Divorced in Feb of 2004. Briefly, after close to three years, my ex-wife, impatient with her last two attorney's failed attempts to get a domestic relations order qualified against my 401K, decided to take matters in her own hands. She personally drafted a DRO using Fidelity's website, but instead of specifying the valuation of ~ $4,000 agreed upon in our divorce decree, she specified a valuation of ~ $18,000. Subsequently, without consulting with her attorney or informing my attorney - she went before a judge (asleep at the wheel with judicial immunity) and had him sign this draft order - under the pretense that the order had been drafted and approved by both party's respective counsel. She then send the order to Fidelity - who qualified it, segregated the accounts and executed a complete disbursement in less than two weeks...

Since no one knew what she was doing, I didn't become aware of this until I saw the account segregation. (Mail notification from Fidelity lagged behind a few days after this.) Within days, my attorney had the judge issue a TRO against Fidelity disputing the QDRO and barring any further processing; however, Fidelity advised that the disbursement had already occured and any relief would have to be obtained from my ex spouse.

Although another TRO has been served on her - barring her from spending the funds, this is a grim situation. I suspect that I have been deprived of about half of my 401K without any due process or recourse - unless one considers an un-enforceable civil judgement a remedy. My ex wife already has $17,000 worth of unsatisfied civil judgements - she will never comply with an order from the court - contempt or not.

Any thought about how this might be salvaged would be welcome.

Regards,

Bjorn

The Plan ADministrator of your plan, presumably your employer or former employer, as the case may be, must follow QDRO procedures upon receipt of a court order. One of the procedures is to notify you, immediately, of the receipt of the order, and then notify you once it has determined whether or not the order is a good QDRO. Naturally, this is to occur before any money is paid to the alternate payee (i.e., in this case your ex-spouse).

You may be able to hang your loss on the Plan Administrator if the QDRO procedures weren't followed, if as a result you never had an opportunity to step up and complain before Fidelty paid the $$ to your ex-spouse. You should have your attorney look into this.

Yeah, I've been looking for any thread that I could hang an ERISA violation on.

See the timeline:

11/20/06 - Fidelity Mails a letter advising that a DRO was received for review as to its Qualified Status
11/20/06 - Fidelity's system shows Qualified on first review, sent for second review.
11/24/06 - Order put in to have funds segregated
11/27/06 - Funds segregated.
11/29/06 - I recieve the letter advising of the QDRO review - note - the QDRO is not included - I have no basis for action yet.
11/30/06 - I notice that my accounts have been segregated and I notify my lawyer.
12/6/06 - Less than a week later, trying to get word back from Katina's attorney reqarding the QDRO, he advises is unaware of - her attorney advises that he did not draft the DRO. Ex spouse admits what she did. Judge issues a TRO barring Fidelity from processing the DRO same day
12/11/06 - Fidelity advises that full disbursement has already occured ( prior to 12/7, but they refuse to disclose the exact date for Privacy Reasons - protecting my ex's rights!) They say the TRO is moot and any relief will have to be obtained through the ex spouse.

There never was a hope of stoping this based upon notification. Fidelity argues that the fact that the mail was delivered after the disbursement does not create a liability. I'm not sure if this chain of events creates a liability for them either... We'll see in court I suppose.

Although you will probably not prevail, I wish you luck in efforts against Fidelity. In this case, it is not obvious that Fidelity flauted the law, but it does in other respects relating to QDROs and I constantly hope that Fidelity will get its comeuppance. At least do your best to spread the word that Fidelity is a villain when it comes to QDROs. Maybe someday the 900 pound gorilla will become civilized if it gets enough public shaming.

The real culprit is your plan administrator, who simply bought into the Fidelity system and did not establish prudent QDRO procedures. A prudent system would delay implementation of the QDRO for a reasonable period after the notice of qualification is issued. 30 days is my standard. However, I don't think you would prevail aginst the plan administrator. Although ERISA fiduciaries are held to the highest standards known under human law (or so some courts say), intelligence does not seem to be the paramount factor.

