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Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1506
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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my qdro was not filed till after my divorce and ex retired.

Customer Question

my qdro was not filed till after my divorce and ex retired. that was a year ago he took ford hourly buyout money still trying to go to court next hearing march 2 keeps getting postponed. divorce order says i am to recieve a portion for 22.5 yrs marriage. hearing coming up is for interpatation of buyout monies. can you tell me what this means and why since divorce states this. Claims he needs this money for health insurance which he gave up buy taking a larger lump sum of money. he had 2 options lifetime health or more money 6 months health insurance. my lawyer is not being very helpful in questions.
Submitted: 4 years ago.
Category: Family Law
Expert:  Lawrence D. Gorin replied 4 years ago.
ANSWER:
Your fact presentation does not provide a lot of info, but I suspect the following has occurred. Your divorce judgment treated husband’s Ford Motor Co. retirement interest as a marital asset, at least to the extent the interest was acquired during the 22.5 years of marriage, with you being awarded one-half (50%) of the “marital portion” of the asset, with the actual determination of dollar amount being deferred until commencement of retirement benefits.

The divorce judgment makes the award by specifying a formula to be subsequently applied to determine the “marital portion” of the retirement asset, with your then being awarded 50% thereof. Usually, this is accomplished by the use of a “coverture fraction,” the numerator of which is the number marital years coinciding with husband’s plan participation (let’s assume 22.5) and the denominator being husband’s total number of years of plan participation. The numerator is divided by the denominator, yielding the “marital portion” in terms of a percentage, which is then multiplied by one-half (50%). The product of that calcluation would then be multiplied by the actdual dollar amount of the plan participant’s monthly benefit at such time in the future when the plan commences to pay-out retirement benefits.

A QDRO is merely the vehicle that is used to implement the award made by divorce judgment so as to authorize the retirement plan administrator to divide the retirement benefit at its source and pay directly to the “alternate payee” (the former spouse) the court-awarded portion thereof (thus eliminating the former spouse from having to look to ex-husband each month of payment of her court-awarded share). Generally, a retirement/pensio plan interest remains under the control of the plan participant until and unless the plan administrator has received a domestic relations order (QDRO) that directs and legally authorizes the plan administrator to take part of what is otherwise the property of the plan participant and segregate it for the benefit of the alternate payee. In your case, had the QDRO been timely received by the plan administrator, husband would not have been allowed to take the buy-out in full all for himself, at least not without your consent.

Not all cases require a QDRO separate and aparent from the divorce judgment itself. In many cases, all of the elements and information required in a QDRO can be included within the divorce judgment, this eliminating the need for a separate document. And if a separate QDRO document is going to be used, it is generally the better practice to defer submitting the divorce judgment to the court until the QDRO has been prepared, and then submit both documents to the court simultaneously.

It is important to understand that your legal right and legal entitlement to a portion of ex-husband’s Ford Motor Co. retirement entitlement was determined and awarded to you by the divorce judgment, and this is true even if no QDRO was ever prepared. (As a matter of law, the, the property asset is (was) divided by the terms of the divorce judgment, not the QDRO.) When husband subsequently decided to take the Ford Hourly Employees buyout money (essentially, a buyout of the retirement entitlement he would have otherwise been entitled to receive), he was receiving “property” that, in part, belonged to you. He had not right to pocket the money, to the extent of your court-awarded share, and keep it for himself. (This is not much different than the divorce court having awarded you, at the time of divorce, a portion of a bank account that had been under husband’s sole name and then, after the divorce, he went to the bank and withdraw all money in the account and pocketed it for himself. He had no right to do that, and he KNEW he had not right. And you have legal recourse to recover the share of the property asset that he has now “converted” to himself. He should not be allowed to get away with that (and thereby defy the will of the court).

