing: QDROs are, by far, their single, largest malpractice trap today. QDROs are their worst nightmare (which, unfortunately, could make them your worst nightmare as well).

If your attorney did draft a QDRO for you when you divorced, you must be sure that the QDRO was signed by the judge. But more importantly, you must be sure that the QDRO was reviewed and “approved” by the pension plan administrator, which is usually the company itself. Someone in the pension or personnel department may be responsible for reviewing your QDRO. Pension administrators are required by law to review a QDRO and alert the parties, in writing, of its qualified status. In other words, once your attorney submits the QDRO to the pension plan administrator, the company will respond to all parties and let them know whether it is approved or rejected. Therefore, it’s important to follow through with the QDRO approval process. If you have not received a QDRO approval letter from the pension administrator, then you should contact the administrator to inquire about its qualified status. Don’t rely on your attorney to follow through for you once he or she closes your file after the divorce. It would definitely be in your best interest to contact the plan administrator yourself if further changes are required to the QDRO.

It’s also important to understand that if the pension administrator rejects the QDRO, it will not fix the QDRO for you. Unfortunately, it doesn’t care if you ever submit a proper QDRO, because most companies don’t like dealing with QDROs either. And some of them are very paternalistic toward their own employees. I heard one plan administrator remark: “Why should she get any of his pension while he spent thirty years up the pole and she was sitting at home eating Bon-bons?” What I am trying to say is, don’t think for a minute that the plan administrator will help you get the QDRO approved. So I urge all of you not to give up on the QDRO if it was rejected. Contact the attorney who drafted it so that he or she can fix any deficiencies. And contact the plan administrator, repeatedly if you have to, to see if your QDRO was finally approved. Remember, unless your QDRO is approved by the plan administrator, you will not receive any of your ex-husband’s pension or savings plan benefits.