By the way, I disagree that the 11/29 notice provided no basis for action. You should have known whether or not an order was going to court. If Fidelity said it was looking at an order and you did not already know about it, you had reason to start asking questions, not that it would have made any difference in catching the money before it was gone.

QDROphile - thanks for the well wishes. I agree whole heartedly with your assesment of Fidelity. They have consistently demonstrated a lack of competence or efficiency (except when it applies to making disbursements.)

AT&T (my employer) recently replaced another plan admisitrator (I believe it was Hewitt) with Fidelity. It would appear that this was a decision based upon the lowest bidder for the contract. Fidelity in no way approaches the performance of the previous administrator. When I point out concrete examples of that to Fidelity - they point out they are BIG and that is WHY... :-( They also say they will note my account with my concerns. (Thier way of blowing me off.)

I'll file an executive complaint with the VP of HR, but AT&T is another 800 pound gorilla - and I doubt they will take action either.

Hey, if nothing else - its nice to hear from someone that cares. The Fidelity CSR this morning expressed her frustration with me that she has spent 32 minutes on a call while I went over the timeline to confirm my understanding of the dates. I replied that if she found those 32 minutes to be frustrating - imagine how I felt!

Wishing all of you a Happy Holiday!

Regards,

Bjorn

PS - to protect my employment - please note that the opinions expressed are entirely mine - and do not reflect the position of AT&T.

Just to add insult to injury, Fidelity just sent me the notice that they were qualifying the QDRO, with the details about the account segregation (amount, etc.)

The letter was dated November 29, 2006, but the envelope was postmarked December 22, 2006.

Remarkably, this is also the same day I advised Fidelity that I felt there failure to send such notification in a timely manner potentially constituted a ERISA violation...

Although my ex-spouse's behavior verges on criminal, Fidelity's handling of this matter is pretty contemptible as well.

Bjorn

Not much to add but good luck going against Fidelity; I hate 'em too. There has to be some liability on their end, or if not them the Plan Administrator who delegated authority to them.

I'd say your ex's behavior didn't verge on criminal, it was criminal.

Have you taken a look at your plan's general claims procedures? I think that some take the position that an executed order is an official claim for benefits under the plan (regardless of QDRO procedures) and that an order that has not been executed by both parties (or their representatives) is subject to waiting period before disbursement of funds to the alternate payee. If this is the position of the plan and the plan administrator did not follow this...could you not bring suit under ERISA? As for Fidelity...what are your plan's procedures for releasing your benefit information? Some take the position that they will not disclose information until you provide consent or a subpoena is received...if she received info from Fidelity or the PA without your consent...long shots, I know, but possible avenues....

I recommend if your ex has the money, go after the ex first. That would be much easier than going after the plan.

Some of you may recall my situation - the ex fraudulently executed QDRO's against my 401K / Pension...

http://benefitslink.com/boards/index.php?showtopic=34257

For those of you that are interested, I achieved the following result in State Court.

1) Order and Judgement of contempt against my ex-spouse. Order states that my ex-spouse misrepresented her marital interest (overpaid by $14,256), misrepresented that the orders had been prepared with counsel, and then 'contumaciously' dissipated the overpayment - in violation of a TRO.

2) The order stayed execution of the contempt and required my ex spouse to repay the funds plus atty's fees (an additional $2000) at a rate of $450 / month for the next 5 years or so - with 9% interest imposed. Failing to do so, an arrest warrant is to be issued and she will have to remove the contempt through judicial process.

3) The order also vacated and set asside the DRO's that Fidelity had Qualfied.

I've recieved my first check for $450 ( about 25% of her take home salary) and notice from my ex spouse that she will likely be laid off next month. You gotta love it! :-) After she defaults, I'll spend the next 10 years or so pursuing her with this judgement.

On another note, I have also filed an ERISA claim ( with Fidelity) for failing in its Fiduciary Duty. Their failure to send timely written notification was nominally my rationale. Fidelity will have exhausted their 90 period to respond to my claim tomorrow. As of yet - no response.