His claim that he needs this money for health insurance which he gave up buy taking a larger lump sum of money is a bunch of hooey. He had no right to unilaterally take such action that directly affected property asset that, in part, had been awarded to you by the divorce court, at least not without at least having conferred with you regarding that decision. Presumably, you too need money for health insurance. If he had two options available (lifetime health or more money 6 months health insurance), he should have first discussed the situation with you. He was a jerk for not doing so.

I suspect the issue for the judge to decide at the upcoming court hearing is just how much of the Ford buyout money husband received rightfully belongs to you. And most likely the judge will then make a “money award” in your favor and order husband to make payment accordingly.

Hopefully, your lawyer is fully conversant with both family law and its interplay with retirement/pension law. I am troubled by the fact your lawyer not being helpful in answering your questions. This is, hopefully, simply a matter of the lawyer’s style and personality, or perhaps the lawyer’s frustration with you as a client (it happens), and not indicative of your lawyer’s lack of sufficient knowledge of the subject matter involved.

NOTE: I realize that this answer may not be entirely to your liking, and I regret being the bearer of information that you really don’t want to hear. But it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

L.D. Gorin (aka Zaide to my grandkids)
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Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1506
Experience: 30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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Customer: replied 4 years ago.
i pretty well understand your answer. we were divorced in june and he retiired in jan.
the decree readsi shall be entitled to and shall recieve an interest in any and all pension and/or retirement plans or benefits ,including a survivorship inteest and/or surviving spouse benefits in which the husband has acquired an interest during the marriage, whether such benefits are regular retirement, early retirement, disability, buy-out or otherwise, plus or minus any increase as a result of cost of living, ss, any other betterments or enhancements or other improvement including but noy limited to the ford motor co -uaw planof husbands. it goes on to talk about how it is determined by the fraction it also goes on to say that this court is by this entry creating or intends to create QDRO to insure I get my share of said benifits.also states court specifically reserves and retains the right to make in orders at any time in the future to carry out terms and intention and pupose of this judgement entry and QDRO.
So why do i have to keep paying more money and are we going back to court for the interpatation of the buyout monies? This divorce i was told by my lawyer would be 5000
and i am no up to 15000 . I feel like i was so invested in her and she new the case that i could no change attys at this point. if i recieve any money it will end up going to her most likley. I gave my word she would be paid !! Never returns phone calls and will not see me till day of court i would think she would discuss the proceedings with me. i always feel like i walk in to court blind. Thank You very much your answer was more through of an answer than she has ever given me. i speak with her asst most of the time she says she does not communicate well. what a bunch of bologna!! thank you again
Expert:  Lawrence D. Gorin replied 4 years ago.
FURTHER ANSWER:
The process of dividing a retirement plan incident to dissolution of marriage generally involves a two-step process. Step One is the divorce judgment itself that actually makes the “award” and spells out the details of the division. Step Two is the court’s directive to the plan administrator the provides additional information in compliance with federal law and plan requirements and authorizes and directs the plan to make the actual distribution and payment of the court-awarded share. In some cases both steps can be accomplished together through the divorce decree itself, thus eliminating the need for two separate documents.

Also keep in mind that the retirement entitlement under most state divorce laws is treated as a property asset (akin to money in a bank account), with the marital portion thereof generally being equally divided between the divorcing parties. And property division incident to divorce is generally a matter that is separate and apart from (and in addition to) spousal support (sometime referred to as alimony). Under the laws of most states, you are entitled to both your share of marital property as well as spousal support, with the former being a matter of right and the latter being a matter of judicial desecration usually based on a showing of economic need.

The decree language that you provided was apparently intended to “cover all the basis” so as to permit the divorce decree itself, as a DRO, to be deemed and accepted by the Ford retirement plan administrator as a QDRO, thereby eliminating any need for any further court order. That being the case, a court-certified copy of the divorce decree should have been submitted to the plan administrator IMMEDIATELY after being signed by the judge and entered into the court’s register. Had that been done, the plan administrator would have frozen the account and barred husband from receiving any money from the plan (including any buy-out money), pending further determination and acceptability of the divorce decree as itself being a QDRO. (At least that is what SHOULD have occurred.)

