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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