The day after tomorrow:

1) I'll complain to the DOL about Fidelity's failure to respond
2) Send Fidelity a certified letter asking if their failure to respond constitutes a denial and request my claim file and all related documentation.
3) Consider filing an appeal in preparation for filing an action.

I understand that bringing action against Fidelity (pro-se) is somewhat ambitious. :-) Is it likely that a Judge would require me to pay Fidelity's legal fees?

A final note regarding AT&T and Fidelity. I had concurrenlty filed an Executive Complaint with AT&T's leadership regarding the manner in which Fidelity has handled the Pension and Savings plans for me and other employees. HR Leadership was initially apologetic and promised to take the fight to Fidelity. However, after I filled the ERISA claim, AT&T's HR clammed up and no further contact was recieved (thanks Legal).

I will note that Fidelity has drammatically changed their approach, too. Before I took action, Fidelity Customer Service Reps were generally unhelpful and sometimes insulting. At present, they are SUUUUPER Nice! I've been told that a note has been attached to my account advising that all contacts are to be handled by a supervisor - who is generally very pleasant. :-) I suppose the executive complaint - and the other employee complaints - have done some good.

Regards,

Bjorn

Bjorn,

FYI, there is a corollary in the law. When a bank accepts and acts on a forged check, and therefore makes a payment to the forger and deducts the funds from a depositer's account, the law generally favors the depositor against the bank. That is, the bank has to restore the amount to the depositor's account, and the bank is left holding the bag if it cannot recover against the forger. The rationale is that between the depositor and the bank, the bank was the one in a position to have prevented the forgery from succeeding. Therefore, the bank should have to stand the loss, not the depositor, if the $ cannot be recovered from the forger.

Here, as between you and Fidelity/AT&T, they should have to bear the loss (not you) if recovery cannot be had from your ex-wife. Fidelity/AT&T should restore your 401k account, and be subrogated to the claims against your ex. Also, that remedy would give you back the tax advantages of having those funds in the 401k. Your collecting from your wife won't do that.

J

I appreciate your response. Fidelity seems inclined to default and not respond within the 90 period given for claims to be processed - this is a presumptive denial. I'll see if I can weave the argument you made above into my appeal. It certainly is food for thought.

Regarding the tax implications. Generally, you are correct - judgements are considered taxable income. However in this case, becuase the judgement orders the return of retirement funds, the IRS is taking the position that this is non-taxable income for me (at least $14,256 is non-taxable, the $2000 atty fees may be taxable.) The IRS says my ex spouse is actually responsible for paying the taxes on the whole $18,000 while at the same time ordered to give me the funds by the judgement! Fun with the tax code! :-)

Fidelity didn't withhold any taxes when they did the disbursement - they sent my ex the entire $18,000 that they segregated. My ex should end up owing about $6000 Federal and State taxes on this. Since she claimed in court that she had immediately spent ALL of the money upon reciept in December of 2006 - this could get ugly for her.

Here's the final accounting on this. Assuming my ex pays anything (a BIIIG assumption) she will end up paying me about $20,000. She will pay the IRS about $6,000 (and they WILL get thier money). And she paid about $1000 in atty fees defending against the motion for contempt. In all - she owes $27,000 for the $18,000 she recieved. Alternatively, she could have done things right - and walked away with the $4,000 that she was due - free and clear.

A final consequence of this relates to custody of my 6 year old son. Presently, I have full custody. Even if I never get a dime, my ex-wife has pretty effectively destroyed her credibility in the eyes of Familiy Court. The Guardian Ad Litem (for my son) was in the court for an unrelated matter and inquired as to why he had not been involved. When I told Brian what my ex had done - his immediate comment was, "Stupid F__ing people! She ought to be in jail." She will be at a significant disadvantage if she ever seeks to oppose me in Family Court again.