Now, with the plan having bought-out husband’s retirement entitlement, the plan is no longer involved with this case. The buy-out money that husband received from the plan inherently included the portion of the retirement entitlement that the court had awarded to you. I am assuming that the issue at the up-coming court hearing will be the calculation and determination of the specific dollar amount of the share previously awarded to you by use of the formula set forth in the divorce decree. I assume the court will then award a money judgment in your favor and against your former husband.

In hindsight (always being 20-20), your lawyer should have been in touch with the plan administrator long being the divorce decree was finalized. By law, the plan is required to have (and make available upon request) a Summary Plan Description (SPD) and a set for written procedures to be followed by the plan in making the QDRO qualifying determination. Further, most plans nowadays have sample or model forms that may be used in formulating plan-acceptable QDROs, available upon request. Your lawyer should have acquired all of this information long before the divorce decree was finalized. Had that been done, all of the elements necessary for the decree to be deemed as a QDRO could have been included in the decree or, alternatively, a separated document could have been prepared, all submitted to the court at the same time. I suspect all of the problems you are now confronting would have been avoided had this been done. Too bad that it was not handled in this manner.

At this point, the lawyer is into you for $15k. Way too much for what is and has occurred, in my opinion. But you are now in the home stretch, so might as well see it through it to completion. (I would then consider a bar complaint against your lawyer, and possibly a malpractice lawsuit.) From all that I can tell, this entire situation should have never occurred and could and should have been avoided.

Even from here in far-off Oregon, it took me but a few minutes to gather up the following helpful information:

The applicable federal law: 26 USC § 414(p)
http://www.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00000414----000-.html#p

QDRO FAQs from DOL
http://www.dol.gov/ebsa/publications/qdros.html#content

QDRO FAQs from Pension Appraisers, Inc.
http://www.pensionappraisers.com/pension/QDRO-FAQS-18.shtml

Drafting a QDRO - from US Dept. of Labor
http://www.dol.gov/ebsa/publications/qdros_appD.html

Summary re Ford Motor Co Tax-Efficient Savings Plan For Hourly Employees
http://www.qdrodesk.com/plans/FORD-MOTOR-CO-TAX-EFFICIENT-SAVINGS-PLAN-FOR-35021.shtml

Summary of Ford Motor Company UAW Retirement Plan
http://www.qdrodesk.com/plans/FORD-MOTOR-COMPANY-UAW-RETIREMENT-PLAN-35020.shtml

Info from Ford re Seniority Lay-off (OB) Benefits Coverage – UAW Hourly Employees
http://www.uaw588.com/files/Indef_Layoff_benefits.pdf

UAW Ford Report for Hourly Employees
http://www.uaw.org/contracts/07/ford/hrly/ford_hr12.php

OK. That’s all I can offer here. Had this been an Oregon divorce, and had I been your lawyer, the QDRO aspect of this case would have been handled entirely differently (and I suspect the costs would have been nowhere near $15k.)

I wish you well and hope all works out for the best at your up-coming court hearing.

LAWRENCE D. GORIN
Attorney at Law
Portland, Oregon 97201
E-mail: XXX@XXXXXX.XXX
Website: http://ldgorin.justia.net/index.html



