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  1. #1
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    Sep 2016
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    Default Remedies for a Lawyer's Failure to Complete and File a QDRO

    (All actions were completed in CA) Almost 20 years ago my wife and I went our own ways. I worked for a company with a 401K and a defined retirement benefit. We were married from start to finish during my employment at that company. She was due 1/2 it value. During the proceeding I signed a QDRO that moved 1/2 of my 401k to my ex wife. I assumed that the same happened to my retirement account. How almost 20 years later her lawyer is seeking to have me complete the QDRO which will reduce my retirement account 1/2. I am within 2 years of retiring. There is no time for me to recover / change plans. Is this malpractice? Is there a statute of limitations that applies? Do I have recourse? Open to all thoughts for I do not wish to have my pension cut in half after planning for this amount for past 10 plus years.

  2. #2
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    Default Re: Remedies for a Lawyer's Failure to Complete and File a QDRO

    Quote Quoting brittle2
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    How almost 20 years later her lawyer is seeking to have me complete the QDRO which will reduce my retirement account 1/2. I am within 2 years of retiring. There is no time for me to recover / change plans.
    You speak of a "defined retirement benefit" and a "retirement account", and are apparently referring to the same benefit. Please be clear in your language.

    Would this QDRO change the amount to which she would have been entitled had the QDRO been entered as intended, @20 years ago? If not, and you believed that the QDRO had been filed, then there should be no impact on your retirement planning because you believe all along that a QDRO had been entered that would have the same effect. If so, then the question is why the lawyer is proposing a QDRO that would have a different effect than the one you intended to file back when you divorced.

    Your ex-wife may potentially recover the money that she was awarded through the divorce judgment under a number of legal theories. Rather than listing theoretical possibilities based upon speculation, this is something for which I suggest that you consult a family lawyer who has an opportunity to review your divorce judgment and your ex's lawyers present demands.
    Quote Quoting brittle2
    Is this malpractice? Is there a statute of limitations that applies?
    You may be able to form a malpractice claim based upon your lawyer's failure to prepare a QDRO and serve it on the plan administrator, assuming your attorney was tasked with doing so; you may be able to form a malpractice claim based upon your lawyer's failure to notice that no QDRO was filed, if the preparation and filing was tasked to your ex-wife's lawyer. You may be able to avoid application of the statute of limitations under Civil Code Sec. 340.6(A), "In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of that act or event". It's a fact-based analysis, so if you are considering suing your former lawyer I suggest consulting a lawyer who handles legal malpractice cases, and taking along a copy of the judgment and any other relevant documents that are in your possession.

    However, if the impact of the entry of a QDRO is that you end up with exactly the amount of money that you would have, had the QDRO been prepared and filed @20 years ago, a malpractice case would seem doomed to fail based upon a lack of damages. Perhaps you can explain how it is that you believed that the QDRO did not affect your defined retirement benefit/account, such that you did not already make the changes in your retirement planning that you posit you would have made but for the failure to file a QDRO.

  3. #3
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    Oct 2006
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    Default Re: Remedies for a Lawyer's Failure to Complete and File a QDRO

    Quote Quoting brittle2
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    (All actions were completed in CA) Almost 20 years ago my wife and I went our own ways. I worked for a company with a 401K and a defined retirement benefit. We were married from start to finish during my employment at that company. She was due 1/2 it value. During the proceeding I signed a QDRO that moved 1/2 of my 401k to my ex wife. I assumed that the same happened to my retirement account. How almost 20 years later her lawyer is seeking to have me complete the QDRO which will reduce my retirement account 1/2. I am within 2 years of retiring. There is no time for me to recover / change plans. Is this malpractice? Is there a statute of limitations that applies? Do I have recourse? Open to all thoughts for I do not wish to have my pension cut in half after planning for this amount for past 10 plus years.
    In addition to what Mr Knowitall said, I will also point out that while many retirement benefits can be divided via a QDRO at the time the divorce happens, some of them, particularly those more designated as pensions or defined benefits plans can only be divided at the time that a qualifying event occurs, such as someone's retirement. Therefore its quite possible that no one did anything wrong at all. Its possible that only you had mistaken assumptions.

    I suspect that you have received annual information about your pension...and I suspect that you did not see a sudden drop in half after your divorce and QDROs were final. That should have told you something.

  4. #4
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    Feb 2008
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    Default Re: Remedies for a Lawyer's Failure to Complete and File a QDRO

    I agree with llworking. 401k benefits generally get split immediately at the time of QDRO into two separate accounts. Pension plan benefits generally aren't split until payout starts. It is possible you made a bad assumption and possibly misunderstood at the time that both would be split and have been assuming your pension balance was fully yours. Pensions use different formulas/calculations and it is possible they won't know yours until you actually go into payment status. At that point, they would then subtract out her portion. Pension plans (DB) are much different than DC (401k type) plans.