Just want to leave the atty's on the board with one final humerous image, particularly those with Family Court practices... My ex spouse atty's had submitted a motion to withdaw - so my ex (pro se), her former atty, my atty and the Judge were all having a conference in the Judge's chambers. My atty had just layed out the case for fraud, my ex's atty substantiated everything my atty. asserted, and the Judge told my ex, "I hope you brought a tooth brush!" Confused... my ex asked, "Why?" And the judge informed her she would return the money or go to jail. At that point, my ex launched into the "Stupid Men Defense" claiming that her actions were justified by the long line of stupid men involved: me, my atty, her past three atty's, and yes - even the judge..."

The Judge was still lauging about that two days later.

Regards,

Bjorn

One problem with your claim against fidelity is that you are trying to make a claim for fiduciary breach through the benefit claims procedure, but you don't appear to have a claim for actual benefits because you are still employed and therefore you will likely get nowhere with your ERISA claim (the 90 day rule, etc.).

Others can probably guide you better, but your claim is for Fidelity as a fiduciary to restore losses to your account due to the fiduciary breach. You would need to file a complaint in a state court of competent jurisdiction or in federal court for breach of fiduciary duty under ERISA.

Based upon your earlier statement that Fidelity was chosen because they were the lowest bidder would suggest that ATT breached its Fiduciary duty to pick a suitable replacement vendor--but this would be pretty hard to prove and I don't recommend people sue their employers.

Hello Bjorn,

I've got a slightly different situation related to a Fidelity-AT&T QDRO (pending) and I'm asking for your help.

I need to execute a QDRO against X-W's AT&T LTSPME (as well as her ATTMPP).
W/R/T her account, the X-W harmed my interest by taking secret loans out against her account and thereby, eliminated the original cost basis of the holdings. The value on the positions would be more than double what she is proposing (>$30,000 increase).
The X-W also failed to disclose one of her loans and how it was in violation of court order from 2-days prior to that loan, as well as Consent Order signed by the court ~8 months earlier. Clearly, this second loan would have decreased the post-marital period value by $10,000 (plus opportunity cost of appreciation), half of which was to have been mine and is part of my pending claim against her.

Then there's the loan after the divorce and during post-judgment litigation period - a loan that yielded ~$3,200 in cash and another $18,700 to refinance the balance outstanding since she originated it in violation of Consent Order. Note, Fidelity apparently didn't issue a 1099-R distribution statement for the default - no payments for 10 months after she FMP'd.

Note, all of X-W's loans were secret, used for unnecessary and hostile litigation.

I posted more details under another thread under 401k Loans.

I need the official plan documents, as well as all updates (typically July 2007) to the SPD, the SMM and the SEC-11k. I need the specific offical plan documentation pertaining to plan loans (the SPD, SMM and SEC-11k didn't satisfy the Family Court Judge, who was also not satisfied by account statements depicting the loans and their funding and repayment dynamics). If you could get this info that would be great. The SPD depicts that the Plan Committee's Offices are in Bedminster.

I also need certain NAV historical data and would appreciate if you could provide:
A - NAV pricing history for the funds below as of March 1, 2003
B - Dividend distribution dates for the funds below as of March 1, 2003
C - Dividend reinvestment rate ($/unit) on the dividend reinvestment dates
D - NAV per unit for dividends reinvested for the following funds and as of March 1, 2003.

All fund families of interest are proprietary/hybrids (no publicly available data - available if you are a plan participant). The 60-day challenge period once a QDRO gets issued isn't enough to do the thorough and proper assessment to disprove the lies and prove the harms.
1. AT&T US Equity Fund
2. AT&T International Equity Fund
3. Strategic Growth Fund
4. Stable Value Fund
5. AT&T Fund
6. COMCAST Fund
I realize some of these funds have since been removed caused by corporate restructurings, so pricing would be through then.

The Family Court Judge ignored how the SPD and the statement data corroborated my claim of harm. In fact, I was held for counsel frees payable to the judge's friend, X-W's attorney and her firm.

I'm curious to know if you are in Mass or NH (perhaps why Fidelity is also being more cooperative for you). If you're in NJ, perhaps you'd be interested in meeting to transfer the info I seek.