Edited by Lawrence D. Gorin on 2/23/2010 at 6:43 AM EST
Customer: replied 4 years ago.
I was to go to court tomorrow but at the last minute got a call from my attorney's asst saying it is only going to be a settlement conference not a hearing what is the difference. She said that most likley they will be told to submit briefs on the legal postion of the judgment in the divorce. This was to take six months we are now at a year.
Expert:  Lawrence D. Gorin replied 4 years ago.
Further answer:
A settlement conference is typically a somewhat informal, off-the-record, conference between a judge and the lawyers for each party. Some judges want the clients present, others do not. Sometimes done in judge's chambers with only the lawyer; sometimes done it open court with the litigants and the lawyers present. The judge wants hear about the case and the issues in dispute from both attorneys and to see whether some agreement and compromise can be reached, resulting in a case settlement and avoiding the need for a trial. There is no absolute requirement to reach a settlement via settlement conference. If not settlement is achieved, the matter is put back on track and scheduled for trial. Settlement conferences generally are beneficial (and save money in the long run) and more often than not successfully reach the goal of an out-of-court settlement. Be optimistic and hope for the best.

LDG
Customer: replied 4 years ago.
this was already written in the divorce decree by the same judge. the buyout was inclued
what could they possible have to discuss does the judge not stand by his own ruling.
my attorney keeps saying it is the interpatation of the buyout.Or is just that the QDRO was not prepared befor the divorce was final. My ex lives out of town and is back today i am sure it is for court. my attorney said to feel free to come if i want too. after our first conversation. should i go?
Expert:  Lawrence D. Gorin replied 4 years ago.
Dear Bubby:
First, YES you should go! Absolutely! It is NOT your lawyer’s case; it is YOUR case. You should be present, even if not needed for active participation in the settlement conference.

Second, I suspect you are correct in your conclusion this entire matter has already written into the divorce decree by the same judge. Perhaps the judge has looked at the court file and now wonders (as you do) just WHY a hearing is needed at all. Perhaps that is why the judge changed the game-plan and now wants a settlement conference rather than a court hearing. Perhaps the judge simply wants to use the settlement conference as a way to get the whole matter quickly resolved without need for a formal court hearing, with the judge using the settlement conference as the opportunity to explain to husband that he (husband) does not have a legal leg to stand on, that his farcockteh objections are pure dreck, and that he (husband) must pay to you the money that belongs to you, as previously awarded to you by the judge. Period. End of discussion. End of case. (And no need for a court hearing.) At least let’s HOPE that’s the way it goes.
Customer: replied 4 years ago.

I just returned from settlement hearing. Sat in the hall for about 45 minutes My atty came out and said they have to reaserch what the buyout money was to be used for. Future health benifits and to supplement his benifits then it is not part of the settlement and i am not entitled to any of it. She said she is having a hard time getting Ford to respond to the question on what was it intended for. She is also trying to get the answer from Fidelity I was given the same answer. I this just a bunch of BULL!!
You did so much research in such a short time I do not get it. Next hearing set for June 23
asked why so long it takes time. Any way I can find out what the buyout is intended for?
I wish you practiced in Lorain County , Ohio
Expert:  Lawrence D. Gorin replied 4 years ago.
FURTHER ANSWER:
You’re right. This is bunch of bull. During the course of the marriage, your husband acquired an interest in a pension/retirement program. Under Ohio law, a spouse’s acquisition in the right (“entitlement”) to receive future pension/retirement income, to the extend acquired during the years of marriage, is considered as MARITAL property. It is deemed and treated for divorce purposes as an asset that is jointly owned. Upon divorce, absent consideration for doing otherwise, the asset is EQUALLY divided (at least to the extent of the portion that was acquiring during the years of marriage).

In your case, the entitlement to the receipt of a stream of income upon retirement was never realized. Instead, rather than a long series of month retirement checks, the retirement plan and husband entered into an agreement whereby, in consideration of a lump sum payment, being presently made, the retirement plan would simply “buy out” husband’s future interest. And that is what was done. To the extent the divorce decree awarded to you, intended as your separate property, a portion of the retirement entitlement (should such ever be paid out by the plan, you should be likewise entitled to the same proportionate share of the “buy-out.”

