By Cara Cookson
Breslin v. Synnott, 2012 VT 57
Friends don’t let friends draft QDROs. For our lay readers, a QDRO (Qualified Domestic Relations Order) is a special family court order that pension plan administrators require before they will distribute one person’s pension benefits to his or her ex-spouse according to the terms of a divorce. We can blame the Feds or ERISA for QDROs, but that’s an acronym explanation FAD (for another day).
For our attorney readers who have yet to discover the joy of QDROs, heed our warning: that pension might look like a tempting pot of assets that you can sprinkle around to “even things out” at the end, but beware! Let the other side just have the vinyl collection and walk away.
Family law attorneys find QDROs annoying—they should be easy enough to draft (“thou shall give X dollars to so-and-so”), but they usually demand exorbitant amounts of time and attention. Every pension plan administrator has its own “form” QDRO that absolutely must be used and used perfectly or else the administrator will spit it back out like a dollar bill in a change machine. Imagine multiple 20-digit account numbers that need to be grouped into arbitrary categories. Imagine minutes of your life ticking away as you listen to elevator music and wait to talk to a real human being about the coverture fraction. Pre-approvals. Post-approvals. Birth names and blood types. (Ok, not blood types—at least, not yet.) Some attorneys make their livings doing nothing but drafting QDROs. These people are true American heroes and should be commended for their service.
Here’s what this case has to offer about QDROs: despite all of the handwringing that happens around the QDRO process, it is the FINAL ORDER AND DECREE OF DIVORCE that reigns supreme. The QDRO is only a tool that implements the final order; it is not a superseding order. Therefore, where a QDRO contains an error and the plan refuses to accept a new QDRO that fixes the error, the family court can compel a party to do whatever the plan requires to effectuate the FINAL ORDER.
Here, the FINAL ORDER awarded half of husband’s pension to wife, with husband to keep the remainder. The first QDRO mistakenly awarded wife a survivorship benefit in addition to her one-half share in the pension benefits; husband did not object or appeal. Later, the parties jointly filed, (and the family division approved,) a second QDRO to fix the error. When the plan administrator refused to accept the second QDRO but suggested that wife could simply waive her right to the survivorship benefit, wife refused. The SCOV affirmed the family division’s decision to grant husband’s motion to enforce the final order, ordering wife to execute the waiver. The final order trumps the first QDRO, because the first QDRO did not conform to the final order’s directive that husband should retain the remainder of the pension.
Ok? Back to the Olympics.