You may email my privately, if you prefer. Many thanks for any assistance you could provide (including if there's a symbol in a Barron's table or elsewhere for any of the fund data I'm seeking.)

I'm also interested in hearing how your case is coming along.

Regards,
TrustButVerify

Hey - I appreciate your response. If I'm reading correctly - you identify two problems:

1) You assert that because I'm still employed - my claim is not for actual benefits, but instead based upon future benefits.

I would respond that the $18,000 disbursement to the AP is an actual benefit. And when incorrectly given to the AP - denies me of my rights to those funds - in the present - not at some future date.

2) You assert that a more appropriate venue is an action in Federal or State court.

My plan is written so as to require me to exhuast adminstrative reviews, before I can file an ERISA action. An adminstrative claim alleging an ERISA violation against Fidelity, followed by an adminstrative appeal are necessary preconditions to filing an ERISA claim in Federal court.

Regards,

Bjorn

TrustButVerify,

It sounds like you've had a hard time in Family Court. I'm sorry to hear about your situation and wish you the best of luck.

Fidelity took over the administration of the plan in 2006; records before 2006 can be quite difficult to obtain... I can help you with the SPD's, but a lot of the valuations and disbusement dates you are requesting may be very difficult to obtain... You have my email address - respond and I will forward the SPD's as an attachment.

Best Regards,

Bjorn

Papillon,

Did you get your ruling in Family Court or in Civil Court?

What about the clueless Judge that signed the Fraudulent QDRO?

riogrande

Riogrande,

Given that the matter involved the violation of a property settlement described in a divorce decree, St. Louis County Family court was the venue. I made the point that the judgement against my ex-wife was a civil judgement (as opposed to criminal) to underscore that my remedies (in the event that she refuses to comply with the order and judgement of contempt) are somewhat more limited than they would be in a criminal matter.

Regarding Judge Jamison - his liability is pretty much limited by the principle of judicial immunity (attorneys - please speak up if you disagree.) Now theoretically I could make a complaint with the Missouri Bar that his signature on this Domestic Relations Order demonstrated incompetence or negligence. It was a fraudulent document, prepared by the ex-spouse, brought to him without either counsel's knowledge. It seem unlikely that he even read the document before signing it; such is the trust the this judge placed in the cousel who's names were attached to the document as drafters. (Apparently he didn't think it odd that the litigant - as opposed to counsel was deliverying him the order for signature.)

However, I suspect the most that would come of this is a letter from the Bar admonishing the Judge to read orders before signing them... Moreover, it would be a very impolitic thing for me to do. Although Judge Jamison is clearly not the sharpest knife in the drawer, he is regarded with affection by his peers in the Bar and Judiciary. Attorney's I know generally say things like, "awww shucks - he is such a nice guy!" Complaining to the Bar about such a pleasant Joe might not endear me to his peers who would have to hear my pleading in other matters related to my divorce or custody. Particularly given the favorable judgements I've recieved in the past few year, any potential complaint about Jamison might appear mean spirited.

Bjorn

Sigh - I thought I was finished here.

Some of you might recall my previous posting. My ex-wife fradulently submitted a bogus DRO that she had drafted - misrepresenting to the MO circuit court judge that it was a product of the attorneys. The judge signed and Fidelity incorrectly issued her a check for $14,000 from my 401K. $4000 in attorney's fees later, I had an order and judgement of contempt: vacating her fradulent 401K and pension DRO's and demanding she pay me the 401K money back plus attorney's fees or go to jail. Several bad checks later, she was arrested and spent 5 weeks in jail on the contempt charge before being released on a $2000 bond - and fled the state. Presently she owes me $16385 on the order and judgement. She also has an outstanding muniplal warrant for sending me bad checks to pay the order. But as some of you might know, enforceing misdermeaner / civil warrants out of state are pretty impossible. Finally, she is in default on our custody agreement. I have sole physical and joint legal of our son. I could go after ~$330/mo support - but to what point.