The fact that he was offered to buy-out option and opted (without even consulting with you) to take the one that yielded more money into his pocket should not affect your right to receive your share of the buy-out proceeds. Further, as to “w hat the buyout money was to be used for” is totally irrelevant. Once the money is received, the recipient could use it for any purpose he wants, regardless of intent. Also, at to any consideration of health care coverage, you too need money for health care coverage. (Seems like that is not being considered here.)

In any event, at the time the buy-out occurred, your husband was given a bunch of paperwork that explained the situation and circumstances and explained the options that were being presented. And the, to finalize the deal, he had to sign a written agreement by which is indicated his option choice and accepted the buy-out offer on those terms. Husband needs to be order to produce the paperwork!! And if he does not presently have it, he can easily get copies from the plan administrator. This should NOT be a problem. Alternatively, your lawyer can issue a subpoena to the plan administrator requiring production of the records. Again, this should not be a problem.

OK. I’m sorry you are having to deal with such t’sorus. It is not right. But it does appear that there may be some light at the end of the tunnel. Were I the judge, I would be telling your ex-husband to stop being such a schmuck and do with he knows to be the right thing to do.

Regards,
L.D. Gorin
http://ldgorin.justia.net/index.html
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1506
Experience: 30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
Lawrence D. Gorin and 8 other Family Law Specialists are ready to help you
Customer: replied 4 years ago.
he still gets a monthly check and I recieve one also seperate accounts . the buyout money is an early retiement incentive pkg which he had two choices to choose. that is what i do not understand in my earlier question i asked bout the buyout in the judgement. now the judge wants it in writing that this money was not for future use. well of course it is but it was accumulated when we were married 30+ years.
Any ideas on how i can find out the exact wordage on this. Gosh you have been so kind
i am at the end of my rope with this.
Expert:  Lawrence D. Gorin replied 4 years ago.

The divorce judgment, the court awarded you, and expressly declared that you shall be entitled to received, "an interest in any and all pension and/or retirement plans or benefits, including a survivorship interest and/or surviving spouse benefits in which the husband has acquired an interest during the marriage, whether such benefits are regular retirement, early retirement, disability, buy-out or otherwise * * * ."

 

That seems pretty clear and all-inclusive. Simply apply the formula as set forth in the divorce judgment to the amount of the buy-out and that takes care of that. The right to receive the buy-out, which was actually an early retirement incentive, was a right based on employment that occurred during the 30+ years of marriage. I do not understand the basis on which it can be argued that you are somehow not entitled to your court-ordered portion thereof.

 

Had a QDRO been prepared, standard language would have been included declaring that "The Alternate Payee shall be entitled to a pro rata share of any early retirement subsidy (including any temporary or supplemental benefits) provide under the Plan to the Participant."

 

Also, I do not under why "the judge wants it in writing that this money was not for future use." What difference would THAT make? Whether the money was for past use, present use or future use would appear to be irrelevant. You are entitled to your 1/2 of the marital portion (determined by the formula set forth in the divorce judgment) regardless. As a general rule, money is paid based on past services to the employer, with the money intended for the employee's future use. That's pretty obvious. As kids nowadays would say: DAH!!!

 

Well, I've gone as far as I can with this discussion. If this were an Oregon case, I would obtain a complete photocopy the entire court file in your case and give it a full evaluation and analysis (as I am often called on to do by other Oregon lawyers who are not fully experienced and knowledgeable in deal with the retirement and pension issues as the pertain to divorce). This is something that, perhaps, your lawyer in Ohio should have done early on. (Too often, younger lawyers are afraid to admit to a client that they really don't have a full understanding and need to call on another lawyer for a little bit of help.)

 

So I wish you well, and I thank you for you kind and flattering words. Take a bit of solace in the fact that the situation could always be far worse. Think of all of those who put their gelt with Madoff and now have bupkis. Something is better than nothing, I suppose, and hopefully you have good health.

 

PS: You have already paid for the information provided here. No need to do so again.

Customer: replied 4 years ago.
Once again thank you for your kindness and help.

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