    You need to find the original QDRO and see what was stated in there. . If the pension plan wasn't in the original one, then your wife would be the one affected as the alternate payee (she would be the one to lose if the pension plan didn't have the QDRO on file at this point and started payouts before they received it -- she would have to sue you in civil court to recover any moneys and you could possibly name the attorney if you could somehow prove it was his/her mistake). And she would have to prove you agreed to it at the time and it didn't make it into the original QDRO. Usually both 401k and pension would be covered in the same QDRO. But that is something that should have been checked by all sides 20 years ago.

    So I think she might have a better case/standing if she has lost benefits whereas one could argue that you didn't lose anything -- just that you aren't getting as much as you assumed.

    Do some more investigation before signing anything.... Does the plan administrator have a QDRO on file? That's another place to check.

  5. #5
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    Sep 2016
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    Default Re: Remedies for a Lawyer's Failure to Complete and File a QDRO

    "Would this QDRO change the amount to which she would have been entitled had the QDRO been entered as intended, @20 years ago?" - Working assumption is she is entitled 50% of its value. Married, employed at company, departed, and then divorced. The QDRO, if filed, now will change the amount I will receive in my retirement. Example; I currently will receive $1,000 at 65. After filing the QDRO I will receive $500. A sizable impact. The lawyer who should have filed the QDRO was the ex-wife's lawyer. She filed for divorce. I responded.

    Big thanks for your thoughtful response. I will seeking legal help before signing anything. Best guess there is about $150,000 at state (4% retirement rule). Lots of money in my world.

    Is there an implied timeframe for filing a QDRO once the divorce is finalized? Finalized being the court approved the filing and I'm now divorced. Plus, thanks for the thoughtful reply.

    Sign nothing without review by a lawyer well aware of this area of law. Agree 100% percent. Thanks for the thoughtful response.

    Big thanks to all that contributed to this thread. Not feeling much better about my situation but the advise has been thoughtful and will increase my understand of my situation once I engage a family / divorce lawyer to help build a plan.

  6. #6
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    Oct 2006
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    Default Re: Remedies for a Lawyer's Failure to Complete and File a QDRO

    Quote Quoting brittle2
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    "Would this QDRO change the amount to which she would have been entitled had the QDRO been entered as intended, @20 years ago?" - Working assumption is she is entitled 50% of its value. Married, employed at company, departed, and then divorced. The QDRO, if filed, now will change the amount I will receive in my retirement. Example; I currently will receive $1,000 at 65. After filing the QDRO I will receive $500. A sizable impact. The lawyer who should have filed the QDRO was the ex-wife's lawyer. She filed for divorce. I responded.

    Big thanks for your thoughtful response. I will seeking legal help before signing anything. Best guess there is about $150,000 at state (4% retirement rule). Lots of money in my world.

    Is there an implied timeframe for filing a QDRO once the divorce is finalized? Finalized being the court approved the filing and I'm now divorced. Plus, thanks for the thoughtful reply.

    Sign nothing without review by a lawyer well aware of this area of law. Agree 100% percent. Thanks for the thoughtful response.

    Big thanks to all that contributed to this thread. Not feeling much better about my situation but the advise has been thoughtful and will increase my understand of my situation once I engage a family / divorce lawyer to help build a plan.
    Obviously a QDRO got done, because she got half of your 401k. Since you were married for the entire time that you worked at that company, then it makes perfect sense that she would receive half of your pension from that company. Had it been able to be divided at the time that you divorced, she would have received half of it then, and therefore your half could only have grown to half the amount it is now. I personally think that you would be throwing good money after bad, to attempt to fight this now.

    The only exception to that would be if you could prove that your pension WAS able to be divided back then, and that it was ACTUALLY divided back then, therefore she already got her half of it. I sincerely doubt that is what happened, but you could research that to find out if you want to take the time to do that. Otherwise, I doubt you would want to spend the money on a attorney for something you cannot fight.

  7. #7
    Join Date
    Sep 2016
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    3

    Default Re: Remedies for a Lawyer's Failure to Complete and File a QDRO

    "The only exception to that would be if you could prove that your pension WAS able to be divided back then, and that it was ACTUALLY divided back then, therefore she already got her half of it. I sincerely doubt that is what happened, but you could research that to find out if you want to take the time to do that. Otherwise, I doubt you would want to spend the money on a attorney for something you cannot fight."

    My heart is in the fight. Her lawyer caused this mess; he should fix it (think $'s). However, I have mentally positioned myself to lose 1/2 my retirement account. Again - thanks for the insight and thoughts you shared.

  8. #8
    Join Date
    Sep 2010
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    19,901

    Default Re: Remedies for a Lawyer's Failure to Complete and File a QDRO

    Some pension plans address QDRO handling. Had a big federal court case a few years back when some Continental airlines pilots got "sham" divorces to allow them to pull out money from the (failing) pension plan.

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