Regarding everything up to the present - folks - its a wash. My ex-wife is judgement proof (no assets / no identifiable job) and out of state to boot. The judge - though arguably incompetent - had judicial imunity. And Fidelity, in response to my ERISA complaint - argued that they are not responsible for the idiot judge signing the order - or the mail being lost that might have notified me of the DRO submission. I'm prepared to walk away from the money - and chalk it up to a flawed system.

Unfortunately, my ex calls me from a blocked number and indicates that she's not finished. She recalls that she still has a right to file a DRO relating to my pension. She suggested that if I didn't want to face another fiasco with my pension (as I had experienced with my 401K) that we come to an agreement regarding the $16,385 - essentially giving her credit in exchange for her waiving her right to go after ~ $5,000 from my pension.

OK - with that background... :-) I'm pretty tired. We were divorced 4 years ago amd I'm resigned to being a single custodial parent with no help - but this is getting to be torture!

My thought is that any incentive to get her to pay anything would be to my advantage. I could offer to her a discount on the $16,385 - assuming she makes agreable progress towards payment. If she doesn't pay - I don't loose anything. If she does, I avoid the headache of another DRO affecting my pension. Of course, for all this to work. it would entail modifying a Marital Separation Agreement, an order and judgement of contempt, etc.

Thoughts?

Bjorn

Her 'challenge' is just a bluff. In order to file a DRO against your pension plan, she has to identify where she is, and then a warrant can be issued. I would also file for the child support and add that to the warrant. Judges do not like anyone skipping on child support.

Have you considered contacting the FBI? I don't know if this is within their jurisdiction, but I'd think that they could locate her if they really wanted to. Good luck!

You should make sure a flag is added to your pension account. They should have a note about the previous false DRO and the ex's threat to file another potentially false DRO. While you have little power to stop a valid DRO, since they would then be on notice of possible false filings, this gives them incentive to verify w/ you prior to processing.

Take some small consolation that you were awarded sole custody in a state with a presumption of joint custody.

Ask your attorney if you can record any future phone calls from ex-wife?

Maybe I'm not understanding the facts, but it sounds like you are saying that your ex-wife's proper share of your pension is ~$5,000 and that if she has been told she needs to give back the entire $14,000 that she previously received then that in effect restores her right to the $5,000.

I think you should run this by an attorney in your state, but I doubt that to be the case. The plan has already distributed $14,000 to her and unless it gets it back, it remains forever on its books as a payment to her.

Because it was obtained fraudulently, you have an order for her to repay the money to you (not to the plan). Is that correct?

If so, then as stated above, from the plan's perspective, she has been paid $14,000 and doesn't have any further interest.

Or, are you saying that she is entitled to $~5,000 more than what she previously received? Notwithstanding the fact that the $14,000 was obtained fraudulently, if she really is entitled to $5,000 more than what she previously obtained, then she is correct that you can do precious little to stop her from going after it if she decides to go through the motions.

Obviously, for her to do so would require her to be "found" so it is highly unlikely that she would.

But there is another alternative you can consider. And while this may not be something you look forward to doing, it may be in your best interest. YOU might be able to go into court and get a combination order: first, a QDRO which is payable from the plan to your ex-spouse for the amount that she is theoretically still due ($~5,000); second, an order from the court indicating that you should be awarded that money in partial recompense for the existing order that you have.

Or, another alternative to the $~5,000 is to have the QDRO drafted as payment for child support.

Your goal in this is to eliminate the pension as a potential source of money for your ex-spouse. You do that by having a QDRO issued that awards you her remaining share of your pension. If you do nothing, and leave it there, then at some point, probably the most inconvenient point you can imagine, your ex-spouse shows up with a QDRO and you have to go through all of this again. (Of course, even if you do this, there is nothing stopping her from presenting another fraudulent QDRO at any point in time.)

I'm not familiar with enough of the facts to say whether any of these approaches will definitively work for you, but I think you might want to consider investigating them with counsel to see if they will.

I think the $14K was from the 401(k) plan and the ~$5K applies to the pension plan. In keeping with Mike's interesting suggestion, remember that a QDRO can cover more than one plan, so your legal counsel may be able to deal with both plans, both amounts in one order.

Mike - we think along the same lines. I had wondered if I could get a combo order to assign the proceeds of a Pension QDRO to me. But I don't think that I can do anything until I can serve her with process.

My lawyer - to his credit - seems reluctant to take anymore of my money for judgements that can't be enforced. This is after he recieved $14,000 for the divorce, motion to modify, Order and Judgement of Contempt (QDRO) and too many Orders of Protection to count. At this point, much of what I'm considering is Pro Se - given the relatively low risk / reward.

You're probably right about her popping up at a later date. 15 years from now - I'll recieve notice that a QDRO has been executed against my Pension without any notice, and $150,000 was incorrectly disbursed. :-) I would think it impossible, but...

In any event, I've filed an application with the Division of Child Support Enforcement requesting a Locator service and Motion to Modify Support. (They advise a minimum 12 month turn around.) If I get her located, I can consider filing (Pro Se) a garnishment regarding the judgement - or attempting to get a law enforcement agency to execute one of the several warrants she has. You'd be surprised at how reluctant the police are to execute a non-felony warrant in Missouri.

Largely, I'm trying to move on. This is a non-productive part of my life - and I need to resolve myself to the likely fact that she stole a chuck of my 401K that will never be returned, and she will never contribute to her son's support. I struggle with AT&T, Fidelity and the Judge's role in this - but there's nothing to do about that either.

And for those of you that can appreciate it... Celebrating more positive news - I just ran a 2:02:57 Half Marathon here in St. Louis. (Giving myself pat on the back.)

I'd be interested to learn whether there is any update to this saga.

Chaz - I'll bet your're the kind of person that stops to look at car accidents too... (Just kidding)

Strictly regarding the QDRO - the following occurred:

Fidelity denied my ERISA claim - arguing that they had merely qualified a court order signed by a judge. And that the fraud by Ms. Davis or lack of adequate judicial oversight did not create a liability on their part. Furthermore, their obligation to provide notification was limited to putting the letter in the mail. Failed deliver did not create a liability. I generally agreed with this response. Pretty esoteric arguments could be made that they were not particularly prudent in their practices - but I doubt that a Federal judge would have sustained my arguments.

Subsequently, out of spite - I lodged a judicial complaint against the Circuit Judge who signed the fraudulent order - alleging that his conduct constituted a pattern of negligence. (I think I used the phrase "witless execution") After some back and forth, the MO Commission for the Retirement Removal and Discipline of judges agreed that the Judge had made several judicial errors. The judge accepted and signed an order unsigned by any of the parties in violation of Missouri Civil Procedures. The judge did not note or think odd that a party represented by counsel would hand deliver a drafted of a DRO without the presence of either counsel - something that just doesn't happen in Family court in St. Louis County. However, the Commission ruled that the Judges errors were not of a frequency or severity to justify official action. This was an expected outcome - but I did have the satisfaction of calling a Judge witless without serious and immediate consequences. My attorney did get a call from the judge privately though - poor Lee...

Finally, Ms. Davis was found guilty of Civil Contempt and Ordered to pay $18,000 back at $450/month or be jailed for contempt. She paid approximately $1000 and then discontinued payments. She was arrested at her employer and spent 5 weeks in jail. Over the course of the 5 weeks, the judge successively lowered her bond from $18,000 down to $2,000. Her family eventually paid the $2,000 bond - and Ms. Davis then fled the state of Missouri. The $2,000 just covered my attorney's expenses in the Contempt proceedings.

A year or so later, Ms. Davis (from whereabouts unknown) did fax to the court another unsigned, self drafted DRO for a disbursement of my Pension. However, Judge Siegel, a more competent instance of a family court judge, notified all parties and refused to sign the document until all attorney's had first signed it. We never saw any other action on this matter.

Finally, I just last month accepted new employment with a pharmaceutical company. As a result of this transition, I'll be rolling what's left of my 401K and Pension into a roll-over IRA. Technically, Ms. Davis may still have a marital interest in a portion of the Pension; however, after the rollover - it will be impossible (I believe) for her to qualify any DRO against a disbursed Pension / 401K. She'd have to go back to court - something that would probably not go well for her.


It would be worth noting that in the LARGER context - the following happened.

After Ms. Davis fled the state - approximately 9 months went by without any contact with her son. She ultimately turned up in California and asked to have a visit with him. After much wrangling - and the offering of assurances - I permitted the visition. This was an unfortunate choice - as she did then refuse to return him from California.... The police were unsuccessful in negotiating his return and requested a Felony Interference of Custody Charge from the St. Louis County Prosecutor. A week or so later - perhaps at the direction of counsel - Ms. Davis returned our son.

Over the next year - I petitioned for a motion to modify that would require supervised visitation and child support. Ms. Davis retaliated with a flurry of pro se paper. She filed a motion to vacate the several year old Order and Judgement of Contempt on the grounds that it wasn't fair. She filed a petition for a Domestic Violence TRO in California - on the grounds that my actions were harassing her and she should be given custody of Ethan in California.,. She opposed my motion to modify on several grounds. I presume she was the author of an anonymous complaint to DFS alleging physical abuse.... On and on.

I spent about $5000 getting my Motion to Modify through and another $5500 defending against the frivolous TRO petition in California and other actions. I have prevailed in all actions involving Ms. Davis - and am no better for it. One cannot win against an indigent litigant content to file pro se petitions frivolously.

Presently, Ms. Davis still owes about $18,000 on the Order and Judgement of Contempt and $1800 in back child support - which continues to accrue at $450/ month. She has multiple misdemeanour's warrants for bounced checks and failure to appear and my attorney will remove the stay in the Contempt Order in October - resulting in another warrant. (The Police dropped the Felony warrant after Ethan was returned.)

Key Lessons:

1) Obviously - marrying the wrong person can be a life changing event.
2) ERISA's reliance on the state judiciary to supervise DRO's is troubling. In St. Louis county - Judge's rely almost completely upon attorney's to draft orders and ensure that everything is correct - as attorney's have liability to the Bar and through malpractice. An indigent pro se litigant has no liability and no interest in maintaining the integrity of the court. Judge's need to be minimally aware of their surroundings...
3) Indigent Pro Se Litigants / Frivolous litigation can be a curse. In some States - after an excessive amount of litigation - a party can be labelled a Frivolous litigant and slowed a bit. Missouri is not one of those state.

My strategy moving forward is to continue to pile up judgements and warrants - in the hope that Ms. Davis will simply move on to whatever else interests her - and leave me and my son alone. I'm not terribly hopeful - but its the best strategy that I can imagine - under the present circumstances.

Cheers,

Papillon

Thanks for the update. You have, no doubt, the collective sympathies of everybody here.

Be aware that every financial institution has their own rules regarding the disposition of IRA monies. And while an ERISA-based Qualified Domestic Relations Order should be limited to qualified plans such as 401(k) plans, it is quite possible that a financial institution would "honor" such a document. Even if they say they won't today, there is the distinct possibility that the rules which govern qualified plans could be extended, someday, to IRA's on a national level. So, whether or not the financial institution you select makes it seem that history cannot repeat itself, you still might want to put them on some kind of notice.

Mike - thanks for the advise.

Best Regards

Bjorn

MIke, while your point is valid, hopefully she won't ever learn what financial institution to contact!

What benefit would be gained by imposing the cumbersome procedures of QDROs on a plan where there is no fiduciary, in place of the procedures in IRC 408(d)(6) which permits the IRA owner to authorize a transfer of IRA funds to the spouse on a non taxable basis? The custodian of the IRA as a non fiduciary merely follows the direction of the IRA owner and the divorce decree and a records the transfer as non taxable event creating an IRA interest in the spouse. The custodian would never agree act as a fiduciary to determine the validity of the DRO unless it received a substantial fee for the work involved which would be paid from the IRA.

Are you kidding? "Cumbersome" is irrelevant. This is the very essence of Congressional legislation!